USA v. Douglas Sharp Certified Question of Law - Withheld judgment
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 34092
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DOUGLAS SHARP,
Defendant-Respondent.
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Boise, January 2008 Term
2008 Opinion No. 7
Filed: January 25, 2008
Stephen W. Kenyon, Clerk
Certified question of law from the United States District Court for the District of
Utah, Northern Division.
Brett L. Tolman, United States Attorney, District of Utah, Salt Lake City, Utah, for
appellant. Elizabethanne Stevens argued.
Steven B. Killpack, Utah Federal Public Defender, Salt Lake City, Utah, for respondent.
Scott K. Wilson argued.
EISMANN, Chief Justice.
We have accepted the following question of law certified by the United States District
Court for the District of Utah, Northern Division: “Does an outstanding withheld judgment
based on a guilty plea qualify as a conviction under Idaho law?” We answer the question in the
affirmative.
I. FACTS AND PROCEDURAL HISTORY
On December 23, 1997, Douglas Sharp pled guilty to felony burglary in the State of
Idaho. At the sentencing hearing on February 13, 1998, the district court granted Sharp a
withheld judgment and placed him on probation for three years. The conditions of probation
included that Sharp pay fines, court costs, and restitution, and that he not possess a firearm.
Sharp successfully completed his probation, but did not move to have his guilty plea set
aside and his case dismissed pursuant to Idaho Code § 19-2604(1). 1 About five years after
Sharp’s probation terminated, he possessed a firearm in the State of Utah. As a result, he was
charged in the United States District Court in the District of Utah with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). The case in which Sharp received a
withheld judgment in Idaho is the predicate felony for the federal charge.
II. ANALYSIS
As it is ordinarily used, the term “conviction” means the establishing of guilt either by a
plea of guilty or by a finding of guilt following a trial. State v. O’Dell, 71 Idaho 64, 68, 225 P.2d
1020, 1022 (1950). “Generally, ‘judgment’ and ‘sentence’ follow ‘conviction’ as separate and
distinct aspects of criminal process.” State v. Chauncey, 97 Idaho 756, 757, 554 P.2d 934, 935
(1976). That is the meaning of the term as it is used in the relevant criminal statutes. 2
Idaho Code § 18-109 defines a public offense as an act or omission in violation of a law
which, “upon conviction,” may be punished by death, imprisonment, fine, removal from office,
or disqualification to hold and enjoy any office of honor, trust or profit in this State. Idaho Code
§ 19-101 provides, “No person can be punished for a public offense except upon a legal
conviction in a court having jurisdiction thereof.” Idaho Code § 19-109 states, “No person can
be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the
1
That statute provides as follows:
If sentence has been imposed but suspended, or if sentence has been withheld, upon
application of the defendant and upon satisfactory showing that the defendant has at all times
complied with the terms and conditions upon which he was placed on probation, or has
successfully completed and graduated from an authorized drug court program or mental health
court program and has at all times complied with the terms and conditions of probation during any
period of probation that may have been served following such graduation, the court may, if
convinced by the showing made that there is no longer cause for continuing the period of
probation, and if it be compatible with the public interest, terminate the sentence or set aside the
plea of guilty or conviction of the defendant, and finally dismiss the case and discharge the
defendant; and this shall apply to the cases in which defendants have been convicted and granted
probation by the court before this law goes into effect, as well as to cases which arise thereafter.
The final dismissal of the case as herein provided shall have the effect of restoring the defendant
to his civil rights.
2
In some statutes, the word “convicted” refers to being found guilty following a trial. For example, Idaho Code §
19-3921 provides, “When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must
render judgment thereon of fine or imprisonment, or both, as the case may be: . . . .”
2
court, or upon a plea of guilty . . . .” Thus, a conviction occurs “by the verdict of a jury . . . or
upon a plea of guilty” and it must precede punishment. If the word “conviction” meant a
judgment of conviction, it could not precede punishment because a judgment of conviction
includes the punishment. See State v. Pedraza, 101 Idaho 440, 614 P.2d 980 (1980) (where
judgment was pronounced, execution of the sentence suspended, and the defendant was placed
on probation, upon revocation of probation the defendant could not be resentenced); I.C.R. 33(b)
(“The judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication
and sentence”).
