*1 BILLIS, Jeffrey Appellant D.
(Defendant),
v. Wyoming,
The STATE of (Plaintiff).
Appellee MOON, Appellant (Defendant),
Vicki
v. Wyoming,
The STATE of (Plaintiff).
Appellee Dogs,
Wilfred J. Two VIGIL a/k/a (Defendant),
Appellant
v. Wyoming, STATE (Plaintiff). Appellee McIVER, Appellant
Scott P.
(Defendant),
v. Wyoming,
The STATE of (Plaintiff).
Appellee MAGARAHAN, Appellant
Nellie
(Defendant), Wyoming,
The STATE of (Plaintiff).
Appellee Plaintiff, Wyoming,
STATE LOWRY,
Victoria Defendant. 88-311, 89-4, 88-312, 88-250,
Nos.
88-304 88-310.
Supreme Wyoming. Court of
Oct. 1990.
Rehearing Denied Nov. *3 Program: Cornia,
Public Defender Mike Counsel, Appellate appel- Cheyenne, 88-304, 88-250, 88-310, lants in Nos. Case 88-311, and for 89-4 defendant No. 88- Gen., Joseph Meyer, Atty. B. John W. Gen., Renneisen, Deputy Atty. Karen A. Rehurek, Byrne, Attys. S. Asst. Paul Sr. Gen., Cheyenne, Campbell County Young, Prosecutor’s Office: John D. Coun- Atty., Hansen, A. ty and Pros. Russell Div., Doug Deputy, Lesley, Chief Civ. Gillette, Deputy County Atty., appellee Wyo. State of URBIGKIT, C.J., Before THOMAS, CARDINE, MACY GOLDEN, JJ.
GOLDEN, Justice. we must an- these consolidated cases questions swer con- several constitutional (June Repl.) cerning W.S. 7-13-301 (hereinafter 301”). “new “New 301” is a applies to a probation statute that who has never been con- defendant before felony charged presently victed of a and is with, to, pleaded guilty or has been has of an a certain guilty found offense within group felonies and Un- misdemeanors. statute, if der the both the defendant consent, the court defer fur- state place prosecution proceedings ther entry on defendant guilt judgment or conviction. presented by speeding charge. being The three main issues these On informed plea consent bargain, county judge cases concern whether the state’s court requirement prin- prosecutor of “new 301” violates the asked whether the would con- ciple powers explicitly stat- Lowry’s being placed proba- sent to Ms. Const, 1; Wyo. ed in art. whether the entry judgment tion without of convic- § bill “new 301” so altered that enacted tion under “new 301.” The passage change or amended on its as to county judge would not consent. The Wyo. original purpose in violation of bill’s findings deferred of a factual for the basis Const, 20; art. and whether bill guilty presentence and ordered a *4 that enacted 301” contained more “new investigation report. Const, Wyo. in subject than one violation of presentence investigation report The re- these consolidat- art. several of § Lowry vealed that Ms. had never before ed cases there are additional issues that we offense, charged any been with criminal resolving pri- these three will address after adversity life, had overcome much her mary issues. well-educated, steady was had maintained We hold that “new 301” is constitutional. normally drank alcoholic employment, bev- holding, our With this and with resolution erages only socially, customarily did presented of the additional issues in some probation not drink to excess. The officer cases, Lowry v. State we reverse making report probation recommended (No. v. (No. 88-312) and affirm Billis State entry judgment of conviction (No. 88-304), Vigil v. 88-250), Moon State Although stating under “new 301.” that (No. 88-310), (No. v. State McIver State Lowry’s good he had considered Ms. char- State, 88-311), (No. Magarahan 89- record, acter and lack of 4). give refused to the state’s con- sent to under “new 301” because AND IN THE
FACTS ISSUES Lowry’s Ms. blood alcohol level of .185 was CONSOLIDATED CASES high. too (No. 88-312) v. Lowry State noting After the favorable information Facts: presentence investigation contained report leniency, and the recommendation of Lowry Victoria was arrested county judge court concluded that “the misdemeanors, charged speeding, with two entry sentencing prerogatives state’s into 5-301(b)(ii) (1977), in violation of W.S. 31 - judi- is an unconstitutional invasion of the influence, driving while under cial function that executive branch (Cum.Supp. violation of W.S. 31-5-233 * * county judge court held that 1987). evening April In the requirement the state’s consent contained meeting lounge after her brother at in “new 301” was unconstitutional. Ob- beers, drinking Lowry several Ms. was consent, taining Lowry’s required Ms. driving stopped by home when she was 301”, county judge under “new court police speeding. police for officer no deferred, plea guilty ordered that her slurred, speech eyes that ticed her was her placed supervised probation she be on bloodshot, unsteady. and her balance Be year, one she be evaluated Powder Riv- strong he smelled a cause odor of alcoholic comply er Council and with its recommen- breath, beverage on her he conducted a dations, alcohol, drugs she not use sobriety Lowry field test. Ms. then was government she reimburse the for attor- placed under arrest. She consented to a ney’s fees in the amount of $200. station; breathalyzer police at the test county judge Lowry informed Ms. test showed a .185 blood alcohol level. probation, she violated her he would plea bargain prosecu- Under a with the immediately accept guilty. her tor, Lowry pleaded Ms. guilty charge driving Following action, while county under the influence ex- court’s change applied permission for the state’s dismissal of the state to this court for Repl), exceptions1 a bill of on the issue was enacted violation of file Wyo. Const. art. which mandates whether “new 301” constitutes unconsti passage containing invasion of function. a bill one tutional We subject which clearly expressed granted application, the state’s ordered must be bill, in the bill’s title. the state file the and ordered ruling should also be a whether “new there (June 4.Whether 7-6-106(d) W.S. constitutionally had been enacted. 301” Repl.), under county which the court or- Later, appeals from this court received Lowry dered Ms. to reimburse the state Billis, Vigil, McIv criminal defendants in fees, attorney’s is constitutional. presenting iden er, Magarahan Moon and (No. 88-310) Vigil v. issues; State were consolidat the six cases
tical appeal. ed Facts: January 1988, Cheyenne, On Wyo
Issues: ming, Vigil Mr. sold one-fourth ounce of clarity rephrased we For have Ms. Low- police to a informant. cocaine confidential ry’s issues as follows: charged violating He W.S. 35-7- *5 (June 1. Whether W.S. 7-13-301 1987 1031(a)(i) 35-7-1016(b)(iv)(1977). In a Repl.), requiring consent to the state’s bargain Vigil agreed plead Mr. to deferring proceedings the court’s further guilty felony exchange in for the probation placing a defendant on opposing probation not after sen state’s entry judgment convic without tencing provided presentence investiga the tion, infringes judicial depart the report prior felony revealed convic tion no in sentencing power ment’s violation of tions. The state would consent principle ex the probation.2 presentence 301” in “new plicitly Wyo. stated in Const. art. 1.§ vestigation report Vigil revealed that Mr. ch. Wyo.Sess.Laws, 2. Whether 1987 prior drug sales that he admitted de 157, 3, (June enacting 7-13-301 W.S. amounting § as not to much. Mr. scribed in Repl.), was enacted violation of Vigil filed a motion for under Wyo. pro Const. art. which 301,” requested § probation “new which he amending altering during or a bill scribes entry judgment of conviction in passage through so as its the and, spite of the refusal to consent state’s original purpose. change the bill’s alternatively, the district court’s certifica requirement Wyo.Sess.Laws, 3. Whether 1987 ch. tion state’s consent is 157, 3, (June enacting 7-13-301 to this court. The told the W.S. sue § (June argue against through competent attorney the 7-12-102 case 1. W.S. 7-12-104 Repl.): the state and shall fix reasonable fee for his may exceptions paid treasury attorney service the The district take to be out of the any opinion county of the court made decision was in which the bill taken. during prosecution the of a criminal case. (a) exceptions If the bill of is allowed to be court, being supreme Before bill of trial court filed in filed, supreme shall render a deci- court exceptions presented to the whether the shall be point presented. sion on each certify which shall (b) supreme The decision of the court shall certified, If contents of the bill are correct. govern any determine the law to similar containing sign the trial court shall the bill may pending at case which be the time the exceptions and affix the seal of the court rendered, decision is which after- part and the bill shall be made of the record. state, wards but shall not reverse arise exceptions governed The bill of shall be any judgment nor in manner affect promulgated by Wyo- rules as shall be excep- court in the case in the bill of ming supreme court. tions was taken. Following excep- of a bill certification provided by tions 7-12-102, trial court as W.S. (June Repl.) pro- also 2. W.S. 35-7-1037 attorney general may apply procedure discharge vides a for supreme permission court for to file the not, drug of first-time however, That statute is offenders. points bill for review and decision presented. ap- involved in of these cases on supreme If the court allows the peal. filed, judge presided bill who at the appoint taken shall trial in which the bill was position district court that the state refused to con state's was rational and denied Mr. Vigil sent to “new 301” treatment Mr. Mclver’s motion. The district court sen drug because was a case and he had tenced Mr. Mclver to term his of not less drugs eighteen thirty- sold before. The district court found than months nor more than rational, months, position suspended proba that the state’s de six favor of motion, Vigil’s years. nied Mr. and sentenced him for three tion district for a term of not less than two nor more also ordered Mr. Mclver to reimburse the years, suspended than five in favor of five state for defense fees costs. W.S. (June 7-6-106(d) years probation. Repl.). The court also ordered Vigil Mr. to reimburse state Issues: public
fees and costs of his defender. W.S. 7-6-106(d) (June Repl.). Mr. Mclver raises the same issues raised Lowry. Ms. Issues: (No. 88-304) Moon v. State addition to four issues raised Vigil following: Mr. Lowry, raises Facts: prosecutor’s 1. Whether the refusal to September On Ms. Moon sold consent to first offender treatment for one-eighth ounce of cocaine to an informant Vigil rights pro- Mr. violated his to due working Casper Depart- with the Police cess, and charged ment. state her with one prosecutor’s 2. Whether the refusal to conspiracy count of to deliver cocaine sentencing under consent to 7-13-301 35-7-1016(b)(iv), violation of W.S. 35-7- *6 arbitrary and an abuse’ discretion 1031(a)(i), (Cum.Supp.1987). and 35-7-1042 and therefore violated Article Sections arraignment pleaded guilty. At her she not Wyoming 2 and Constitution. Later, the state and Ms. Moon struck a plea bargain agreed under which she (No. 88-311)
State v. Mclver felony plead guilty to the and the state Facts: agreed placed to recommend she on probation imposed after sentence was and 1, 1988, July Mr. On Mclver and two jail she receive neither a fine nor time. At companions stealing money discussed from sentencing, requested Ms. Moon treatment spotted soft-drink trucks and later two 301”; under “new the state refused to con- compan such trucks. One Mr. Mclver’s Although sent. Ms. Moon stated her belief ions of the trucks stole from one $45 requirement that the state’s consent $1,500 caught They from the other. were 301” because it “new was unconstitutional charged Mr. arrested. The state McIv sentencing with the court’s au- interfered conspiracy er one count of commit request thority, she did not court’s burglary (June in violation 6-1-303 of W.S. Instead, simply issue. she ruling on that Repl.). arraignment At his on this disregard the court to the state’s asked felony charge, pleaded guilty. he Before place proba- to consent and her on refusal sentencing, he filed a motion for under “new 301.” The tion district court 301,” in requested under “new which he issue, ruling concluding made no on the probation entry of judgment without that it no authority grant probation had or, alternatively, conviction that the district under “new 301” without the state’s con- certify require court the state’s consent sent. She was sentenced serve a two- sentencing, ment issue to this court. At year probation. term of the district told court the state refused to consent “new 301” Issues: treatment Mr. Mclver because of the
premeditated concerning sepa- nature of the crime and indi Ms. Moon raises issues companions powers, original purpose, cations Mr. Mclver and his had ration of one sub- planned stealing ject, prosecutor’s from trucks in Ne also arbitrariness in refusing braska. The district court found the to consent. (No. 89-4) Magarahan
State v. because of Mr. age experi- Billis’ and the enced manner in which he delivered the Facts: cocaine. Because of the bargain the took, Magarahan On March Ms. state had dismissed one delivery. count of permission, her roommate’s federal Although Mr. Billis stated his belief that $290.58, income tax refund check for en- requirement the state’s consent of “new it, dorsed her on roommate’s name unconstitutional, 301” was the district it. her with charged cashed The state one judge court stated that without that con- forgery count of in violation of W.S. 6-3- sent he was not authorized to consider 602(a)(ii) (b) (June Repl.). Under “new 301” treatment. The district court plea bargain the terms of the between the sentenced Mr. Billis ato term of not less agreed Magarahan, state and Ms. she than three years, nor more than five sus- plead guilty felony and the state pended years’ favor of probation. three agreed to recommend she not be im- fined, prisoned placed but that she be months,
probation eighteen pay restitu- Issues: tion, pay crime victims’ $50 Mr. Billis raises the same issues raised compensation account. W.S. 1-40-114 by Ms. Moon Magarahan. and Ms. (June Repl.). The state did not con- sent to treatment under “new 301.” At sentencing, Magarahan Ms. asked the dis- PRELIMINARY MATTER grant
trict court to her under In all of these consolidated cases spite “new 301” of the state’s refusal to except Lowry, the state maintains that consent. told the She district court she since the defendants did adequately requirement believed the state’s consent raise their appellate issues at the district infringement unconstitutional on the level, they cannot raise those issues sentencing power; court’s the district court State, here for the first time. Jahnke did not rule on that issue and declined to (Wyo.1984); 692 P.2d Hopkin 927-28 use “new 301” without the state’s consent. State, son v. (Wyo.1983), The district court sentenced her accord- *7 denied, 908, 104 cert. 464 U.S. S.Ct. ance with the state’s recommendation. Moreover, L.Ed.2d 246. the state asserts Issues: standing these defendants have no to raise they these issues because cannot demon Magarahan Ms. raises the same issues any impact rights strate adverse on their raised Ms. Moon. resulting allegedly from the unconstitution (No. 88-250) portion al requiring State Billis “new 301” City state’s consent. Chey LaCombe Facts: enne, (Wyo.1987); 733 P.2d Goo again On December 1 and on December State, (Wyo. den v. 408-09 Billis, age Mr. one-eighth sold 1985). ounce amounts of cocaine to an undercover agent Cheyenne, Wyo- concedes, however, law enforcement The state ming. charged county The state him with judge’s ruling two court in Lowry, and delivery thereto, counts of cocaine in violation of exceptions legit- state’s bill of 35-7-1031(a)(ii) 35-7-1016(b)(iv) imately place W.S. and the issue of “new 301’s” con- (Cum.Supp.1987). plea bargain stitutionality Under a agree. before this court. We state, pleaded with the Mr. guilty presents Billis to Because Lowry these constitution- delivery exchange 301,” one count of concerning for dis- al issues “new we con- missal of the sentencing, other count. At cluded that the defendants in the consol- Mr. place Billis asked the district court to gain idated cases should the benefit of a probation him entry judg- on in Lowry decision favorable to the criminal ment of conviction under “new 301.” Accordingly, defendant in that case. we state refused to consent to this treatment questions need not discuss the of made- (c)
quate If the defendant violates a term or presentation of issues below probation any standing by.the state.3 condition of at time before raised discharge, may: the court final (i) adjudication guilt ANALYSIS Enter an proceed impose conviction and sen- I. previ- tence the defendant he pled ously guilty to or was found PRESENT STATUTES guilty original charge for which provides follows: “New 301” probation granted under this sec- Placing person 7-13-301. found § tion; or convicted, probation. guilty, not on but (ii) origi- Order that the trial of the (a) previously person If a who has charge proceed nal if the defendant felony charged any been convicted of previously pled has not or been found guilty pleads guilty of or with or found guilty. except any second any misdemeanor (d) Discharge and dismissal under this subsequent violation of W.S. 31—5— or adjudication section shall be without law, any provision of or or similar any guilt and is not a conviction for murder, any felony except sexual assault purpose. degree in the first or second or arson (e) (1) There shall be one dis- degree, may, the first or second charge and under this section dismissal of the defendant and with the consent proba- any or under similar section of the entering judg- and without state tionary any jurisdiction. other statutes of conviction, defer further guilt ment of or We must take note 7-13-302 also of W.S. person pro- proceedings place on (June provides: Repl), (5) exceed five bation for a term not to Placing person convicted 7-13-302. years upon terms and conditions set probation; suspension imposition the court. The terms of shall sentence; imposition execution of of fine. that he: include (a) guilty After conviction or (i) Report court not less than offense, any except punisha- crimes year places times and twice in each imprisonment, ble death or life order; fixed in the following entry judgment of con- (ii) law-abiding Conduct himself viction, may: the court manner; (i) Suspend imposition or execu- (iii) Not leave the state without the place tion of defen- sentence court; consent of the probation; dant on (iv) oth- Conform his conduct *8 (ii) Impose applicable a fine to the probation the court finds er terms of place and the defendant on offense proper. probation. (b) person If the the has court finds probation and that fulfilled the terms of II. to the
his rehabilitation has been attained
court,
may
the
satisfaction of
the court
301”
PREDECESSORS OF “NEW
(5)
any
years,
at the end of five
or at
(1)
expiration
year
the
Before we address the
time after
of one
constitutional is-
301,”
original
relating
help-
to
it
probation,
from the date
sues
“new
we find
person
identify
origins
discharge
pro-
the
and dismiss
ful to
and describe the
of
the
ceedings against him.
