Asch v. State, 89-225

• Decision Date: 21 December 1989
• Docket Number: No. 89-225,89-225
• Citation: 784 P.2d 235
• Parties: David ASCH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 235

784 P.2d 235

David ASCH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 89-225.

Supreme Court of Wyoming.

Dec. 21, 1989.

David Asch, pro se.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Cheyenne, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

PER CURIAM.

Appellant, David Asch, seeks review of his motion for credit for jail time which was deemed automatically denied, pursuant to Rule 301, U.R.D.Ct., ¹ after the expiration of sixty days without the district court acting on the motion.

We affirm.

Although no briefs have been filed, it is apparent that the only issue that Asch could raise here is the district court's denial of his motion which was implicitly made pursuant to Rule 36, W.R.Cr.P. Since the facts of this case warrant it, we dispose of this appeal summarily and without briefing. McFarlane v. State, 781 P.2d 931 (Wyo.1989); Peper v. State, 776 P.2d 761 (Wyo.1989); Mower v. State, 770 P.2d 233 (Wyo.1989).

Asch received concurrent sentences of eight to fifteen years and eight to ten years after he pled guilty to aggravated burglary and concealing stolen property, respectively. Aggravated burglary carries a maximum penalty of twenty-five years, and the maximum penalty for concealing stolen property is ten years. Sections 6-3-301 and 6-3-403, W.S.1977. The record discloses the following dialogue in open court:

"[PROSECUTING ATTORNEY]: That is correct and amend Count II to strike the habitual criminal part contained in count II, further as to sentencing, Mr. Asch will be sentenced to a term of not less than eight nor more than fifteen on Count II, and a term of not less than eight and no more than ten on Count III to run concurrent.

"[DEFENSE ATTORNEY]: That is without credit for time served."

Asch filed two pro se motions for reduction in sentence, pursuant to Rule 36, W.R.Cr.P., in March and June of 1988. The district court denied the first motion and never acted on the second. On June 22, 1989, Asch filed his motion for credit for jail time. Although Asch did not make a specific request concerning the number of days for which he claimed credit, the record indicates that his presentence confinement would not have exceeded 152 days. This motion was deemed denied sixty days later because the district court took no action on it.

In most cases in which a reduction in sentence for pre-sentence confinement is sought, two factors are implicated. They are: (1) whether the pre-sentence confinement was attributable to the defendant's indigence; and (2) whether the sum of the time spent in custody prior to sentencing, plus the sentence, exceeded the maximum allowable sentence. We have said that these factors should be applied in the disjunctive because different concerns are the focus of each prong of the test. Indigence invokes the constitutional requirements of equal protection; imprisonment in excess of the term set by statute raises jurisdictional concerns. Lightly v. State, 739 P.2d 1232 (Wyo.1987). While the record is equivocal with respect to the fact of indigence, ² we will assume for our purposes that Asch was indigent. The record demonstrates that the sum of Asch's pre-sentence confinement added to the sentence...