Ramsdell v. State, 05-161.
| Decision Date | 28 December 2006 |
| Docket Number | No. 05-161.,05-161. |
| Citation | 149 P.3d 459,2006 WY 159 |
| Parties | James Uriah RAMSDELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender.
Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David Delicath, Senior Assistant Attorney General.
Before VOIGT, C.J., and GOLDEN, HILL*, KITE, and BURKE, JJ.
[¶ 1] Mr. Ramsdell appeals from an order revoking his probation for failure to pay restitution. We affirm.
[¶ 2] Mr. Ramsdell presents the following issues:
Did the trial court err in not dismissing the probation revocation, with prejudice, due to lack of timely hearing?
Did the trial court err in revoking probation, when presented with uncontroverted evidence that Mr. Ramsdell was unable to pay?
The State presents an additional issue:
Does this Court have jurisdiction to consider whether the trial court erred by dismissing the August 17, 2004, probation revocation petition without prejudice?
[¶ 3] In 2001, Mr. Ramsdell pled guilty to one felony count of larceny by bailee, in violation of Wyo. Stat. Ann. § 6-3-402(b), (c)(i) (Michie 1997). He was sentenced to a term of two to five years in the state penitentiary. The sentence was suspended and he was placed on probation. One of the conditions of probation required Mr. Ramsdell to pay restitution in the amount of $7,344.37. His restitution payment was set at $125.00 per month.
[¶ 4] In 2002, Mr. Ramsdell's probation was revoked, in part, because of his failure to meet his restitution obligation. His original prison sentence was imposed with a referral to Boot Camp. Mr. Ramsdell completed the Boot Camp program and was once again placed on probation. Restitution was re-imposed as a condition of probation. Mr. Ramsdell requested permission to move to the state of Washington because of employment opportunities available to him. The court granted his request.
[¶ 5] In 2004, Mr. Ramsdell's probation was revoked for the second time for failing to make restitution payments. At the revocation hearing, Mr. Ramsdell requested permission to move to Idaho where he had a job working for his family's business. He offered to increase his restitution payments to "$550.00 or $600.00" per month. The district court granted Mr. Ramsdell's request, reinstated probation, and set the new restitution payment at $500.00 per month.
[¶ 6] After moving to Idaho, Mr. Ramsdell made two restitution payments. The last payment was received on June 7, 2004. The State filed a third petition for revocation on August 17, 2004, alleging that Mr. Ramsdell had failed to pay restitution.
[¶ 7] Mr. Ramsdell was arrested several months later on March 23, 2005. He appeared before the circuit court on March 25, 2005, and was appointed a public defender at that time. On April 7, 2005, Mr. Ramsdell appeared before the district court where he was advised of the allegations contained in the revocation petition and of his rights. He denied the allegations. The district court set bond and scheduled an evidentiary hearing for April 14, 2005.
[¶ 8] At the April 14th hearing, the State informed the court that it was not prepared to proceed because it had failed to notify its witnesses of the scheduled hearing. Defense counsel orally moved for dismissal of the revocation petition with prejudice. The district court granted the dismissal, but did so without prejudice. A written order granting the dismissal was never entered. The district court did, however, enter a minute order releasing Mr. Ramsdell from custody.
[¶ 9] The next day, the State re-filed its petition seeking revocation on the same grounds as alleged in the August 17, 2004 petition. A hearing was set for April 21, 2005. On the day of the scheduled hearing, Mr. Ramsdell filed a Motion to Dismiss with Prejudice for Lack of Speedy Probation Revocation Hearing; if Denied then Motion to Grant Credit for Time Served Awaiting Probation Revocation Hearing. The district court denied the motion to dismiss.
[¶ 10] The evidentiary hearing was held. The district court found that Mr. Ramsdell had willfully failed to pay his court-ordered restitution. Mr. Ramsdell's probation was revoked and the district court imposed the original two to five year sentence. Mr Ramsdell was awarded credit for time served including the time he was confined while awaiting disposition of the August 17, 2004 revocation petition. This appeal followed.
[¶ 11] Probation revocation proceedings are reviewed under our abuse of discretion standard.
