247 P.3d 876
Wyo.2011Background
- Crosby was arrested for a third DUI offense in December 2007 and sentenced by the circuit court to 365 days with 270 suspended and 5 days credit, leaving 90 days to serve.
- He served 2 additional days and was transferred to a Campbell County facility to serve the remaining 88 days.
- Before completing the 88 days, Crosby allegedly left the work site without permission and was charged with escape under § 6-5-206(a)(ii)(A).
- In April 2010, the circuit court nunc pro tunc reduced Crosby’s sentence to 180 days with 90 suspended.
- Crosby moved to dismiss the escape charge as arising from an illegal sentence; the State argued the sentence could be corrected and the sentence remained within statutory maximum; issues were certified to the Wyoming Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the original sentence void ab initio or corrigible under Rule 35(a)? | State contends the sentence was not void ab initio and could be corrected. | Crosby argues the sentence was illegal from inception and cannot support related proceedings. | Original sentence was not void ab initio; it was corrigible under Rule 35(a). |
| May the escape prosecution proceed when the sentence was illegal at the time of the escape? | State contends the prosecution may continue after correction within statutory limits. | Crosby contends the illegal sentence cannot support an escape conviction. | Yes; it was proper to continue prosecution for escape, with the illegal portion struck. |
Key Cases Cited
- Engberg v. State, 874 P.2d 890 (Wyo. 1994) (when part of a divisible sentence is illegal, it may be modified by striking the illegal portion)
- Roose v. State, 753 P.2d 574 (Wyo. 1988) (vacate improper portions of a sentence while affirming remainder in divisible sentences)
- Barnes v. State, 670 P.2d 302 (Wyo. 1983) (remand for resentencing when restitution/conditions were improperly imposed)
- Sorenson v. State, 604 P.2d 1031 (Wyo. 1979) (district court may have erred in sentencing; improper portions may affect confinement orders)
- Sarr v. State, 166 P.3d 891 (Wyo. 2007) (illegal sentence is one that exceeds statutory limits; review de novo)
- Endris v. State, 233 P.3d 578 (Wy. 2010) (probation/detention timing can render sentence illegal; cannot support escape conviction)