Dickson v. State, 94-257

• Decision Date: 27 September 1995
• Docket Number: No. 94-257,94-257
• Parties: Al DICKSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1019

903 P.2d 1019

Al DICKSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 94-257.

Supreme Court of Wyoming.

Sept. 27, 1995.

Maynard D. Grant of Grant & Newcomb, Cheyenne, for Appellant.

William U. Hill, Attorney General; D. Michael Pauling, Senior Assistant Attorney General, for Appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

THOMAS, Justice.

The dispositive issue in this case, which is not addressed by the parties, is the failure of the trial court to "[e]nter an adjudication of guilt and conviction," as required by WYO.STAT. § 7-13-301(c)(i) (1987), or an "adjudication as to each offense," as required by WYO.R.CRIM.P. 32(b)(1)(D). The other primary issue we address, because the dispositive issue is correctable, is whether, in invoking WYO.STAT. § 7-13-301 (1987) in a criminal case, the trial court could require restitution as a condition of probation. Collateral issues are asserted including whether, if restitution properly was required, the record demonstrates a willful failure to pay restitution; whether the trial court had authority to impose consecutive periods of probation totaling more than five years; whether the district court had authority to impose consecutive periods of probation; and whether Al Dickson (Dickson) had successfully completed the second of the consecutive periods of probation. Dickson argues from different possible scenarios, but we treat with the actual events of the case in upholding the Order Revoking Probation entered in the trial court. The record demonstrates Dickson's probation revocation proceeding was commenced within the three-year period of probation imposed on the first count of the information filed against him; the revocation was valid; and other contentions made by Dickson are moot in light of what occurred. We reverse and remand the Order Revoking Probation for compliance with WYO.STAT. § 7-13-301(c)(i) and WYO.R.CRIM.P. 32(b)(1)(D), but we find no other error.

In his Brief of Appellant, Dickson states these issues:

I. Whether the district court exceeded its authority under W.S. 7-13-301 when it imposed a probationary term in excess of five years?

II. Whether the district court exceeded its authority under W.S. 7-13-301 when it imposed consecutive sentences of probation?

III. Whether the district court exceeded its authority under W.S. 7-13-301 when it imposed restitution as a condition of probation?

IV. Whether the district court's finding that Appellant wilfully violated his restitution obligation was supported by sufficient evidence?

V. Whether the district court abused its discretion when it failed to credit Appellant with completion of the second probationary sentence?

The State of Wyoming sets forth only three issues in its Brief of Appellee:

I. Was the payment of restitution properly made a condition of Appellant's probation?

II. Did the district court have sufficient evidence from which to reasonably conclude that Appellant had willfully failed to pay restitution?

III. Is correction of the district court's initial probation order or its order of revocation required if Appellant's probation was properly revoked, and should the district court's initial order otherwise only be corrected so as to give effect to the parties' plea agreement?

In January of 1987, Dickson was charged with three counts of making false statements in connection with the sale of securities in violation of WYO.STAT. § 17-4-101(a)(ii) (1989) ¹ and three counts of selling unregistered securities in violation of WYO.STAT. § 17-4-107(a)(i) (1989). ² The complaint reflected Dickson had solicited approximately $1 million to be used for the operation of two existing oil wells, but he spent nearly all the money he raised in unrelated enterprises. In connection with the solicitations, he falsely represented that he was a fifty-percent investor in the operation. Each investor signed a "sales agreement" which constitutes a security under Wyoming law. Dickson was arraigned on the charges in the original information on February 13, 1987 and entered pleas of not guilty to all counts of the information. He negotiated a plea agreement and, pursuant to that agreement, on October 27, 1987, he entered pleas of nolo contendere to all four counts of an amended information, each charging the selling of an unregistered security in violation of WYO.STAT. § 17-4-107(a)(i). The State, in accordance with the agreement, dismissed all other charges. The trial court deferred acceptance of this plea agreement pending completion of a presentence investigation and report.