In State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978), we addressed whether
defendants granted withheld judgments had convictions enabling them to be punished.
Wagenius involved two consolidated appeals. In one, the defendant had pleaded guilty and been
granted a withheld judgment which included a requirement that she spend thirty days in jail. In
the other, the defendant had been found guilty following a court trial and had been granted a
withheld judgment which included a requirement that he pay a fine. We held that each of them
had a legal conviction and therefore could be punished.
We conclude that for purposes of I.C. § 19-101 conviction occurs when a
verdict or plea of guilty is accepted by the court. Accordingly, where a verdict or
plea of guilty has been accepted by the court but judgment on that plea or verdict
has been withheld, § 19-101 does not preclude the imposition of criminal
punishment, fines and imprisonment, as conditions of that withheld judgment.
99 Idaho at 278, 581 P.2d at 324. In the instant case, Sharp was ordered to pay a fine as a
condition of his probation. That could not have happened unless he had a legal conviction.
We have previously recognized that there is a narrower definition of “conviction” that
means a judgment of conviction. For example, in State v. O’Dell, 71 Idaho 64, 68, 225 P.2d
1020, 1022 (1950), the Court stated, “In a more technical, legal sense, conviction means the final
conclusion of the prosecution against the accused, including the judgment and sentence rendered
pursuant to a verdict or plea of guilty, and it is frequently used to denote the judgment or
sentence.” However, Sharp has not pointed to any Idaho statute in which the word “conviction”
means a judgment of conviction, and it clearly does not. A few examples will illustrate this.
Idaho Code § 19-2117 states, “A conviction cannot be had on the testimony of an
accomplice . . . .” Idaho Code § 19-2123 requires the court to advise the jury to acquit if “the
court deems [the evidence] insufficient to warrant a conviction.”
3
Idaho Code § 19-2305
provides, “A general verdict upon a plea of not guilty is either ‘guilty’ or ‘not guilty,’ which
imports a conviction or acquittal of the offense charged in the indictment.” Idaho Code § 192503 requires, “For the purpose of judgment, if the conviction is for a felony, the defendant must
be personally present; if for a misdemeanor, judgment may be pronounced in his absence.”
Idaho Code § 19-2513 states, “Whenever any person is convicted of having committed a felony,
the court shall, unless it shall commute the sentence, suspend or withhold judgment and sentence
or grant probation, . . . sentence such offender to the custody of the state board of correction.”
Section 19-2513 expressly requires that a defendant must be convicted of a crime before
judgment can be withheld.
Indeed, there are many statutes which provide that “upon
conviction,” a defendant can be sentenced as provided in the statute. See, e.g., I.C. §§ 18-803,
18-1701, 18-3906, 18-6007, 18-7041(2), 25-137, 26-1215, 37-2733(b), 46-304, 59-1010, 632309, 72-1011.
They reinforce the fact that a conviction under Idaho law must precede
punishment, including withholding judgment and placing the defendant on probation.
Sharp relies upon the following statement from State v. Cliett, 96 Idaho 646, 650, 534
P.2d 476, 480 (1975), “Under O’Dell and Medley, when the court has withheld judgment and has
not adjudged the defendant’s guilt, the defendant has not been convicted.” This statement by the
Cliett Court is not supported by either the applicable criminal statutes or by the cases upon which
the Court relied.
In State v. Cliett, the Court held that a withheld judgment did not constitute a conviction
for the purpose of impeaching a witness by showing a prior felony conviction. In reaching that
conclusion, the Cliett Court did not address the meaning of the word “conviction” or “convicted”
in any criminal statutes. Rather, it relied upon the opinions in State v. Barwick, 94 Idaho 139,
483 P.2d 670 (1971); State v. O’Dell, 71 Idaho 64, 225 P.2d 1020 (1950); and Ex parte Medley,
73 Idaho 474, 253 P.2d 794 (1953). None of those opinions support the statement in Cliett that a
defendant granted a withheld judgment has not been convicted.