that statute. Before “new 301” was enact-
Fisher,
passing
any
in White v.
not state
amount
a
3. We note in
that
dollar
or demand
sum
102,
(Wyo.1984),
parties
in which the
judgment,
compelled
P.2d
as
this court was
to con-
constitutionality of W.S. 1-1-
had not raised the
constitutionality
sider the statute's
because of its
(1977), relating
legislatively imposed
to the
infringement upon
apparent
sep-
the doctrine of
requirement
prayer
damages
that the
in a
powers.
aration of
injury
wrongful
personal
death
or
action shall
by
Forty-Ninth Legislature
just
did,
not
first-time
as
ed
the
felons
“old 203”
any crime,
part
a
of Title 7 who had committed
as
of
substantial
revision
whether
(1987 Wyo.Sess.
felony, except
pun
or
Wyoming
misdemeanor
a crime
Statutes
3),
statutory
provi
life
imprisonment
Laws ch.
two
ishable
or death.
In
§
State,
v.
Peterson
Originally
(Wyo.
field.
586 P.2d
occupied
sions
the
enact
grounds
overruled on other
(1977) (1909
1978),
Cro
Wyo.
ed
W.S. 7-13-203
State,
zier v.
1) (hereinafter
(Wyo.1986),
“old
723 P.2d
Sess.Laws
ch.
§
203”)
probation
phrase
to
held
provided
first-time fel
this court
that
“crimes
the
murder,
punishable by
imprisonment
ons
not
sexual
life
or death”
who had
committed
assault,
legislature provid
arson.4 The
did not embrace offenses which had a sen
or
having
imprisonment
probation by
ed for
the trial court
tence of less than life
a
delay
place
a
passing
and
the defen minimum and
maximum of either
life
sentence
State,
Sorenson
imprisonment or
“parole.”
dant on
In
death.
(Wyo.1979),
this court
legislature
Under “old 301” the
estab-
“parole”
noted that
was misnomer and
the
lished four methods
trial
“probation.”
the correct status was
implement
court
the
could
estab-
legislature.
First,
the
W.S. 7-
lished
the
with the
legislature
enacted
Wyo.Sess.Laws, ch.
(1939
1)
consent,
defendant’s
the
autho-
13-301
State,
King
(hereinafter
301”).
suspend
place
“old
rized the court
to
trial and
pro
(Wyo.1986).
probation.
P.2d
301”
the defendant on
We believe
“Old
probation.5
vided
of
the defendant’s
consent
feature was de-
another
scheme
defendant,
signed
avoid
applied
any
statute
the later assertion
sentence; general-
plea.
any
expiration
before
At
time after
one
§ 7-13-203. Parole
4.
conditions;
(l)
parole
ly;
discharge;
year
original
from the date of the
terms and
revocation
parole
imposition
its
the court shall have the
discre-
sentence.
parole
finally discharge
tion to terminate
pleads
any person
guilty
or
If
is found
plea
person
and annul the verdict or
murder,
any
except
guilty
felony
sexual
any
discharge
guilty. At
time before the final
degree or
assault in the first or second
arson
person
the court
believes
dwelling
house or other human hab-
attempted
paroled person
to leave the
has
occupancy
itation in
actual
human
comply
failed to
with the terms of his
state or
being, the
whether the
court shall ascertain
parole
the court shall cause warrant
issue
guilty is
of which the accused is
his
offense
person
apprehension
and arrest of the
offense,
turpitude
extent of
first
moral
brought
require
before
him to be
committed,
involved in the act
and other facts
inquire
his
shall
into
con-
court.
court
relating
accused as
and circumstances
parole, and if satisfied from the
duct since his
may
If
he
desire to
the court
satis-
know.
inquiry
person has
that the
violated
terms
good reputation
person of
fied that he was a
recognizance,
may
parole
the court
his
charged
the commission of
offense
before
upon
impose
sentence
verdict
had never
been convicted
and
felony,
before
against
him in the manner and to
same
go
large
permitted
at
and that if
though
passing
sentence had
extent as
law,
again
not
violate
court
would
delayed
person
and the
had
been
not been
discretion, by
its
an order entered of
permitted
go
large.
paroled or
at
record, delay passing
pa-
sentence and then
permit
go
large
person
role the
him to
Suspension
imposition
exe-
§ 7-13-301.
recognizance, conditioned that
his own
sentence;
proba-
placing
defendant
cution of
tion;
report
personally appear
he will
probation;
suspension of
fine and
trial
places
year
twice in
at times and
each
*9
probation.
placing
and
defendant on
will demean
fixed in the order and that he
law-abiding
plea
guilty
large
for
After conviction or
of
himself while at
in a
man-
life,
offense,
by
except
punishable
worthy, respectable
death or
live a
crimes
ner and
and
may suspend
imprisonment, the court
the
will
leave the
without the
life
that he
not
state
sentence,
court,
suspend
may
imposition of
the
the
at
or
consent of
court.
if satisfied
part
appearance,
person
of
a
of a sentence and
of
that
has
execution
all or
the time
the
probation
law-abiding
may
place
or
also
defendant on
himself in a
manner
the
demeaned
life,
respectable
may by
may impose
applicable
the
worthy,
a
to
offense
lived a
fine
and
record,
probation.
place
parole for
the defendant on
an
of
continue
the
and also
order
charged
(5)
expiration
period
years,
of a defendant
of five
at the
of
With the consent
crime,
by
except
punishable
finally
a
death
enter
order
a crime
which the court shall
discharging
suspend
pro-
imprisonment,
person, and
or life
the court
the
no further
probation.
place
ceedings
defendant on
shall
had
such verdict or
trial and
such
speedy
aby
possibility
trial violation
defendant whose
of no sentence at all.
Id.
In
probation
contrast,
was
for
terminated
misconduct
“old
was
301”
“much more re-
resumption
and
crim-
who then faced
strictive
it
“old
since
not
[than
203”]
[did]
proceedings against
inal
him.
three
specify
any proba-
itself
the conditions of
probation
other
for
a
methods
followed
tionary freedom.” Id.
In “old 301” the
plea
guilty
being
guilty
or
found
follow-
legislature intended “that
those criminal
Thus,
ing
legislature
a trial.
autho- defendants excluded from the benefits of
suspend
imposition
rized the court to
be in
could
benefi-
some cases
[“old 203”]
place
sentence
proba-
and
the defendant on
cially
provisions
under
rehabilitated
tion.
In
at
King, 720 P.2d
this
exception
with one
[“old 301”]
—those
“suspension
court
of imposition
likened
of guilty
punishable
‘crimes
offenses
”
sentence,”
“delay passing
to
sentence”
as
imprisonment.’
death or life
Id.
yet
found in
203.” In
“old
another method
a
point
comparison,
On
final
Justice
under “old 301” the
court
authorized
noted
Cardine
that under “old 203” when
suspend
of all
part
execution
or a
successfully completed
the defendant
pro-
place
pro-
sentence
the defendant on
legislature
bation
authorized the court
Sorenson,
bation. In
604 P.2d at
this
plea
guilty.
to annul the
verdict
Id.
court
that
legislature’s
held
1971 act
contrast,
observed,
In
he
under “old 301”
creating
repealed by
parole
board of
successfully completed
when
defendant
implication
authority
require
the court’s
probation
legislature
authorized the
sentence,
part
defendant
serve
court,
(“old
under
then W.S. 7-13-304
execution,
suspend
place
the defendant
304”),
defendant,
to discharge the
but no
as to the balance. W.S. 7-13-
mention was
annulling
made
verdict
(1971
(1977)
Wyo.Sess.Laws,
ch.
guilty.
Id.
10).
467;
King,
also
P.2d
See
at
State,
Williams v.
692 P.2d
235-36
III.
(Wyo.1984). A final method under “old
301”
impose
authorized the court to
a fine
“NEW 301” AND
302”
“NEW
applicable
place
to the offense and
the de-
By keeping the chief features of “old
probation.
fendant on
by compar-
203”
“old 301” mind and
Sorenson,
In
at
P.2d
1038 n.
ing them with
301”
“new
and “new 302” as
suggested
probably
that “old 203”
Forty-Ninth Legis-
enacted
superseded
301,”
had
“old
been
but
lature,
identify
we can
how “old 203” was
suggestion was
in King,
retracted
revised
become “new 301” and how “old
Peterson,
at
In
469.
partment’s pardoning power. Stanton v.
ment.
that
legislature
We have held
the
State,
587,
(Wyo.1984).
686 P.2d
589
Sim
“old 301” properly
power
exercised its
to
ilarly,
judicial department
power
the
has no
prohibit
considering proba-
the court from
grant an
judgment
to
annulment
final
tion for habitual offenders with life sen-
State,
707,
of conviction.
735
Ward v.
P.2d
Schuler,
tences.
P.2d at
668
(Wyo.1987).
708
judicial department
The
no
has
inherent
judicial
The
department has no inherent
power
grant probation.
legislative
to
The
power to
a
impose
refuse to
sentence fixed
department
authority
has exclusive
over
by statute or to
to execute
refuse
such a
sentencing.
State,
Hicklin
when imposed.
sentence
Ex Parte United
And,
(Wyo.1975).
judicial
depart-
the
States,
41-42,
242 U.S. at
S.Ct.
power
grant parole
ment has no
after
approval Evans,
L.Ed. at
cited with
legislative department,
incarceration. The
judicial
P.2d at 1224.
department
authority
the
its
exercise of
over sen-
power
no
to suspend
has
inherent
a sen-
tencing,
placed
parole power
has
that
power belongs
tence. That
exclusively to
parole,
the board of
an arm of the execu-
legislative department. Evans,
the
Sorenson,
department.
tive
604 P.2d at
Evans,
at 1224. In
P.2d
this court relied
1036-37.
favorably
Mabry,
on State v.
96 N.M.
(1981),
P.2d
where the
Obviously, Wyoming
agree
our
decisions
Supreme
New Mexico
Court said:
Geraghty
with that said in
v. United
“ * * *
majority
jurisdictions
Commission,
vast
States Parole
719 F.2d
(3d
question
Cir.1983),
denied,
which have
considered
cert.
