*1 action, evidence, chiefs the fire affirmed we.
and so should support
There is substantial chief had not finding the fire
Board’s capricious man- arbitrary
acted acknowledges that the majority
ner. applied rule of “common
fire chief has “common sense” The rule of
sense.” upon this Court with urged
heretofore been State, 816 vigor. Brown v.
considerable C.J., (Urbigkit, dis- (Wyo.1991)
P.2d 818 foresight ap-
senting). Having had the rule, chief’s determination
ply the fire surely entitled requirement
of removal weight.
considerable KAHLSDORF, Appellant
Ann
(Defendant), Wyoming,
The STATE (Plaintiff). Appellee
No. 90-162. Wyoming.
Supreme Court
Dec. *2 Munker,
Leonard D.
State Public Defend-
er,
Weerts,
Steven E.
Senior Asst. Public
Defender,
Slaughter, Legal
and Donald K.
(argued),
appellant.
Intern
Gen.,
get
But be-
Sylvia
help
family
out
debt.
Joseph Meyer, Atty.
L.
B.
began
purchase expensive
long
Hackl,
Gen.,
Byrne,
Karen
fore
she
Atty.
A.
Deputy
sewing ma-
Gen.,
Lauer,
goods:
$1200.00
Atty.
E.
consumer
Theodore
Senior Asst.
sets,
bicy-
chine, two television
an exercise
Director,
Program,
Prosecution Assistance
*3
car, trips
Jack-
cle,
on a
to
payment
down
Saunders, Student Intern
and Lawrence
California, and other
son,
and
Yellowstone
(argued),
appellee.
for
all,
admitted
Kahlsdorf
to
items.
Mrs.
CARDINE,
THOMAS,
$51,000.00
MACY
Before
con-
embezzling
before her
TAYLOR,
GOLDEN, JJ.,
District
and
Ac-
finally
and
her to confess.
science
drove
calculations,
Judge.
cording
able to
to her
she was
$6,315.96.
Pengo
This
unspent
left
return
CARDINE, Justice.
Wireline,
in-
precisely
more
the bank’s
or
company, with
net loss which
surance
appeals from an order
Ann Kahlsdorf
$44,684.04.
appellant estimated
prison
to
sentencing her
one
ten
6-3-402(b)
by
under W.S.
larceny
bailee
charge appellant
The State elected
(c)(i)(1984 Cum.Supp.). This sentence
and
larger
single
of the
larceny
with
of
one
her
was re-
$18,090.00.
checks, amounting to
She was
monthly probation
failure to file
voked for
6-3-402(b)
violating
charged with
W.S.
and
pay
failure to
ordered
reports and willful
(c)(i) (1984 Cum.Supp.):
restitution.
“(b)
bailee, public
A
servant as defined
6-5-101(a)(vi)
any person en-
or
by W.S.
affirm.
We
control,
custody
care or
trusted with
following
issues:
Appellant raises
who,
property
any money or other
of
proper for the trial
“I. Whether it was
deprive
or
intent
to steal
with
appellant’s probation in
extend
court to
prop-
property,
converts
owner
Wyoming
7-13-203
violation
Statute
guilty
another’s use is
erty to his own or
(1977)
voked
($10,-
than ten thousand dollars
not more
restitution,
its
pay
action violated
both,
000.00),
prop-
if the value
or
Supreme Court’s decision
United States
($500.00)or
erty is
dollars
five hundred
Georgia, 461
in Bearden v.
U.S.
more.”
(1983).