The Cliett Court first cited State v. Barwick, 94 Idaho 139, 483 P.2d 670 (1971), stating,
“Implicit in the Barwick decision is the assumption that where no judgment has ever been
entered, there is no valid conviction which can be used for impeachment purposes.” 96 Idaho at
649, 534 P.2d at 479. The Cliett Court was incorrect insofar as it interpreted Barwick as
implicitly holding that there must be a judgment in order for there to be a conviction under Idaho
law.
4
The criminal judgment at issue in Barwick was a Florida judgment for the felony offense
of robbery. The prosecution sought to impeach Barwick by offering documents from a Florida
court consisting of a copy of an information, a copy of a judgment and sentence, a copy of the
order vacating the judgment and sentence, and a copy of an order of nolle prosequi dismissing
the action. In reversing Barwick’s judgment and conviction, the Barwick Court stated, “Further,
since the prosecutor introduced the order vacating the judgment and the nolle prosequi, he must
have known that there had been no valid conviction against appellant.” 94 Idaho at 143, 483
P.2d at 674. The Court did not state that there was no conviction because the judgment was
vacated. It stated that the order vacating the judgment and the nolle prosequi showed that there
was no conviction. “The words ‘nolle prosequi’ are a Latin expression which translated literally
mean ‘to be unwilling to prosecute.’” Wilson v. Renfroe, 91 So.2d 857, 859 (Fla. 1957). It is a
dismissal of the case without prejudice. 3 In Barwick’s Florida case, the order of nolle prosequi
was entered one and one-half months after the judgment and sentence were vacated. Once the
judgment and sentence had been vacated, the Florida prosecutor was apparently unwilling to
continue with the prosecution and elected to dismiss the case without prejudice.
In such
situation, there would be no “conviction” in the sense of a determination of guilt. Thus, Barwick
only stands for the proposition that when a judgment, sentence, and conviction were vacated
apparently for some error, the defendant does not have a conviction.
The second case upon which the Cliett Court relied was State v. O’Dell, 71 Idaho 64, 225
P.2d 1020 (1950). The defendant in O’Dell challenged the jury’s finding that he was a persistent
violator on the ground that one of his prior felony convictions should be considered a
misdemeanor because his sentence had been commuted to incarceration in jail. He relied upon
Idaho Code § 18-111 which provided, “When a crime punishable by imprisonment in the state
prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it
shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other
than imprisonment in the state prison.” The Court in O’Dell held that Section 18-111 applied
when the statute fixing the penalty for a crime provided for alternate sentences, not when the trial
court exercised its discretion to commute a felony sentence to incarceration in jail. When the
3
The entry of a nolle prosequi is not a bar to a subsequent prosecution for the same offense. Smith v. State, 186 So.
203 (Fla. 1939).
5
statute defines a crime as a felony and does not provide for an alternate misdemeanor sentence,
the punishment actually imposed is not controlling in determining whether the crime is a felony
or a misdemeanor. Although the Court in O’Dell acknowledged that “conviction” could mean
the entry of judgment, it did not hold that there is no conviction until judgment was entered. As
this Court stated in State v. Chauncey, 97 Idaho 756, 757, 554 P.2d 934, 935 (1976), “We do not
interpret O’Dell to hold that conviction does not occur until after judgment has been entered.”
The third case relied upon by the Cliett court was Ex parte Medley, 73 Idaho 474, 253
P.2d 794 (1953). In Medley, the defendant was granted a withheld judgment and placed on
probation. He later violated the conditions of his probation, and the district court sentenced him
to prison. Medley then appealed. He argued on appeal that because the district court had not
entered a judgment adjudicating him guilty, the court had no jurisdiction to place him on
probation and therefore could not have punished him for violating the terms of that void
probation. In his brief on appeal, Medley argued as follows:
It is also plain and obvious from these proceedings that the court did not
comply with the rule announced in the case of State v. Engisn [sic], 38 Idaho
539, 4 which requires that the provisions of the parole statute 5 relating to parole
and suspension of sentence must be exercised by the court at the time of the
rendition of judgment. Interestingly enough, in the Ensign case, the court
attempted to exercise the power of parole and probation after the rendition of
judgment. In our case, the District Court attempted to exercise the power of
parole and suspension of sentence before the rendition of judgment. If the attempt
to exercise the power of parole and suspension after the rendition of judgment is
void, common sense and good reason would dictate that an attempt to exercise the
same power before the rendition of judgment would also be void.
