GUTIERREZ, Judge.

Scott Alan Moore moved the district court to reduce his felony conviction to a misdemeanor, as permitted under Idaho Code § 19-2604(3). After the prosecutor did not stipulate to the reduction, a condition required by I.C. § 19-2604(3), the district court entered an order denying the motion, and Moore appeals from this order. On appeal, Moore contends that I.C. § 19-2604(3) violates the separation of powers doctrine under the Idaho Constitution and denies equal protection under both the federal and state constitutions. For the reasons that follow, we affirm.

I.

FACTS AND PROCEDURE

In 2013, the Idaho Legislature amended I.C. § 19-2604(3) to permit a defendant who had been convicted of a felony and discharged from probation to move the sentencing court to reduce the felony to a misdemeanor, although requiring the prosecuting attorney to stipulate to the reduction under certain circumstances. Moore, who pled guilty in 2003 to felony aiding and abetting a robbery, filed a motion in 2014 seeking to reduce his conviction to a misdemeanor, under I.C. § 19-2604(3). In his motion and supporting affidavit, Moore averred that he had successfully completed his probation without any probation violations. Following a hearing, the district court entered an order denying the motion. In its order, the court explained that "the prosecuting attorney objects to Defendant's motion [and t]he Court has no discretion to grant the relief sought based on the prosecuting attorney's objection." Moore appeals, challenging the constitutionality of I.C. § 19-2604(3).

II.

ANALYSIS

Relevant to this appeal, I.C. § 19-2604(3)(a) provides that "a defendant who has been convicted of a felony and who has been discharged from probation may [move] the sentencing court for a reduction of the conviction from a felony to a misdemeanor." For certain crimes, including robbery, the defendant's motion may be granted only if the prosecuting attorney stipulates to the reduction. See I.C. §§ 19-2604(3)(b) and (c). The court considering the motion exercises its discretion in granting the motion, but it may only grant the motion if it finds that:

I.C. § 19-2604(3)(d).

On appeal, Moore contends that I.C. § 19-2604(3) violates the separation of powers doctrine under the Idaho Constitution. He also argues that I.C. § 19-2604(3) denies equal protection under both the federal and state constitutions. Moore did not raise in the district court the constitutional arguments he now asserts on appeal. Therefore, Moore must demonstrate fundamental error under State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010).1 That is, Moore must demonstrate that "the alleged error: (1) violates one or more of [his] unwaived constitutional rights; (2) plainly exists (without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision); and (3) was not harmless." Id.

Moore first asserts a violation of the separation of powers doctrine. IDAHO CONST. art. II, § 1. In essence, Moore claims that I.C. § 19-2604(3) violates the separation of powers doctrine by transferring a power properly belonging to the judiciary to a prosecutor. This is so, he contends, because the statute, under the circumstances of this case, requires the stipulation of the prosecutor before the court can even entertain the motion to reduce a felony conviction to a misdemeanor. Moore also asserts a violation of equal protection under the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Idaho Constitution. In essence, Moore claims that the statute improperly creates a classification of individuals with whom the prosecutor has stipulated to the relief versus those similarly situated with whom the prosecutor refuses to stipulate to relief. He contends that this scheme is inherently discriminatory and leads to arbitrary and unreviewable application by the prosecutor. We examine these arguments in light of Perry.

Since Perry, this Court and the Idaho Supreme Court have addressed numerous alleged errors that defendants asserted violated an unwaived constitutional right belonging to the defendant. Although not exhaustive, the appellate courts have found the following to satisfy the first prong: a court relying at sentencing upon findings from a competency evaluation that were included in the defendant's psychosexual evaluation;2 a court imposing a vindictive sentence;3 a court imposing a conviction that violates the Ex Post Facto Clause;4 the jury instructions including a fatal variance;5 the jury instructions relieving the State of an element it must prove;6 a prosecutor eliciting testimony of a defendant's silence;7 a prosecutor referring during closing argument to a defendant's post-Miranda silence;8 a prosecutor commenting on and playing a video of a defendant's invocation of her Fourth Amendment rights;9 a prosecutor or witness referring to a defendant's invocation of a constitutional right;10 a prosecutor improperly infusing race into a criminal trial;11 a prosecutor attempting to secure a verdict on any factor other than the law set forth in the jury instructions and evidence admitted during trial, including reasonable inferences that may be drawn from the evidence;12 and the State breaching the plea agreement.13

On the other hand, the appellate courts have held that some errors do not satisfy the first prong: a court's failure to order a statutory mental health evaluation;14 a court's failure to sua sponte reduce a sentence under a criminal rule;15 a court's limiting a defendant's allocution;16 a court repeating testimony that had already been stricken due to an evidentiary objection;17 a prosecutor presenting evidence that violated a rule of evidence;18 and a prosecutor asking a witness for her opinion as to the truthfulness of another witness's testimony.19 The common thread among these latter-asserted errors is that they have violated a statute or court rule, but have not directly violated the defendant's constitutional rights.

