Jibben v. State

• Citation: 901 P.2d 1099
• Decision Date: 10 August 1995
• Docket Number: 94-146,Nos. 94-119,s. 94-119
• Parties: James Jerome JIBBEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). The STATE of Wyoming, Appellant (Plaintiff), v. David SCHAUB, Appellee (Defendant).
• Court: United States State Supreme Court of Wyoming

Page 1099

901 P.2d 1099

James Jerome JIBBEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

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

Nos. 94-119, 94-146.

Supreme Court of Wyoming.

Aug. 10, 1995.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, and Deborah Cornia, Assistant Public Defender, for appellant in No. 94-119 and appellee in No. 94-146.

Joseph B. Meyer, Attorney General; Sylvia Lee Hackl, Deputy Attorney General; and Georgia L. Tibbetts, Assistant Attorney General, for appellee in No. 94-119 and appellant in No. 94-146.

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

THOMAS, Justice.

In these consolidated cases, we are asked to consider the authority of the State of Wyoming to commence or complete proceedings to revoke probation, pursuant to WYO.STAT. § 7-13-305(c) (June 1987), after the probationary term has expired. James Jerome Jibben (Jibben), in Case No. 94-119, and David Schaub (Schaub), in Case No. 94-146, contend Brunsvold v. State, 864 P.2d 34 (Wyo.1993), stands for the proposition that the State must initiate and complete any proceeding to revoke probation before the end of the term of the probation. In Jibben's case, the petition to revoke probation was filed on the twenty-eighth day after the five years of the original probationary term had elapsed. In Schaub's instance, the petition to revoke probation was filed within the probationary term but, for various reasons, the revocation proceeding was not completed until more than thirty days following the two years specified in the original probationary term. Jibben appeals from the order revoking probation. Schaub's case comes before the court upon certified question from the district court. When their situations are properly analyzed, neither Jibben nor Schaub had completed his probationary term, and we hold the proceedings were commenced and subject to completion well within the respective probationary terms. In addition, we are satisfied Brunsvold is distinguishable from the circumstances presented in this case. We affirm the order revoking Jibben's probation, and answer "no" to the question certified in Schaub's case.

In the Brief of Appellants, the statement of the issue is:

Does Brunsvold v. State, 864 P.2d 34 (Wyo.1993), require that a probation revocation proceeding be commenced and completed prior to the time a probationer's probation period expires?

This statement of the issue is identical to the question certified by the District Court for the Third Judicial District in and for Uinta County, upon a joint motion by Schaub and the State of Wyoming (State) for certification. In its Brief of Appellee, the State reiterates the same question as its statement of the issue.

The operative facts to be gleaned from the record in Jibben's case, No. 94-119, are that he offered a plea of nolo contendere to a charge of second degree sexual assault in violation of WYO.STAT. § 6-2-303(a)(v) (1983) on May 1, 1986. Pursuant to a plea agreement, the district court deferred acceptance of Jibben's plea and suspended the prosecution in accordance with the provision then found in WYO.STAT. § 7-13-301 (1977). Jibben was placed on five years of supervised probation. He later moved to Florida where he was convicted of manslaughter while driving under the influence of intoxicating liquor and, in a second case, of child sexual abuse. These violations were admitted by Jibben in the probation revocation proceeding. The record demonstrates that, after May 1, 1986 and prior to May 1, 1991, Jibben was incarcerated in Florida for at least 619 days. Still, he contended the court was without jurisdiction because the petition to revoke his probation was filed May 29, 1991, twenty-eight days after the completion of his five-year probationary term. In presenting this contention, Jibben specifically relied upon Brunsvold. The district court rejected this argument and sentenced him to a term of not less than one year, nor more than five years, in the penitentiary. Jibben has appealed from the Order After Revocation of Probation Hearing and Conviction Entered, the order imposing sentence.

In Schaub's case, No. 94-146, the district court set forth a Statement of Facts Relevant to the Questions Certified:

1. On June 3, 1992, David W. Schaub appeared before the Court for sentencing pursuant to his previous plea of guilty to one count of Forgery in violation of Section 6-3-602(a)(iii), W.S.1977, as amended.

2. It was the Judgment and Sentence of the Court that the Defendant be sentenced to a term of not less than one (1) nor more than two (2) years in the Wyoming State Penitentiary, said Penitentiary term being suspended and the Defendant being placed on a period of two (2) years supervised probation. On July 30, 1993, the State of Wyoming filed a Motion for Revocation of Probation and requested a Summons be issued calling for the Defendant to appear before the Court and answer the allegations contained within the Motion for Revocation.

3. The Defendant failed to appear before the Court on October 5, 1993, and thereafter on December 23, 1993, the Court entered a Bench Warrant calling for the arrest of the Defendant.