2064,
imposing probation. Instead, the trial place took on December court cited both statutes its written or- hearing, appellant presented At the infor- der, and “7-13-203 and 7-13-302 [sic]” concerning mation her financial condition ruling. its oral alleged inability restitution. After the trial court handed down its It paid was established that she had a total department probation pre- $3,858.00 in restitution since 1985. The pared plan. plan stated court found that Mrs. Kahlsdorf had will- *4 that Mrs. had Kahlsdorf embezzled a total fully pay failed to restitution. It revoked $48,289.35. repay She would this at the probation the that previously had been or- rate of per month for months suspended $412.72 116 dered and a and payment make a final Appellant on Mrs. Kahlsdorf. $413.83 was ordered payments 117th begin month. The pay per would $320.00 month towards restitu- July signed 1985. Mrs. Kahlsdorf monthly reports tion and to make to her agreement, judge as did the trial and the officer. court The sent Mrs. prosecutor. back Kahlsdorf to California with the ad- that she monition had “one foot in the later, Barely 15, January six months on grave peel.” and other one on a banana 1986, the court clerk of a letter received 23, containing Sep- January 1989, Mrs. Kahlsdorf On Mrs. Kahlsdorf tember, November, pay- only monthly probation October and filed her first and promising report ments and to remit under the new December’s court’s order. The payment 18, an February “in State filed Amended Motion for two weeks.” On Revoca- 1988, tion prosecutor for, of Probation and Issuance of moved Bench 22, May on granted, Warrant 1989. This why an order to motion show cause charged that Mrs. appellant Kahlsdorf had missed brought should not be before 1988, February, her December April and court for failure to make her restitution May, payments and 1989 restitution payments. and no monthly reports January had filed since response, appellant wrote the court a 1989. letter detailing making her difficulties in hearing No was held on this motion until payments. Appellant she stated later, year when Mrs. Kahlsdorf was planned to mail her federal and in- state 23, brought May into court on 1990. On come tax refunds about to the $800.00 1990, May proba- the trial court held a (She so.) prom- court. did never She also hearing. Appellant’s tion proba- try per ised to $700.00 send month to- delinquent tion testified officer no- ward restitution. appellant tices had sent to she hearing The court held on the State’s fact she had pay- received two motion on Appellant March did appellant only monthly ments from one appear. not The court determined that her report. cause,” letter had did not “shown and it The trial court revoked Mrs. Kahlsdorf’s contempt hold her in make failure to reports for failure to file payments. prosecutor The stated that he failure willful restitution. It sen- know, did not on based the documentation her to one to years peni- tenced ten point, he had at that whether her failure to Appellant tentiary. timely appeal took payments make restitution was willful. from this order. No further action was Au- taken until 8, 1988, gust after missed when further DISCUSSION payments prosecutor again moved Standard Review order to show cause. When appear did prosecu- The decision to revoke lies tor moved for revocation of within sound discretion of the trial * * *. If the court is satisfied deci- offense the court’s court. will not disturb We reputation person good he showing of abuse of absent a clear sion the commission of the offense before discretion. Lower v. had been con- charged and never before (Wyo.1990); Chapman if any felony, permit- and that victed of go large again would not violate ted Maxi- law, than Allowable Probation Greater in its discretion * ** then delay passing sentence and mum * * court, if parole person *. The arguments concern- two makes appearance, that satisfied at the time of first length of her in a person has himself demeaned pro- placing initial order is that the worthy, law-abiding manner and lived in excess of the for ten bation life, respectable may by an order jurisdiction under W.S. court’s record, parole continue (Dec.1977 Repl.). The that the second (5) expiration at the years, of five revoking proba- her first subsequent order an order which the court shall enter nearly served already tion she had * * *. finally discharging person placing years and seven months three *5 discharge of any time before the final At years ten probation on another her person the that the court believes improper- time probation caused her overall attempted has to paroled person the term the maximum allowable ly to exceed comply the or failed to with leave state each will deal with for the offense. We parole his court shall the terms of the separately. arguments these appre- to issue for the cause warrant properly appellant’s discuss In order person of the and arrest hension contention, must wheth- we determine first the brought him to be before probation under placed on er inquire into his The court shall court. (Dec.1977 Repl.) or W.S. 7- 7-13-203 W.S. if parole, since his satisfied conduct (Dec.1977 Repl.). The trial court 13-301 person has inquiry imposing in cited both statutes its order his re- parole the terms of violated However, probation. probation must clear- impose sen- cognizance, the court or provision either one ly fall under upon plea against or tence the verdict differ- provisions These two contain other. ex- and to the same him the manner designed serve language and were ent though passing of sentence as tent person different functions. had delayed and the had not been go at permitted or paroled not been (Dec.1977 Wyoming 7-13-203 Statute large.” 203,” provision for Repl.), or “old was a “parole” The references this statute ver- status.” The current “first offender probation. v. actually refer to Sorenson statute, differs some of this sion State, 1038 6 604 P.2d n. 203,” is found at W.S. respects from “old (For (June Repl.). a detailed (Dec.1977 7-13-301 7-13-301 Wyoming Statute “old 203” became the of how discussion 301,” is Repl.), “old whose current version 7-13-301, and how “old 301” be- (June current Repl.), at found W.S. 7-13-302, see Billis v. imposition came the current suspension of the provided for State, (Wyo.1990).) 