Paul D. HOLMES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 85-152.
Supreme Court of Wyoming.
March 5, 1986.
Rehearing Denied April 14, 1986.
711 P.2d 1118
In State v. Helton, 72 Wyo. 105, 261 P.2d 46 (1953), the question before the court was whether one could be admitted to bail pending appeal upon a conviction for second degree murder. Two statutes read together appeared to exclude that offense from mandatory language requiring admission to bail. The court there concluded that in a second degree murder case, the common law rule that bail is within the trial court‘s discretion applied, and to support that result it read the mandatory word “shall” as “may“. The court thus justified judicial discretion with respect to the admission to bail pending appeal of one convicted of second degree murder. There was no question involved, however, as to whether the legislature had authority to provide as a matter of substantive law for admission to bail for other felonies after conviction and pending appeal.
We conclude that this court has not become committed to any proposition that the right to bail pending appeal is procedural rather than substantive. We hold that the proper rule is articulated in State v. Hawkins, supra. We do note that Washington, in State v. Smith, 84 Wash.2d 498, 527 P.2d 674 (1974), and Idaho, in State v. Currington, 108 Idaho 539, 700 P.2d 942 (1985), have espoused a contrary position in order to justify admitting a convicted person to bail in apparent contradiction of a statute forbidding that relief. In this sense these cases may be close to the proposition articulated in State v. Helton, supra, and they certainly manifest a bias in favor of the liberty interest.
We have no difficulty in resolving any asserted conflict between
We are not unfamiliar with a generally held perception that the right to bail pending appeal is discretionary pursuant to
The order of the District Court of the Second Judicial District of the State of Wyoming is affirmed.
BROWN, Justice, specially concurring.
I agree that under the circumstances of this case respondent had a substantive right to bail pending appeal. However, the order of the district court apparently failed to consider society‘s interest in the matter, specifically, the interest of the community of Lovell. It would not have violated any constitutional rights and would have been in the interests of justice if the order admitting Story to bail had prohibited him from contacting those involved in the trial that resulted in his conviction.
Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel, and Denise Nau, Asst. Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Div., John W. Renneisen, Sr. Asst. Atty. Gen., and Darold W. Killmer, Legal Intern, Cheyenne, for appellee.
Before THOMAS, C.J., and ROONEY,* BROWN, CARDINE and URBIGKIT, JJ.
In this case the appellant contends that the sentencing judge abused his discretion in imposing sentence, and that the failure to hold a coroner‘s inquest prevented the district court from acquiring jurisdiction in the criminal case. The contentions of the appellant are without merit, and the judgment of the district court is affirmed.
It is remarkable that the appellant perceives any abuse of discretion with respect to the sentence which was imposed. He originally was charged with murder in the first degree involving kidnapping and burglary as aggravating circumstances, a capital offense. The killing itself is best described as an execution. Pursuant to a plea bargain the appellant entered a plea of guilty to a charge of second degree murder in violation of
The rule is clear in this jurisdiction that there is no error in the imposition of a sentence by a trial court so long as the sentence is within the statutory limit authorized by the legislature. Wright v. State, Wyo., 707 P.2d 153 (1985), and cases cited therein. While those cases recognize a possibility of finding a clear abuse of discretion, that phrase has been defined as an error of law under the circumstances. Martinez v. State, Wyo., 611 P.2d 831 (1980). There can be no error of law with respect to a sentence that falls within the
Somewhat casually at oral argument, counsel for the appellant suggested that the court should consider the appeal as a petition for certiorari, apparently invoking the concepts articulated in Wright v. State, supra. That approach is so far short of demonstrating a rare and unusual case in accordance with Wright v. State, supra, that we must admonish the appellant and counsel that we will not even consider the invocation of the remedy of certiorari in such an informal context.
The second claim of error is diametrically opposed to existing authority in this state. In Raigosa v. State, Wyo., 562 P.2d 1009, 1015 (1977), this court held that “[t]here is no requirement that an inquest be held before prosecution for murder.” The justification for that holding is the same now as it was then. The pertinent part of
Affirmed.
CARDINE, Justice, specially concurring.
I concur in the result of this case. I continue to assert that sentences imposed are reviewable upon appeal for abuse of discretion.