Case Information
*1 Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
*2 VOIGT, Justice.
[¶1] The appellant pled guilty to one count of conspiracy to deliver methamphetamine
and the district court imposed a sentence of fifteen to twenty years imprisonment. The
district court also found the appellant to be a “qualified offender” under the Addicted
Offender Accountability Act (AOAA), recommending the appellant complete intensive
treatment for substance abuse. This Court affirmed the judgment and sentence.
See
Gomez v. State
,
ISSUE
[¶2] The threshold issue is one that concerns jurisdiction; accordingly, we restate the controlling issue as follows:
Did the district court have jurisdiction over appellant’s motion seeking to modify and reduce his sentence? [1]
FACTS In December 2009, the appellant pled guilty to one count of conspiracy to deliver
methamphetamine. The district court entered its judgment and sentence on March 17,
2010, imposing a sentence of fifteen to twenty years imprisonment, to be served
consecutively with a sentence in a separate case. The district court also found the
appellant to be a “qualified offender” under the AOAA and recommended the appellant
complete intensive treatment for substance abuse. The appellant took a direct appeal.
However, appointed appellate counsel was permitted to withdraw pursuant to the
Anders
procedure.
[2]
We affirmed the judgment and sentence on October 27, 2010.
See Gomez
,
STANDARD OF REVIEW
Jurisdictional matters are reviewed
de novo
.
Tomlin v. State
,
DISCUSSION
[¶6] The appellant argues that the district court should have modified or partially suspended his sentence because his motion was filed pursuant to the AOAA, rather than under W.R.Cr.P. 35(b). He contends that, under the AOAA, there is no time limit as to when a sentence may be suspended; thus, because he is a qualified offender and completed intensive treatment his sentence should be modified. We disagree.
[¶7] The AOAA does not create a separate right to subsequently seek modification and reduction of a sentence. See Wyo. Stat. Ann. §§ 7-13-1301 to -1304 (LexisNexis 2013). As we have explained before, the
purpose of Wyoming’s Addicted Offender Accountability Act was to provide alternatives for sentencing “addicted qualified offenders.” 2002 Wyo. Sess. Laws ch. 81, Preamble. This Act requires that a person convicted of any felony or a specified misdemeanor must receive a substance abuse assessment as part of his presentence investigation report. Wyo. Stat. Ann. § 7-13-1302 (LexisNexis 2007). Based on that assessment, the district court may determine that the person is a “[q]ualified offender” with “a need for alcohol or other drug treatment.” Id ., § 7-13-1301(a)(iv). A qualified offender, in lieu of being incarcerated, may receive probation or a suspended sentence, under which he must complete “a treatment program based upon the substance abuse assessment and any other terms and conditions as the court may deem appropriate under the circumstances.” , § 7-13-
1303(a). The Act also specifies, however, that a qualified
offender may still be incarcerated under specified circumstances. Id. , § 7-13-1303(c).
Greene
,
[¶8] The controlling procedure to modify and reduce a sentence is pursuant to W.R.Cr.P. 35(b). See Reese v. State , 910 P.2d 1347, 1348 (Wyo. 1996). “That rule, however, provides that any such motion must be brought within one year after sentence is imposed or probation revoked.” ; see also Tomlin , 2001 WY 121, ¶ 6, 35 P.3d at 1256. Specifically, the rule states:
(b) Reduction .—A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within one year after the sentence is imposed or probation is revoked, or within one year after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within one year after entry of any order or judgment of the Wyoming Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. The court may determine the motion with or without a hearing.
W.R.Cr.P. 35(b). In the instant case, the appellant’s conviction was affirmed in October 2010. His second motion seeking a sentence modification and reduction was filed in January 2013, well beyond the one year time frame of W.R.Cr.P. 35(b). Consequently, the appellant’s motion cannot be considered by the district court because timely filing is a jurisdictional requirement. Eckdahl v. State
CONCLUSION
[¶9] The district court lacked jurisdiction to consider the appellant’s motion, and we, too, are without jurisdiction to consider the appeal.
[¶10] The appeal is dismissed.
Notes
[1] Because we answer this question in the negative, we do not have jurisdiction and must dismiss. Thus, we will not address the issues proposed by the parties on whether the district court abused its discretion, or otherwise erred, in denying the motion.
[2]
See Anders v. California
,