410-12 of sentence or trial: or execution provided 203” follows: “Old plea guilty “After conviction or guilty of or any person offense, punishable by “If is found except crimes except mur- any felony pleads guilty imprisonment, or life the court death der, first or second may suspend imposition sexual assault dwelling house degree may suspend or arson of a or or the execution of all or part place in the actual oc- of a also other human habitation sentence being, probation may impose cupancy of a human defendant on applicable offense and also the offense of fine ascertain whether shall place guilty his the defendant on With accused first which the charged the consent of a defendant during time “[i]f crime, except punishable by probation a crime Defendant’s and before fi- nal discharge death or life imprisonment, Defendant, Court believes may suspend that she place trial and has failed to com- such defen- ply with the terms of her probation.” dant on Court shall cause a warrant to be issued question of which section was actual apprehension for the and arrest of the ly applied to the defendant arises in this Defendant, Kahlsdorf, Ann requiring her case provides because W.S. 7-13-203 again brought Court, before the probation five whereas under where the Court impose shall a sentence probation W.S. 7-13-301 can up extend upon plea Guilty in this matter in length of the maximum pro the manner and to the same extent ifas underlying vided for offense. Hick passing of sentence on Defendant 743, 753, lin v. 79 A.L.R.3d delayed had not been and Defendant had (Wyo.1975). Appellant initially re paroled permitted been go probation ceived years. of ten If she re large.” 7-13-203, ceived under W.S. her Furthermore, the court did not enter and probation would inbe violation of the terms suspend then a sentence of incarceration on of that statute. If she received appellant, which is consistent with first of- 7-13-301, did not fender status under Also, W.S. 7-13-203. legal length. exceed appellant’s when attorney stated at the rev- In King hearing ocation December 1986), it was his question understanding we addressed the pro- that the first wheth bation had er been the defendant was under the first sentenced under W.S. *6 statute, offender the trial court did 7-13-203 or not W.S. 7-13-301. The sentenc Considering contradict him. all the ing evi- order that case ambiguous: was it employing dence and reasoning stated 203, that it was entered under but King, appellant’s we hold that probation the defendant suspended received a prison granted was under W.S. 7-13-203. Proba- sentence, suggesting that it was entered tion under 203 longer cannot extend than under 301. We noted sentencing that the years. court, therefore, five The trial order language contained taken verbatim illegal erred and entered an sentence when 203, order, by its clear lan appellant it sentenced years proba- to ten guage, indicated pursuant it was entered tion under W.S. 7-13-203. 203. We resolved the ambiguity by con cluding although prison that procedure pro sentence Our rules of criminal suspended, was entered and the order vide that the trial court power was has the pursuant illegal entered correct an any to 203. sentence at time. 36(a). Although W.R.Cr.P. a motion for “Because the order states that it was illegal correction of an properly sentence is pursuant 7-13-203, because it § addressed 'to the trial court in the first language 7-13-203, tracks the § instance, in judicial the interest of economy because to hold it that was entered under we have considered such corrections when in appellant’s would result § raised for the appeal. first time on See liberty being restricted, more severely State, 324, Price v. 716 P.2d we find that pur- the order was entered 1986). Appellant’s attorney tentatively ex suant to provi- 7-13-203 and that the § plored illegal probation length issue imposing sion surplus- sentence was the trial court hearing at the revocation age.” King, at 469. 1, December 1988: Although the court’s or “There’s one issue that I’m somewhat der in this specify case did not whether it point bring reticent at this up. was entered under 203 or like that in original sentence, understand, Ias King, language it did contain taken verba imposed under 7-13-302 and was [sic] tim from 203: not—there wasn’t a imposed argues, in es- operation of law. understanding it’s stat- my period sence, completed year for revocation must be only provides a five
ute probation five-year period there be issue within the sentence, your validity stage of the Hon- Thus must decide at what a revo- we get into really want untimely. or. But don’t proceeding cation becomes I determine whether or not that until In Lackey v. point.” probation at this will be revoked (Wyo.1987), we dealt with effective pursue counsel did not Appellant’s probation date of revocation of further, issue since case, In that we under W.S. 7-13-301. result of placed probation as a back on stated: Thus, hearing. the trial court never had W.S.1977, 7-13-304, provides in “Section illegali on the opportunity real rule pertinent part: “ Normally, ty issue. we would of sentence during ‘At time * * * remand correction of the sentence issue in the first instance. How the trial court the defendant to be warrant and cause ever, appellant's disposition of since the violating any of the condi- arrested * * on our appeal depends on hold other issues *.’ add- tions of issue, in the interest of as Lackey]) ed [in economy to a needless re judicial avoid obviously not “While this section does Therefore, correct mand of this case. we proceedings require that be revocation under the appellant’s term probationary peri- completed within the five-year maxi court’s first order od, proceedings it does that such mum under 7-13-203. allowed during period.” be initiated correction, we make this we must Since Lackey, held that since the we hold that Mrs. Kahlsdorf s ended petition for revocation had State’s second April 18, day from the five probationary peri during filed been pronounced open her sentence was court. od, revoking Lackey’s probation the order Chapman v. See filing must used the date be reversed. We (Wyo.1986) (probation begins on date sen- mea petition longer pronounced). She no tence could think this same sure of timeliness. We *7 18, April subject revocation after probation con rule where 203 applies § fact, In two with- there were revocations cerned, contains similar lan 203 because § following April five-year period in the guage to that found in W.S. 7-13-304: proba- on placing appellant 1985 order probation any time court revoke “[a]t The on De- tion. first revocation occurred discharge [proba final before the suspended to a cember led tioner].” probation. sentence and a second order case, probation revocation consider, context, In need not in this We May 15,1989, proceedings on were initiated entry of a second question of whether the prosecutor when the filed Motion effective under 203 to re- probation was question and Issuance of Bench War This is unneces- Revocation voke first. appellant’s trial court pro- the second revocation rant for arrest. sary because following issued the warrant on ceeding, imposition pris- led to bench 30, 1990, day, five-year May was within the deadline. sentence on com- well Thus, time 23,1989, petition for revocation was May menced which was within ly- period. five-year probation first theory summary, appellant’s we hold that urges on us the probation first was entered un- not “informed of the sentence she was
because proceedings charges brought Wyoming to der “old 203” back appellant’s probation after probation until face revocation” § expired, probation properly were commenced within its five- years had her was five by year period. revoked until after it had terminated Appellant’s second contention is off the debt he owed from his embezzle- that because she received an additional ten- circumstances, ment. Under those year period probation at the December court exceeded its authority when failed having spent almost discharging issue an order the defendant probation, three and seven months on years. at the end of King, five 720 P.2d at probation she received a cumulative in ex 470. cess of the maximum allowed sentence. Here, appellant failed to make pay- her (Although again the court cited both W.S. probation revoked, ments. Once her order, 7-13-203 and W.S. 7-13-301 in its she could have received the maximum sen- although it stated “in that it did not tence Instead, for her crime. the trial change status,” tend to the first offender sentence under “new 302” appellant’s second clearly gave ten-year her a lawful probation- 301; received under it was entered after § ary term. We affirm the trial court’s sec- revoked, had been and she § ond order of suspended received a sentence of incarcera ten-year probation tion. The was thus in Restitution proper.)
and of itself appel We note that lant would not have been entitled to less Appellant argues portion that the than statutory maximum if sentence sentencing imposing order given prison she had been time after her illegal on her was specify because it did not Wyoming 203 revocation. Statute 7-13- § the dollar amount of restitution and did not quite makes this clear: specific finding contain a of how restitution inquiry satisfied from the that the “[I]f was calculated. A trial court has no inher person pa- has violated the terms of his power restitution; ent to order rely it must recognizance, role and im- on statutory authority. Barnes v. pose upon plea the verdict or (Wyo.1983). Appel 303-04 against him in the manner and to the lant was sentenced to restitution under though same extent as the passing of 7-13-109(b) (Cum.Supp.1984): delayed sentence had not been “At the time of a defendant person paroled permitted had not been felony misdemeanor or convic- go large.” (emphasis tion, if the court desires to resti- words, In other it does not violate the tution, the court shall fix a reasonable defendant, statutes when a hav- amount as restitution owed to each vic- served time on pro- has her pecuniary damages resulting tim for validly bation revoked and then receives activity, from the defendant’s criminal the maximum sentence for her crime. We and shall include its determination as a principle applies believe the same where special finding judgment in the of convic- probation is terminated and re- *8 tion.” ceives a second sentence of equals which the maximum sentence for past interpreted Our cases have her crime. restitution statute to the trial that specific finding court make a of the amount Although disapproved we of an extension pecuniary damage supported by credible probationary period King, evidence in the record. See 465, King distinguished is from the Renfro (Wyo.1990), inter present facts of the In King, ease. preting a later but similar version of this defendant had not had action taken illegal statute. We pro have stricken as a against him during probationary period. his vision which ordered restitution an sought. No revocation was He had com- amount to be determined at a plied later time. during with the order of restitution Keller v. the five he was on At the 1989). However, five-year period, end of the we hold that the trial court probation solely statutory requirement extended his by agree because the waived the payments begin he had made ing plan did not containing to a of restitution like, imposing judgment monthly payments you would and
