State v. Vetsch

PER CURIAM: The defendant Charles Bernard Vetsch, who pleaded guilty to second degree murder, appeals from the district court’s denial of his motion for reconsideration of an earlier motion for correction or reduction of sentence. The trial court denied the original motion for reduction of sentence made pursuant to Rule 35 of the Idaho Criminal Rules on the ground that the motion was *596 filed long after the 120 day period provided for in Rule 35. Upon petition for reconsideration, the defendant claimed that an illegal sentence had been imposed. Under Rule 35, a motion for correction or reduction of sentence based upon imposition of an illegal sentence is not subject to the 120 day time constraint. The defendant claimed that the sentence was illegal in that he had been charged, convicted and sentenced for a more severe crime than an accomplice and had thereby been denied equal protection of the law. The motion was denied, and the defendant appealed. We affirm. A prosecutor is vested with a wide range of discretion in deciding when and what crimes to prosecute. State v. Wilbanks, 95 Idaho 346, 352, 509 P.2d 331, 337 (1973). The fact that the defendant was charged and convicted for a more serious crime and received a greater sentence than his accomplice does not make the sentence illegal. See Barber v. Gladden, 309 P.2d 192 (Or.1957); Cf. State v. Seifart, 100 Idaho 321, 597 P.2d 44 (1979). Upon appeal defendant has requested that his Rule 35 motion be treated as a motion for post conviction relief. A post conviction relief motion must be raised in the district court according to the procedures set out in I.C. §§ 19-4902, -4903, and I.C.R. Rule 57. This was not done. The district court did not err in refusing to reconsider the defendant’s motion to reduce the sentence. The order of the district court is affirmed.