Bojorquez v. State

SCHWARTZMAN, J.,

concurs in the result.

I concur in the result reached in this case, albeit on a slightly different “harmless error” rationale than preferred in the majority opinion. While I strongly believe that placing a defendant on probation, in absentia, is the imposition of an integral part of a sentence in an unlawful manner,¹ the bottom line for Bojorquez would be to bring him back before the district court and have that court simply relinquish jurisdiction. If Bojorquez thinks he is legally entitled to be placed back onto probation as if he is just emerging from the retained jurisdiction program, after his illegal return to the United States and subsequent conduct, he should think again.

However, I would modify this Court’s dicta that “the preferred practice should always be to impose probation in the presence of a defendant.” It should be the ONLY practice.

1 . The reader is directed to this Court’s recent opinion of State v. Coassolo, Docket No. 25631 (Ct.App. Aug. 1, 2000), review granted October 16, 2000. Hopefully, the Ditmars/Wolfe dichotomy will be resolved once and for all by the Idaho Supreme Court.