In this case, even though Moore advances constitutional arguments, at bottom, the "right" which he seeks to vindicate is a statutory, not constitutional right. There is no constitutional right to apply to a court to have a felony conviction modified to a misdemeanor conviction.20 This is true even though Moore has also attempted to assert an equal protection violation. Even though equal protection is certainly considered an individual right (unlike separation of powers), protected by a specific constitutional clause, Moore does not seek to vindicate this right; rather, he seeks to vindicate his statutory right (I.C. § 19-2604(3)) by simply claiming that the statute violates equal protection. He does not identify an error that he asserts violated his constitutional right to equal protection.

In Perry, the Idaho Supreme Court explained that fundamental error review is "strictly circumscribed." Perry, 150 Idaho at 224, 245 P.3d at 976. In addition, the Court reminded that the error must infringe a constitutional right belonging to the defendant, not merely violate a rule or statute:

Perry, 150 Idaho at 226, 245 P.3d at 978.

We have rejected the argument that all errors that taint a criminal proceeding infringe on a defendant's Fourteenth Amendment due process right to a fair trial and thus satisfy the first prong of Perry. See State v. Jackson, 151 Idaho 376, 379, 256 P.3d 784, 787 (Ct.App.2011). We explained that this indirect constitutional violation argument was inconsistent with Perry's pronouncement that "where ... the asserted error relates not to infringement upon a constitutional right, but to a violation of a rule or statute ... the fundamental error doctrine is not invoked." Jackson, 151 Idaho at 379, 256 P.3d at 787 (quoting Perry, 150 Idaho at 226, 245 P.3d at 978). We surmised that in this Court's view, Perry's requirement of a constitutional violation "reflects an intent to frame a more definitive limit upon fundamental error review, not to expand it." Jackson, 151 Idaho at 379, 256 P.3d at 787. If we adopted the argument that an error tainting a criminal proceeding indirectly infringed on a constitutional right and satisfied the first Perry prong, we explained that the first prong of Perry would be virtually eviscerated:

See Jackson, 151 Idaho at 379-80, 256 P.3d at 787-88.

In sum, fundamental error analysis is designed to provide review of the denial of a right of constitutional significance in the absence of objection in the trial court. By definition, a right conferred by statute is not a constitutional right. In such a case, a defendant cannot satisfy the threshold requirement of Perry, even if the asserted violation of the statute evokes constitutional principles such as separation of powers or equal protection. Thus, fundamental error does not apply to the violation of a statutory right.

Although tangentially raised in his briefing, at oral argument Moore pointed this Court to the more recent Idaho Supreme Court decision in State v. Easley, 156 Idaho 214, 322 P.3d 296 (2014), arguing that it is analogous to the facts of Moore's case. Easley involved a practice acknowledged and followed by both the district court and the prosecutor, in which the prosecutor had an absolute veto to acceptance of a defendant into mental health court. The district court could not consider that sentencing option if vetoed by the prosecutor. Id. at 220, 322 P.3d at 302. While Easley raised a number of objections in the district court, including constitutional objections, she also raised, for the first time on appeal, a violation of the separation of powers doctrine. Id. at 220-21, 322 P.3d at 302-03. The Easley Court determined that the practice indeed violated the separation of powers doctrine and granted resentencing, finding fundamental error. Id. at 221, 322 P.3d at 303.

What Easley does not expressly say is just what unwaived constitutional right held by the defendant is being vindicated.21 In Perry, the Idaho Supreme Court made clear that the first prong in the fundamental error analysis required that "the defendant must demonstrate that one or more of the defendant's unwaived constitutional rights were violated." Perry, 150 Idaho at 226, 245 P.3d at 978 (emphasis added). Neither Easley nor Moore individually holds a constitutional right to the separation of powers. It is, after all, a principle of organization of government not an individual constitutional right. Thus, we view Easley as an outlier that has no impact on this case and the other established precedent following Perry.

III.

CONCLUSION

Although Moore argues that I.C. § 19-2604(3) violates the separation of powers doctrine and equal protection, Moore did not meet his burden of showing fundamental error under Perry for both arguments. Specifically, Moore sought to vindicate a statutory right, and fundamental error does not apply to a defendant's attempt to vindicate a statutory right. Because Moore failed to satisfy the first prong of Perry, we do not consider the remainder of Moore's arguments on appeal. Accordingly, the district court's order denying Moore's motion to reduce his felony conviction to a misdemeanor is affirmed.

Judge GRATTON and Judge Pro Tem WALTERS concur.