At some point between the arraignment on the new charges and the sentencing, it appears an accord was reached that Dickson could be considered a first offender under WYO.STAT. § 7-13-301 (1987). ³ In the course of the sentencing hearing on March 28, 1988, the trial court agreed to treat Dickson as a first offender under WYO.STAT. § 7-13-301. The Judgment and Order of the Court which was entered provided for Dickson to be treated as a first offender and stated:

IT IS HEREBY ORDERED that the nolo plea herein is accepted and not entered as to the crime charged in the Information filed herein and that sentencing in this matter shall be deferred and the Defendant placed on probation pursuant to W.S. 7-13-301, 1977 Republished Edition and the Defendant shall be permitted to go at large upon his own recognizance, UPON THE FOLLOWING TERMS AND CONDITIONS, TO WIT:

1. The Defendant is placed on probation to and shall be under the supervision of the State Probation Officer * * *;

Said supervision may be transferred to the State of Texas if said supervision is accepted by the State under the Interstate Compact;

* * * * * *

2. The probation shall continue for a period of three (3) years as to each count, to be served consecutively, from the date first appearing on this Order or until further order of this Court hereinafter according to law 3. The Defendant shall conform to the rules, regulations and conditions imposed by law, by the court, and by the Probation Officer and shall sign a Probation Agreement * * *;

* * * * * *

5. The Defendant shall make complete restitution in the amount of one hundred thousand dollars ($100,000.00) to be paid on a quarterly basis ($2,250.00) each quarter until paid in full, according to a plan of restitution and distribution, to be prepared by the Department of Probation and Parole and Defendant's attorney, and to be submitted to the Court for approval;

* * * * * *

IT IS FINALLY ORDERED by the Court that at the expiration of a period of three (3) years as to each count or a total of twelve (12) years, or at any time after the expiration of one (1) year from the date of the original probation, discharge the person and dismiss the proceedings against him, provided however, that if at any time the Court shall have just cause to believe that the Defendant has failed to comply with the terms and conditions of this Order, the Court shall cause to be issued a warrant for the apprehension and arrest of the Defendant and require him to be brought before this Court and thereupon inquiry shall be made into his conduct since his probation and if satisfied from such inquiry that the Defendant has violated the terms and conditions of this Order, then the Court shall have the power to enter an adjudication of guilt and conviction and proceed to impose sentence upon the Defendant.

Dickson made no objection to this disposition at that time, and it would be difficult to conceive of any reason for him to protest this favorable disposition.

Dickson was permitted to return to his employment in Texas, and he began making the required restitution payments. The first payment was made in late October of 1988, and another was made in mid-February of 1989. Dickson did not make the next three payments which were due in April, July, and October of 1989. Because of the failure to make the restitution payments, the State commenced revocation proceedings by the filing of a Petition for Order to Show Cause Why Probation Should Not Be Revoked on February 1, 1990. At that time, the State also filed a Petition for Bench Warrant and the Order for Bench Warrant was issued. The record does not tell us why with specificity, but the return on the Bench Warrant shows it was not served until July 21, 1994. Dickson's version was that he had been arrested earlier and had been assured by officers of the sheriff's department in Texas that the matter had been resolved. The transcript of proceedings on July 25, 1994 contains this testimony:

THE COURT: And you were extradited to Wyoming?

DICKSON: No, sir.

THE COURT: So you are telling us about conversations that you had between yourself and the Texas authorities?

DICKSON: Yes, sir. They told me that when I was arrested, I was out on bond, that I had to report every 90 days. And in their words, to see if Wyoming wanted to extradite me.

I came back every 30 days for 3 months in a row, 90 days. They said, you are released, Texas is done with you. So I obviously--I assume they knew what they were talking about.

So that's what I did. I stayed at the same address and still currently, three years.

In response to this contention, the prosecutor explained his office had never discontinued pursuing Dickson's arrest, but that procedural problems with respect to the pre-signed waiver of extradition and the later execution of the extradition warrant inhibited insisting upon his return to Wyoming.

The revocation hearing was held on July 25, 1994. The trial court found Dickson had willfully violated the requirements for restitution contained in the prior order and Dickson's probation on Count I. In the Order Revoking Probation, the court, by clear implication, entered an adjudication of guilt and conviction and directed that Dickson be sentenced to a term of not less than two and one-half, nor more than three, years. The court ordered that the...