A district court's decision to revoke probation is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion. . . . Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. The district court's determination that the probation agreement has been violated must be based upon verified facts and must be made pursuant to due process protections.
Anderson v. State, 2002 WY 46, ¶ 25, 43 P.3d 108, 118 (Wyo.2002) (internal citations and quotation marks omitted). To the extent that this appeal raises questions of law, those questions are reviewed de novo. Johnson v. State, 2006 WY 79, ¶ 7, 137 P.3d 903, 905 (Wyo.2006).
[¶ 12] Mr. Ramsdell initially claims the district court erred by dismissing the August 17, 2004, revocation petition without prejudice. He contends that a dismissal with prejudice should have been ordered because he was not provided a hearing within fifteen days of his first appearance after the filing of the petition as required by W.R.Cr.P. 39(a)(4)(B)(i). He further claims that, because the August petition should have been dismissed with prejudice, the State was precluded from filing the second petition.
[¶ 13] In response, the State first claims that this Court is without jurisdiction to consider this issue. The State contends that Mr. Ramsdell's appeal is untimely because he did not appeal from the oral ruling dismissing the August petition. We reject the State's contention that we lack jurisdiction.
[¶ 14] On April 14, 2005, the district court ruled from the bench that the August petition was dismissed without prejudice. A written order did not follow the court's oral pronouncement. Prior to the hearing on April 21, 2005, Mr. Ramsdell filed another motion to dismiss. The district court orally denied the motion. Again, a written order did not follow.
[¶ 15] W.R.A.P. 2.01(a) provides in pertinent part that "[a]n appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 30 days from entry of the appealable order...." "Entry" of an order requires that the order be in writing and filed with the clerk of court. See, e.g., Black's Law Dictionary 533 (6th ed.1990) (defining the term entry as "a setting down in writing of particulars" and/or "to file or . . . deposit"). See also, State v. Gwyther, 589 N.W.2d 575, 578 (N.D.1999) (); Commonwealth of Kentucky v. West, 147 S.W.3d 72, 74 (Ky.2004) ().
[¶ 16] Mr. Ramsdell was not required to appeal from the oral ruling.1 He appealed from the Order Revoking Probation and Judgment and Sentence. This order was the first written order entered after the petition for revocation was filed. The appeal was timely and we have jurisdiction to consider this issue.
[¶ 17] Alternatively, the State claims that Mr. Ramsdell received an appropriate remedy for violation of the time limits set forth in W.R.Cr.P. 39.2 In Reese v. State, 866 P.2d 82, 84 (Wyo.1993), we held that the time limits set forth in W.R.Cr.P. 39 are considered advisory in nature and are not mandatory.3 We explained that:
[t]he time limits prescribed by Rule 39 do not establish the parameters of the district court's jurisdiction, since the district court retained its original jurisdiction, but rather seek to prevent delays in contravention of a defendant's constitutional right to a speedy disposition of the charges against him. Federal due process requires that a probationer be afforded an opportunity for a revocation hearing within a reasonable time after he is taken into custody. Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 2603-04, 33 L.Ed.2d 484, 498 (1972).
. . . [T]he court may, as indicated by the rule, deviate from the prescribed times for good cause. . . .
We therefore conclude that, while the thirty and fifteen-day time limits set forth in Rule 39 should be adhered to, failure to do so will not divest the trial court of its jurisdiction, nor will it result in an automatic dismissal of the revocation petition.
Reese, 866 P.2d at 84. We have also recognized that courts are permitted to "tailor [a] remedy to the circumstances of each case in light of the harm the rule was promulgated to prevent" because the rule does not provide specific remedies for violations. Doney v. State, 2002 WY 182, ¶ 17, 59 P.3d 730, 737 (Wyo.2002).
[¶ 18] In this case, the district court set the evidentiary hearing for April 14, 2005. Mr. Ramsdell did not object to the court's setting. When the State advised the district court that it was unable to proceed with the scheduled evidentiary hearing, the district court dismissed the petition and ordered Mr. Ramsdell's release from custody. After revoking Mr. Ramsdell's probation on April 21, 2005, the district court awarded Mr. Ramsdell credit for his time in custody pending disposition of the revocation proceedings.
[¶ 19] Both...
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