Billis v. State, Nos. 88-311

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore URBIGKIT; GOLDEN; URBIGKIT, C.J., filed a dissenting opinion in which MACY; MACY, J., filed a dissenting opinion in which URBIGKIT; URBIGKIT; MACY, Justice, dissenting, with whom URBIGKIT
Citation800 P.2d 401
Decision Date05 October 1990
Docket NumberNos. 88-311,88-312,89-4,88-304 and 88-310,88-250
PartiesJeffrey D. BILLIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Vicki MOON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Wilfred J. VIGIL a/k/a Two Dogs, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Scott P. McIVER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Nellie MAGARAHAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). STATE of Wyoming, Plaintiff, v. Victoria LOWRY, Defendant.

Page 401

800 P.2d 401
Jeffrey D. BILLIS, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
Vicki MOON, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
Wilfred J. VIGIL a/k/a Two Dogs, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
Scott P. McIVER, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
Nellie MAGARAHAN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
STATE of Wyoming, Plaintiff,
v.
Victoria LOWRY, Defendant.
Nos. 88-311, 89-4, 88-312, 88-250, 88-304 and 88-310.
Supreme Court of Wyoming.
Oct. 5, 1990.
Rehearing Denied Nov. 9, 1990.

Page 403

Public Defender Program: Mike Cornia, Appellate Counsel, Cheyenne, for appellants in Case Nos. 88-250, 88-304, 88-310, 88-311, 89-4 and for defendant in No. 88-312.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Paul S. Rehurek, Sr. Asst. Attys. Gen., Cheyenne, and Campbell County Prosecutor's Office: John D. Young, County and Pros. Atty., Russell A. Hansen, Chief Deputy, Civ. Div., and Doug Lesley, Deputy County Atty., Gillette, for appellee State of Wyo.

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

GOLDEN, Justice.

In these consolidated cases we must answer several constitutional questions concerning W.S. 7-13-301 (June 1987 Repl.) (hereinafter "new 301"). "New 301" is a probation statute that applies to a criminal defendant who has never before been convicted of a felony and is presently charged with, has pleaded guilty to, or has been found guilty of an offense within a certain group of felonies and misdemeanors. Under the statute, if both the defendant and the state consent, the court may defer further prosecution proceedings and place the defendant on probation without entry of a judgment of guilt or conviction.

Page 404

The three main issues presented by these cases concern whether the state's consent requirement of "new 301" violates the principle of separation of powers explicitly stated in Wyo. Const. art. 2, § 1; whether the bill that enacted "new 301" was so altered or amended on its passage as to change the bill's original purpose in violation of Wyo. Const. art. 3, § 20; and whether the bill that enacted "new 301" contained more than one subject in violation of Wyo. Const. art. 3, § 24. In several of these consolidated cases there are additional issues that we will address after resolving these three primary issues.

We hold that "new 301" is constitutional. With this holding, and with our resolution of the additional issues presented in some of the cases, we reverse State v. Lowry (No. 88-312) and affirm Billis v. State (No. 88-250), Moon v. State (No. 88-304), Vigil v. State (No. 88-310), McIver v. State (No. 88-311), and Magarahan v. State, (No. 89-4).

FACTS AND ISSUES IN THE CONSOLIDATED CASES

State v. Lowry (No. 88-312)

Facts:

Victoria Lowry was arrested and charged with two misdemeanors, speeding, in violation of W.S. 31-5-301(b)(ii) (1977), and driving while under the influence, in violation of W.S. 31-5-233 (Cum.Supp.1987). In the evening of April 14, 1988, after meeting her brother at a lounge and drinking several beers, Ms. Lowry was driving home when she was stopped by police for speeding. The police officer noticed that her speech was slurred, her eyes bloodshot, and her balance unsteady. Because he smelled a strong odor of alcoholic beverage on her breath, he conducted a field sobriety test. Ms. Lowry was then placed under arrest. She consented to a breathalyzer test at the police station; the test showed a .185 blood alcohol level.

Under a plea bargain with the prosecutor, Ms. Lowry pleaded guilty to the charge of driving while under the influence in exchange for the state's dismissal of the speeding charge. On being informed of the plea bargain, the county court judge asked whether the prosecutor would consent to Ms. Lowry's being placed on probation without entry of judgment of conviction under "new 301." The prosecutor would not consent. The county court judge deferred findings of a factual basis for the plea of guilty and ordered a presentence investigation report.