(Footnotes added.) The Court rejected that argument on appeal, stating that the statute providing
for a withheld judgment “does not require that the court must first adjudicate the guilt of
defendant.” 73 Idaho at 479, 253 P.2d at 797. The Court then added:
The obvious and commendable objective of the Act which seeks in a proper case
to avoid the stigma of a judgment of conviction would be in major part defeated if
4
In State ex rel. Conner v. Ensign, 38 Idaho 539, 223 P. 230 (1924), this Court held that when the district court
entered a judgment sentencing a defendant to jail and a fine, the district court did not have jurisdiction to later
suspend execution of the judgment.
5
At that time, the predecessor of I.C. § 19-2601 was called the “parole statute.” Ex parte Grove, 43 Idaho 775, 254
P. 519 (1927).
6
the contention of petitioner is accepted. To withhold judgment after a plea of
guilty protects the defendant at that time against the stigma of a conviction which
may be forever avoided should the defendant conform to its terms and conditions.
This creates, and rightfully so, a hope in the heart of the accused that he may
ultimately be released under an order of probation without the stigma of a
judgment of conviction.
Id.
The above quotation was the Medley Court’s only use of the word “conviction.” The Court
twice referred to the “stigma of a judgment of conviction” and once to the “stigma of a
conviction.” When considering the argument the Court was answering, the Court was referring
to the same thing all three times—the stigma of a judgment adjudicating the defendant guilty of a
crime.
In addition, just prior to the above quotation, the Court stated, “The statute, Sec. 19-2601,
I.C., as amended, S.L.1949, c. 117, expressly provides that where a person enters the plea of
guilty to certain crimes including the one involved herein, the court may, in its discretion,
withhold judgment and put the defendant on probation.”
Id.
As originally enacted, the
predecessor to Idaho Code § 19-2601 provided that under certain circumstances the court may
withhold judgment when persons under age twenty-five “shall have been convicted of any crime
against the laws of this State” with the exception of specified crimes. Ch. 104, § 1, 1915 Idaho
Sess. Laws 244, 244-45 (emphasis added). The statute required a conviction before judgment
could be withheld. It was not until 1943 that the legislature added the language “or enter a plea
of guilty in any District Court of the State of Idaho.” Ch. 14, § 1, 1943 Idaho Sess. Laws 43.
The addition of that language did not change the analysis. The Court had held over thirty years
earlier that a guilty plea was a conviction. In re Dawson, 20 Idaho 178, 189, 117 P. 696, 700
(1911) (“We are of the opinion, therefore, that the plea of guilty in this case was a sufficient
conviction of the accused, and that the court had jurisdiction to impose the penalty prescribed by
the statute for the offense charged”); accord State v. O’Dell, 71 Idaho 64, 68, 225 P.2d 1020,
1022 (1950) (“‘Convicted’ as ordinarily used in legal phraseology as indicating a particular
phase of a criminal prosecution, includes the establishing of guilt whether by accused’s
admission in open court by plea of guilty to the charges presented, or by a verdict or finding of a
court or jury”). The Medley case simply held that a judgment of conviction was not required in
order for the court to withhold judgment and place the defendant on probation. It did not hold
that a conviction was not required.
7
The opinion in State v. Cliett, 96 Idaho 646, 649, 534 P.2d 476, 479 (1975), was in error
to the extent that it held that a defendant granted a withheld judgment did not have a conviction.
We therefore overrule it insofar as it so holds.
III. CONCLUSION
An outstanding withheld judgment based on a guilty plea qualifies as a conviction under
Idaho law.
Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.
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