Lane v. State, 5823
| Decision Date | 12 May 1983 |
| Docket Number | No. 5823,5823 |
| Parties | Amos S. LANE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia Lee Hackl, Cheyenne, Appellate Counsel, Wyoming Public Defender Program, signed the brief and appeared in oral argument for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen. and Thomas T.C. Campbell, Legal Intern (argued), Cheyenne, signed the brief, for appellee.
Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.
After a plea of guilty to an information charging appellant-defendant with obtaining property by false pretenses in violation of § 6-3-106, W.S.1977, he was called before the district court on October 30, 1980, for sentencing. At that time, the court said:
However, the written Judgment and Sentence filed on November 12, 1980, made no mention of the fact that the sentence be served consecutively to the federal sentence. The Mittimus, dated November 7, 1980 and filed November 12, 1980, reflected that the sentence was to:
" * * * run consecutively with any Federal sentence imposed and after Amos S. Lane is released from Federal incarceration * * *."
On September 16, 1982, appellant filed a motion pursuant to Rule 36, W.R.Cr.P., "to correct an illegal sentence." 1 After a hearing, the court denied the motion and ordered a Nunc Pro Tunc Judgment and Sentence:
" * * * be entered to make the written Judgment and Sentence correctly reflect what was pronounced orally in open Court."
The Nunc Pro Tunc Judgment and Sentence so reflecting was filed October 15, 1982.
On appeal from the Nunc Pro Tunc Judgment and Sentence, appellant words the only issue:
"Whether the trial court erred in denying Appellant's Rule 36 motion to correct the sentence imposed against him, so as to reflect that Appellant's state sentence was to be served concurrent with his federal term."
We affirm.
Appellant argues that sentences are to be served concurrently when the judgment and sentence is silent with reference to the concurrent or consecutive aspect. He argues further that a sentence cannot be modified after the expiration of the term in which it was rendered and recorded, nor, in any event, to increase its severity.
Appellant's argument is premised upon the proposition that the written judgment and sentence is the judgment and sentence and controls over an oral sentence in variance with it. We have held to the contrary:
"There were no improper proceedings in the courtroom. Judgment and sentence were properly pronounced orally by the court, for the crime charged. However, there was a mistake in the written record of the judgment and sentence. The written 'JUDGMENT AND SENTENCE ' which was afterwards signed and entered failed to correctly represent what the judge had actually done in open court * * *
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