STATE OF IDAHO v. LACY STARR LUNA (2016)

MOTION TO DISMISS APPEAL WITHOUT PREJUDICE

COMES NOW, the State of Idaho, Plaintiff-Appellant, by and through its authorized representative, the Attorney General of the State of Idaho, and pursuant to Rule 32(b), I.A.R., hereby moves this Court for an order dismissing the appeal in this case without prejudice. The basis for the state's motion is as follows:

1. As set out in the state's Motion to Vacate Appellate Opinion and Stay Proceedings, this appeal was taken from the magistrate's division even though no judgment was entered on Luna's motion and over the objection of the prosecutor.

2. The Idaho Supreme Court granted the Motion to Vacate Appellate Opinion and Stay Proceedings, vacated the appellate decisions of the district court and the Court of Appeals, and remanded the case back to the district court with instructions to remand to the magistrate division “for sentencing and entry of judgment.” (“Order Granting Motion to Vacate Appellate Opinions and Stay Proceedings” (August 29, 2016).)

3. Luna may take her appeal from the judgment entered by the magistrate, and thus enjoy the benefit of her plea agreement.

4. Because the present appeal serves no purpose, the state requests that it be dismissed without prejudice to an appeal that follows the correct appellate procedure.

Counsel for Luna has not been contacted regarding this motion.

KENNETH K. JORGENSEN Deputy Attorney General

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have this 24th day of October, 2016, served a true and correct copy of the MOTION FOR VOLUNTARY DISMISSAL by placing the copy in the United States mail, postage prepaid, addressed to:

ALAN J. COFFEL

COFFEL LAW, P.C.

921 7TH STREET SOUTH

NAMPA, ID 83651

KENNETH K. JORGENSEN Deputy Attorney General

In the Supreme Court of the State of Idaho

STATE OF IDAHO, Plaintiff-Appellant,

v.

LACY STARR LUNA, Defendant-Respondent.

ORDER GRANTING MOTION TO VACATE APPELLATE OPINIONS AND STAY PROCEEDINGS

Supreme Court Docket No. 43520-2015

Canyon County No. CR-2014-23280

Ref. No. 16-361

A MOTION TO VACATE APPELLATE OPINIONS AND STAY PROCEEDINGS was filed by counsel for Appellant on August 4, 2016, requesting this Court for an Order vacating the appellate decisions of the Idaho Court of Appeals and the district court, remanding the case for sentencing and entry of judgment and staying proceedings. Therefore, after due consideration,

IT HEREBY IS ORDERED that the PUBLISHED OPINION IN APPEAL NO. 43520, STATE v. LUNA, issued by the Court of Appeals on July 18, 2016, be, and hereby is, VACATED.

IT FURTHER IS ORDERED that the district court's Memorandum Opinion and Order, file-stamped July 24, 2015 in Canyon County case number CR 2014-23280-C, be and hereby is, VACATED.

IT FURTHER IS ORDERED that this matter is REMANDED TO THE DISTRICT COURT to be remanded to the magistrate court for sentencing and entry of judgment.

IT FURTHER IS ORDERED that proceedings in this appeal shall be SUSPENDED and this appeal shall remain STAYED pending resolution in the district court.

DATED this 29th day of August, 2016.

By Order of the Supreme Court

Stephen W. Kenyon, Clerk