State v. Jensen6/6/2003
and this Court, likewise, is without jurisdiction due to the untimely filing of the notice of appeal from the magistrate division. See Palmer v. Wellard, 97 Idaho 197, 198, 541 P.2d 621, 622 (1975). [FN2]
FN2. Jensen is not without a remedy if a double jeopardy violation can be shown. He may yet present this issue to the magistrate court by a motion under I.C.R. 35 to correct an illegal sentence or by an application for post-conviction relief. See State v. Storey, 109 Idaho 993, 997, 712 P.2d 694, 698 (Ct.App.1985); State v. Galaviz, 104 Idaho 328, 658 P.2d 999 (Ct.App.1983).
The district court's appellate decision that Jensen could not be sentenced for both battery upon an officer and resisting an officer is therefore reversed.
**1092 *945 B. Whether the Aggregate Sentence Imposed Was Excessive
Jensen argues that the magistrate abused its discretion by not reducing Jensen's sentences when the magistrate initially revoked probation. He argues that the consecutive maximum sentences for three misdemeanors, resulting in an aggregate sentence of two years and six months in jail, are excessive. The objectives of sentencing, against which the reasonableness of a sentence is to be measured, are the protection of society, the deterrence of crime, the rehabilitation of the offender, and punishment or retribution. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). In examining the reasonableness of a sentence, we conduct an independent review of the record, focusing on the nature of the offense and the character of the offender. State v. Young, 119 Idaho 510, 511, 808 P.2d 429, 430 (Ct.App.1991). We will find that the trial court abused its discretion in sentencing only if the defendant, in light of the objectives of sentencing, shows that his sentence was excessive under any reasonable view of the facts. State v. Charboneau, 124 Idaho 497, 499, 861 P.2d 67, 69 (1993); State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992).
During the incident giving rise to the present conviction, Jensen slapped Deputy Preston, knocking a flashlight out of Preston's hand, struggled against Preston and Csjako, during which struggle Jensen spit in Preston's face, and continued to struggle at the sheriff's office while being transported into jail, again spitting in Csjako's face. Jensen also kicked the window out of Csjako's patrol car while being detained there.
Jensen had an extensive criminal record. In 1993, at age eighteen, Jensen committed a burglary. In 1994, Jensen repeatedly drove without a driver's license, resulting in a felony conviction for driving without privileges. He was thereafter arrested for driving under the influence, possession of marijuana, damaging jail property, and drinking in a motor vehicle. During the pendency of another case Jensen was arrested for trespassing for refusing to leave the courtroom until the judge spoke with him off the record. In 1998 Jensen was arrested for resisting, obstructing, and delaying the police, during which incident he directed racial epithets toward a Hispanic police officer. Given this history of disrespect for the law, we conclude that the magistrate's decision to protect society from Jensen for two years and six months was not excessive under any reasonable view of the facts.
Jensen also argues that the sentences imposed constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article I, § 6 of the Idaho Constitution. Before addressing this issue, we must consider the state's assertion that this claim of an Eighth Amendment violation may not be considered on appeal because it was not presented to the trial court.
A claim that a sentence is illegal ordinarily must be raised in the trial cour
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