Murphy v. State, 4989
| Court | United States State Supreme Court of Wyoming |
| Writing for the Court | Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE; RAPER |
| Citation | 592 P.2d 1159 |
| Parties | Roger Wilson MURPHY, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Docket Number | No. 4989,4989 |
| Decision Date | 06 April 1979 |
Page 1159
v.
The STATE of Wyoming, Appellee (Plaintiff below).
Rehearing Denied May 14, 1979.
Page 1160
Gerald M. Gallivan, Laramie, Director, Wyoming Defender Aid Program, and Bruce Asay, Student Intern, signed the brief and Mr. Asay appeared in oral argument on behalf of the appellant.
John J. Rooney, Attorney Gen., Gerald A. Stack, Deputy Atty. Gen., and James C. Anderson, Student Intern, signed the brief and Mr. Anderson appeared in oral argument on behalf of the appellee.
Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *
Page 1161
RAPER, Chief Justice.
The appellant-defendant pled guilty to a charge of grand larceny in violation of § 6-132, W.S.1957, 1975 Cum.Supp. (§ 6-7-301, W.S.1977). 1 The court's judgment and sentence, entered on May 3, 1977, imposed a sentence of from two-to-five years imprisonment, but sentence was suspended and defendant placed on probation for five years subject to revocation if he failed to live up to the probation terms. 2 No appeal was then taken.
An order to show cause was issued by the district court on February 7, 1978, upon the motion of the county and prosecuting attorney, served upon the defendant and a hearing set. At the termination of the hearing, a judgment and sentence was entered by the district court revoking probation and activating the original two-to-five year sentence. On appeal defendant asserts that: (1) It was violative of the Wyoming Rules of Criminal Procedure, Rule 15, for the district court to accept defendant's guilty plea in the 1977 proceedings without properly establishing a factual basis for the plea; (2) The procedure followed by the district court in failing to give notice when revoking the appellant's probationary status was violative of his constitutional guarantees of minimal due process; and (3) It was an abuse of discretion for the district court to refuse appellant's motion to withdraw his guilty plea.
We will affirm.
Defendant argues that the trial judge erred in the 1977 guilty plea proceeding in failing to ascertain a factual basis for such a plea as mandated by Rule 15, W.R.Cr.P. Britain v. State, Wyo.1972, 497 P.2d 543, 545. We cannot reach this issue 3 for the reason that we do not have jurisdiction in this appeal to consider the judgment and sentence entered by the district court on May 3, 1977. We have before us an appeal from a judgment and sentence from a probation revocation proceeding and the only matters which we may consider are matters which relate to that proceeding. The judgment and sentence entered on May 3, 1977, which placed appellant on probation, was a final order from which a timely appeal should have been taken if defendant wished to in any way challenge that proceeding. Rule 38, W.R.Cr.P.; Rules 72 and 73, W.R.C.P. Suspension of sentence and placing on probation does not extend the time in which to take an appeal. State v. Williams, 1975, 194 Neb. 483, 233 N.W.2d 772, 773; People v. Pickett, 1974, 391 Mich. 305, 215 N.W.2d 695; State v. Ward, 1972, 108 Ariz. 288, 496 P.2d 588; People v. Nordstrom, 1966, 73 Ill.App.2d 168, 219 N.E.2d 151. There is a wealth of precedent which supports this proposition from the above jurisdictions as well as from other states. See West's Digest System, Criminal Law, Key Numbers 1069(5) and 1134(8). The filing of a timely notice of appeal is mandatory and jurisdictional. This was so under the rules governing
Page 1162
appeals at the time defendant entered his guilty plea as well as Rule 1.02 of the New Wyoming Rules of Appellate Procedure. Jackson v. State, Wyo.1976, 547 P.2d 1203. We hold that we are without jurisdiction in this appeal to consider matters which arose out of the proceeding which resulted in the judgment and sentence of May 3, 1977.The appellant asserts that he was denied due process 4 of law in the revocation of his probation in that the district court failed to give him written notice which outlined the charges against him. We shall treat this position of the defendant with some brevity because we have "walked this way before." In Knobel v. State, Wyo.1978, 576 P.2d 941, we confronted very similar questions to that presented here. In that case we determined that ample due process is provided a probationer in a proceeding conducted before the district court in accordance with Wyoming Rules of Criminal Procedure, Rule 33(f), which
" * * * provides that probation shall not be revoked except after hearing with the presence of the defendant, and with his having notice of the grounds of such action and his release upon bond. The required hearing under said rule in itself provides an inherent sort of fairness which is not achieved through administrative procedures, * * *." Knobel v. State, supra, at 576 P.2d 942.
The motion which requested the district judge to issue to defendant an order to show cause why his probation should not be revoked was presented by the Johnson County prosecuting attorney. In response, the district court issued an order, filed February 7, 1978, and directed that the motion be served upon defendant. 5 The order set a hearing for a day certain at which defendant could show cause why his probation should not be revoked.
The motion presented by the Johnson County attorney stated:
"IV
"That the Defendant has been convicted on a number of occasions in Natrona County including:
"Driving While Under the Influence,
Leaving the Scene of an Accident,
No Driver's License,
Assault, Trespass, and Destruction of Property."
A probationer is entitled to...
To continue reading
Request your trial
-
Wlodarczyk v. State, 91-20
...revocation decisional results. State v. Reisch, 491 P.2d 1254 (Wyo.1971); Knobel v. State, 576 P.2d 941 (Wyo.1978); Murphy v. State, 592 P.2d 1159 (Wyo.1979); Smith v. State, 598 P.2d 1389 (Wyo.1979); Weisser v. State, 600 P.2d 1320 (Wyo.1979); Buck v. State, 603 P.2d 878 (Wyo.1979); Ketcha......
-
Cooney v. Park County, 88-174
...petition for revocation under W.S. 7-13-409 (1977) and there was apparently no order to show cause as recognized in Murphy v. State, 592 P.2d 1159 (Wyo.1979), where other offenses became the basis presented for revocation and not internal rule non-compliance which was implicated here. See l......
-
Zanetti v. State, 88-281
...467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984); United States v. Kobrosky, 711 F.2d 449 (1st Cir.1983). See also Murphy v. State, 592 P.2d 1159 (Wyo.1979). Absent an abuse of that discretion, we will not disturb the result. We have previously stated that judicial discretion is "a comp......
-
State v. Maier
...when necessary, the specificity required in an indictment is not necessary in a motion to revoke probation. Murphy v. State, Wyo., 592 P.2d 1159, 1162 (1979); Davila v. State, Tex.Cr.App., 547 S.W.2d 606, 609 In order to justify the reversal of a criminal conviction because of a variance be......