Buck v. State, 5157

• Decision Date: 11 December 1979
• Docket Number: No. 5157,5157
• Citation: 603 P.2d 878
• Parties: James E. BUCK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 878

603 P.2d 878

James E. BUCK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5157.

Supreme Court of Wyoming.

Dec. 11, 1979.

Richard H. Honaker, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, appeared on the brief and in oral argument on behalf of appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division; Richard Scott Rideout, Asst. Atty. Gen., Cheyenne, appeared on the brief. Lawrence J. Wolfe, Legal Intern., appeared in oral argument on behalf of appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

This is an appeal from the order of the trial court revoking defendant-appellant's probation and imposing the previously suspended sentence of one to two years. ¹ Appellant contends that the trial court abused its discretion by failing to consider alternative to revocation of probation and by not placing in the record the reasons for the decision to revoke the probation.

We affirm.

On October 10, 1978, appellant entered a plea of guilty to a charge of violating § 31-11-102, W.S.1977 (unauthorized use of automobile). He was sentenced to one to two years. Execution of the sentence was suspended and he was placed on probation for a period of two years. One of the conditions of probation was that appellant not violate any law, including "major traffic offenses and any misdemeanor." On April 6, 1979, appellant entered pleas of guilty in Municipal Court, City of Buffalo, to driving under the influence and careless driving. On April 24, 1979, and after a hearing, the probation was revoked and the original sentence was imposed.

The imposition of probation and, therefore, the revocation, lie in the sound discretion of the district court.

" * * * All that is essential is the court's conscientious judgment after hearing the facts that the violation has occurred. This should not be an arbitrary action and should include a consideration of both the reasons underlying the original imposition of conditions, the violation of these, and the reasons leading to such violation. * * * " State v. Reisch, Wyo., 491 P.2d 1254, 1255 (1971). See Sanchez v. State, Wyo., 592 P.2d 1130 (1979).

Obviously, the trial judge exercised his discretion at the time the sentence was imposed. He exercised it in favor of placing appellant on probation. The conditions of probation were made known to appellant. Appellant pleaded guilty to violation of those conditions. At the probation violation hearing, letters favorable to appellant were received in evidence, and the trial judge heard arguments from appellant's counsel urging continuation of probation. Obviously, he again exercised his discretion at this stage of the proceedings.

The only suggestion by appellant that the trial court abused its discretion is the reference to the court's statement " * * * Mr. Buck, I have no alternative but to find that you have violated the terms of your probation. Your probation will be revoked and you will be the original sentence will be imposed and you are to serve from one to two years in the Wyoming State Penitentiary. * * * " (Emphasis supplied.)

Appellant contends that the emphasized language in this statement reflects a refusal to consider alternatives. For the purpose of this case, it need only be noted: (1) that the trial court evidenced consideration of alternatives in accepting evidence and hearing arguments; and (2) that the statement "I have no alternative but to find that you have violated the terms of your probation" reflects a consideration of options and a decision that is forced therefrom With reference to the violation. And, after all, the violation was acknowledged by appellant in his guilty plea. The language is not "I have no alternative but to revoke...