specific figure owed figure could leave the by making payments under and we some and meeting Mr. open. with plan. We could have Kahlsdorf, Probation and Phillips, Mrs. April order of The trial court’s Parole, myself and Intermountain Claims “pay to: required defendant figure Pengo make sure that the by approved the Court.” an amount be acceptable parties and then all figure specific did not set a The court accounting of present figure an that was some confu- sentencing because there figure to the Court how arrived we embezzled: the exact amount sion about ** * or an addendum to for an additional I that Mrs. “THE note COURT: if has judgment the Court $51,000was tak- that Kahlsdorf indicates figures that are problems with the we en, apart far is not that * * * adopting. $53,647.58 figure]. indi- She State’s [the $6,315.96 you, Mr. accounting Okay. Thank that “THE COURT: cates in her anything fur- Phillips, Mr. returned. Anderson. correct, ther? your That’s “MR. ANDERSON: that, verify that that Honor,
Honor. We can I PHILLIPS: Your no. “MR. Pengo Wireline. money was returned I figures inquiry had an about also. why you adopt- are case Then turn this into a civil “THE COURT: don’t want to $43,647.58? debating much restitution should how paid. Obviously, posi- are not in a figure we I think the “MR. ANDERSON: res- given Leary quibble from Mr. tion to with the Court over that to Mrs. (sic) op- Ingersall figure that includes has an titution Mrs. if Kahlsdorf date, up this time on up to this outside. On portunity get interest on the my understanding money. hand, somebody That was like has it sounds Now, at. figure 6,000 that was arrived how picked up extra bucks and Pengo I think that Wireline—I don't through might to check be wise dipping go- don’t there is a double think happened. see what’s * * ing on *. agree I with Mr. “MR. ANDERSON: [*] [*] [*] [*] [*] [*] Phillips. I think we should have a— $6,000, they verify the “THE COURT: How did “THE COURT: It’s more than amounts? isn’t it? Through
“MR. an exami- ANDERSON: depends That “MR. PHILLIPS: nation of all checks were figure. exact brought to the attention —It’s tween rived at were made and these Kahlsdorf’s standing that there was company wherein examination Pioneer, Pengo through accounts, Pengo’s accounts that manner. and the insurance figures were ar- meeting my under- of Mrs. be- from Ann don’t think “MR. “THE “THE COURT: [*] PHILLIPS: It’s closer COURT: * * [*] Pengo *. It’s closer to 10? * * * you [*] should [*] pick up [will] [*] $10,000 make [*] to be deter- restitution in an amount was the interest “THE COURT: How attorney, your mined the Court you speaking computed were *9 Phillips, had Mr. and Mr. Anderson have rate? what was the to the answers opportunity an ascertain you, I can’t tell “MR. ANDERSON: has questions to the which the Court Judge. morning as posed in the courtroom this then, Well, somebody tell “THE COURT: not the amount is 53 some- to whether or $53,647 figure is. me what thing something.” or 44 add- “MR. I would ANDERSON: have ed) come in and have Intermountain Claims in is the record that explain you, Judge, There no evidence that to and didn't satisfactorily ex- present today. discrepancy If this was ever ask here them be plained. any 294, 297, Nor was calculation or itemi- (1982) (re N.E.2d court, presented zation ever to the quirement that court make “statement of However, appellant’s. than July reasons” for right personal sentence was 1985, appellant signed a waived). “Victim/Restitu- the defendant and could thus be Payment tion Plan” which stated that “[a] Keller, we indicated that $48,289.35 total amount of was taken the trial court exceeded its “authority” by the Defendant.” This document was also ordering restitution specifying without an signed by judge the trial prosecu- and the said, amount. Such a we is “il tor. legal.” However, “illegality” Id. and Thus, we have an “order” for restitution “lack authority” precisely arise because appellant alleged to have violated which of noncompliance the effect of on a defen specifies neither the amount of restitution rights. specific dant’s finding The nor how it was calculated. Nor does the placed in the court’s order may so that it be record Department reveal how of Pro- reviewed in case appeals. the defendant bation and Parole figure arrived at its final This benefits the defendant as much or previous restitution due. Under our “system.” Therefore, more than the we precedents, either of these omissions would requirement hold that specific of a find require provision that we strike the right personal defendant, is a to the restitution and thus overturn revocation of which she waive.
appellant’s probation.
The next concern is whether this waiver
urges
The State
theory
appellant
“knowing
must be
intelligent.”
and
Cf.
right
waived
challenge
State,
the lack of a
Osborn v.
specific finding
1991);
1354, 1356
lack of evidence con-
Martin v.
cerning
(Wyo.1989)
the amount
(statutory
requirement
of restitution when she
did not
timely appeal
knowing
intelligent
take
from her initial
waivers connected
guilty plea).
sentence.
accept
right
specific
We cannot
to a
argu-
ment,
finding
statutory
because the
is a
rather
power
court retains the
than a consti
tutionally-based protection. Therefore,
illegal
to correct an
its
sentence at
time.
36(a).
waiver does not
timely
W.R.Cr.P.
Lack of
on-the-record
appeal
inquiry by the
concerning
trial court
cannot bar correction
knowl
illegal
of an
sentence.
edge
pro
and voluntariness.
In order
however,
Failure
appeal,
to take
coupled
defendant, however,
tect the
we hold that
record,
with other
factors
is relevant
there must at
least
be evidence
related issue:
Whether
knowingly
record that the defendant
right
waived her
to contest the lack of a
voluntarily
agreement
entered into the
specific finding and lack of
evidence
pay restitution which constituted the waiv
by accepting
making payments
record
er.
payment plan.
the restitution
There is
evidence
the record which
apply
analysis
We first
a waiver
indicates that Mrs. Kahlsdorf knowingly
requirement
specific finding.
of a
In our
voluntarily
agreement
entered into the
previous
interpreting
cases
the restitution
pay
restitution. At her
first
statute, we have not had occasion to dis
willing-
Mrs. Kahlsdorf indicated a
requirement
cuss whether the
specific
of a
ness to
what she owed:
finding
right personal
is a
to the defendant
* * *
“Q.
you
Judge
tell
independent require
whether
is an
[WJould
Troughton why you
you
believe
should
sentencing.
