Opinion
No. 19135.
December 4, 1991.
APPEAL FROM DISTRICT COURT, SIXTH JUDICIAL DISTRICT, BANNOCK COUNTY, B. LYNN WINMILL, J.
Robert C. Naftz of Whittier, McDougall, Souza, Murray Clark, Chartered of Pocatello, for defendant-appellant.
Larry EchoHawk, Atty. Gen., Kevin P. Cassidy, Deputy Atty. Gen., for plaintiff-respondent.
Galela Smith appeals from her December 20, 1990, judgment of conviction on the charge of felony driving under the influence of alcohol or drugs (DUI). I.C. §§ 18-8004, -8005(3). She contends on appeal that her unified five-year sentence, with two years fixed, is unreasonable and an abuse of the sentencing court's discretion.
The district court accepted Smith's guilty plea, ordered a presentence investigation, and set the matter for sentencing. Between the date of the entry of her plea and the scheduled date for sentencing, Smith was charged with another felony DUI. A warrant was issued for Smith's arrest when she failed to appear at the scheduled sentencing hearing, and a new date was set for sentencing on both charges at the request of Smith's counsel. The presentence report discussed Smith's rehabilitation prospects, but recited that Smith had a prior record of seven DUI offenses, numerous traffic offenses involving alcohol, assault and child endangerment, and a perjury conviction in federal court, upon which she had yet to be sentenced.
Having considered the sentence review criteria of State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App. 1982), in light of the record before us in this case, we conclude that the district court did not abuse its discretion in imposing a five-year term, with two years fixed. The period of retained jurisdiction, which was also ordered, will protect society from Smith's irresponsible drinking and driving, while affording Smith an opportunity for rehabilitation. The sentence cannot be deemed unreasonable and, accordingly, the judgment of conviction and sentence are affirmed.
WALTERS, C.J., and SILAK, J., concur.