King v. State, 85-246

• Decision Date: 03 June 1986
• Docket Number: No. 85-246,85-246
• Citation: 720 P.2d 465
• Parties: David KING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 465

720 P.2d 465

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

No. 85-246.

Supreme Court of Wyoming.

June 3, 1986.

Richard H. Honaker, Honaker Law Firm, Rock Springs, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Sylvia

Lee Hackl, Senior Asst. Atty. Gen., for appellee; argument by Ms. Hackl.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

CARDINE, Justice.

This appeal is from an order extending David King's probation. The issue it presents is whether the trial court could properly extend King's probation beyond its original term of five years under § 7-13-203, W.S.1977. We hold the probation could not be extended and reverse.

On May 7, 1980, David King, appellant, pled guilty to the charge of accessory before the fact to his wife's crime of embezzling $59,000 from her employer. The guilty plea was the result of a plea bargain in which the prosecuting attorney advised the court that "the State has agreed to recommend Parole Before Sentence in exchange for a guilty plea."

A judgment and sentence, entered May 9, 1980, stated that King was

"sentenced to not less than three (3) nor more than five (5) years in the Wyoming State Penitentiary * * * that the portion of the sentence relating to imprisonment * * * is suspended and that the said David King be paroled and permitted to go at large upon his own recognizance for a period of five (5) years pursuant to the provisions of Section 7-13-203, W.S.1977 * * *."

The judgment and sentence also ordered appellant to pay a fine of $1,000 and to make restitution jointly and severally with his wife with a 7% annual interest rate on the unpaid balance. It was provided that appellant could make monthly payments according to a schedule determined by his probation agent.

In 1983, as a result of a restitution plan established by the probation agent, appellant began making restitution payments of $200 a month and continued those payments until May 7, 1985, which was five years from the date of the judgment and sentence. Appellant timely made every payment, but $200 per month was insufficient to cover even the interest accruing on the $59,000. Because appellant had not paid the debt in full on May 7, 1985, his probation agent, on April 10, 1985, petitioned the court for an extension of his probation. That same day, without a hearing or notice, the court entered an "Order Extending Probation." This order stated simply that appellant had been ordered to make restitution and had not yet done so; therefore, his probation was extended.

Appellant moved to vacate the order extending probation and petitioned for discharge. The court denied the motion. This appeal is from the denial of that motion. Appellant presents the following issues for our consideration:

"1. Does a Wyoming district court have jurisdiction to extend a W.S. § 7-13-203 parole beyond five (5) years?

"2. Does W.S. § 7-13-203 require that a criminal defendant either be discharged or sentenced within five (5) years?

"3. Does a Wyoming district court have jurisdiction to extend probation because of a criminal defendant's failure to fully comply with an illegal restitution order?

"4. Was the district court's restitution order an illegal portion of a divisible sentence, thus allowing this Court to strike the requirement of restitution from Mr. King's Judgment and Sentence?

"5. By striking the illegal portion of a divisible sentence, would this Court then remove any grounds for the district court's orders extending probation and denying Appellant's petition for discharge?

"6. Does extension of probation without notice or hearing, and based upon non-compliance with an illegal restitution order, violate Mr. King's federal and state constitutional rights to due process of law?"

We need only consider appellant's first two issues in resolving this case.

Appellant contends that because he was sentenced under § 7-13-203, W.S.1977, the district court had no jurisdiction to extend his "parole" beyond five years. Section 7-13-203 refers to release after the suspension of the imposition of sentence as "parole." As we explained in Sorenson v. State, Wyo., 604 P.2d 1031 (1979), since there is no incarceration when the imposition of the sentence is suspended, the status of the defendant is probation. This opinion will refer to King as being on probation under § 7-13-203.

The State contends that appellant could not have been sentenced under § 7-13-203 because that statute had been superseded by § 7-13-301, W.S.1977, and that, therefore, appellant was sentenced under § 7-13-301 which allows the court to extend appellant's probation up to the maximum sentence provided for the crime to which appellant pled guilty--fourteen years in this case. The State also claims that, even if appellant was sentenced under § 7-13-203, the court had authority to extend appellant's probation.

