State v. Steele

• Decision Date: 19 December 1980
• Docket Number: No. 5311,5311
• Parties: The STATE of Wyoming, Appellant (Plaintiff), v. Harry STEELE, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1026

620 P.2d 1026

The STATE of Wyoming, Appellant (Plaintiff), v. Harry STEELE, Appellee (Defendant).

No. 5311.

Supreme Court of Wyoming.

Dec. 19, 1980.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, Cheyenne, and William H. Jackson, Jr., Pinedale, Sp. Asst. Atty. Gen., for appellant.

John S. Mackey, Pinedale, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Pursuant to § 7-12-102, W.S.1977, ¹ appellant-State made application to this court for permission to file a Bill of Exceptions relating to certain orders and proceedings had in the district court in this matter. We granted permission to do so.

In substance, the Bill of Exceptions alleged error in four respects: (1) After refusal of the trial court to accept a plea of nolo contendere from appellee, finding him "not guilty" and releasing and discharging him before receiving or entering a different plea and without a trial if a guilty plea or "unfit to proceed" plea were made or entered; (2) after entering of a nunc pro tunc order changing the previous refusal to accept the nolo contendere plea from appellee and accepting it, finding him "not guilty" and releasing him and discharging him; (3) the making of statements by the trial judge which were critical of the actions of the Game and Fish Commission; and (4) the questioning by the trial judge of the decision of the prosecuting attorney to file criminal charges in this case. ²

We find error as contended in the first and second allegations.

We will not consider the third and fourth allegations of error inasmuch as appellant has not supported them with reference to substantiating authority or with cogent argument. We have often said that such is necessary. Scherling v. Kilgore, Wyo., 599 P.2d 1352 (1979); Cherniwchan v. State, Wyo., 594 P.2d 464 (1979).

Appellee was charged under § 23-3-107, W.S.1977 with unlawfully killing big game animals (moose). The original information was in 16 counts, one for each of 16 moose. Appellee entered a plea of "not guilty" thereto. The prosecuting attorney agreed to file an amended information containing only 8 counts, and appellee agreed to change his plea to nolo contendere to the charges in the amended information. On August 16, 1979, the trial judge made careful inquiry into the voluntariness of appellee's plea and his understanding of it pursuant to Rule 15(d), W.R.Cr.P. In doing so, he noted that the basic difference between a "nolo contendere" and "guilty" plea was only in its use in connection with a subsequent civil action and that the court could refuse to accept the nolo contendere plea, in which instance the appellee would stand trial unless he pleaded guilty. Appellee, nonetheless, entered a plea of nolo contendere.

When appellee came before the trial judge on September 21, 1979 for sentencing, the judge found "that the plea of nolo contendere should not be accepted. The court finds the defendant not guilty. The defendant is released and discharged." On February 15, 1980, the trial judge executed a lengthy "Orders and Judgment of Acquittal" document. It recited the history of the case as the judge viewed it, including the statement that:

"the court double checked the transcript with the reporter and is satisfied that it said 'should not be accepted.' In truth and in fact the court intended, and intends, that the plea should be accepted and accordingly hereby amends that finding nunc pro tunc.

"IT IS HEREBY ORDERED, CONSIDERED, ADJUDGED, AND DECREED:

"The defendant's pleas of nolo contendere to each of the counts in the information be and the same hereby are accepted, * * *. The court finds the defendant not guilty. The defendant is released and discharged."

Rule 15(a) and (b), W.R.Cr.P. provides:

"(a) Alternatives.-A defendant may plead not guilty, not guilty by reason of mental illness or deficiency, unfit to proceed by reason of mental illness or deficiency, guilty, or nolo contendere. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.

"(b) Nolo Contendere.-A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice."

"Nolo contendere" means literally "I do not wish to contest." It has the same effect as a plea of guilty for the purposes of the case, but it cannot be used as an admission in a civil case for the same act. It is an implied admission of every essential element of the offense for the purposes of the case. As such, it is in the nature of a compromise between the prosecution and the accused for the purpose of disposing of the case. The court may accept it without first satisfying itself that the defendant committed the crime charged as it must do on a plea of guilty. Issues of fact do not remain, and, if accepted by the court, the court must enter judgment on the plea. 1 Wright, Federal Practice and Procedure: Criminal, § 177 (1969); Qureshi v. Immigration & Naturalization Service of Department of Justice of United States, 5 Cir. 1975, 519 F.2d 1174; Lott v. United States, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961); Tempo Trucking and Transfer Corporation v. Dickson, D.C.N.Y., 405 F.Supp. 506 (1975); United States v. American Radiator & Standard Sanitary Corporation, D.C.Pa., 288 F.Supp. 696 (1968); Peel v. State, Fla.App., 150 So.2d 281 (1963); United States v. DeGregory, D.C.Pa., 220 F.Supp. 249 (1963), affirmed 3 Cir. 1965, 341 F.2d 277, cert. denied, 382 U.S. 850, 86 S.Ct. 96, 15 L.Ed.2d 89 (1965); United States v. Lair, 8 Cir. 1912, 195 F. 47, cert. denied 229 U.S. 609, 33 S.Ct. 464, 57 L.Ed. 1350 (1913); Singleton v. Clemmer, D.C.Cir.1948, 166 F.2d 963; Federal Deposit Ins. Corporation v. Cloonan, 165 Kan. 68, 193 P.2d 656 (1948); 21 Am.Jur.2d Criminal Law §§ 497 through 502.

In a criminal case, the defendant's plea formulates the issues for trial. The entry of a plea is essential to a valid conviction. Hoggatt v. State, Wyo., 606 P.2d 718 (1979); Fletcher v. State, 20 Wyo. 284, 123 P. 80 (1912); Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), on remand, 273 Ala. 504, 142 So.2d 868 (1962); Claghorn v. Brown, Okl.Cr.App., 505 P.2d 998 (1973); State v. Lyles, Iowa, 225 N.W.2d 124 (1975); People v. Bain, 358 Ill. 177, 193 N.E. 137 (1934). See Rule 14, W.R.Cr.P. which directs that an arraignment shall be conducted in open court. Rule 15(a), W.R.Cr.P., supra, provides for entry of a plea of not guilty if a defendant refuses to plead. See Hoggatt v. State, supra.

Accordingly, if the trial court refused to accept appellee's plea of nolo contendere, it should have required a different plea from him, entering a plea of not guilty for him if he refused to comply with the requirement. It was error to make a determination relative to guilt. The issue had not been...