465 U.S.
whether
(1984),
the courts have the inherent
104 S.Ct.
ently
exclusively
placed
appropriate
function.”
as
judicial
or
decision
prosecute
juvenile
court which to
with-
in the
department,
ex
executive
an
in the discretion of
as
faithfully
ercise
its executive
department.
officer of
executive
After
laws,
has
exclusive
execute the
noting
right
that there is no constitutional
charging
prose
decision
to make the
juvenile,
to be tried
this court stated:
as a
allegedly commit
person who has
cute the
Any
proceed
initiate
decision to
legislative
act determined
ted the
ings is
prosecuting
attor
vested
Padget,
be a crime.
department
ney,
discretionary.
decision is
this
de
Padget
at 872-73.
court
P.2d
Cases,
(7 Wall.)
74 U.S.
Confiscation
legislative act
clared unconstitutional
454, 19
(1869);
L.Ed.
Falty
State
purported to authorize
nowicz, Wyo.,
(1983)(Thom
discretion. Within the limits
prosecu
set
the within the exclusive domain
legislature’s constitutionally
Brokaw,
defini
United
v.
valid
tor.
States
F.Supp.
60
chargeable offenses,
tion of
“the con
100,
(S.D.Ill.1945); Thompson,
101-03
251
selectivity
scious exercise
some
in en
413-14,
292,
U.S. at
7-286
making.
Armstrong,
Wyoming
See
Rules of
Procedure,
7-287
Judiciary,
Criminal
A View the
V
through
7-292
7-295
(1970) part
& Water L.Rev.
Land
581-86
—
through
7-299
7-301
symposium
Wyoming
on the
Rules of Criminal
through
7-330
7-332
Procedure.
relationship
Rule 45. Dismissal
We see a direct
between the
prosecutor’s
power under
dismissal
W.R.
(a) By
prosecuting attorney.
—The
45(a)
prosecutor’s power
and the
un-
Cr.P.
prosecuting attorney may, by leave of
der “new 301” to consent to deferral of
court,
indictment,
file a dismissal of an
prosecution
entry
judg-
further
without
complaint,
prose-
information or
and the
light
ment of conviction. In
of our fore-
thereupon
Such
cution shall
terminate.
respective
going analysis
powers of
during
may not be filed
dismissal
departments
government
the three
trial
the consent of the defen-
without
tracing
and of
the criminal law area
our
dant.
prosecutor’s
prose-
evolution of the
nolle
rule,
this
W.S.
After the effective date of
power,
qui
we conclude
“new 301” is
statute,
prosequi
7-198
nolle
product
legislative department’s
superseded and of no further force or
recognition
depart-
the executive
correct
effect. W.R.Cr.P. 56. Since W.R.Cr.P.
initiate, control,
power
ment’s
and termi-
45(a)
48(a),
as F.R.Cr.P.
we
is
same
judi-
prosecutions
nate criminal
before the
precedent
give great weight to federal
un
department
power
cial
exercises its
to enter
48(a)
considering mat
der F.R.Cr.P.
when
Recalling
meaning
judgment.
a final
45(a).
arising under
Dob
ters
W.R.Cr.P.
“judgment
W.R.
of conviction” under
State,
(Wyo.
bins v.
33(b),
Cr.P.
we find that it correlates well
1971).15
phrase
301”: “The
with that
found
“new
Moore,
According
“by
may,
leave of
of the defen-
with the consent
entering
and the state and
requirement
variously
court”
has been
in dant
conviction,
fur-
guilt or
defer
judgment
terpreted in the federal courts. Some fed
* *
(emphasis add-
proceedings
ther
*.”
they
eral
broad discre
courts believe
have
ed).
legisla-
This statute demonstrates
protect public
tion “to
interests in fair ad
understanding
department’s proper
tive
Moore,
justice.”
ministration of criminal
J.
judicial department enters a
that until the
¶
supra,
48.02[1], p. 48-4.
adhere
Others
(final
judgment
guilt or conviction
prosecution’s
to the standard that the
mo
possesses
ex-
judgment)
prosecutor
tion
to dismiss should be denied
department’s power to control
ecutive
“clearly contrary
public
to manifest
inter
prosecution
at
time be-
terminate
¶
Id., 48.02[2],
Despite
est.”
at
48-7.
Thus,
judgment.
final
we find W.S.
fore
scope
disagreement on the
of the court’s
33(b)
compatible with W.R.Cr.P.
7-13-301
discretion,
“by
it
clear that the
leave of
45(a)
proper
solidly based on a
requirement
court”
has modified the abso
understanding
appreciation for the
of and
department
power
lute
of the executive
so
harassed,
common law
the defendant
is not
through ver-
the criminal case even
control
charging, dismissing
recharging
with
judgment.
until the court enters a final
dict
jeopardy.
placing
out
the defendant
Id.
¶
48-5; ¶ 48.02[2],
48.02[1], at
at 48-8.
In the face of extensive case law iden-
branch, however, essential
“The executive
tifying
describing
legislative
de-
judge
of the decision to
ly
authority
remains
partment’s exclusive
over sen-
and to terminate it.”
prosecution
tencing,
initiate a
the contention of these
And,
¶
“[tjhere
48.02[1],
department
at 48-5.
Id.
defendants that the
has
prosecutor’s
authority
motion is
It
presumption that
similar
cannot stand.
is true
good
proper
judicial department
and in the
dis
made in
faith
that the
has
33(b); MJP,
¶ 48.02[2],
impose
sentence.
charge of his duties.” Id.
W.R.Cr.P.
defen-
a judge, who that a charge holding believes Tenorio’s de- partment should be dismissed in the interests of has inherent to dismiss
425
justice
investigation
prosecution
charge
per-
in the interests of
of another
a criminal
by the United
directly contradicted
son who has committed an
offense. Claim-
in Ex
Supreme Court’s statement
ing
sentencing
preroga-
States
that
is a
(cited favorably
tive,
Parte
States
United
Huerta
that a scheme
contended
Evans)
judicial depart
court’s
that the
this
delegates
which
to the executive branch’s
to
power to refuse
ment has no inherent
prosecutorial
authority
arm the
to control
upon considerations
try
charge
a criminal
judge may
cooperation
when a
consider
charge;
legality
extraneous
government
mitigating
with the
as a
factor
hold
Supreme Court’s
by the United States
usurps
constitutionally
interferes
a
with or
department has the
ing that the executive
assigned judicial function.
(Bordenkirch
right
prosecute
to
absolute
statute,
In upholding the
the court first
Corbitt);
er,
this
Weatherford,
permit
noted that the
statute does not
holding
prosecutor
does not
court’s
that
prosecution
engage
“adjudication.”
to
negotiations
a
have
enter into
with
to
Next,
power
That
remains with the court.
prosecute
right
and has the
to
defendant
prosecutor’s
observed
the court
that
(Goo
accept
plea bargain
a
rather than
authority under the
affect sen-
statute to
);
holdings
den
court’s
prosecuto-
more limited
tences is
than other
no inherent
judicial department has
sentences,
by which it
rial means
affects
{Evans);
expunge
suspend a sentence
to
to
authority
such as the exclusive
to decide
of conviction which was
judgment
a final
among
prosecute-and
to choose
whether
pur
for the
legal error and
Next,
charges.
the court be-
alternative
rights
restoring a defendant’s civil
poses of
prosecution
uniquely
fit to
lieved that
alleviating
being classified
or of
his fear of
question whether a defendant’s
resolve the
{Stanton);
grant
as a
habitual
risen
the level of “sub-
cooperation has
judgment
annulment of a final
of convic
stantial assistance.”
{Ward)',
im
to reduce the sentence
tion
legislature has not
posed to one which the
sentencing is not inher-
Recognizing that
impose
original
the court to
authorized
function, the court conclud-
ently judicial
{Williams);
impose
to refuse to
usurp judicial
does not
ed that the statute
{Evans)',
grant probation
a sentence
and, further, Congress has the
function
(Hicklin);
grant parole after incar
or to
all discretion in sentenc-
power to eliminate
{Sorenson).
ceration
Finally, the court found no
ing judges.
step
also out of
with United
Tenorio is
establishing
process right
a due
precedent
(2d
Huerta,
charge,
charges,
to a dismissal of some
V.
plea bargain.
to a
Gooden.
REQUIRE-
THE STATE’S CONSENT
Possessing
prosequi power,
the nolle
MENT
“NEW
OF
301” WAS
played
being
has
the role of
CONSTITUTIONALLY ENACTED
prosecution
able to terminate a
time
judgment
guilt
before final
or convic
Legislative History
A.
Possessing
pardon power,
tion.
explained
Earlier we identified and
department
played
executive
has also
legislature apparently
what the
did in 1987
being
grant
pardon
role of
able to
before
change
“old 203” into “new 301” and
judgment.19
granted
or after final
If
be
“old
into
302.”
301”
“new
Now we will
pardon
judgment,
prevented
fore final
legislative history
review the
of House Bill
penalties,
the attachment of conviction
dis
(H.B. 92)
Chapter
157 of
became
abilities,
stigmas.
granted
If
after
Wyoming.
the 1987
Laws of
Session
pardon
judgment,
final
removed conviction
disabilities,
penalties,
stigmas.
Sponsored by
Judiciary
View
Interim
Joint
Committee,
ing
light
prosecutor’s possession
in this
H.B. 92 was a revision of Title
not,
proba
Wyoming
Digest
7 of the
statutes.
consents
Journal,
entry
judgment,
Forty-Ninth
Legisla-
tion without
of a
we find House
State
put
way:
Justice Cardozo
"We do not
it this
19. Constitution of
United States of Amer
pause
differently
Analysis
Interpretation, pp.
to consider
a statute
whether
491-94
ica -
(U.S.
1987),
Printing
yield
conceived and framed would
results more
Gov’t.
Office
where refer
Garland,
(4
parte
consonant with
We take
ence made to Ex
71 U.S.
fairness and reason.
Wilson, Wall.) 333, 380,
this statute as we find it.”
Anderson
AN 194. The ACT amend and * * * signed by Speaker act was renumber or renumber 7-13- W.S. * * through *; and President of the 7-15-107 House revising Senate that Chapters day through through same 15 and Governor March Statutes; 17 of Title 7 of the H.J. at Wyoming appears 194. H.B. now * * * providing procedures placing Chapter Laws Wyo- Session probation prior certain ming. defendants on
entry judgment of conviction and for Original Purpose” B. “Alteration Is- discharge adjudication
their sue guilt upon completion pro- successful conforming bation and related statutes Wyo. provides, Const. art. “No passed except bill,
law shall be
and no
H.J. 183-84.
bill shall be so altered or amended on its
passage through either house as to change
*26
H.B. 92 renumbered “old 203” to “new
original purpose”.
its
purpose
of this
provided
301” and
changes
category
in the
kind of
provision
pre
constitutional
is “to
persons
of
qualified
probation
before
last-minute,
legislation
clude
hasty
and to
procedures
sentence
the
and
to be used
provide
public
notice to the
of legislation
placing
before
qualified person
and after
irrespective
under
92,
legisla
consideration
probation.
H.B.
Forty-Ninth State
tive merit.”
Anderson v. Oakland
Coun
Legislature,
87LSO-0102.01,
pp. 155-58
Clerk,
ty
(1987).
313,
448,
419 Mich.
original
N.W.2d
version
H.B. 92
Annotation,
See also
requirement
Con
contained the
of the defen-
Application
struction and
probation
Constitu
dant’s consent
was
not
Against
contained in “old 203.” Id.
tional Provision
Changing
Pur
Before
at 156.
pose
House,
During Passage,
Bill
leaving
the
“new 301”
the
was
sub-
158 A.L.R.
ject
(1945). (Our
relatively
of a few
minor amendments.
research reveals no
January
annotation).
H.J.
On
H.B.
supplementary
184-85.
later
In Scud
Smith,
the
der
was read for
third time in
the House
Pa.
200 A.
passed.
and
(1938),
was
H.J. at 186.
the
provision
court said
kind
“put
the
Assembly
members of the
H.B. 92
was sent
then
to the Senate.
notice, by
others interested on
the title of
There,
several more amendments were
submitted,
the
they might
measure
so that
significant
made to
301.”
“new
The most
it with circumspection.”
vote on
amendment made
was the
Senate
requirement
addition of the
of the state’s
These
defendants claim that the
consent
probation.
