Shaw v. State
| Citation | 998 P.2d 965 |
| Decision Date | 09 March 2000 |
| Docket Number | No. 98-351.,98-351. |
| Parties | Jimmy Lee SHAW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | United States State Supreme Court of Wyoming |
Representing Appellant: Jeffrey C. Gosman of Gosman Law Office, Casper, WY. Argument by Mr. Gosman.
Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Hugh Kenny, Senior Assistant Attorney General. Argument by Mr. Kenny.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
Jimmy Lee Shaw appeals the revocation of his probation, claiming violations of his right to due process prior to and during the probation revocation hearing. We conclude that Shaw was not properly served with a copy of the petition for revocation prior to the hearing as required by the governing statute, rule, and constitutional principles of due process. Therefore, we reverse.
We summarize the issues presented by Shaw as follows:
On April 10, 1997, Shaw pled no contest to issuance of insufficient funds checks in violation of Wyo. Stat. Ann. § 6-3-702 (Lexis 1999). Judgment and sentence was entered on August 12, 1997, and Shaw was placed on probation for three years. Among the conditions of probation were that Shaw abstain from drug and alcohol use and submit to random testing.
On October 6, 1997, a petition for revocation of probation was filed, together with an affidavit, in which it was alleged that Shaw had tested positive for cocaine two weeks earlier. Shaw initially appeared in district court on October 30, 1997, bond was set, and counsel was appointed to represent him in the probation revocation proceedings. On December 2, 1997, a probation revocation hearing was held at which time Shaw's counsel advised the district court that Shaw admitted the allegations contained in the petition. Following the hearing, on December 11, 1997, the district court entered an order continuing Shaw's probation with the additional condition that he serve another 30 days at Community Alternatives of Casper.
On September 23, 1998, another petition for revocation of probation was filed with an affidavit alleging that Shaw had tested positive for cocaine on two more occasions in the preceding weeks. It is this petition for revocation which is the subject of Shaw's appeal. Shaw alleges, and the State concedes, that a copy of the petition for revocation was not served upon him or his counsel at any time prior to or during the probation revocation hearing.
On October 1, 1998, Shaw was brought before the district court on the second petition for revocation, bond was set, and counsel was appointed. At this hearing, the court orally advised Shaw that the affidavit filed with the petition for revocation alleged that two urinalyses conducted in the preceding weeks were positive for cocaine.
On October 13, 1998, Shaw appeared at the probation revocation hearing with counsel, who advised the court that neither he nor Shaw had received a copy of the petition for revocation and that he was not aware of the specific allegations. Counsel stated he understood from his client that the petition alleged that two urinalyses in the preceding weeks came back presumptively positive. Counsel then stated he was not aware whether the State had confirmatory data on either test. The prosecuting attorney responded that the State did have confirmatory data on one of the tests. Counsel for Shaw then informed the court that Shaw would acknowledge the positive urinalysis was a correct reading and asked to go forward with the hearing. After hearing brief argument for and against revocation, the district court ordered that Shaw's probation be revoked and sentenced him to two to three years in the Wyoming State Penitentiary. An order to that effect was entered on October 23, 1998. Shaw timely appealed from that order.
In Mason v. State, 631 P.2d 1051, 1055 (Wyo.1981) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)), we said:
(Emphasis added.)
In Minchew v. State, 685 P.2d 30, 31 (Wyo. 1984) we again acknowledged that one of the minimum requirements of due process includes written notice of the claimed violations of probation. More recently, in Wlodarczyk v. State, 836 P.2d 279, 293 (Wyo.1992) and Gailey v. State, 882 P.2d 888, 891 (Wyo.1994), we reiterated that written notice of the nature and content of the allegations is among the many safeguards which our law affords the probationer.
The procedures for revocation of probation are governed by statute and by court rule. Wyo. Stat. Ann. § 7-13-408(c)(i) (Lexis 1999) provides:
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