We must determine whether appellant could have been sentenced under § 7-13-203; whether in fact he was sentenced under § 7-13-203; and, if sentenced under that statute, whether the trial court could lawfully extend appellant's probation beyond five years.

I

In support of its claim that appellant could not have been sentenced under § 7-13-203, the State relies exclusively on the case of Sorenson v. State, Wyo., 604 P.2d 1031 (1979). The question before this court in Sorenson was whether, under § 7-13-301, W.S.1977, a court could grant parole after incarceration. We held that the power given the Board of Parole in § 7-13-402, W.S.1977, was inconsistent with the exercise by the court of parole power over an individual confined in the institution. In a footnote, this court stated that § 7-13-203 "was probably superseded by § 7-13-301." 604 P.2d at 1038, n. 6.

Section 7-13-203 was originally enacted in 1909. Wyoming Session Laws 1909, ch. 87 § 1. Section 7-13-301 was enacted thirty years later. Wyoming Session Laws 1939, ch. 91 § 1. At that time all acts and parts of acts in conflict with the provisions of the new act were repealed, Wyoming Session Laws 1939, ch. 91 § 7. Nevertheless, § 7-13-203 has been treated as in effect since the enactment of § 7-13-301 and has been amended by the legislature as recently as 1977. Wyoming Session Laws 1977, ch. 70 § 2.

Both statutes concern probation. Section 7-13-203 provides:

"If any person is found guilty of or pleads guilty to any felony except murder, sexual assault in the first or second degree or arson of a dwelling house or other human habitation in the actual occupancy of a human being, the court shall ascertain whether the offense of which the accused is guilty is his first offense, the extent of moral turpitude involved in the act committed, and other facts and circumstances relating to the accused as he may desire to know. If the court is satisfied that he was a person of good reputation before the commission of the offense charged and had never before been convicted of any felony, and that if permitted to go at large would not again violate the law, the court may in its discretion, by an order entered of record, delay passing sentence and then parole the person and permit him to go at large upon his own recognizance, conditioned that he will personally appear and report to the court twice in each year at times and places fixed in the order and that he will demean himself while at large in a law-abiding manner and live a worthy, respectable life, and that he will not leave the state without the consent of the court. The court, if satisfied at the time of appearance, that the person has demeaned himself in a law-abiding manner and lived a worthy, respectable life, may by an order of record, continue parole for the period of five (5) years, at the expiration of which the court shall enter an order finally discharging the person, and no further proceedings shall be had upon such verdict or plea. At any time after the expiration of one (1) year from the date of the original parole the court shall have the power in its discretion to terminate parole and finally discharge the person and annul the verdict or plea of guilty. At any time before the final discharge of the person that the court believes that the paroled person has attempted to leave the state or failed to comply with the terms of his parole the court shall cause a warrant to issue for the apprehension and arrest of the person and require him to be brought before the court. The court shall inquire into his conduct since his parole, and if satisfied from the inquiry that the person has violated the terms of his parole and recognizance, the court may impose sentence upon the verdict or plea against him in the manner and to the same extent as though the passing of sentence had not been delayed and the person had not been paroled or permitted to go at large."

Section 7-13-301, states:

"After conviction or plea of guilty for any offense, except crimes punishable by death or life imprisonment, the court may suspend the imposition of sentence, or may suspend the execution of all or a part of a sentence and may also place the defendant on probation or may impose a fine applicable to the offense and also place the defendant on probation. With the consent of a defendant charged with a crime, except a crime punishable by death or life imprisonment, the court may suspend trial and place such defendant on probation."

In Peterson v. State, Wyo., 586 P.2d 144 (1978), this court determined that the phrase "crimes punishable by death or life imprisonment" appearing in § 7-13-301 did not include offenses carrying a minimum sentence of less than life. In reaching this conclusion we considered the differences between § 7-13-203 and § 7-13-301. Under § 7-13-203, "a defendant is allowed a considerable degree of liberty, his actions and freedoms being subject to what are overall rather minimal limitations with the possibility of no...