These
original purpose
H.J. 189.
originally
H.B.
introduced,
adopted
amendments were
in
passed
namely,
procedures—
providing
the Senate. H.J.
including
requirement
191-92. H.B. 92 then
of the defen-
February
went back to the House on
placing
dant’s consent —for
a defendant on
1987, and the House voted
pre-guilt adjudication
not to concur
probation and dis-
Senate amendments. H.J. at 192. The
charging
upon
the defendant
successful
joint
matter was referred to a
conference
completion
probation,
of that
imper-
was
composed
committee
missibly changed
several members
legislature’s
from the
House
Senate.
at 192.
requirement
H.J.
amendment
that added the
disagree.
state’s consent. We
joint
reported
conference committee
adopt, among
back a recommendation to
issue,
In our resolution of this
we are
amendments,
Hansen,
other
the Senate
Smith v.
guided
amendment
and we hold that The revision was not to be a intended general of Title 7 mere codification and revision restatement of former law. Obvious- that, ly, procedure. legislators language observe used We that ad- statutory provi- identifying many to construction in- addition mits of a which in applied, changed to act Specifi- sions which the revision stances the former law. language cally used clear describe reference 7-13-101 §§ 7-13-107, accomplishing: through revision was which encompass what “old amending 301,” amending; renumbering; amend, and re- 203” and “old the act was “to vising; eliminating duplication, redundan- amend and renumber or those renumber” provisions; moving, “providing and archaic provisions procedures plac- com- cies for bining, deleting renumbering; provid- ing and probation prior certain defendants on definitions; ing repealing provisions; entry judgment modi- of a of conviction and for provisions; fying eliminating pow- discharge certain their adjudication without ers; providing procedures deleting guilt completion proba- re- upon and successful quirements. conforming tion and related statutes 106(a)(iii), 9-l-627(c), 20-3-101(a), grand jury report; providing secrecy 25-3- for amend, 104(b)(iv) 25-4-102; grand and amend and jury proceedings; provid- indictment and 6-3-702(c), 6-10110, renumber or number W.S. ing imposing an that in indeterminate sentence 7-5-309, through through 7-1-101 7- 7-13-101 felony case the court in a shall set the minimum through and 7-17-101 as 7-1- 15-107 7-17-103 term at no more than 90% of the maximum 7-6-115, through through 7-9-112 7-9-101 providing imposed; procedures placing term 7-17-103; through and 7-13-101 to renumber probation prior entry certain defendants on 7-1-103, 7-1-104, as W.S. 7-1-123 as 7-6-101 judgment of conviction and dis- for their 7-7-104, 7-7-103, 7-7-107 as 7-7-108 as 7-8- charge adjudication guilt upon suc- 7-8-102, 7-8-103, 7-8-110, as 7-8-107 as as completion probation conforming cessful and 7-10-104, 7-8-105, 7-8-124 as 7-1- as 7-9-101 statutes; providing giv- related that a defendant 7-1-105, 7-10-103, 7-9-107 as as 7-10-105 split en a sentence of incarceration followed 7-10-104, 7-10-105, as as 7-10-106 7-10-117 probation subject parole good is not and time 7-11-203, 7-10-106, 7-10-120 as 7-11-207 as provisions jurisdiction and is under the through through 7-11-210 7-11-206, 7-11-212 as 7-11-204 incarcerated; sentencing specifying court while through 7-11-406 7-11-410 as 7-11- probation proceedings may when revocation be 7-11-407, 7-11-502, through as 7-11-503 commenced; creating proba- department through through 7-11-514 7-11-505, as 7-11-516 7-11-503 parole providing powers and tion and 7-11-506, 7-11-518 as 7-12-105 as probation parole director duties of the 7-12-104 and as enacted 7-12-205 as 7-12-201 agents; providing peace for the arrest offi- Laws, 1985; Chapter Wyoming Session alleged probation parole cer of violators to amend and 7-7-102, or amend renumber W.S. the written statement of a 7-10-101(b) as 7-7-109 7-7-105 and parole agent; providing when shall restitution by Chapter Wyoming enacted Laws, Session parole; specifying condition be made a how relating procedure; to criminal re- earnings prisoners certain defendants and vising Chapters through through 15 and disbursed; specifying shall be sex crimes for Statutes; Wyoming of Title 7 of eliminat- special pro- examination and ing duplications, pro- archaic redundancies and designating apply, perform visions who shall visions; moving, deleting combining, and re- designating examinations and con- where such sections; definitions; numbering providing re- committed; may placing victed defendants procedural pealing provision superseded by reentry furlough program control of under rules; specifying peace officers when reform; modifying the board of charities and misdemeanors; modifying citations issue provisions relating to the issuance execu- reducing penal- offense of desertion and warrants; providing procedures tion of death ty; eliminating power granted of sheriff to rail- relating prisoners to the examination of female engineers; modifying pro- conductors and road preg- sentenced death who are believed to be relating disposition property cedures *30 nant; public providing repre- defender shall by peace eliminating seized or held and officers prisoners asserting sent certain of con- provision authorizing violation allocation forfeited rights; specifying stitutional in which cases the property agencies; repeal- to law enforcement indemnify provisions relating state will ing governor’s sheriffs or other officers reward liability fugitives; relating prisoner from modifying procedures civil connection with for to labor; bonds; eliminating personal pris- peace providing state for limited commission on transferring on labor and board items deceased to be released to his next of functions to the reform; following provid- investigation; providing and kin coroner's charities for work procedures ing drawing impaneling programs for release at each of adult and the state’s institutions; juries; county grand limiting grand penal providing term of for an effec-
juries; deleting publication requirement of tive date. Wyo.Sess.Laws,
.” p. ch. state county for $200 the services of who No one read the title and was her court-appointed counsel. passage thus aware of the the law could In Vigil, when the county judge court reasonably surprised claim to have been appointed public represent defender to thinking misled into that the revision act Vigil, Mr. appointment his upon was based was a mere restatement former law. Vigil’s Mr. affidavit court-appointed Wyo.Sess.Laws, We hold that since 1987 provided counsel in which he detailed infor- ch. originally introduced H.B. mation his about financial situation and proper general was a codification and revi- history. employment Later, presen- pertained, sion of the laws to which it it report investigation provid- tence Vigil Mr. excepted was from the requirements ed further detailed information about his subject” “one provision. constitutional We financial situation and his employment his- constitutionally also hold that it was enact- tory. district judge When the court sen- ed. tenced he Vigil, pay Mr. ordered him to public state expenses defender for all
VI. according services to public defender’s (JUNE 7-6-106(d) WHETHER W.S. standard fee schedule. judge ordered REPL.), LOWRY, UNDER WHICH paid this to be Vigil’s five-year within Mr. VIGIL AND WERE McIVER OR- probationary period according a court- to DERED TO THE REIMBURSE approved payment plan. FOR STATE DEFENDER PUBLIC FEES, ATTORNEY’S IS CONSTITU- McIver, In county appointed court TIONAL. public upon based defender Mr. Mclver’s gave affidavit in he which detailed informa Lowry, county when the court situation, tion employ about his financial judge appointed public rep defender to ment Lowry, history, background, resent educational judge Ms. found that she presently provide family was unable A background. presentence full investi payment attorney’s fees and other ex gation report provided further in detailed penses representation, but that she situation, his financial em formation about pay could afford a certain amount to ployment history, background, educational defray partial representation. costs of and family background. When the district finding judge’s This based Mclver, judge Mr. he or sentenced Lowry’s of Ms. consideration affidavit repay public dered him the state defend seeking court-appointed counsel expenses er for pursuant all services provided she detailed about her information office’s standard fee schedule. present employment. financial situation and paid judge ordered this within Mr. Specifically, in her affidavit she stated she probationary ac year period Mclver’s three monthly payments could afford to make cording court-approved payment plan. to a court-appointed towards her counsel in the 7-6-106(d) (June Repl.) Under W.S. per sum of judge’s month. In the $50 authority the courts order a have order, finding and based on his that Ms. repay defendant to state for the cost Lowry pay could afford to some amount to Lowry, defense services.22 Defendants defray partial counsel, costs of defense he Vigil time on and Mclver raise for the first pay per Later, ordered her month. $50 appeal constitutionality question judge, prosecutor’s when over the ob They argue plain of this statute. do not jection, prosecution placed deferred 301,” jurisdictional Lowry Ms. error. Since find no claim under “new we Lowry right claim, he Ms. ordered to reimburse the and no fundamental decline we 6—106(d)(June Repl.): *31 probation repay 22. state W.S. sentence or to 7— sentence, expenses provided by appointed services If the orders court before attorneys pursuant suspended probation, public defend- sentence or the court state needy person er’s shall order condition of standard fee schedule. Therefore, at 927-28. find no Hopkinson, to consider issue. 664 692 P.2d we Vigil’s argument point. Mr. on this P.2d at 50. merit to VIII. VII. REFUSAL WHETHER PROSECUTOR’S REFUSAL WHETHER PROSECUTOR’S UN- TO CONSENT TO SENTENCING FIRST OFFENDER TO CONSENT TO ARBITRARY DER 7-13-301 WAS § TREATMENT MR. VIGIL VIO- FOR AN AND OF DISCRETION ABUSE LATED HIS TO DUE PRO- RIGHTS AND, THEREFORE, VIOLATED CESS CONST., ART. WYO. §§ must judge’s sentence Since cases, Vigil, respective In each of their upon accurate information based Moon, Magarahan, that the and Billis claim presentence investigation re found in the to “new prosecutor’s refusal to consent Vigil argues prosecutor’s port, Mr. that the arbitrary 301” treatment was and abuse must also “sentence-like” consent decision discretion, Const., Wyo. art. violating thus upon only be based accurate information. 2 and 7.23 §§ State, P.2d 1207- Christy v. See Magara- Both Ms. and Ms. Moon that (Wyo.1987). Vigil Mr. claims prosecutor han claim that since the each the state’s con prosecutor give refused to gave for the of their cases no reason 301” probation sent to “new because Mr. state’s refusal consent to “new 301” dealer, drug that he stead Vigil was a but treatment, arbitrary those refusals were drugs. view fastly denied he dealt We characterized of discre an abuse differently Vigil. In Mr. record from The records in are silent tion. these cases Vigil investigation report, presentence Mr. why prosecutors to con as to refused drugs he sold previously states that had earlier, explained prosecutor, As sent. At felt it did not to much. but amount judge, prosecution up not the controls the sentencing proceeding, the district court pre adjudication. will not This court presentence investigation
judge called the suspect arbitrary clas factors or sume Vigil’s report to Mr. attention and asked Ms. Ma- sifications exist. Ms. Moon and any him if it contained inaccuracies. Mr. point suspect garahan cannot Vigil it did said not. arbitrary other factors or classification When the told district argu find the record. We no merit their give judge why refused to court the state ment. probation, he re- its consent “new 301” error, assignment Vigil Mr. Under-this investiga- Vigil’s presentence to Mr. ferred claims, due as he did with reference to his having previously report tion admission of claim, process prosecutor’s that the refusal explained drugs and that the state felt sold Vigil’s based Mr. admitted to consent not pending criminal matter was drug arbitrary. previous dealing We was incident in view of that admission isolated argument merit to this for the same find no Vigil the state Mr. should not and that felt pro- reasons we found no merit to his due a clean record under be absolved have argument. cess judge “new 301.” district court found argues prosecutor’s do position rational. So we. Mr. Billis that his the state’s was treatment Vigil note that Mr. did not raise refusal to consent “new 301” We also below, arbitrary. prose- presents it here He contends that the this issue but rather time, not refusal to tantamount to for the first and he has claimed cutor’s consent is This prosecutor’s sentencing, rejected which we earlier. refusal consent decision, any suspect prosecutor's factor. and the was based Jahnke Const., absolute, power. Wyo. arbitrary 1: 7. No art. —Abso- lute, lives, arbitrary power liberty over the Equality right § 2. of all.—In their inherent life, property in a liberty pursuit happiness, of freemen exists nowhere and the all largest majority. equal. republic, even are members of human race *32 that, may not judge interfere with absent prosecutor one be—and presence suspect pretense. factors. Mr. Billis’ with done I dissent for two rea- First, prosecutor’s contention that the refusal sons. I would Wyoming’s hold that objectives separation powers provision1 prohibits consent served none sentencing prosecutor merit. from exercising any power is without Second, sentencing. over I would hold that Last, Mr. that his Billis asserts the 1987 amendments to what is now W.S. prosecutor based the to consent refusal Const, Wyo. 7-13-301 violate art. §§ arbitrary age. The factor of his 24. prose record does not him The bear out. only cutor refused to not because consent I. WHAT WE HERE AND HAVE age had al but also because the state IWHY WORRY! ready leniency by dismissing one shown delivery count of under the cocaine opinion The majority be breathtaking can bargain profes and because of the rather at times in display of its scholastic Mr. Billis had com sional manner which is, strength. however, It an excellent an- drug crime. We find no merit in mitted wrong swer to the question. question The any of Mr. Billis’ assertions and hold that is not our whether state’s separation of prosecutor’s exercise of discretion in powers doctrine collides with a deferred refusing to consent to “new 301” treatment scheme, prosecution but whether that doc- Mr. Billis was not abused and was not prohibits prosecutorial trine participation suspect on any based factor or other arbi during sentencing provided process as trary classification. majority 7-13-301. W.S. The reforms question to ask if is an
CONCLUSION “exclusive function” and answers question that I with “no.” would answer hold that 301” not We “new does violate question with a “yes.” Because the powers doctrine and was question majority with constitutionally answers process enacted. The due “no,” they make room on the bench for rights Vigil not Mr. were violated effectively participate in sen- prosecutor’s refusal to As to the consent. tencing. Moon, Magaharan claim made Ms. Ms. Billis, prosecu- Mr. we hold that the judicial processes Wyoming The law an tor’s refusal consent was not abuse ever, infrequently, compelled have been arbitrary. of discretion and by majority so authorship grasp exten- sively justify societally an effort to they below,
Because
were not raised
we
unproductive
judicially
legal
untenable
decline to address the constitutional claims
position. Paraphrasing from a
Lowry,
Vigil
current ad-
of Ms.
Mr.
and Mr. Mclver
against achieving a
monition
result without
that relate to reimbursement
defense
precedential justification,
majori-
actual
attorney
counsel
fees.
ty
peripherally
many
out
“reach[es]
[]
URBIGKIT, C.J.,
dissenting
filed a
attempt
to authoritatively
directions
an
MACY, J.,
opinion
joins.
in which
support
[unjustified
decision].
reader is inundated with a multitude of
MACY, J.,
opinion
dissenting
filed a
running
citations and a bulk of material
C.J.,
URBIGKIT,
joins.
which
gambit
quotations
historically
from
well-
URBIGKIT,
Justice, dissenting.
Chief
Supreme
known United States
Court Jus-
provide
legal
chairs
justify
We
as well
two
on tices
scholars”
result
during sentencing
for the
“useful” multiply
the bench
numbers
—one
Const,
Wyo.
powers properly belonging
art.
states:
the exercise
departments
one of these
shall exercise
government
of this state
powers properly belonging
departments:
to either of the
are divided into three distinct
others, except
expressly
legislative,
judicial,
as in this constitution
executive and
and no
person
persons charged
permitted.
or collection of
directed
*33
felony
only
years ago
two
we affirmed that
Wyoming
City
of
convictions.