Keller;
ment of
Renfro;
See
granted probation?
Kaess
P.2d 698
Well,
A defendant
personal
waive
of her
“A.
if I’m incarcerated and taken
rights
long
“so
away
there is no violation of
my family,
how can I make
public policy
public’s
decide,
interests are
you
restitution? No matter what
*10
thereby jeopardized.”
Taylor v.
I still have to do that
morally,
I
859
wrong
See also
know that I’ve done
and I have to
Davis,
People
93
Ill.2d
is,
Ill.Dec.
take care
this no matter what it
it
of
having
proof
element
of
delay
repay
a
in
intrinsic
of
just
would
be
(emphasis
money
consequently requires
was taken.”
the ‘be-
that
crime and
added)
a
doubt’ character of
yond
reasonable
Proof
restitution
evidence.
of
a
Kahlsdorf
to the
In
letter Mrs.
wrote
question
of
need
amount
sentencing,
prior to
she stated as
evidence, by a
only
proved by credible
be
follows:
preponderance, or
of the evi-
burden
coop-
that I would
[my employer]
“I told
(citation omitted) Renfro, at
dence.”
I
possible and that
every
erate
manner
in
regard-
in full,
make restitution
would
less of the time involved.”
requirement
Although
is also
protection
and thus ca
defendant’s
indi-
waiver,
These
the defendant
statements
substantive rather
pable of
agreed
that
cate that she both knew
procedural, re
than
its waiver thus
full,
in
however
she would
restitution
by
more careful review this court.
quires a
might
Her consent to the
much it
be.
Thus,
where the
waived her
even
defendant
agreement
in the
is evi-
specified
amount
agreement,
rights in favor of an
we will
signature on
by her
it. Further
denced
showing in
record that
a factual
is found in the fact
assent
evidence
the amount consented to was reasonable.
spec-
challenge
she did not
amount
that
There is
in this record
evidence
hearing five
ified until the final revocation
demonstrates the reasonableness
which
later,
although
opportunities
she had
agreed
provided
figure
to.
do
At her
so.
December
the court with a calculation of the amount
hearing, the court asked:
* * *
thought
figure,
had
Her
she
she
stolen.
“THE
Does the Defense
COURT:
interest,
prejudgment
no
included
which
prima
that the
make a
facie
wish
State
percent
by approximately ten
differed
proceed
you willing to
on the
case or are
figure eventually
at.
from the
arrived
Mrs. Kahlsdorf admits that
basis that
payment hasn’t been made
would
At the December 1988
revoca-
explain.
you then like to
clarified
tion
the basis
Mrs.
lat-
The
“[Counsel
Kahlsdorf]:
stipulated
to:
for the amount
restitution
ter, your Honor.”
original
sentenc-
“THE COURT:
circumstances,
case,
hold
question
we
Given
in this
there was
spe-
appellant validly
right
waived her
precise amount of the restitu-
over the
concerning
finding
the court’s order
cific
tion
was due. When we came
paid.
of restitution to
Court,
figure
the amount
be
the amount
was—the
$53,647.58. During
sentencing, there
regard
analysis applies
A different
question
it was
was some
about whether
requirement
that there be credible
$10,000
The
less than that.
Court
supporting
in the record
evidence
prosecution
and the
indicated that
requirement
restitution. This
amount of
defense should find out what
correct
special finding require-
grows
of the
out
figure
present
was and
that to the Court.
ment:
only thing
find in the record
can
follow our current decision
“We will
comes close to that is
restitu-
even
attorney’s
proof
damages
fees
Anderson,
approved by
plan
tion
Mr.
general
determine
Mrs. Kahlsdorf
Court which
statute,
should, in
be
accordance with
it’s indicated that
the total amount
by
established
amount
some credible
$48,289.35
$48,000
taken.
Is that
Petty-Ray Geophysical,
evidence.
Div.
now,
figure
the correct
Mr. Anderson?
Geosource,
Ludvik,
Inc. v.
Yes, your Honor.
“MR. ANDERSON:
(Wyo.1986), and then delineated within
finding
happened
had
is that
the—there
requirement of
What
special
moneys
Pengo
had been
returned
7-9-103. Proof
offense
required
prior
Mrs. Kahlsdorf
which restitution
Wireline
*11
figure
I
sentencing.
grounds
And think that
was
both
In
those
are
of
sufficient.
$3,000,though
short,
around
the ex-
you
somewhere
have
complied
not
with the
me
figure
escapes
act
at this
probation.”
your
terms of
doesn’t—
Pengo
point.
