State v. Jensen6/6/2003
ee must be made within forty-two **1091 *944 days of the date evidenced by the filing stamp of the clerk of the court. Idaho Appellate Rule 14(a). This time requirement is jurisdictional, and an appeal taken after expiration of the filing period must be dismissed. State v. Sapp, 124 Idaho 17, 19, 855 P.2d 478, 480 (Ct.App.1993); State v. Swan, 113 Idaho 859, 861, 748 P.2d 1389, 1391 (Ct.App.1988); State v. Tucker, 103 Idaho 885, 888, 655 P.2d 92, 95 (Ct.App.1982).
In this case, the judgment of conviction was entered on April 25, 2000, and the magistrate revoked Jensen's probation on June 29, 2001. Jensen filed his notice of appeal on July 17, 2001, which was timely from the order revoking probation but not from the judgment of conviction. If Jensen's sentences violate double jeopardy protections, this violation occurred upon entry of his judgment of conviction and sentences, and the appeal could have been taken at that time. A probationary period does not extend the time in which a defendant may appeal from the judgment of conviction and sentence. State v. Fox, 122 Idaho 550, 551, 835 P.2d 1361, 1362 (Ct.App.1992); Tucker, 103 Idaho at 888, 655 P.2d at 95
The present circumstance must be distinguished from one in which only the length of a sentence is challenged on appeal from an order revoking probation. The Idaho appellate courts have jurisdiction, on appeal from an order revoking probation, to entertain a claim that a sentence is excessive. This is so because, by terms of Idaho Criminal Rule 35, whenever a trial court revokes probation it has authority to sua sponte reduce the sentence that was originally pronounced. It is consequently permissible for appellants to present as an issue whether the trial court abused its discretion in failing to reduce a sentence upon the revocation of probation. That type of appeal is a challenge to a new decision (explicit or implicit) made by the district court upon revocation of probation. Accordingly, we have made it clear in such appeals that an appellate court will not consider whether the sentence was excessive when originally pronounced in the judgment of conviction and that our review is limited to whether the sentence was excessive in light of the circumstances existing when the court revoked probation. State v. Coffin, 122 Idaho 392, 393-94, 834 P.2d 909, 910-11 (Ct.App.1992); State v. Paramore, 119 Idaho 235, 236, 804 P.2d 1366, 1367 (Ct.App.1991); State v. Dryden, 105 Idaho 848, 852, 673 P.2d 809, 813 (Ct.App.1983); Tucker, 103 Idaho at 888, 655 P.2d at 95. [FN1]
FN1. When reviewing the reasonableness of a sentence on an appeal from a probation revocation order, we do not base our review only upon events that occurred after the original pronouncement of sentence. Rather, we examine the entire record encompassing events before and after the original judgment, including but not limited to events that occurred during the probationary period. State v. Chavez, 134 Idaho 308, 314, 1 P.3d 809, 815 (Ct.App.2000); Coffin, 122 Idaho at 394, 834 P.2d at 911; State v. Adams, 115 Idaho 1053, 1055, 772 P.2d 260, 262 (Ct.App.1989).
In contrast to a claim that a trial court abused its discretion on revoking probation by ordering an excessive sentence into execution, Jensen's claim that his sentences violate constitutional double jeopardy prohibitions does not implicate a new decision or exercise of discretion by the trial court upon revocation of probation; it is a challenge to the original imposition of sentence and judgment. Therefore, Jensen's notice of appeal, filed after the order revoking probation, was not timely to raise a double jeopardy challenge to his sentences. It follows that the district court lacked appellate jurisdiction to consider Jensen's double jeopardy claim
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