“[t]o
of
accept
recommen
require the court to
Employment
River v.
Rela
Rocky
State
prosecution
a matter of
Bd.,
N.E.2d
dation of the
43 Ohio St.3d
tions
dissenting.
sentencing duty
transfer
Holmes
law would
Justice
* *
*
prosecution,
It
from the court to the
appeals challenge
If these consolidated
sentence,
duty
impose
court’s
is the
under W.S. 7-13-
prosecutorial discretion
State,
prosecution’s.”
not the
Mower
prosecutions, then
3012 to defer criminal
(Wyo.1988).
750 P.2d
powers
separation
problem
of
there is no
Today,
majority
turns its
on its
question may
be con-
back
and the statute
guarantee
protection
of individ-
constitutionally
duty
valid. But if these
sidered
rights
yields
enterprising
ambi-
appeals challenge
legislative
a
ual
consolidated
legislative
prosecutor
tion of a force within or without
to allow the
control over
scheme
judiciary
give
process,
a
action to take from the
sentencing
then
collision
give.
theirs
powers doc-
to the executive a
not
with our state’s
demeaned,
judiciary
I
Not
is the
but
appears unavoidable.
understand
trine
separa- holding
makes no sense unless one
to collide with our
W.S. 7-13-301
overall
unprincipled impact
politi-
since it
examines the
tion of
doctrine
allows
adjudication.
theory upon appellate
trial
cal
prosecutor, against the wishes of the
defendant,
binding precedent,
than
this out-
to control the Rather
judge and
theory
appears
by
political
driven
disposition
a case
the accused has
come
after
prosecutor
tightens
grip
I would hold that which
guilty’’.
been “found
every op-
pleads guilty
is con- on the throat of the accused at
a defendant
or
once
portunity.3
jury,
prosecu-
the role of the
victed
to an end.
tor has come
jurisprudence
of Ronald Dworkin
As
us,
reminded
several of the constitu-
has
majority disagrees and claims the
guaranteeing rights
in-
tional clauses
prosecutor remains active until
role of the
general
dividuals are formulated
such
entered,
sentencing judgment
is
but
many
judges
that in
cases
cannot
terms
binding precedent
drives their
argues as
their decisions on the text or the
base
Actually,
legal
rules
holding.
existent
Rather,
they
the framers.
intent of
the achieved out
nothing to do with
have
them, consciously or uncon-
must base
ad
The cluster of federal cases
come.
political theory
of some
sciously, on
logical justifi
majority
is no
vanced
kind,
theory
defines in the
ab-
Wyoming
re-authoring
law.
cation
proper scope
governmental
stract the
supremacy
federal
clause does
Where the
authority
liberty.
and individual
ap
operate, Wyoming case law is the
Elfenbein,
prece
Myth
Conservatism as a
precedent
Wyoming
propriate
“
Philosophy,
Iowa
dispositive.
‘When the decision to Constitutional
dent is
made,
name is
process
L.Rev.
Whatever
prosecute has been
political theory
operation
given
is
acquittal
leads to
or to
which
”
here,
primacy
finds
in secur-
fundamentally judicial in nature.’
Peti
it is one which
ing legislative supremacy
rights
over the
(Wyo.
P.2d
Padget, 678
tion of
Tenorio,
rights are enumerat-
1984)
3 Cal.3d citizens unless those
(quoting People v.
249, 252,
philosophy
more than
ed. Such a
does no
Cal.Rptr.
political theory
(1970)).
majority
hands con
articulate
rote a
now
primacy
legislative
selects
when the values
sentencing to the
when
trol over
added)
degree,
provides
(emphasis
arson in the first or second
the court
2. W.S. 7-13-301
pertinent part:
may,
with the consent
the defendant
entering
judgment
Placing person
ed,
guilty,
the state and without
but not convict-
found
conviction,
probation.
proceedings
guilt
on
or
further
defer
* *
(a)
previously
person
been
If a
who has not
place
person
*.
charged
any felony
with
or
convicted
guilty
pleads guilty
Cooney
County,
or
misde-
Park
P.2d 1287
3. See
found
* * *,
murder,
any felony except
meanor
(Wyo.1990).
degree
assault in the first or second
sexual
majority adaptation
representative
conduct,
ble conflict
majority
government
rights
citizens
collide.
rights skeptic insists that the case for
*34
“
recognition
the
right
of the
made only
be
general
If
principles governing
‘[t]he
textual,
under circumstances of
the
histori-
apply
construction of
to the
statutes
”
cal, or
constitutions,’
structural certainty;
construction of
otherwise
County
Sidi,
majoritarian
the
Judges
prevail.
Court
Ass’n.
result
must
(Wyo.1988)(quoting
973
conception,
Zancanelli v.
Under this
rights
Cen
are narrow-
Co., Wyo.
tral Coal Coke
173 P.
ly
&
exceptions
defined
to an
pre-
otherwise
(1918)),
construe ev
vailing general
“[w]e
majority
commitment to
word,
ery
every
every
clause and
sentence
rule.”
rendering
so
the
as to avoid
[constitutional Elfenbein, supra,
Iowa
L.Rev. at 425 n.
framers’ and
actions
or
futile
ratifiers’]
124 (quoting Sager,
Skepticism
Rights,
absurd.” Britton v. Bill Anselmi Ponti
Responses,
Process-Based
56 N.Y.U.
ac-Buick-GMC, Inc.,
P.2d
(1981)).
L.Rev.
To maintain this
added),
(Wyo.1990)(emphasis
how can we
skepticism, the majority
leaves us
separation
powers
examine our
of
doctrine
guide
unfathomable standard to
our future
examining simultaneously
po
the
judgment of
when the
has vio-
impact
legislative
tential
of
enactments
lated the
of powers doctrine.
government’s ability
protect
the
the
say
They
that
as a
long
legislative
enact-
rights
against
tyranny
of citizens
acts of
ment does not disturb the “integration of
by
analysis
state officials?4
given
No
is
powers
dispersed
balanced,
into
workable
regarding
possible rights
the
of the ac
government” and
be
by
can
accommodated
prosecutorial partic
cused to be free from
a “pragmatic,
view of
flexible
differentiat-
ipation
level in
process.
this
the
governmental
ed
power,” then there is no
dialogue
only
is
in
couched
terms of
of the separation
powers.
violation
of
Al-
prosecutorial power.
historic
though
standard,
that is an unfathomable
it
operative aspect
“The
rights
crucial
of
pathway
tyranny
a directed
—ultimate
skepticism is its attitude toward the reso-
autocracy
government
sta-
—absolute
systemic
lution of
tension
[the]
[between
tism.
majority
rights].
rule
individual
Incredibly,
When
rights-supporting
majority opens
value
the
their
argua-
only
Constitution is
to be in
analysis
reforming
understood
after
first
harsh,
appropriate,
It is also
but
as a
reflect
Status
felon deals
undescribable and
prosecutorial
accept-
veto
be
would
more
present damage
undiscernible
to both
indi-
appropriateness
punishment
able if
and,
them,
through
society.
vidual
our
Each
responsible
visited
those
authorities
miscreant who
seek to rehabilitate but then
State,
(Wyo.1990) by
Gale v.
792 P.2d chal-
by
a hardened
becomes
societal failure
lenge
non-prosecution
principal
to the
responsibility
direct
those who author
wrongdoers
Cooney,
or in
The fundamental character
majority
separation
powers
“air-tight compartments,”
for
out
constitutional
employs
analysis
intent
to dis-
reality
justify unprinci-
framer’s
serves
cover the framers indeed had in mind
pled
adjudication
suit
result-oriented
concept
political
“pragmatic,
or eco-
flexible view differentiated
contemporary
governmental power”
prose-
that allows a
morality.
nomic
rel. Whitehead v.
State ex
control over the outcome
(Wyo.1963).
P.2d 299
That
cutor
Gage, 377
after
pled
guilty.
has
was not
accused
or been found
governmental
course of
conduct
interesting
acknowledge
reh’g denied
perspec-
379 U.S.
85 S.Ct.
5. It is
Brennan,
judi-
Unfortunately,
Jr.
L.Ed.2d 76
tive of Justice William J.
federal
judicial
response
political
important
was called when state
most
career,
case ever decided
his
cial
been,
important
legis-
opportunism was more
than the
as it has
came to be the
extended
legis-
reapportionment
required
constitutional oath and directed constitu-
cases
to correct
lator’s
reapportionment obligations,
impotence.
and while
lative malfeasance and
tional
Carr,
nothing happened legislatively,
the state courts
Baker v.
369 U.S.
82 S.Ct.
disdain,
(1962)
collectively
by Reynolds
wrung
their hands in
de-
L.Ed.2d
followed
Sims,
spair
Gage,
U.S.
84 S.Ct.
L.Ed.2d
inaction.
P.2d 299.
once, however,
the majority
Never
does
tive
strengthen
scheme to
leverage
separate
purpose.
stop
intent from
The prosecutors
allowing prosecutors
governmen-
purpose
separating
historic
require
discretion to
felony status as
prevent tyranny.6
powers
tal
is to
Because
Punishment,
constituent
any sentence.
separation
powers
doctrine is de-
confinement,
probationary responsibility
help prevent
signed
governmental tyran-
is not
prosecutorial
altered
veto
displays
ny,
tyranny by
govern-
state
under Wyoming
adjudicatory structure
employees
legitimate
ques-
ment
makes
since the
provide
trial court can
the same
why
tion
our
model
sentencing responsibility with or without
prevent
sometimes fails
displays.
those
application
of W.S. 7-13-301 in distinc-
By answering
question well,
wrong
so
7-13-302, except
tion to W.S.
that the con-
majority
adds to
potential
tyran-
felony
appended.
viction of a
is or is not
prosecutors
nic
they provided
Cooney
County,
majority essentially
Park
P.2d 1287
redefines de-
1990)
(Wyo.
by declaring that citizens
prosecution
have
post-plea
ferred
to include
ac-
*36
against any prosecutor,
no civil recourse
tion of the trial court and hands the reins
prosecutor
when the
willfully
even
uses the
sentencing process
prosecutor.
to the
power
awesome
state
to settle a
In
prosequi
addition
acquit-
to nolle
and
sense,
personal vendetta.
In a real
it is
tal,
charges may
criminal
disposed
compelling
why prosecu-
even more
ask
processes.
three
Process one is the diver-
strengthened
being
torial
is
in the
programs8,
sion
process
plea
two
ais
or
face
such structural failure7.
entry
verdict without
of a felony judgment,
prosecution
Do we examine a deferred
process
plea
and
three is a
or verdict with
against
backdrop
scheme
of our separa-
entry
felony judgment.
of a
The majority
powers
tion
doctrine? Or do we exam-
recognize
misunderstands or does not
legislative
prose-
ine a
imbed
scheme to
diversion,
one,
process
difference between
role
sentencing process
cutor’s
into the
plea
felony
or verdict without final
against the backdrop
separation
of our
conviction, process
plea
two. The
or ver-
powers
Initially,
doctrine?
these consol-
dict
by probation
which has been entered
present
occurring
idated cases
events
after
felony
without
is no
conviction
more revo-
guilty -plea
jury
or
verdict was en-
probation
cable than
felony
is
with the
con-
legislative
permits
tered.
scheme
State,
viction. Zanetti v.
OF WYOMING LAW
go
large
again
ted to
at
would not
violate
law,
discretion,
its
an order
statehood, Wyo-
From
time of
before the
record, delay
entered of
passing
sen-
ming sentencing processes provided broad
upon
verdict,
plea,
tence
such
discretion to the trial court.10 S.F.
parole
person
permit
such
him to
Leg.
Wyo.Sess.
10th
enacted as
go
large upon
recognizance
his own
(1909),successfully
ch.
Laws
introduced
* * *
* *
Court,
*,
and the
if satisfied
relating
parole
prisoners
act
“[a]n
guilty by
jury
person
found
on their
that such
has demeaned himself
guilty
charged against
of crimes
them.”
law-abiding
in a
manner and lived a wor-
sentencing process,
As
life,
first offense
thy, respectable
may by an order of
juvenile sentencing
enacted statute was a
record,
parole
continue such
from time to
comprehensive
act characteristics for
period
years,
time
of five
at the
purposes
clarity
and to
differentiate
expiration
period
of which
the Court
succeeding statute. This enactment will be
finally
discharging
shall enter
order
Sentencing
called the Modified Juvenile
person,
proceedings
such
and no further
Act.11
plea;
shall be had
such verdict or
PAROLE.
Provided, however,
That at
time
any person,
Section 1. Whenever
expiration
year
one
after
from
twenty-one years
age,
over
shall have
parole
original
the date
said
guilty by
jury
been found
the verdict of a
shall have the
Court
its dis-
*37
case,
empaneled
try
by
plea
his
or
his
parole
cretion to terminate said
and
cause,
duly
in
guilty,
of
entered
of
finally discharge
person
such
and an-
murder,
any felony except
rape of a
plea
guilty.
nul such verdict or
of
forcibly
woman or
child
and
female
ABSOLUTE DISCRETION.
will,
against
dwelling
her
or arson of a
Court,
in
Sec. 2.
the exercise of
house or other human habitation
previous good
its
to determine the
occupancy
being,
actual
of a human
any
person,
character of
such
to deter-
court which such verdict was found or
advisability
paroling
mine the
such
entered,
ascertain,
plea
guilty
shall
person,
propriety
to determine the
of fi-
possible, whether the
of which
offense
nally discharging
person
any
such
at
guilty
the accused is found
is his first
year,
end
time after the
of one
and to
offense, as well as the extent of moral
determine the fact of violation of the
committed,
turpitude
involved
the act
parole
recognizance
terms of the
and
and such other facts and circumstances
propriety
imposing
sentence
relating
may
to the accused as he
desire
person,
such
shall have
know;
absolute discre-
per-
and if
satisfied
such
tion,
appeal
proceeding
and no
or
in error
person
good reputation
son was a
lie from the
the commission of the offense
shall
determination of the
before
charged
upon any
questions.
and had never before been con-
Court
of said
felony.
example,
convicted of a
For
under
its indeterminate sentence structure since enact-
may
general
Wyoming.
the statute
be revoked at
ment of a
criminal code for
* * *
probationer may
time
and the
be arrest-
Compiled
Wyoming,
See The
(1876).
