U.S. v. SHARP

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 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.

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." 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 § 19-2503 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, 63-2309, 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.

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 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:

(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:

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.

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.