4. Subsequently, the Defendant was arrested and appeared before the Court on June 15, 1994, and denied the allegations of the Motion for Revocation of Probation.

5. Counsel for the Defendant represented to the Court he wished to file a motion to dismiss the probation revocation proceedings pursuant to Brunsvold v. State, 864 P.2d 34 (Wyo.1993). Whereupon the parties stipulated that the matter be certified to the Wyoming Supreme Court to determine whether Brunsvold v. State mandates that a probation revocation proceeding be held prior to the time a probationer's probationary period expires.

Jibben and Schaub rely upon an assumption that their respective probationary terms had expired by operation of law. Quite the contrary is true. At the time the probation revocation proceeding was initiated in each case, and at the time the proceeding was completed in Schaub's instance, the probationary term had not expired. Jibben's position depends upon crediting his probationary term with the time he was incarcerated in another jurisdiction. Schaub's position requires he be treated as successfully serving his probation during the time he was refusing to comply with orders of the court to appear. Both of these premises are erroneous.

We first address Schaub's case, No. 94-146. The facts articulated in the Certification Order entered in the district court demonstrate the Motion for Revocation of Probation was filed well within the period of probation. A summons was issued for Schaub to appear which he ignored, and a bench warrant was issued, again well within the period of probation. Schaub then was arrested and brought before the district court twelve days after the two-year period of probation otherwise would have expired.

A clear majority of states have either held or recognized that the institution of revocation proceedings prior to the expiration of the term of probation affords jurisdiction to the trial court to revoke probation after the term of probation has expired. Sherer v. State, 486 So.2d 1330 (Ala.Crim.App.1986); Parkerson v. State, 230 Ark. 118, 321 S.W.2d 207 (1959); Tiller v. State, 257 A.2d 385 (Del.Super.Ct.1969); State v. Gazda, 257 So.2d 242 (Fla.1971); People v. Dawes, 52 Ill.2d 121, 284 N.E.2d 629 (1972); Gossett v. Commonwealth, 384 S.W.2d 308 (Ky.1964); State v. Rome, 392 So.2d 407 (La.1980); People v. Hodges, 231 Mich. 656, 204 N.W. 801 (1925); State ex rel. Carlton v. Haynes, 552 S.W.2d 710 (Mo.1977); Sherman v. Warden, Nevada State Prison, 94 Nev. 412, 581 P.2d 1278 (1978); State v. Gibson, 156 N.J.Super. 516, 384 A.2d 178, cert. denied, 78 N.J. 411, 396 A.2d 598 (1978); State v. Yates, 58 Ohio St.3d 78, 567 N.E.2d 1306 (1991); Thompson v. State, 620 P.2d 422 (Okla.Crim.App.1980); Bryant v. State, 233 Or. 459, 378 P.2d 951 (1963); State v. Taylor, 111 R.I. 653, 306 A.2d 173 (1973); State v. Hutto, 252 S.C. 36, 165 S.E.2d 72 (1968); Allen v. State, 505 S.W.2d 715 (Tenn.1974); Zillender v. State, 557 S.W.2d 515 (Tex.Crim.App.1977); State v. Nelson, 92 Wash.2d 862, 601 P.2d 1276 (1979); and Mangus v. McCarty, 188 W.Va. 563, 425 S.E.2d 239 (1992). This rule is especially applicable in an instance in which a warrant has been issued. Gossett; State ex rel. Lee v. Coker, 80 So.2d 462 (Fla.1955); Rome; Sherman; Gibson; Taylor; Hutto; Allen; Lovell v. State, 223 S.C. 112, 74 S.E.2d 570 (1953); Mangus; and State ex. rel. Cox v. State, Dept. of Health & Social Services, 105 Wis.2d 378, 314 N.W.2d 148 (1981).

This majority view is consistent with Kahlsdorf v. State, 823 P.2d 1184, 1190 (Wyo.1991), where we said:

In this case, probation revocation proceedings were initiated on May 15, 1989, when the prosecutor filed a Motion for Revocation and Issuance of a Bench Warrant for appellant's arrest. The trial court issued the bench warrant on the following day, well within the five-year deadline. Thus, the petition for revocation was timely.

Further, if we were to permit Schaub to benefit from his refusal to appear before the district court after being ordered so to do, we would be adopting a rule philosophically inconsistent with Farbotnik v. State, 850 P.2d 594, 602 (Wyo.1993), in which we noted defendants should not be encouraged to flee and remain fugitives while awaiting some benefit from the law. The certified question in Schaub's case, No. 94-146, must be answered in the negative.

Turning to Jibben's case, No. 94-119, we have noted, during the five-year period of probation, Jibben was incarcerated for the equivalent of one year, eight months and fifteen days. His contention that his term of probation ended by operation of law depends upon his receiving credit against his probationary term for the time he was incarcerated....