Laws of
ch. 35
* * *
conviction,
ed without warrant.
Such
pronouncement
judg-
in itself and without
ment, establishes a status which is attended
initially provided
upper age
11. The act
limit
by certain disabilities.
twenty-five years.
twenty-
reduction to
Id.,
Cal.Rptr.
Power of or or of trial or sen- Court Sentence Trial Some Cases—Probation. tence. regard age
12. The revised statute cited above in introduced available without for an 1987 to be age history justifies bill form raised the limitation back to the description This limitation. by sponsor twenty-five originally anticipated Act, Sentencing although of Modified Juvenile During passage, in 1909. an amend- essentially young the law was directed toward successfully was ment introduced which elimi- particularly people and so because of the first any age provided nated limitation and the struc- offense limitation. ture of the statute which then continued until Suspension felony remission of the but could Extension of or Proba- status Discharge—Violation of result, trial, Condi- applied suspension for tion — tions Defendant. with the same result as the Modified Juve- period probation or Section 4. Sentencing practical nile Act. The differ- suspension of trial or sentence and the ence between Modified Juvenile Sen- conditions thereof shall be determined suspended trial tencing Act and the adult may ex- the court and be continued or provision or sentence act is the the latter Upon satisfactory tended. fulfill- required no for utilization where suspension ment of the conditions of suspended. if trial was Another obvious court trial or or sentence flexibility difference is the afforded discharge the duly entered shall order Sentencing permit- Modified Juvenile Act during peri- defendant. At time ting year, a conclusion after one suspension of trial or sentence or od of necessarily provision might equally not be may probation, issue a warrant the court available under the later statute. to be arrested and cause the defendant violating any of the conditions of for finality of the adult stat- suspension probation or of trial or sen- only by proba- ute was established not practicable after the tence. As soon as tionary by provisions entry terms but shall cause the defen- arrest judgment payment for the of a fine. brought dant to before it and Then, (1984) Wyo.Sess.Laws eh. 1§ if no proceed to deal with the case as provided potential prison labor when suspension proba- or sentence or of trial 7-13-301, then the statute numbered W.S. tion ordered. had been 7-13-302, and 7-13-303 was amended to Fines. add: imposing a 5. When fine Section Imposition modification 7-13-303. placing probation, the defendant on also conditions; work as a condition of may per judge of the district court probation. paid mit fine in such install such to be periods of time as ments and over such n ; n n n : n n possible and he deems reasonable. (b) any probation, As a condition of Governor.[13] Power of the court, subject through to W.S. 7-13-701 Nothing contained Section 6. herein 7-13-704, may order the defendant impair shall be construed to perform period exceeding work for a com- grant pardon the Governor to *39 probation period. the maximum any mutation in case. persons 7-13-701. Work for confined the 1909 Mod- difference between county jail general- probationers; Sentencing Act and the 1939 or ified Juvenile ly. act suspension adult of trial or sentence operational. The essentially Modified (a) may require court Sentencing required plea Act or
Juvenile perform following persons the to work opportunity to conviction and afforded pursuant through 7-13-701 7- W.S. Alternatively, felony the conviction. avoid 13-704: suspension the adult of trial or sentence act, permitted no applied following plea, Wyo.Sess.Laws charged W.S. 7-13- with or convicted of a criminal of- ch. 6§ Somehow, got Unaf- caption entitled "Governor’s Power of Pardon fense.” the re-edited in fected," interesting also achieved an metamor- supplements the current to the statutes and now phosis process in the recodification which was title, "Expungement states as a of criminal originally found in the session laws as W.S. language by record.” The new added recodifi- 7-13-307, captioned “Governor’s Power of Par- prior disappearance cation and the of the stat- don Unaffected.” The new text with the same change explained. ute is not A title for this text caption ”[n]othing stated that in W.S. 7-13-301 was not included in the enacted substitution through 7-13-306 shall be construed to autho- legislation. expunge person rize the court to the record of a
(iii) Persons for whom work is im- stated in the 1987 Title 7 recodification posed probation as a pur- condition or with the Sentencing Modified Juvenile Act 7-13-303(b). suant to W.S. restated as 7-13-301 W.S. and adult Wyo.Sess.Laws ch. 68 suspended trial or sentence act restated as essentially These statutes were re- two W.S. through 7-13-302 7-13-307.14 importance of the Suspension 14. Because understand 7-13-302. imposition or exe- recodification, sentence; what occurred terminolo- cution of placing defendant on probation; gy provided probation. was restated: fine and recodification (a) After guilty conviction or sentence; gen- 7-13-301. Probation before offense, any except punishable by crimes conditions; erally; discharge; terms and imprisonment, death or life following and en- probation imposition revocation and conviction, try judgment of the the court sentence. may: (a) person previously If a who has not been (i) Suspend imposition or execution of any felony charged convicted of with or is place proba- sentence and on defendant guilty any pleads guilty found or misde- tion; or except any subsequent meanor second or vio- (ii) Impose applicable fine offense any provi- lation of W.S. 31-5-233 or similar place probation. and on defendant law, murder, any except felony sion of or Investigation by 7-13-303. of defendant degree sexual assault in the first or second or officer; attorney probation district or state degree, arson in the first or second the court report investigation prerequisite proba- may, with consent of the defendant and sentence; suspension copies tion or entering judgment the state and without report to institution and board of charities conviction, guilt proceedings or defer further and reform. place person probation and on for a term (a) court, by When directed the district (5) years upon not to exceed five terms and attorney probation parole state or the and set conditions court. terms of fully investigate report officer shall probation shall include that he: writing: court in (i) Report to the court not less than twice in (i) offense; The circumstances of the year places each order; at times and fixed in the (ii) record, history The criminal social defendant; present of the conditions (ii) law-abiding Conduct himself in a man- (iii) practicable, findings physi- If ner; cal and mental examination of the defendant. (iii) leave Not the state without the consent (b) charged felony, No defendant with a court; of the and, otherwise, unless the court directs no (iv) any his Conform conduct other misdemeanor, charged defendant with shall probation proper. terms of the court finds placed probation under released sus- (b) person court If the finds the has ful- pension report of sentence until the of the probation filled the terms of that his investigation presented under this section is rehabilitation has been attained to the satis- to and the court. the defen- considered If court, faction of the court at the end institution, penal dant to a is committed state (5) years, any of five time at after the report copy investigation of the shall (1) expiration year of one the date from tp be sent the institution at the time com- original probation, discharge person felony mitment. clerk of all cases the proceedings against dismiss him. copies report shall forward (c) If defendant a term violates or con- together board of and reform charities dition of before time final copies of all orders entered the court. discharge, may: the court Imposition 7-13-304. conditions; or modification of *40 (i) guilt adjudication Enter an and of con- proba- a of work as condition proceed impose viction and sentence to tion. previously pled guilty the defendant if he (a) may any impose, The court at time and guilty original charge or was found for modify, any suspen- probation or condition of probation granted which was under this sec- sion of sentence. tion; or (b) any probation, As a condition of (ii) original court, Order trial through subject to W.S. 7-13-701 7-13- charge proceed previ- if the has not 7-16-104], defendant through may 704 order [7-16-101 ously pled guilty. or been found perform period the defendant a work for (d) Discharge and dismissal under exceeding peri- this sec- probation not the maximum adjudication guilt tion shall be without of od. any purpose. Determination, is not a conviction for 7-13-305. continuance or (e) (1) discharge suspension There shall be probation; one extension of charge; or dis- any under this section or under dismissal of conditions. violation probationary (a) period probation suspension similar section of the statutes of of The jurisdiction. any other of sentence under W.S. 7-13-302 shall be de- 444 Sentencing suspended Act in the adult trial or
The Modified Juvenile
found
sen-
upside
by
judi-
a
was turned
down
presented
act. These
tence
cases
never
Senate
(without
ciary
amendment
committee
question
considered the
diversion.
of
bill)
provide
change in the title of the
finding the
justification
Mod
First
for
sentencing
prosecutorial veto for use of
Sentencing
ified
Act to
a
Juvenile
be diver
“with
by
statute
the addition of
words
sentencing
sionary process and
stat
not
the consent
the defendants and the
by
presented
majority
ute is
discus
suspended
The
or sen-
adult
trial
state.”
prosecutorial
prose-
sion
of nolle
principle reason for exist-
tence act lost its
structured,
qui.
presentation
The
is well
provision
ence
deletion of the
pervasive
Nolle pro-
but contains a
fault.
suspension
entry
trial and
of a
permitted
sequi
nothing
has
to do with these cases
provision
probationary sentence. The
for
prosecutorial
this
veto
suspension
disappeared
the same
trial
sentencing
prosequi
statutes. Pure nolle
prosecutorial
way
provision
that the
veto
addressing
eases
executive and
dis
inserted.
immediately
cretion can be
excluded as to
question,
suspended
the adult
Without
tally inapplicable
any precedent
in this
pure
trial or sentence act was turned into a
case.15
sentencing
provi-
deletion of the
statute
arguable relation,
can
majority
The
now
that the
Of more
we
find
sions.
contends
Act,
Sentencing
circa
Modified Juvenile
involving prosecutorial par-
cited cases
1909, was also turned into a
stat-
diversion
ticipation
pretrial
programs.
diversion
majority
ute. The
uses
contention
required
A
perceive why
look is
clearer
legislature’s
justify the
insertion of the
really
authority
even this line of
does not
prosecutorial veto as a limitation on sen-
7-13-301,
justify application since W.S.
tencing authority
judiciary.
juvenile
successor
sentenc-
statute,
ing
statute
is still
majority
totally wrong
in context
program
as it relates to the
a diversion
authority
the citation of
fails to sustain
actually presented.
might
What
arguments
only cases
presented.
basic
probation
happened
of either statute
been have
diversion feature
had
diversion—
may
Payment
termined
the court and
be continued
7-13-306.
of fine
installments.
placing
imposing
or extended.
a fine and also
When
(b) Upon
satisfactory
probation,
judge
fulfillment of
the district
defendant
may permit
suspension
pro-
paid
conditions
sentence or
the fine
in installments
to be
period
under
7-13-302 the
shall
bation
W.S.
time.
over a reasonable
discharging
pardon
enter an
the defendant.
order
7-13-307. Governor’s
(c)
proba-
For a violation of a condition of
Nothing in W.S.
unaffected.
7-13-301
occurring during
probationary peri-
tion
through 7-13-306
construed to
shall be
autho-
od,
may
proceedings
com-
revocation
be
expunge
the record
rize the court
any
during
period
of sus-
menced
pension
7-13-302,
time
person charged with
or convicted
crimi-
probation
of sentence or
under W.S.
nal offense.
(30)
thirty
days
or within
there-
Wyo.Sess.Laws ch. 157
after,
the court
in which case
issue
870;
Padget,
678 P.2d
State v.
Petition
the defendant
be arrest-
warrant
cause
Faltynowicz,
(Wyo.1983);
United
hearing
ed. If after
the court determines that
Thompson,
U.S.
40 S.Ct.
States v.
the defendant violated
of the terms of
(1920);
Cases,
sentence,
suspension
L.Ed. 333
re
probation or
the court
Confiscation
Wall)
(1868);
(7U.S.
judgment.
Vorenberg, Early
&
Diversion
From
(unpub-
System, 1972
Criminal
Justice
III.
LAW—DIVER-
MAJORITY CASE
School).
paper,
lished
Harvard Law
SION CASE
Principles
process
of the
case
diversion
majority inaccurately
cites a number
originated very recently
principally
law
involving
proce-
of cases
modern diversion
Jersey
Pennsylvania.
from
New
prosecutor
dures where
discretion
Jersey Supreme
New
Court established
authority
justify
has been
for
favored
program
provided
diversion
then
sentencing
prosecutorial veto of a
statute.
its
involving
character of
exercise
both
pretrial
The cases do not
diver-
sentencing
respon
prosecutorial and
fit!16
programs
Jersey, Pennsylva-
sion
New
place,
the program
sibilities. After
was in
nia, Florida,
Colorado,
Tennessee,
Oregon
legislature adopted
the state
the structure
authority
do
provide
and Kansas
Leonardis,
by enacted statute.
State
application
Wyoming
to the similar
sentenc-
reh’g
71 N.J.
The idea diversion Court represents t)ie ing. system prose- attempt It an to struc- ternative to traditional authority felony 16. Not one those cases stands will result That all this status. right unqualified prosecutor appeal uncon- make and these cases are about—the offense, require the decision that the trolled without necessar- term, ily probationary affording felony difference conviction result. will *42 446 Pennsylvania Supreme Court like- incarcerating suspects. The
euting and
criminal
developed
an accelerated rehabilita-
that PTI was
established
The court noted
wise
(ARD)
program
Various studies
which
disposition
within the last decade.
tion
desirability of alternative
recognize “the
suspension of for-
“provides a means of
disposition of criminal
means for
proceedings before convic-
mal criminal
system
at 325. The
cases.”