The presentence investigation report revealed that Ms. Lowry had never before been charged with any criminal offense, had overcome much adversity in her life, was well-educated, had maintained steady employment, normally drank alcoholic beverages only socially, and customarily did not drink to excess. The probation officer making the report recommended probation without entry of judgment of conviction under "new 301." Although stating that he had considered Ms. Lowry's good character and lack of any criminal record, the prosecutor refused to give the state's consent to probation under "new 301" because Ms. Lowry's blood alcohol level of .185 was too high.

After noting the favorable information contained in the presentence investigation report and the recommendation of leniency, the county court judge concluded that "the state's entry into sentencing prerogatives is an unconstitutional invasion of the judicial function by that executive branch * * *." The county court judge held that the state's consent requirement contained in "new 301" was unconstitutional. Obtaining Ms. Lowry's consent, as required under "new 301", the county court judge ordered that her plea of guilty be deferred, she be placed on supervised probation for one year, she be evaluated by Powder River Council and comply with its recommendations, she not use drugs or alcohol, and she reimburse the government for attorney's fees in the amount of $200. The county court judge informed Ms. Lowry that if she violated her probation, he would immediately accept her plea of guilty.

Following the county court's action, the state applied to this court for permission to

Page 405

file a bill of exceptions 1 on the issue whether "new 301" constitutes an unconstitutional invasion of a judicial function. We granted the state's application, ordered that the state file the bill, and ordered there should also be a ruling whether "new 301" had been constitutionally enacted. Later, this court received appeals from criminal defendants in Billis, Vigil, McIver, Moon and Magarahan presenting identical issues; the six cases were consolidated on appeal.

Issues:

For clarity we have rephrased Ms. Lowry's issues as follows:

1. Whether W.S. 7-13-301 (June 1987 Repl.), requiring the state's consent to the court's deferring further proceedings and placing a defendant on probation without entry of a judgment of conviction, infringes on the judicial department's sentencing power in violation of the principle of separation of powers explicitly stated in Wyo. Const. art. 2, § 1.

2. Whether 1987 Wyo.Sess.Laws, ch. 157, § 3, enacting W.S. 7-13-301 (June 1987 Repl.), was enacted in violation of Wyo. Const. art. 3, § 20, which proscribes altering or amending a bill during its passage through the legislature so as to change the bill's original purpose.

3. Whether 1987 Wyo.Sess.Laws, ch. 157, § 3, enacting W.S. 7-13-301 (June 1987 Repl.), was enacted in violation of Wyo. Const. art. 3, § 24, which mandates the passage of a bill containing only one subject which must be clearly expressed in the bill's title.

4. Whether W.S. 7-6-106(d) (June 1987 Repl.), under which the county court ordered Ms. Lowry to reimburse the state for attorney's fees, is constitutional.

Vigil v. State (No. 88-310)

Facts:

On January 22, 1988, in Cheyenne, Wyoming, Mr. Vigil sold one-fourth ounce of cocaine to a confidential police informant. He was charged with violating W.S. 35-7-1031(a)(i) and 35-7-1016(b)(iv) (1977). In a plea bargain Mr. Vigil agreed to plead guilty to the felony in exchange for the state's not opposing probation after sentencing provided the presentence investigation report revealed no prior felony convictions. The state would not consent to "new 301" probation. 2 The presentence investigation report revealed that Mr. Vigil admitted to prior drug sales that he described as not amounting to much. Mr. Vigil filed a motion for sentencing under "new 301," in which he requested probation without entry of judgment of conviction in spite of the state's refusal to consent and, alternatively, the district court's certification of the state's consent requirement issue to this court. The prosecutor told the

Page 406

district court that the state refused to consent to "new 301" treatment for Mr. Vigil because his was a drug case and he had sold drugs before. The district court found that the state's position was rational, denied Mr. Vigil's motion, and sentenced him for a term of not less than two nor more than five years, suspended in favor of five years probation. The court also ordered Mr. Vigil to reimburse the state for the fees and costs of his public defender. W.S. 7-6-106(d) (June 1987 Repl.).

