*1 106 (Defendant), STAMPER, Appellant
Pete
v. Mackey, Cheyenne, for Terry W. (Plaintiff). Wyoming, Appellee STATE of lant. 83-158. No. McClintock, Atty. and Gerald A.G. Gen. Wyoming. Gen., Divi- Stack, Atty. A. Criminal Deputy sion, appellee. for 9, 1983. Nov.
ORDER came the court This case on before filed for Reinstatement Petition 30, herein 1983, Argu Requesting a Motion and Sep herein on filed 1983, ex 30, having tember and the court and and record of the court amined the files in the fully premises advised it the Peti appropriate is consider as Petition for Reinstatement Certiorari; the writ of certiorari Writ appropriate an assert petitioner separately his he is finality claim that litigate error jeopardy any double placed in Denying the district court in committed also, Wyo., 662 P.2d See premised upon that his to Dismiss Motion Abney v. United ground in accordance 651, 2034, 97 52 431 U.S. v. (1977); L.Ed.2d and Peterson 651 rel. (1978) People 144 ex Wyo., 586 P.2d 527, Ill.Dec. Mosley 74 Ill.2d Carey, cert. denied N.E.2d L.Ed.2d 306 100 S.Ct. Sundel, R.I., A.2d 939 (1979); Tenn., (1983); Whitwell no there is S.W.2d Motion appeal from the Order order as Dismiss, which is not a final W.R.A.P.; the Writ defined Rule case; be Certiorari should are suffi record of this court files and sur the court of the facts cient to apprise the claim of double rounding Motion Dismiss the denial of the no in this necessity there is district case for further law; the retrial either facts or twice in place him does prior of his jeopardy because the incorrect conviction was *2 since, of evidence and an incorrect instruc- assault with a deadly weapon, to war- instruction, Burks v. rant giving United U.S. such an there must be evidence that the defendant was in fact 57 L.Ed.2d S.Ct. armed with by deadly weapon. denial the Motion to Dismiss The only affirmed, district court should be with to a deadly weapon and it was the mere presence therefore is of the boots which were found to have been inadmissible. ORDERED that the Petition for Rein- Therefore, it may be said that Stamp- statement filed herein er’s conviction was ground reversed on the 30, 1983, be, and the same here- that the evidence was insufficient to sustain is, considered as a Petition for a Writ of the jury’s verdict of aggravated assault Certiorari; and it further is with ORDERED that ofWrit Certiorari The State now seeks to retry Stamper for be, is, and the hereby same to the aggravated assault with a deadly weapon required for review of the denial of and Stamper argues that a second trial the Motion to Dismiss by the district amounts to double jeopardy. His motion to and it further is on double-jeopardy grounds dismiss was de- ORDERED that the Motion Requesting nied the district court asks be, Argument is, and the same hereby this court to review the denial of his motion denied; and it further is to dismiss. ORDERED that the action of the district WRIT OF CERTIORARI in the Motion to Dismiss Pete Stamper his claim of dou- The United Court in Ab States be, is,
ble
hereby
the same
651, 662,
ney v. United
affirmed.
2034, 2041,
(1977),
said
double-jeopardy
clause protects an
ROSE, Justice, concurring
part
in
individual from
tried twice for the
dissenting
part.
crime.
same
said:
* * *
a criminal defendant
is to
“[I]f
BACKGROUND
Clause,
enjoy
protection
the full
of the
Appellant
was first before
jeopardy challenge
his double
to the in-
seeking
this court
reversal of his conviction
dictment must be reviewable before
assault
deadly weap-
with a
subsequent
exposure
occurs.”
[retrial]
on. Stamper
Wyo.,
in question, the boots were inadmissible on
grant
authority
certiorari and
grounds.
foundational
discussion of
comport
my
the writ
dissenting opinion
in my
court further held that
it was error writ of certiorari
P.2d 1090
Wyo.,
to instruct
jury concerning aggravated
Wright
concurring opinion City
holds
a retrial
in these
violates
my
cases
Laramie
Mengel Wyo.,
which a should make no difference that the review- proceeding the record of in a higher lower court is removed into a court than the trial ing rather Therefore, court for review. is one of the means the be insufficient. through superior courts ex- “just” remedy reviewing the for the court is supervisory pow- ercise and enforce their judgment acquittal the direction for a of er and control over courts and tribunals and a trial for the same offense second jurisdiction, of inferior and lies where the jeopardy. would constitute double party aggrieved has no then, question, The ultimate is whether speedy the ordinary proceed- the was supra, reversal ings law, as, at example, by writ of “trial error” or of “insufficiency appeal, error or or motion in the court order, majority, the evidence.” The in their ” pending.’ before which the action is say that the reversal was based on added.) 671 P.2d improper receipt trial of evidence error — by way Review of a writ certiorari also instruction. I would hold improper the Supreme satisfies Court’s mandate in that the crux of the opinion is that Abney v. United that supra, support the evidence was insufficient a pretrial afford some means of review aggravated conviction of assault with a to the defendant a alleges double-jeop- who ardy violation. problem Stamper’s situation is charge he was tried on a of man- QUESTION DOUBLE-JEOPARDY slaughter and the evidence have been Once granted, certiorari has been the rel- support sufficient such a conviction. question evant asks whether a retrial of Therefore, a at the judgment appellant on the crime aggravated as- trial level If the appropriate. jury was not sault with a deadly weapon would amount Stamper guilty manslaughter, had found to double jeopardy. question is suffi- improper the and the boots instruction ciently doubt this case that would have been characterized as “trial er- and oral great would be of bene- (the ror” in the trial boots manslaughter fit. were not necessary manslaughter to a con- The order subscribed to the majority viction). cites Burks v. United However, jury acquitted Stamper for the now a manslaughter. State seeks proposition that a second trial a following aggra- second chance to convict reversal of a conviction deadly weapon, vated assault with a follow- incorrect receipt of evidence and an incor- ing holding did State rect instruction does not constitute double present not sufficient evidence to sustain jeopardy. It is true that Burks holds that a time. The ad- such conviction the first retrial permissible following the erroneous in- mission of the boots and based on trial error. The lists as are mere “trial error” with struction not examples of trial error “incorrect or charge, to the aggravated-assault rejection of evidence” in- and “incorrect is no basis because without the boots there structions.” the Court distin- guishes aggravated-assault reversals based on for the instruction insufficiency of the evidence the conviction one fair given conviction. State it could I dissent to this order to the proof to offer whatever opportunity request it denies the for oral given not be assemble and should argument and affirms denial of apple.” bite at the “second motion to dismiss. held that did I would have State to convict appel- amass sufficient evidence deadly assault with a
lant of give the first time. To
weapon subject appellant
second chance would be jeopardy.
to double