Summary 2006 WY 159

Summary of Decision issued December 28, 2006

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Case Name: Ramsdell v. State

Citation: 2006 WY 159

Docket Number: 05-161

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellant (Defendant): Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David Delicath, Senior Assistant Attorney General.

Issues: Whether the trial court erred in not dismissing the probation revocation, with prejudice, due to lack of timely hearing. Whether the trial court erred in revoking probation, when presented with uncontroverted evidence that Appellant was unable to pay. State’s additional issue: Whether the Court has jurisdiction to consider whether the trial court erred by dismissing the August 17, 2004, probation revocation petition without prejudice.

Holding: Appellant pled guilty to one felony count of larceny by bailee and was sentenced to two to five years in the state penitentiary. The sentence was suspended and he was placed on probation. One of the conditions of probation required Appellant to pay restitution in the amount of $7,344.37.

Jurisdiction: The Court rejected the State’s contention that they lacked jurisdiction. W.R.A.P. 2.01(a) provides that an appeal from a trial court to an appellate court be taken by filing the notice of appeal with the clerk within 30 days from entry of an appealable order. “Entry” of an order requires that the order be in writing and filed with the clerk of the court. Appellant appealed from the Order Revoking Probation and Judgment and Sentence which was the first written order entered after the petition for revocation was filed. The appeal was timely and the Court stated they had jurisdiction to consider the issue.
Alternatively, the State claimed that Appellant received an appropriate remedy for violation of the time limits set forth in W.R.Cr.P. 39. The Court referred to Reese where they held that the time limits set forth are considered advisory in nature and are not mandatory. The district court set the evidentiary hearing. Appellant did not object to the court’s setting. When the State advised the district court that it was unable to proceed with the scheduled evidentiary hearing, the district court dismissed the petition and ordered Appellant’s release from custody. After revoking his probation, the district court awarded Appellant credit for his time in custody pending the disposition of the revocation proceedings. Both remedies are appropriate under the circumstances of the case. The Court found no error in the district court’s decision to dismiss the petition for revocation without prejudice.
Willful Failure to Pay Restitution: At the evidentiary hearing, an employee of the Wyoming Department of Corrections testified that Appellant had not made his court-ordered restitution payments. The burden then shifted to Appellant to establish he had an inability to pay. Appellant testified and produced copies of his 2003 and 2004 tax returns. At the conclusion of the hearing, the district court determined that Appellant had willfully failed to pay his restitution. The Court noted that Appellant did not produce any evidence concerning his living situation or his monthly bills. He also did not produce any evidence that he had a physical or mental disability which prevented him from obtaining full-time employment or that economic conditions were a factor in his case. Appellant’s failure to apply any of the funds available to him toward his restitution supports the district court’s finding that he willfully failed to pay.
Appellant relied on Bearden to argue that his due process rights were violated because the district court did not consider alternatives to imprisonment. The Court stated his claim was without merit. Appellant admitted he made no effort to look for other employment when his family’s business started to fold and there was no evidence he made any effort to borrow money, seek modification of the terms of the order or notify the court of a change of circumstances. The Court found no error in the district court’s decision to revoke Appellant’s probation and impose his original prison sentence.

Affirmed.

J. Burke delivered the opinion.

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