Wireline was reimbursed
by
bonding
company,
company,
during
record shows that
loss,
for the
of their
which came
rest
to
beginning
1988, appellant
December
filed
$48,289.”
about
only
monthly report
probation
one
with her
explanation, coupled
This
calcu-
Although
copy
report
officer.
of
appellant
prepared, per-
lation
herself
up
file,
wound
court’s
there is no
there
suades us that
was a reasonable ba-
indication in
the record that she filed
agreed
appellant
sis for the amount
to and
reports
monthly
with either
court
upheld.
that her waiver should be
prosecutor’s
office. The
of her
terms
probation
required
reports
also
that such
Pay
Failure to
Restitution
Willful
were
payment
to be attached to each
she
argues
next
that her
corresponded
remitted. Appellant
last
probation
wrongfully
was
revoked because
probation
with the
office
awith
handwrit-
finding
pay
no
was made that the failure to
20, 1989,
ten note
March
to
received
was willful. She claims she did not have
a payment
report
but no
was attached.
pay
the financial resources to
The trial court stated that failure to file
probation
and that revocation of her
reports
in and of itself
a sufficient
was
right
pay
failure to
violated her
to funda
reason
for revocation. Had
made
mental
fairness under
the Fourteenth
monthly
reports indicating
status
the rea-
Amendment to
United
Constitu
States
why
sons
could
pay,
she
not
Georgia,
tion. See Bearden v.
461 U.S.
might
probation.
not have revoked her
660,
2073,
103 S.Ct.
76 L.Ed.2d
monthly reports
Her failure
file
is evi-
(1983).
pattern
disregard
dence of a
of
of the seri-
points out, appellant’s
As the
sec-
State
obligation
ousness of her
to the victim of
probation
ond
failure to
revoked
people
her crimes
to the
the State of
reports
monthly
file
as
as for
well
failure Wyoming.
certainly
Appellant could
af-
pay
At
restitution.
her final
postage stamp
keep
ford a
each month to
trial
court stated as follows:
her
officer
of her
advised
finan-
Kahlsdorf,
“Mrs.
finds
Court
so, and,
She
cial situation.
failed to do
as a
you
concludes that
are in violation of
result,
was revoked after ex-
your probation.
you
Not
have
not
traordinary patience
part
on the
trial
given reports
Department
Pro-
sum,
grant-
court.
we find
no basis
required by
bation and Parole as
ing relief from the trial court’s revocation
Department,
violating your
thereby
probation; but in
your
terms
addi-
that, you
given
tion
have not
Right
Speedy Sentencing
report
And
you
Court
whatsoever.
your proba-
are
in violation
thereby
error, appellant
last
In her
claim of
I seriously
I
not
tion.
have
heard but
argues
right
speedy sentencing
that her
Prosecuting Attorney
doubt whether the
CONCLUSION It either defer the oming could Statutes. entry judgment a of conviction sentence of length appellant’s of initial (“old 203”)1 or it (1977) years. to five is corrected pertinent expiration court shall enter (1977), part at which the states W.S. 7-13-203 * * discharging person *. finally an order as follows: discharge any the final At time before guilty pleads any person of or If is found paroled murder, person the court believes that felony except guilty sexual person attempted to leave the state or degree has arson or second or assault in first parole comply of his dwelling terms human hab- failed house to issue for occupancy the court shall cause warrant of a human in the actual itation being, person apprehension arrest of whether the the court shall ascertain brought court. guilty him to be before the is his accused offense of * * inquire since into his conduct is satisfied The court shall *. If the court offense first inquiry good parole, reputation his and if satisfied from person be- that he charged person has violated the terms his that the of the offense fore the commission recognizance, parole the court im- before been convicted of and had never felony, against pose upon plea go large verdict or permitted if and that law, again and to the same extent as him in the manner violate the would not * * * delay though passing passing of sentence had not been sen- discretion in its * * delayed person paroled had not been parole person *. The then tence and court, go large, appearance, permitted add- or ed). if at the time of satisfied person has himself demeaned that law-abiding "parole” worthy, in this statute actu re- The reference to and lived a manner life, record, ally probation. See may by means Sorenson v. spectable order (5) years, n. 6 parole continue of five judgment (and could enter a subsequent conviction and in its incarnation as “new suspend imposition or execution sen- 301”), deferral-probation place in takes (1977) (“old tence under W.S. 7-13-801 prosecutorial phase, not in adjudicato- *13 the 301”).2 The court’s order stated as follows: ry-sentence phase, a prosecu- of criminal State, judgment and sentence of the Court tion. Billis v. 412 delayed pursuant should be words, to Sections In other under “old 7-13-203, 203,” and 7-13-301 the W.S.1977. court not judgment does enter a pended 7-13-301 [T]he [*] imposition of this and and [*] delayed pursuant 7-13-203, W.S.1977, [*] [*] sentence is to Sections [*] based sus- [*] ing. go made against free, under defendant, can form the basis for sentenc- probation. but lets him or her No