Johnson v. State, 4377

• Decision Date: 05 March 1975
• Docket Number: No. 4377,4377
• Citation: 532 P.2d 598
• Parties: Sigfred Allen JOHNSON, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 598

532 P.2d 598

Sigfred Allen JOHNSON, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4377.

Supreme Court of Wyoming.

March 5, 1975.

Robert W. Costin, Laramie, for appellant.

H. J. Arnieri, Asst. Atty. Gen., Cheyenne, and Ron M. Kopriva, Senior Law Student, Laramie, for appellee.

Before GUTHRIE, C. J., and RAPER and THOMAS, JJ.

RAPER, Justice.

After an evening of drinking rum and coke, laced with beer, the defendant-appellant sometime between 2:00 and 4:00 a. m. ran his new Chevrolet Blazer off a mountain highway above Woods Landing, injuring himself and his companion as well as demolishing the vehicle. He was charged by a state highway patrolman and found guilty by a justice of the peace for driving while under the influence of intoxicating liquor, to a degree which rendered him incapable of safely driving a motor vehicle and was fined $100 and costs in the amount of $4. The driver's license suspension would administratively follow. § 31-129(e), W.S.1957, C. 1967, 1973 Cum.Supp. The defendant appealed to the district court, where a jury found him guilty and the trial judge imposed a fine of $100 and sentenced the defendant to 15 days in jail. This sentence was imposed immediately following trial, but the next day before signing the judgment and sentence, it was amended in open court in the presence of defendant by the trial judge to add on costs of witness fees, witness transportation and per diem for jurors actually sitting on the case, along with bailiff expense.

While various errors are assigned, only those worthy of discussion will be covered. To compile an opinion with regard to the others would add nothing to the jurisprudence of the state. It is sufficient to say that the evidence was substantial, presented a jury question and the court's instructions were within acceptable standards. We need deal only with the sentence.

The defendant contends that the court erred in increasing the sentence from a $100 find and costs imposed by the justice of the peace to the same fine, 15 days in jail and enlarging the costs. The district court costs are made up of $59.60 witness fees paid by the clerk of court and $234 jury and bailiff expenses. In addition, the district court provided for a payment of expert medical fees, if claimed by three doctors testifying. It is the contention of the defendant Johnson that to increase the punishment is constitutonally prohibited and a penalty for exercising the right of appeal.

Section 7-448, W.S.1957, provides that an appeal from the justice of the peace court be tried de novo and states,

'The cause, when thus appealed, shall stand for trial anew in the district court in the same manner that it should have been tried before the justice, * * * and the court has full power over the case, the justice of the peace, his docket entries, and his return, to administer the justice of the case according to law, and shall given judgment accordingly.'

As said in State v. Hungary, 1956, 75 Wyo. 423, 433-434, 296 P.2d 506, 509;

'It appears to us that the legislature has clearly provided for an appeal from every criminal judgment of a justice of the peace and for a trial anew in the district court. We take this to mean that upon an appeal under the above-mentioned statutes the defendant should be arraigned in the district court and should thereafter be tried in all respects as if the case had originated in the higher court. * * *'

Thus, is stacked up the same tow-tier system described in Colten v. Kentucky, 1972, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584. The right of an additional trial is absolute and no error of the justice of the peace need be alleged on the appeal. As said in Colten, the slate is wiped clean. The Supreme Court of the United States also pointed out that the proceedings offer a defendant the opportunity to learn about the prosecution's case and, if he chooses, he need not reveal his own; the State has none of the options of deciding whether of not to accept the penalty imposed by an inferior court and the opinion there went on to state,

'* * * Should it not prevail in the lower court, the case is terminated, whereas the defendant has the choice of beginning anew. In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the superior court, with sentence to be determined by the full record made in that court. * * *'

In Colten it was decided that the two-tier plan presents no constitutional hazards under the due process clause of the Fourteenth Amendment nor does it constitute double jeopardy under the Fifth Amendment.

The defendant in Colten, as does the defendant here, attempted to sell the case of North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, in which it was held in a procedural setting of a conviction being set aside in a post-conviction proceeding and...