The states of Arizona ( State v. Rhodes (1975) 112 Ariz. 500, 506-507 [ 543 P.2d 1129, 1135-1136]), Florida ( Richardson v. State (Fla. Dist. Ct. App. 1986) 491 So.2d 1242), Idaho ( State v. Smith (1993) 123 Idaho 290, 291, fn. 2 [ 847 P.2d 265, 266]), Illinois ( People v. Wilson (1993) 257 Ill. App.3d 670 [195 Ill.Dec. 8, 628 N.E.2d 472, 496]), Maine ( State v. Haskell (Me. 1986) 515 A.2d 745, 746-747), and Maryland ( Loveday v. State (1983) 296 Md. 226, 230 [462 A.2d 745]), have adopted and applied a like principle. The rationale underlying the use of the waiver rule in the foregoing cases is equally applicable here.
"A decision to deny probation will not be held to represent an abuse of discretion if the decision is consistent with [the ยง 19-2521] standards." State v. Smith, 123 Idaho 290, 293, 847 P.2d 265, 268 (Ct.App. 1993) (citation omitted). Since the district court weighed the ยง 19-2521 factors in reaching its decision, it cannot be said that the court abused its discretion in denying Merwin probation.
First, this Court will not engage in an exercise of comparative sentencing. State v. McFarland, 130 Idaho 358, 365, 941 P.2d 330, 337 (Ct. App. 1997); State v. Pederson, 124 Idaho 179, 183, 857 P.2d 658, 662 (Ct. App. 1993); State v. Smith, 123 Idaho 290, 294, 847 P.2d 265, 269 (Ct. App. 1993).
However, this Court will not engage in an exercise of comparative sentencing. State v. McFarland, 130 Idaho 358, 365, 941 P.2d 330, 337 (Ct. App. 1997); State v. Pederson, 124 Idaho 179, 183, 857 P.2d 658, 662 (Ct. App. 1993); State v. Smith, 123 Idaho 290, 294, 847 P.2d 265, 269 (Ct. App. 1993). It is well settled that not every offense in like category calls for identical punishment; there may properly be a variation in sentences between different offenders, depending on the circumstances of the crime and the character of the defendant in his or her individual case.
However, this Court will not engage in an exercise of comparative sentencing. State v. McFarland, 130 Idaho 358, 365, 941 P.2d 330, 337 (Ct. App. 1997); State v. Pederson, 124 Idaho 179, 183, 857 P.2d 658, 662 (Ct. App. 1993); State v. Smith, 123 Idaho 290, 294, 847 P.2d 265, 269 (Ct. App. 1993). It is well settled that not every offense in like category calls for identical punishment; there may properly be a variation in sentences between different offenders, depending on the circumstances of the crime and the character of the defendant in his or her individual case.
However, this Court will not engage in an exercise of comparative sentencing. State v. McFarland, 130 Idaho 358, 365, 941 P.2d 330, 337 (Ct. App. 1997); State v. Pederson, 124 Idaho 179, 183, 857 P.2d 658, 662 (Ct. App. 1993); State v. Smith, 123 Idaho 290, 294, 847 P.2d 265, 269 (Ct. App. 1993). It is well settled that not every offense in like category calls for identical punishment; there may properly be a variation in sentences between different offenders, depending on the circumstances of the crime and the character of the defendant in his or her individual case.
This report is purely advisory and is not binding on the court. State v. Smith, 123 Idaho 290, 293, 847 P.2d 265, 268 (Ct.App. 1993). Upon receipt of the report, the court may suspend the sentence and place the defendant on probation or may relinquish jurisdiction over the defendant, thereby allowing execution of the original sentence of imprisonment. If jurisdiction is relinquished, the court may also reduce the sentence at that time.
State v. Seifart, 100 Idaho 321, 597 P.2d 44 (1979); Statev. Smith, 123 Idaho 290, 847 P.2d 265 (Ct.App. 1993); State v. Cambron, 118 Idaho 624, 798 P.2d 469 (Ct.App. 1990); State v. Arnold, 115 Idaho 736, 769 P.2d 613 (Ct. App. 1989); State v. Puga, 111 Idaho 874, 728 P.2d 398 (Ct.App. 1986). Pederson, 124 Idaho at 183, 857 P.2d at 662.
We decline this invitation. It is well settled that not every offense in like category calls for identical punishment; there may properly be a variation in sentences between different offenders, depending on the circumstances of the crime and the character of the defendant in his or her individual case. State v. Seifart, 100 Idaho 321, 597 P.2d 44 (1979); State v. Smith, 123 Idaho 290, 847 P.2d 265 (Ct.App. 1993); State v. Cambron, 118 Idaho 624, 798 P.2d 469 (Ct.App. 1990); State v. Arnold, 115 Idaho 736, 769 P.2d 613 (Ct.App. 1989); State v. Puga, 111 Idaho 874, 728 P.2d 398 (Ct.App. 1986).Id.
Smith moved for a reduction of his sentences under I.C.R. 35. On that motion the district court deleted the minimum confinement portion of the rape sentence because the crime had occurred prior to the effective date of the Unified Sentencing Act, I.C. ยง 19-2513. The rape sentence was modified to an indeterminate twenty-five year term. Smith's judgment of conviction and sentence for rape, as modified, were affirmed on appeal. State v. Smith, 123 Idaho 290, 847 P.2d 265 (Ct.App. 1993). In April, 1993, Smith filed an application for post-conviction relief seeking to have his sentences vacated.