363 A.2d
Id.
the accused will
tion on the condition that
“prosecutorial options.”
provide
Id.
was
return,
something in
such as make
do
such,
prosecutor’s partic
As
restitution, participate in a rehabilitation
confirmed.
ipation and discretion was
treatment,
program,
psychiatric
under
Leonardis,
A.2d
73 N.J.
375
State v.
employment,
certain
or otherwise
hold
(1977) (Leonardis II) addressed the
607
The ARD rules
modify his behavior.
pro
PTI
that discretion
exercise of
is held for
provide that after a defendant
Considering
pretrial
diver
gram.
issuing authority
after an
by an
functionally quasi judi
program was
sion
indictment,
the district at-
information
provide options to
decision tailored to
cial
torney
sponte
request
sua
or at the
II
prosecutor,
the' court
Leonardis
attorney, may
defendant’s
move that the
supervised dis
the character of
discerned
considered for ARD. The dis-
case be
over
prosecutor
cretion of the
attorney
trict
has the discretion to refuse
cases were followed
sight. The Leonardis
prosecut-
ask for ARD and to insist on
503, 432 A.2d
Dalglish,
v.
86 N.J.
State
offense.
ing the defendant for the
(1981)
development
addressed the
which
Kindness,
Pa.Super.
v.
Com.
pro
legislatively enacted statewide
(1977) (quoting
A.2d
Shade
pretrial
part
gram of
intervention
Transp.,
Pennsylvania, Dept.
Com. of
rec
Jersey
code. The court
New
criminal
(M.D.Pa.1975)).
F.Supp.
ognized that
Pennsylvania
appellate
The
intermediate
prosecutor’s decision
judicial review of a
activity
court addressed constitutional
suspend
or not
whether
supervisory power
supreme
court as a
Legisla-
charges infringes
both the
program.
ARD
in the establishment of the
power to define crimes and
ture’s
Unquestionably,
program
the ARD
is a di-
responsibility to enforce the
Executive’s
process
pro-
without conviction
version
performed
must
laws and therefore
authority
separa-
for a
vides no informative
Legislature
sensitivity.
with
Since
powers inquiry
presented
as is
here.
tion of
program
judi-
has established a PTI
Lutz,
Pa.
See likewise Com.
review,
correctly
trial court
con-
cial
(1985).
inquiry
The
into
A.2d 928
similar
problem judicial
inter-
cluded that the
proper exercise of discretion
legislative authority has
ference with
program
the ARD
prosecutor
been eliminated.
Ebert,
presented
subject
as the
of Com. v.
Jersey pro
447
guilty,
judge
is found
the trial
defendant
defendant without effect until trial court
has the
the law
approval.
discretion under
to sen-
The ease confirmed the authori-
the
tence
defendant in whatever fashion
ty of the
supervise
court to
the exercise of
trial
the
court sees fit.
and
the
discretion
found
statute constitu-
special
tional. The
partic-
concurrence is of
Obviously,
at 367.
discretion
Id.
the
interest in recognizing
three-stage
ular
the
prosecutor
permit
was to
diversion or to
process involving
prosequi
pretrial
nolle
proceed
prosecution.
with
The Florida Su-
diversion, and, neither,
if
then verdict. The
Court,
considering
case,
in
preme
the same
essential characteristic
the Tennessee
reiterated:
system
premised
agreement
was
on the
pretrial
The
is essentially
diversion
prosecutor
the defendant and the
to be
prosecute
conditional decision not to
sim-
incorporated pretrial in the memorandum
prosequi
postu-
ilar to the nolle
situation
understanding.
The Colorado court in
Jogan,
lated
So.2d 322
[State
[388
v.]
People, By
Through
and
Vanmeveren v.
(Fla.3d
1980)
pretrial
DCA
It is a
deci-
].
District Court In
For
and
Larimer Coun-
and does
the state
sion
not divest
attor-
(1974)
186 Colo.
ty,
applied
527 P.2d
ney
right
proceedings
to institute
principle
the same
to the same kind of a
the
pre-
if
conditions are not met. The
prosecution
deferred
statute as a recogni-
program merely
trial intervention
is
prosecutor’s charging
tion
discretion.
prosecution
alternative to
and should re-
prosecutor’s
main
discretion.
Oregon
prosecuto-
statutes established a
(Fla.
State,
v.
Cleveland
So.2d
pretrial
rial based
authority.
diversion
The
1982). The court
noted
Florida Oregon courts considered the exercise of
system was different than the California
in
discretion
State ex rel. Anderson v.
program, citing
Superior
People
Haas,
v.
Court
Or.App.
(1979)
establishing
procedural
a few
standards
sentencing.
over
This issue concerns the
establishing
degree
of uniform-
some
core
judiciary
function of the
over sentenc-
ity in procedure. The ultimate decision ing.
State,
See MJP v.
1983), Thomas, J., specially concurring;
Thus,'
Legislature
even if the
could con-
Cox,
(5th
United States v.
In
courts have identified the dif-
prosecutor.
upon the discretion of a
a sentence and the alter-
ference between
court observed
native treatment diversion:
Minnesota
Unbending
reasoning
ly completed
probation,
her
she would not
Colorado
19.
Supreme
People
have a criminal conviction on her record.
Court in
ex rel. Carroll v. Dis-
* * *
Dist.,
Suspension
imposition
of sentence is
Court
Second Judicial
106 Colo.
trict
entirely
imposing
different matter from
(1940)
prosecutor
judicial, person no unquestioned and or collection have in It is that courts persons charged specified with the powers beyond exercise herent those powers properly belonging absolutely statutes to one rules and that are Background Prien, Wyo- necessary ability per to the courts’ R. they (1956) were ming
form the functions for which Constitution notes that n * * Const, created. Wyo. art. which contains the inherent the essence of a court as a constitu- ity involving activity so fundamental First it is said that courts “an [*] extremely power [*] described as [*] narrow [*] range [*] possess of author- [*] Johnson, Montana court roots in appropriate starting point. grant persuasive authority Montana. judicial power, similarly 568 P.2d assigns Thus, to this term could and serve as an Cf. (Wyo.1977). meaning Matter has its Bonner, State ex rel. Bennett v. the court tional tribunal to divest (1950) (empha- of absolute command within this Mont. sphere really practically added), render original sis in the Montana ‘ju- meaningless Supreme the terms ‘court’ judicial power Court viewed this ” Riggins Eash v. power.’ dicial way: Inc., Trucking, 757 F.2d power Judicial is not authority (3rd Cir.1985). A.L.R.Fed. 751 decide, to make binding but orders and This is essential to the judgments. kind authority that is concept and allows a court to judicial in its nature relates to and acts notwithstanding contrary act [constitu- rights person property legislative direction. There is also tional] authority existing not created but an inherent is described as under the law. judicial authority This necessary functioning to the efficient specific parties controversies between de- prompt just disposition litiga- rights they termines these exist Thus, tion and business of the court. party does so instance to such *48 power courts have inherent to sum- qualities These controversy. distin- compel mon witnesses and their attend- guish judicial power that which is from ance, oaths, prevent to administer abu- simply legislative or executive. process, provide sive counsel for the indi- power contra-distinguished Judicial as records, gent, parties correct relieve power from the of the law has no exist- default, law, discipline attorneys at and power ence. is exercised Judicial appropriate take other similar action. 20 means of are mere courts which cre- Finally, Am.Jur.2d Courts there is law, ations and instruments of and power an inherent to take such action as independent of the law the courts have functioning is to the efficient useful no existence. The law precedes necessary the court. What is and what courts. The law governs the courts. is useful be difficult to ascertain it is the Thus function of the courts to subject disagree- and to considerable law expound and administer those ment. It has been said that “the notion properly them in causes before course of power of inherent has been described as legal procedure. ” nebulous, ‘shadowy,’ and its as bounds judicial concept power Montana’s em- exactitude,” possible “not to locate with majority’s “adjudica- braces more than the and, therefore, should be exercised with tion” and administration of court business and caution. Eash v. great restraint Looking jurisdictions view. to other is also Inc., Riggins Trucking, supra, 757 F.2d helpful explain concept. at 561-562. power beyond power Judicial extends is, concept quota- As nebulous as this adjudicate particular controversy judicial power tion indicates that extends encompasses power regulate beyond majority the limit which the as- * * * adjudication. matters related to signs. majority speculates separa- The that our * * * powers used, tion power, properly clause was borrowed from Such es- is the constitutions of Idaho and Montana. sential strong to the maintenance of a
453
independent
judiciary, a necessary
decisions that
lead to the
disposition
final
component
system government.
of our
Adjudication
of a case.
pro
includes the
prove
v.
deciding
308 Minn.
dignity, independence
make its
State v.
authority necessary
ciently
required
ed).
N.W.2d
Little,
Lyon County Lyon
(1977).
A court
the fundamental
its
703,
to enable a court to
cases. Clerk
89 Misc.2d
lawful actions effective.
judicial
Holmes,
Judicial
709-10
241 N.W.2d
has all
functions,
power comprehends
106 Wis.2d
(1982)
powers
preserve
392 N.Y.S.2d
County Com
integrity,
Court’s
(emphasis
perform
function of
reasonably
protect
31,
People
Comp,
(1976).
and to
effi-
add-
831,
’rs.,
315
im-
all
its
'American Cas.
from
P.2d at
1143),
cess in
170,
judicial in nature.”
been
acquittal
rio, supra
Cal.Rptr.
“When
deciding
175
p.
the California
we
arriving
made,
996.)
(1963).
the decision to
adopted
[249]
the outcome itself. (quoting
Waugh v.
[3
at the final outcome as well
Co.,
at
Cal.3d
process
Petition
190 Kan.
p.
Supreme
Esteybar, 485 P.2d at
following language
([People
89]
which leads to
prosecute
fundamentally
of Padget,
at
725,
Court:
p. 94,
v.]
378 P.2d
Teno
[993]
has
678
Judicial
power
is the
legal
right, ability,
[*]
[*]
[*]
[*]
[*]
[*]
authority
justicia-
to hear and decide a
struck down under
“[T]his
[has]
controversy;
power
ble issue or
such
legisla
doctrine
Illi-
ordinarily
justice.
vested in a court of
attempts
subject
tive
an exercise of
Mississippi
nois Cent. R.
Co.
Public
judicial power
prosecutorial
concur
* * n
Commission,
Service
F.Supp.
Club,
Barney’s
Hoines v.
rence.”
(S.D.Miss.1955).
power
Judicial
consists of
Inc.,
Cal.Rptr.
28 Cal.3d
truth,
three elements: examination of the
P.2d
arising upon
determination of the law
majority
would like for
forget
us to
fact, and ascertainment
application
part
that we made the second
of that state-
Rapids
Cedar
remedy.
Human ment.
Rights
Rapids
Com’n v. Cedar
Communi-
grant
to the trial court to
Dist.,
ty
County,
School
in Linn
disposition
consider
7-13-301
W.S.
(Iowa 1974).
N.W.2d
legisla-
is,
doubt,
legitimate
matter
no
ture is vested with the
to enact the
Hopkinson
legislative
power.
exercise of
*49
laws,
it
constitutionally
but
cannot
enact
State,
v.
43,
cert. de
(Wyo.),
50
unduly infringe upon
powers
laws that
nied 464 U.S.
908, 104
262,
S.Ct.
78 L.Ed.2d
Felella,
People
v.
of the court.
131 I11.2d
(1983).
legislature may
authorize
547,
137 Ill.Dec.
546 N.E.2d
the trial court to use broad discretion or no
(1989).
making
discretion at all in
its determination
prosecutorial
authority granted
veto
People
dispose
of how to
of such matters.
by W.S. 7-13-301 interferes with this core
Bainter,
126 Ill.2d
127 Ill.Dec.
power.
It
power
denies the trial court the
(1989); Olson,
is intrusion law and of the was should not be aban- branch, doned.22 legislative branch executive ex- Brown principally bidding.”
ists
to do its
Barkley,
(Ky.1982).
S.W.2d
VII. PENDING WYOMING CASES
presently pending
The dozen cases
in this
an unconstitutional
W.S. 7-13-301
to test
court
uncontrolled
discretion
grant
power
of
from the
granted
deny usage
of
prosecutorial
executive branch. The
veto
segment
non-felony
either
of the
conviction
provision
sepa-
of this statute violates the
statute,
7-13-301,
composite
W.S.
are a
Const,
powers
Wyo.
provision
ration of
society.
our modern
At
issue is not
judicial power
usurps
art.
1 and
§
power
persuasion
prosecutor;
it is
government
granted
judiciaRbranch
undisciplined
use of a veto to foreclose
Const,
Wyo.
l.21
art.
judicial probation sentencing alternatives.
I would
all of these consolidated
reverse
Not
properly
one
cases involved a
case,
except
Lowry.