judgment is on the conditions hereinafter forth. set judgment Probation without is inconsist- place ent with the restitution statutes in ambigu- Because the trial court’s order is when the against court’s order was entered ous, this court is faced with initial appellant. (Cum.Supp.1984), W.S. 6-10-110 question of granted whether the trial court amended and renumbered as 7-9-102 W.S. probation under 203” “old or “old 301.” (June Repl.), 1987 provided authority may grant probation The trial court under for the court to order restitution: only in entry “old 203” the absence of of a In any punishment addition to judgment of conviction. prescribed by law, except and other- as case, judgment this no of conviction provided 6-3-702(e), wise W.S. made the trial court’s order. In- may, upon any court conviction for mis- stead, order judgment stated that the felony, demeanor or order a defendant to sentence the court would de- be pre- restitution each as victim layed. Additionally, incorporated the court (emphasis scribed W.S. 7-13-109. language from “old 203” its elsewhere added). I order.3 conclude that the trial court granted probation (Cum.Supp.1984), under “old W.S. 7-13-109 amend- 203.” Cf. 7-9-103(a) King v. 720 ed and renumbered as W.S. (Wyo.1986) (June (ambiguity Repl.), provided procedural resolved in favor of “203” intent.) based on court’s mechanism: At the time a defendant Restitution Under “Old 203” any felony or convic- misdemeanor question tion, The next is whether the trial if the court desires to resti- tution, court could order restitution placing the court fix a shall reasonable on under “old 203.” amount as restitution owed to each vic- This court has stated that under 203” for pecuniary damages resulting “old tim statute, charged The current version of which dif With consent of defendant 203,” respects crime, fers in some from "old at except punishable by found a crime death (June Repl.). W.S. 7-13-301 For a detailed imprisonment, suspend may or life discussion of how "old 203” became the current place probation. trial such defendant on 7-13-301, and 301” how "old became the cur 7-13-302, rent see Billis during at time of the [I]f 1990). 410-12 probation and Defendant’s before the final Defendant, discharge of the believes Court (1977), 2. whose current version comply she has failed to terms with the (June Repl.), found W.S. 7-13-302 of her the Court shall cause war- reads as follows: apprehension to be issued rant Defendant, Kahlsdorf, arrest Ann re- plea guilty After conviction or quiring Court, again brought offense, her to be before the except punishable by crimes or death impose where the imprisonment, court shall sen- may suspend life upon plea Guilty tence imposition may suspend this matter in or part the manner and to same as if the execution of all or a of a extent sentence place passing may on also the defendant on had not Defendant impose applicable delayed a fine to the offense been and Defendant had been not place paroled permitted go large. and also the defendant on reasons, I conclude that activity, For the above criminal from the defendant’s order of restitution: under as a the trial court’s its determination and shall include (1977), illegal and judgment W.S. 7-13-203 special finding con- subsequent Since should be reversed. viction. order, illegal depended on this revocations statutes, read two Under these they Ms. Kahls- should also be reversed. them, ordered unless proba- five-year maximum dorf served the is entered. Search- judgment of conviction “old 203.” tionary period available under statutes, 7- I locate W.S. in the further April period, At the close of that *14 (Cum.Supp.1984), states: 13-308 been entered an order should have sus- court orders If discharging her from imposition sus- pended pended sentence consider as condition shall proba- with the cooperation
defendant assigned to the parole
tion and officer plan of promptly prepare a
defendant including the name and ad-
restitution victim, amount of resti- of each
dress owed to each determined to be tution ALEXANDER, Buddy and a pursuant to W.S. 7-13-109 victim (Defendant), (em- payments, restitution schedule of v. phasis (Plaintiff). Wyoming, Appellee “probation” in this statute The word STATE of proba- to include “old 203” could be read No. 91-47. However, the judgment. stat- tion before 7-13-109, ute includes reference to Supreme Wyoming. Court restitution where there which allows Jan. Additionally, the court order- conviction. is referred to as the “sen- restitution tencing court.” W.S, 6-3-704(b) (June
Finally, turn to court to order Repl.), which allows the in case of “de- for bad checks leg- probation.” The prosecution or
ferred specific reference to “deferred
islature’s it suggests that inten-
prosecution” here prosecution else-
tionally excluded deferred make by failure to reference
where
the other restitution statutes. whole, statutory scheme
Taken legis- me that
for restitution convinces provision payment made no
lature judgment of of a
restitution in the absence Furthermore, prece- our
conviction.
dents, Wyoming no inherent courts have ab-
authority to order restitution State, Bishop
sence of statute. v. See (Wyo.1984); Barnes v.
P.2d 247-48 (Wyo.1983); 303-04 1037, 1041-42
Phillips