Issues:

In addition to the four issues raised in Lowry, Mr. Vigil raises the following:

1. Whether the prosecutor's refusal to consent to first offender treatment for Mr. Vigil violated his rights to due process, and

2. Whether the prosecutor's refusal to consent to sentencing under § 7-13-301 was arbitrary and an abuse of discretion and therefore violated Article 1, Sections 2 and 7, of the Wyoming Constitution.

State v. McIver (No. 88-311)

Facts:

On July 1, 1988, Mr. McIver and two companions discussed stealing money from soft-drink trucks and later spotted two such trucks. One of Mr. McIver's companions stole $45 from one of the trucks and $1,500 from the other. They were caught and arrested. The state charged Mr. McIver with one count of conspiracy to commit burglary in violation of W.S. 6-1-303 (June 1988 Repl.). At his arraignment on this felony charge, he pleaded guilty. Before sentencing, he filed a motion for sentencing under "new 301," in which he requested probation without entry of judgment of conviction or, alternatively, that the district court certify the...

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84 practice notes
  • Aland v. Mead, No. S–13–0119.
    • United States
    • United States State Supreme Court of Wyoming
    • 26 Junio 2014
    ...we must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation. Billis v. State, 800 P.2d 401, 413 (Wyo.1990) (citing McGuire v. McGuire, 608 P.2d 1278, 1283 (Wyo.1980)).PRBRC, 2014 WY 37, ¶ 19, 320 P.3d at 228 (quoting Mountain Cement Co......
  • Rodriguez v. State, S-18-0083
    • United States
    • United States State Supreme Court of Wyoming
    • 5 Marzo 2019
    ...even if plain error review were available, we would not undertake such a review. See Doyle , 954 P.2d at 975 (citing Billis v. State , 800 P.2d 401, 433-34 (Wyo. 1990) ) ("In cases such as this, where the appellant has failed to timely raise objections, has not argued plain error, and ......
  • Wlodarczyk v. State, No. 91-20
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Junio 1992
    ...Because of the inherent flexibility in sentencing options granted the courts by the Wyoming State Legislature, see Billis v. State, 800 P.2d 401, 421 (Wyo.1990), and the several procedures available for probation revocation (depending on the type of sentence originally imposed), it is neces......
  • Dworkin v. L.F.P., Inc., Nos. 89-15
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Septiembre 1992
    ...may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts. 10 Billis v. State, 800 P.2d 401, 413-14 (Wyo.1990). 11 The First Amendment states, in pertinent part: "Congress shall make no law * * * abridging the freedom of speech, or ......
  • Request a trial to view additional results
84 cases
  • Aland v. Mead, No. S–13–0119.
    • United States
    • United States State Supreme Court of Wyoming
    • 26 Junio 2014
    ...we must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation. Billis v. State, 800 P.2d 401, 413 (Wyo.1990) (citing McGuire v. McGuire, 608 P.2d 1278, 1283 (Wyo.1980)).PRBRC, 2014 WY 37, ¶ 19, 320 P.3d at 228 (quoting Mountain Cement Co......
  • Rodriguez v. State, S-18-0083
    • United States
    • United States State Supreme Court of Wyoming
    • 5 Marzo 2019
    ...even if plain error review were available, we would not undertake such a review. See Doyle , 954 P.2d at 975 (citing Billis v. State , 800 P.2d 401, 433-34 (Wyo. 1990) ) ("In cases such as this, where the appellant has failed to timely raise objections, has not argued plain error, and has n......
  • Wlodarczyk v. State, No. 91-20
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Junio 1992
    ...Because of the inherent flexibility in sentencing options granted the courts by the Wyoming State Legislature, see Billis v. State, 800 P.2d 401, 421 (Wyo.1990), and the several procedures available for probation revocation (depending on the type of sentence originally imposed), it is neces......
  • Dworkin v. L.F.P., Inc., Nos. 89-15
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Septiembre 1992
    ...may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts. 10 Billis v. State, 800 P.2d 401, 413-14 (Wyo.1990). 11 The First Amendment states, in pertinent part: "Congress shall make no law * * * abridging the freedom of speech, or of th......
  • Request a trial to view additional results

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