Stamper v. State
| Decision Date | 09 November 1983 |
| Docket Number | No. 83-158,83-158 |
| Citation | 672 P.2d 106 |
| Parties | Pete STAMPER, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Terry W. Mackey, Cheyenne, for appellant.
A.G. McClintock, Atty. Gen. and Gerald A. Stack, Deputy Atty. Gen., Criminal Division, for appellee.
This case came on before the court upon a Petition for Reinstatement filed herein by Pete Stamper on September 30, 1983, and a Motion Requesting Oral Argument by Pete Stamper filed herein on September 30, 1983, and the court having examined the files and record of the court and being fully advised in the premises finds that it is appropriate to consider the Petition for Reinstatement as a Petition for a Writ of Certiorari; the writ of certiorari is an adequate and appropriate remedy by which the petitioner may separately assert and litigate to finality his claim that he is placed in double jeopardy and any error committed by the district court in Denying his Motion to Dismiss premised upon that ground in accordance with Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); and Peterson v. State, Wyo., 586 P.2d 144 (1978) (); there is no right to appeal from the Order denying the Motion to Dismiss, which is not a final order as defined in Rule 1.05, W.R.A.P.; the Writ of Certiorari should be granted in this case; the files and record of this court are sufficient to apprise the court of the facts surrounding the claim of double jeopardy and the denial of the Motion to Dismiss by the district court; there is no necessity in this case for further briefing or argument of either the facts or the law; the retrial of Pete Stamper does not place him twice in jeopardy because the reversal of his prior conviction was premised upon the incorrect receipt of evidence and an incorrect instruction (see Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)); and the denial of the Motion to Dismiss by the district court should be affirmed, and it therefore is
ORDERED that the Petition for Reinstatement filed herein by Pete Stamper on September 30, 1983, be, and the same hereby is, considered as a Petition for a Writ of Certiorari; and it further is
ORDERED that the Writ of Certiorari be, and the same hereby is, granted to the extent required for review of the denial of the Motion to Dismiss by the district court; and it further is
ORDERED that the Motion Requesting Oral Argument be, and the same hereby is, denied; and it further is
ORDERED that the action of the district court in denying the Motion to Dismiss by Pete Stamper based upon his claim of double jeopardy be, and the same hereby is, affirmed.
Appellant Pete Stamper was first before this court seeking reversal of his conviction for aggravated assault with a deadly weapon. Stamper v. State, Wyo., 662 P.2d 82 (1983). The jury had acquitted him of involuntary manslaughter, the crime for which he was tried, but found him guilty of aggravated assault with a deadly weapon as a lesser-included offense. This court reversed.
At trial, the State was permitted to introduce a pair of appellant's boots into evidence but the witness was not allowed to testify about the circumstances surrounding their acquisition. We held that, since the record did not reveal a connection between the boots and the defendant on the evening in question, the boots were inadmissible on foundational grounds.
This court further held that it was error to instruct the jury concerning aggravated assault with a deadly weapon, since, to warrant giving such an instruction, there must be evidence that the defendant was in fact armed with a deadly weapon. The only evidence with respect to a deadly weapon was the mere presence of the boots which were found to have been inadmissible. Therefore, it may be said that Pete Stamper's conviction was reversed on the ground that the evidence was insufficient to sustain the jury's verdict of aggravated assault with a deadly weapon.
The State now seeks to retry Stamper for aggravated assault with a deadly weapon and Stamper argues that a second trial amounts to double jeopardy. His motion to dismiss on double-jeopardy grounds was denied by the district court and Stamper asks this court to review the denial of his motion to dismiss.
The United States Supreme Court in Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977), said that the double-jeopardy clause protects an individual from being tried twice for the same crime. The court said:
"[I]f a criminal defendant is to * * * enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure [retrial] occurs." (Emphasis added.)
The denial of a defendant's motion to dismiss is not a final, appealable order under Rule 1.05, W.R.A.P. Therefore, no appeal is available to protect Stamper's constitutional right not to be tried twice for the same offense. However, under Abney, supra, this court must afford Stamper a review of his double-jeopardy challenge prior to a second trial.
I would conclude, then, that, since appellant has no other means of review, certiorari lies to review his double-jeopardy claim. Stamper's right to petition for a writ of certiorari and this court's authority to grant the writ comport with my discussion of the writ of certiorari in my dissenting opinion in Wright v. State, Wyo., 670 P.2d 1090 (1983), and my concurring opinion in City of Laramie v. Mengel Wyo., 671 P.2d 340 (1983). In the later opinion, I quoted Works, Courts and Their Jurisdiction, 2nd Ed. (1897), p. 698...
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Warren v. State
...are similar, except the usage in verdict of the lesser included offenses did not become a trial court or appellate issue. Stamper v. State, 672 P.2d 106 (Wyo.1983); Stamper v. State, 662 P.2d 82 The case of Balsley v. State, 668 P.2d 1324 (Wyo.1983) does not easily fit within any particular......
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...of first impression; and the issue was of constitutional magnitude. We reversed the municipal court's determination. Stamper v. State, 672 P.2d 106 (Wyo.1983). Certiorari was granted to review a nonappealable district court order denying the defendant's motion for dismissal of the complaint......
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Stamper v. State
...The defendant filed a Notice of Appeal, seeking review of the district court's order. 2. This court, in the case of Stamper v. State, Wyo., 672 P.2d 106 (1983), determined that no right of appeal exists from an order denying a motion to dismiss an action, because such order is not a final o......