Hayes v. State

• Decision Date: 05 September 1979
• Docket Number: 5149,Nos. 5062,s. 5062
• Citation: 599 P.2d 569
• Parties: Mike Leanard HAYES, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). WYOMING PUBLIC DEFENDER PROGRAM, Appellant, v. JOHNSON COUNTY, Wyoming, Appellee.
• Court: Wyoming Supreme Court

Page 569

599 P.2d 569

Mike Leanard HAYES, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

WYOMING PUBLIC DEFENDER PROGRAM, Appellant, v. JOHNSON COUNTY, Wyoming, Appellee.

Nos. 5062, 5149.

Supreme Court of Wyoming.

Sept. 5, 1979.

Gerald M. Gallivan, Director, Wyo. Defender Aid Program (argued), Laramie, Frank R. Chapman, Public Defender, Casper, and Kurt Kelly, Student Intern, Laramie, appeared on brief for appellant in No. 5062.

Gay V. Bartels, Asst. Atty. Gen. (argued), John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., appeared on brief for appellee in No. 5062.

Richard H. Honaker, Asst. Atty. Gen., Appellate Counsel, Wyo. Public Defender Program, Cheyenne, submitted the brief for appellant in No. 5149.

No timely appearance for appellee in No. 5149.

ORDER VACATING DISTRICT COURT ORDERS

After examination of the records in the above-entitled appeals, the court finds and concludes:

1. No. 5149 arose in the trial court out of the case of State of Wyoming v. Mike Leanard Hayes, No. 78-4 CR-7 in the District Court, Fourth Judicial District, Johnson County. That case has been on appeal in this court, having been filed and docketed here on December 22, 1978, captioned Hayes v. State, No. 5062, and on August 16, 1979, an opinion, 599 P.2d 558, was handed down affirming the trial court's judgment and sentence. The mandate has not issued, so the appeal in No. 5062 is still pending before this court. The within appeal, No. 5149, is taken from an order of the district court in a matter incident to the trial of No. 5062 but not related to the guilt or innocence of the defendant Hayes, made and entered April 4, 1974. No. 5149 is not only inappropriately titled but taken from an order of the district court made and entered when it had no jurisdiction in the case, in that upon docketing in this court the case was under the jurisdiction of this court. Rule 73(h), W.R.C.P.; Rule 3.01, WRAP. The judgment and sentence was made prior to the effective date of the Wyoming Rules of Appellate Procedure.

2. This court has inherent power to control proceedings before it and under its jurisdiction and can and will summarily raise and dispose of questions arising with respect to jurisdiction. The supreme court has the duty to consider the integrity of an appeal addressed to jurisdictional defect, even though not called to its attention by any litigant. Jackson v. State, Wyo.1976, 547 P.2d 1203.

3. Timothy J. Kirven was appointed to defend the defendant in the district court and, upon completion of his assignment, submitted vouchers to Johnson County for payment of fees and expenses associated with the defense of Hayes.

4. The Johnson County and Prosecuting Attorney, on behalf of Johnson County, on February 6, 1979, filed a motion in the same criminal matter requesting an order to tax such fees and expenses to the State of Wyoming Public Defender Program. It would appear but is not clear from the record before this court that Johnson County paid Mr. Kirven. The district court, on February 6, 1979, granted the motion ex parte directing payment of fees and costs in the sum of $7,596.50 by the Public Defender Program to Johnson County but allowing it to show cause why it should not pay. The Wyoming Public Defender entered an appearance and, upon its request, a hearing was had, argued by the Johnson County and Prosecuting Attorney, and resisted by an Assistant Public Defender. The trial court entered an order directing the Wyoming Public Defender Program to pay to Johnson County $7,226.50 for representation by Kirven of Hayes. The Assistant Public Defender filed the notice of appeal, the docketing statement and the record with this court, docketed as No. 5149. The notice of appeal and the docketing statement were served on the Johnson County and Prosecuting Attorney and on the Attorney General, all under the title of " State of Wyoming, Plaintiff, vs Mike Leanard Hayes, Defendant." A brief in this appeal was timely filed by "Appellate Counsel, Wyoming Public Defender Program" under the inappropriate caption "Wyoming Public Defender Program, Appellant vs Johnson County, Wyoming, Appellee." The Attorney General has made no appearance in No. 5149. The brief of appellant was served on the Johnson County and Prosecuting Attorney but not on the Attorney General. The Johnson County Attorney failed to timely file a brief and has been precluded by Order of this court from appearing, pursuant to Rule 5.11, WRAP. The purported order was made and entered after the effective date of the Wyoming Rules of Appellate Procedure.

5. There is no provision in law for the Public Defender Program or for any other state agency to appear in its own name to represent the State of Wyoming in the district court or this court on a matter such as this. Section 9-2-505, W.S.1977 provides:

"The attorney general shall prosecute and defend all suits that may be instituted by or against the state of Wyoming, the prosecution and defense of which is not otherwise provided for by law, and he shall represent the state in all criminal cases in the supreme court, and...