State v. Zachary Damon Tullis

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40105

STATE OF IDAHO, ) 2013 Unpublished Opinion No. 360 ) Plaintiff-Respondent, ) Filed: February 12, 2013 ) v. ) Stephen W. Kenyon, Clerk ) ZACHARY DAMON TULLIS, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant. ) BE CITED AS AUTHORITY )

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Lynn G. Norton, District Judge.

Appeal from order revoking probation and executing underlying sentence of a unified term of seven years, with two years determinate, for statutory rape, dismissed.

Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent. ________________________________________________

Before GUTIERREZ, Chief Judge; GRATTON, Judge; and MELANSON, Judge

PER CURIAM Zachary Damon Tullis pled guilty to statutory rape. Idaho Code § 18-6101(1). The district court withheld judgment and placed Tullis on probation. Approximately two years later, Tullis admitted to violating the terms of his probation. The district court revoked the withheld judgment and sentenced Tullis to a unified term of seven years, with two years determinate, but retained jurisdiction. At the conclusion of the period of retained jurisdiction, the district court suspended Tullis’s sentence and placed him on probation. Several months later, Tullis again admitted to violating numerous terms of his probation. The district court consequently revoked probation and ordered execution of the underlying sentence. Tullis filed an Idaho Criminal

Rule 35 motion for reduction of his sentence, which the district court denied. Tullis now appeals, contending the district court abused its discretion by executing his underlying sentence without reduction. The State contends Tullis’s appeal is untimely and should be dismissed. Pursuant to Idaho Appellate Rule 21, failure to file a notice of appeal with the clerk of the district court within the time limits prescribed by the appellate rules deprives the appellate courts of jurisdiction over the appeal. Idaho Appellate Rule 14 provides, in part: Any appeal . . . may be made only by physically filing a notice of appeal with the clerk of the district court within 42 days from the date evidenced by the filing stamp of the clerk of the court on any judgment, order, or decree of the district court appealable as a matter of right in any civil or criminal action.

Tullis’s notice of appeal was filed forty-three days after the date the order revoking probation and executing the underlying sentence was entered. In his reply brief, Tullis concedes his appeal is untimely. We, therefore, lack jurisdiction to address the substantive issues of the appeal. See State v. Payan, 128 Idaho 866, 867, 920 P.2d 82, 83 (Ct. App. 1996). Tullis’s appeal from the order revoking probation and executing the underlying sentence is dismissed.