Lowry’s
cases
every
defined diversion status since in
case
provi-
where the trial court found the veto
made,
justified
an actual
applied
sion unconstitutional
W.S. 7-
accepted except
county
the one
court case
consent,
prosecutor’s
13-301 without
I where the statute was declared unconstitu-
Mower,
county
judge.
would vote to affirm.
states: which, (1987), Leg. 49th H.B. bill; passed by alteration or Laws to be amendments, subsequently Wyo. became of bills. product was a
amendment ch. 157 Sess.Laws Judiciary Interim Committee’s bill, the Joint passed except No law shall be Wyoming’s criminal code review of altered or amended and no bill shall be so over a number of statutes which continued as to passage through its either house on revision of the criminal code years. Earlier change original purpose. its by enact in Title 6 of the statutes occurred Wyo. Const. art. 20. § (1982) ch. 75 Wyo.Sess.Laws ment of go Bill to committee. must which were Wyo.Sess.Laws (1983) ch. 171 considered or become a No bill shall be continuing program. products of the same committee, re- unless referred to a law exception specific of some sub With the printed for the use turned therefrom amendments, revisionary pur stantive of the members. “eliminating pose H.B. 92 was stated for Wyo. pro art. 23. Const. redundancies and archaic duplications, § deleting and visions; moving, combining, subject, only one which Bill to contain sections; providing defini renumbering expressed in title. shall be tions; provision su repealing procedural bill, except general appropriation No n n In n .” rules; addi perseded by court and bills for the codification bills recog tion, provisions were substantive laws, general revision of the shall identify specifically nized in the title subject, passed containing more than one inclu changes by exclusion or substantive clearly expressed in its which shall be provision relating to The included sion. title; any subject is embraced but providing procedures for subject was expressed in the any act is not pri- placing certain defendants title, void as to so such act shall be entry judgment of conviction or to the so ex- much as shall not be thereof adjudica discharge for their pressed. completion of guilt upon tion of successful Wyo. Const. art. conforming related statutes. probation and required pass bill. Vote of H.B. passage Following House except by No bill shall a law become prose- inserted Judiciary Committee Senate members majority vote of a of all the sentencing discretion cutorial veto house, amendment. each on its as a committee elected to nor unless the trial court made to reflect change to the title was and No passage by ayes the vote taken final since enactment. sions ently many sentencing deci- become involved *53 458
the addition the state’s consent. “The of in of fair index the matters the bill” when purpose requirements of the constitutional it stated: relating of was to to the enactment laws purpose The of pro- the constitutional put Assembly of the members oth- vision, supra, has been stated as follows: interested, notice, by ers the title of the “First, prevent hodge ‘log to podge or submitted, might they measure so that vote rolling’ legislation; second, prevent circumspection.” on it with Scudder v. upon or fraud surprise Legislature 165,
Smith, 601, (1938) 331 Pa. 200 A. 604 in by provisions means of bills of which (emphasis original). in gave the titles no intimation and which might therefore be overlooked care-
If the of identi- issue lessly unintentionally and, adopted; by prosecutorial fied veto amendment third, fairly apprise people, significant, was not the extended considera- through opinion publication legislative tion in The such majority was wasted. made, Jeffrey usually mother D. sure- proceedings and father Billis as is of the ly avail- legislation were not warned information subjects being that are con- process able in a where no one outside they in order opportu- sidered have few have been insiders would aware thereon, nity being petition heard change Wyoming give law to otherwise, shall they so desire.” require felony conviction S.W.2d at (quoting Id. 168 State ex rel. status son. for their Not does the Railways Wiethaupt, United Co. v. title fail creation prosecu- to disclose 329, 331). Mo. 133 S.W. discretion, judicial torial veto sentencing Furthermore, where the title is restric- conversély, clearly conveys but it the im- tive, bill must be restrictive. Hunt v. pression change that no actual exis- Co., Armour & 345 Mo. 136 S.W.2d tent law is intended. misleading The title is therefore gives surprise. rise It follows then majority’s error argu The made provisions beyond those which are disregard ment is the of the compound expressed title,
the subject,
presented.
questions
constitutional
inoperative,
must be held
be
since
subject
purpose
one
and title recitation of
general public
would
put
not be
requirement Wyo.
art.
Const.
24§
notice of the contents of the act from a
general
addresses
informational function.
reading of
title.
Const,
Additionally, Wyo.
art.
log rolling
amendment
alteration —the
Hansen,
(Wyo.
Smith
proviso-addresses
surreptitious or unno
1963).
change after
ticed
bill consideration starts.
general
nature of the
title does
separate
have
subject
Here we
both a
in
strengthen the choice made by majority
serted and
amendment to achieve a dif
specific
in this case where
subjects are
purpose during passage
ferent
given
reference,
prosecutorial
title
but
cogent
title.24
changed
analysis
veto remains untitled.
Ed.
Alabama
Ass’n v. Board
Trustees
Alabama,
University
Edwards v. Business Men’s
Assur. Co.
So.2d
America,
(Ala.1979)
Mo.
(emphasis
original)
S.W.2d
93 262
should
(1942)recognized that
Wyoming
the title “must be a
applied
be
Constitution:
poll
ninety-four
successfully
24. A
of
Wyoming
Unquestionably,
each of
members of
served.
there
Legislature
the would
inter
nothing
give
in the title to
notice to the
esting
they
to determine whether
aware
were
legislator
generally.
public
or to the
ExCf.
any change
they knowingly
and whether
voted
Hilsabeck,
(Ala.1985),
parte
477 So.2d
redelegate
prior
discretion
Adams, J., dissenting,
Knight
v. West Ala
entry
jury
guilty plea
after
verdict or
to a
Imp. Authority,
bama Environmental
287 Ala.
prosecutorial right of veto over the historical
Coleman, J.,
So.2d
dissent
Wyoming
structure of
law for
avoidance
felo
ing.
ny
probationary
if the
conviction status
term
*54
case,
warning
purpose
is
or notice to the
statute. At issue in the
as a
There
no
legislation,
nor to the
members of the
of the
were details of the duties
* *
public
*.
of the state veterinarian. The
ad
case
ordinary
relating
dressed a rather
addition
If this Act is not violative of
Ala-
[the
epidemic
little,
control of diseased animals.
Constitution], then there is
bama
germaneness
change
hardly
of the
The
can
any,
operation
room for
of those sections
Arbuckle,
questioned.
discussing
“log-rolling”
and extensive
would result
duties, provides
light
veterinarian
no
on
to the detriment
the citizens
this
present subject.
majority ignores
The
state.
by comparing
prosecutorial
fact
veto of
If this Act does not violate [constitu-
judicial sentencing authority to a veterinar
appropriation
provisions],
any
then
tional
ian’s
over diseased animals.
control
body a hidden
carry
bill could
in its
legislator,
proviso
no
nor
judge,
that no
strange
majority
sup-
finds
It is
that the
appropria-
receive the
the executive could
Smith,
Smith,
port from
ria,
anything that will
This
then it is
to find
hard
however,
sep
when the nature of
amend-
considering
do so
the fundamentals
specified
the title of
Wyo
actually
ment
power.
aration of
Examination
change
particular
that a
me that
the bill indicates
ming case law
convince
does not
original
proposed.
act is
As for
predecessors
our
on this court undertook
original title and
example, in
the text
both
purposes
abandon the historical
No.
the title
amended title of S.F.
passage
limitations
bill
of constitutional
amended
specifies that
12-5 is to be
processes.
cattle-dipping
of Ar
case
§
prohibit” certain acts.
It does
“so as to
Pflaeging, Wyo.
123 P.
buckle v.
(1912)
12-5 is to be amended
provide
authority
not indicate
does not
respect.
non-compliance
prosecutorial
veto
other
attorney general’s
scope. Otherwise,
office shows us
its
the function of the
title
defeated.
authority
no reason to believe and no
*55
proposition
purpose
the
that this limited
Smith,
bidden
could be construed to include
prior
.recognized
precedent of this court:
subject
germane
all
the origi-
matters
In
recent case of Morrow v. Dief
does, however, place
nal act.
It
reliance
enderfer, supra,
603,
at
P.2d
Chief
what was said
the Board
Parker re-emphasized
Justice
an earlier
of
P.
case, supra, at 51
Com’rs v. Stone
pronouncement to the effect that the ob
attempt
607. In that case an
made
was
ject
prevent
Art.
surprise
is to
§
effect,
part
in the title to state the
or
in legislation,
by provi
or fraud
caused
effect,
act,
in a bill of
amendatory
gives
but the
sions
which
title
no
Also,
opinion
intimation.
an
by
written
entirely
court found the statement to be
Chief
former
Justice Blume for In re
meaningless
pronounced
therefore
it
and
Sanitary
Highway
Improve
West
and
harmless
of no effect.
fail to
We
District,
384,
Wyo.
ment
317 P.2d
any support
find
in the
case
Stone
for
makes it clear that the title to a
position,
defendants’
and we know no
misleading
give
bill should not be
or
rise
authority
other reliable
therefor.
surprise
deception,
or
and if a title is
hand,
On the other
we consider the
specific, it is not entitled to the liberal
following
authority
holding
cases
for
interpretation
prevail
which would
other
a title
when
particularizes
wise.
changes
are to
which
be made
subject
A new
by
was introduced
the bill
act,
amendatory
legislation
is limited
within
amendment
the definition of Mor
specified,
anything
to matters
be-
Diefenderfer,
row v.
P.2d
yond this limitation would be void re-
1963)
(Wyo.
ground
and a
reasonable
gardless
germane might
of how
it
be to
any legislator
person
or other
could
subject
original
act[.]
surprise
claim
provid
fact
or fraud was
Smith,
100-01.
ed. The Morrow circumstance cannot
provide
first-time,
validity
serve to
to the
relevance
Smith is identified
new-subject amendment insertion.
cases,
our
in-
discussion
Nebraska
Although the court in Matter West
cluding
Thompson
Commercial Credit
Dist.,
Highway Sanitary
Imp.
Wyo.
&
Equipment Corp., 169 Neb.
(1957)
“Moreover, dispensing with no power; we are the Consti- bound to assume tution has made the ‘clearly’ incorpo- that the title conclusive word was not legislative rated un- index intent as to provision into the constitutional operative; what shall be it is appears der consideration mistake. no an- It say might swer to corresponding provi- in but that the title have few comprehensive more state fact been fact the sions of other Constitutions—a —in fit hardly have not to make it that could have been unobserved seen *59 by so.” the convention. That this word was used,
advisedly to af- was intended By all authority precedent it is fect expressing the manner of the sub- firmly settled that purpose a stat- ject, we cannot doubt. The matter cover- ute must be ascertained and determined by legislation ‘clearly,’ ed is to be title, by presumed its and that the title is dubiously obscurely by indicated controlling to be the and conclusive index title.” legislative of the intent. Friederich,
People v.
185 P.
Colo.
Gronert v.
People,
See also
Colo.
Breene,
(1919) (quoting
In re
(1890)).
Colo.
whether the title of the Act fails to clear- directory merely very likely is to be ly statute, express subject we legislature treated as if it was are no legislative aware that act should obligation, even of devoid moral and to upon grounds be nullified constitutional disregarded. habitually be therefore To legislation unless such in plainly viola- provision seems, say directory, tion of equally the Constitution. It is many persons, equivalent be true, however, authority that the that it saying is not all. That law at this fundamental law of the state must be conceded; ought not to be so be must recognized, approved and enforced. is so that it we have reason abundant If,
Section 21 of Article practically good authority 5 is saying. there- provisions fore, identical with in most of provision found a constitutional is to be all, enforced at it must be place treated as every upon bill its true merits. mandatory. if, And if the habit- But pretext amending under the it, disregard ually section, it seems to us that subject entirely foreign to the urgent necessity there is all the more subject-matter of the section to be that the courts should enforce it. And it introduced, amended can be this barrier also seems to us that there are few evils will entirely down, broken and the which can be inflicted a strict adher- constitutional guaranty in effect de- law, great stroyed. ence so as that which is disregard, by any done the habitual See likewise Trumble, Trumble v. 37 Neb. department government, plain 55 N.W. which stated: requirement of that from instrument fully We are conscious of impor- which it authority, derives its and which principle tance of the which forbids the ought, therefore, scrupulously to be ob- courts to declare a statute unconstitu- obeyed. served and tional where substantial doubt ex- Cooley, supra
1 T.
at 312-13.
ists, but
have no
we
doubts
this case.
is,
face,
upon
clearly
The act
its
violative
court,
considering
The Nebraska
provisions.
of several constitutional
To
comparable
provision
constitutional
sustain it would be to invite their dis-
State ex rel. School Dist. No. 6
Pierce
future,
regard in the
if not to coun-
County v. Board
County Com’rs
practice suggestively desig-
tenance the
County,
Pierce
10 Neb.
MACY, Justice, dissenting, with whom once commented: URBIGKIT, Justice, joins. Chief guarantee that But is not self-execu-
I dissent. I commend author his ting. nightfall As does not come all at struggle compose prestigious opinion once, neither oppression. does both majority. simply for the I disagree instances, twilight there every- is a when hope dissent with it will somehow thing seemingly unchanged. remains help discourage further erosion our twilight it is in And such that we all constitution. change be most must aware slight air —however we become un- I firmly proposition am to the dedicated —lest witting victims of the darkness. duty adjudicate exclusively should judiciary. remain Douglas Letters: Selections from It it is axiomatic that is a violation Papers Private Justice William 0. separation legis- powers doctrine for the (M. Urofsky 1987). at 162 Douglas ed. require presiding lature judge to ob- I am informed that at least city one tain of a the consent member of the execu- prosecutor has council instructed its not to government tive branch of he can before give allowing his consent to the first of- imposing enter an a legislatively order de- status, permitted by Wyo.Stat. fender now disposition termined alternative 7-13-301 for an accused if he is charge. charged driving while under the influ- I majority’s cannot to the view submit ence of alcohol. It does take a mental that the framers of our had in constitution giant exception to foresee how the pragmatic, mind “a flexible differ- view of powers doctrine carved out power.” governmental entiated believe To majority expand will and fall into ignore is to Article Section of the abuse, depending upon common the whims Constitution, Wyoming plainly Hopefully, or his boss. states: we will not become victims of the darkness. government of this
state are into divided three distinct de-
partments: legislative, executive
judicial, person no or collection of
persons charged with the exercise of powers properly belonging one of MOLLMAN, Appellant Matthew departments these shall exercise (Defendant), powers properly belonging to either of *61 others, except as in this constitution expressly permitted. directed Wyoming The STATE of (Plaintiff). Appellee I am that each convinced of the three or, government, departments distinct No. 89-21. you prefer, air-tight compart- “three Supreme Wyoming. Court of ments),” its has exclusive own compromised to be the interest of Oct. government. another branch of was in- It power. tended that there be a balance of merge
If we powers, continue to who is
going them? balance