Ketcham v. State
Citation | 618 P.2d 1356 |
Decision Date | 10 November 1980 |
Docket Number | No. 5291,5291 |
Parties | Jamie KETCHAM, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, for appellant.
John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div. and Paul H. Byrtus, Legal Intern (argued), on brief, for appellee.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
On November 16, 1978, appellant-defendant was sentenced to a term of not less than two nor more than five years in the Wyoming State Penitentiary after a plea of guilty to a charge of burglary in violation of § 6-7-201, W.S.1977. The execution of the sentence was suspended and appellant was placed on probation for a period of five years. On March 28, 1980, the court ordered revocation of appellant's probation for violation of the terms and conditions thereof. Appellant appeals from the revocation order and the resulting judgment and sentence.
We affirm.
In granting probation, the court conditioned it upon the obeyance of appellant of "all of the rules and regulations" of the Department of Probation and Parole, and upon the direction that he "not violate any of the laws of the United States of America, the State of Wyoming, or any other state * * * or any of their political subdivisions."
The probation violation resulted from appellant's involvement with a 14-year-old girl. Although the specific finding of the trial court was that appellant violated the provisions of § 14-3-105, W.S.1977 1 there was no dispute over the fact that victim's parents had forbidden her to keep company with appellant; that she was 14 years of age; that on February 15, 1980, she did not go to school and was reported missing by her parents to the sheriff; that she left school with appellant and spent the following four or five days with him, during which time appellant had sexual intercourse with her; and that appellant was then 18 years of age. Victim testified that she had not had sexual intercourse with anyone other than appellant. The district court found such actions and involvement by appellant to be contrary to the terms and conditions under which he was granted probation.
Appellant words the issues on appeal as follows:
Appellant argues that § 14-3-105, W.S.1977 (indecent liberties statute) was repealed by implication through the enactment of § 6-4-305, W.S.1977 ( ) and § 6-4-504, W.S.1977 (child abuse statute), which, he contends, are more specific with regard to the prohibited acts, and the provisions of which, he contends, are inconsistent and Not only is appellant's contention subject to criticism in that § 14-3-105 is a later enactment (last enacted in 1978) than §§ 6-4-305 and 6-4-504 (enacted in 1977), but the question of inconsistency and implied repeal was not presented to the trial court. A contention for error first raised on appeal will not be considered unless it qualifies as plain error. Hampton v. State, Wyo., 558 P.2d 504 (1977). The plain-error doctrine is to be applied cautiously and in exceptional circumstances. Hampton v. State, supra; Downs v. State, Wyo., 581 P.2d 610 (1978).
repugnant to § 14-3-105. Appellant concludes that he could not be accused of violating § 14-3-105 inasmuch as it was repealed by implication; that he could not be accused of violation of § 6-4-305 inasmuch as there was not a four-year differential between his age and that of the victim (he lacked three days of being four years older than the victim); and that he could not be accused of violation of § 6-4-504 inasmuch as he was not an adult (he was 18 years of age).
Madrid v. State, Wyo., 592 P.2d 709, 710 (1979).
The violation of a clear and unequivocal rule of law has not been here demonstrated. In this respect, it is appropriate to review the law as it relates to probation revocation.
"The imposition of probation and, therefore, the revocation, lie in the sound discretion of the district court.
Buck v. State, Wyo., 603 P.2d 878, 879 (1979).
21 Am.Jur.2d Criminal Law § 568, p. 536 (1965).
The evidence need not establish the violation beyond a reasonable doubt. 24 C.J.S. Criminal Law § 1572(4), p. 505 (1961); State v. Fortier, 20 Or.App. 613, 533 P.2d 187, 188 (1975).
A probationer or parolee is not entitled to the "full panoply of rights" that attend a criminal prosecution. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); United States v. Strada, 8 Cir. 1974, 503 F.2d 1081.
* * * "United States v. Mills, E.D.Tenn., 444 F.Supp. 26, 27 (1977).
Revocation of probation because of a violation of law is not precluded although the probationer is acquitted in a criminal proceeding predicated on such violation. Johnson v. State, 142 Ga.App. 124, 235 S.E.2d 550 (1977); Jones v. State, 142 Ga.App. 274, 235 S.E.2d 681 (1977); Bernal-Zazueta v. United States, 9 Cir. 1955, 225 F.2d 64. A few jurisdictions have taken a contrary position as to this point. See Annotation, Probation Revocation-Following Acquittal, 76 A.L.R.3d 564 (1977). Probation may be revoked on the basis of conduct which falls short of criminal conduct. United States v. Chambers, 3 Cir. 1970, 429 F.2d 410; State v. Reisch, supra.
In general, it can be said that the determination of whether or not a probationer has violated the terms and conditions of his probation is within the sound discretion of the court and is not subject to reversal on appeal unless the discretion is abused. State v. Reisch, supra.
* * *"Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).
Turning then to the action taken in this case by the trial court, it carefully informed appellant of the consequences of violation of the terms of probation. The following was said at the time of sentence:
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