STATE of Idaho, Plaintiff-Respondent, v. Albert Ray BEAM, Defendant-Appellant, 121 Idaho 862

McDEVITT, Justice. I. BACKGROUND This case arises from the murder of Mondi Lenten. The appellant was convicted of first degree murder and sentenced to death. Appellant appealed this conviction and sentence and this Court affirmed. State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986). Appellant then filed a petition for post-conviction relief. The district court denied relief and this Court affirmed. State v. Beam, 115 Idaho 208, 766 P.2d 678 (1988), cert. denied, 489 U.S. 1073, 109 S.Ct. 1360, 103 L.Ed.2d 827 (1989).

Finally, appellant filed a motion to correct illegal sentence pursuant to I.C.R. 35. Appellant claimed that his sentence was illegally imposed because the district court did not weigh each aggravating circumstance against all mitigating circumstances, in accordance with this Court’s holding in State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989). The district court denied the motion, ruling that it did comply with the Charboneau balancing test.

Specifically, it quoted from the sentencing judge’s findings: In fact, because of the gravity of the offense and the strong factors weighing against any possibility of rehabilitation, any one of the aggravating circumstances found by this Court to exist outweighs the mitigating circumstances. The district court rejected the appellant’s contention that this language was surplus-age. Appellant appeals from the district court’s denial of the I.C.R. 35 motion. II. APPLICABILITY OF I.C. § 19-2719 OR I.C.R. 35 TO THE CLAIM OF ILLEGAL SENTENCE The pertinent provision of I.C. § 19-2719 reads:

(3) Within forty-two (42) days of the filing of the judgment imposing the punishment of death, and before the death warrant is filed, the defendant must file any legal or factual challenge to the sentence or conviction that is known or reasonably should be known. The pertinent language of I.C.R. 35 reads: “[t]he court may correct an illegal sentence at any time____” Our state constitution provides that “[t]he jurisdiction of such inferior courts shall be as prescribed by the legislature.” Idaho Const, art. 5, § 2.

Furthermore, The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government____ Idaho Const, art. 5, § 13 (emphasis added). The legislature has acknowledged and codified the rule making authority of the Idaho Supreme Court: The inherent power of the Supreme Court to make rules governing procedure in all the courts of Idaho is hereby recognized and confirmed. I.C. § 1-212 (emphasis added).

A careful reading of the Constitution of the State of Idaho and the legislature’s codification of the Idaho Supreme Court’s rule making power, reveals that this Court’s rule making power goes to procedural, as opposed to substantive, rules. This Court has stated that “where conflict exists between statutory criminal provisions and the Idaho Criminal Rules in matters of procedure, the rules will prevail.” State v. Currington, 108 Idaho 539, 541, 700 P.2d 942, 944 (1985).

The question, then, that we must answer is whether the conflict between I.C. § 19-2719 and I.C.R. 35 is one of procedure or of substance, and not whether the sentence itself is illegal. The distinction between procedure and substance was well stated in Currington, 108 Idaho at 541, 700 P.2d at 944: Although a clear line of demarcation cannot always be delineated between what is substantive and what is procedural, the following general guidelines provide a useful framework for analysis. Substantive law prescribes norms for societal conduct and punishments for violations thereof.

It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated. Quoting State v. Smith, 84 Wash.2d 498, 501, 527 P.2d 674, 676-77 (1974) (emphasis added).

Chapter 27, title 19 of the Idaho Code, entitled “Execution,” provides the basis upon which a sentence of death can be carried out in the state of Idaho. The provision we are dealing with, I.C. § 19-2719(3), which specifically provides for challenges to a sentence of death, is an absolutely fundamental and integral part of

chapter 27, title 19, Idaho Code. Without a provision for challenging a sentence of death, a person who has received a sentence of death might be denied due process of law under the Constitution of the State of Idaho and the United States Constitution. Furthermore, I.C. § 19-2719(3) provides the finality required by the United States Supreme Court in order for a person sentenced to death in the state of Idaho to bring federal habeas actions in the United States District Court. See Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

The purposes served by I.C. § 19-2719(3) “ensure that death sentences are not carried out so as to arbitrarily deprive a defendant of his [or her] life.” State v. Rhoades, 121 Idaho 63, 72, 822 P.2d 960, 969 (1991). On the other hand, I.C.R. 35 is not peculiar to the sentence of death. Instead, I.C.R. 35 applies generally to criminal sentences. Because of the unique nature of the death penalty, as provided in

chapter 27, title 19, Idaho Code, as well as the stringent constitutional protections afforded to a person sentenced to death, we hold that I.C. § 19-2719(3), which, in turn, creates, defines, and regulates a primary right, is a substantive rule. Therefore, we conclude that the forty-two (42) day time limitation of I.C. § 19-2719(3) applies to claims of illegality of a sentence of death. The appeal from the district court’s denial of appellant’s I.C.R. 35 motion is hereby dismissed. BAKES, C.J., and JOHNSON and BOYLE, JJ., concur.