Summary 2008 WY 47

Summary of Decision issued April 22, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Schuler v. State

Citation: 2008 WY 47

Docket Number: S-07-0207

Appeal from the District Court of Natrona County, the Honorable Dan Spangler, Judge, Retired.

Representing Appellant (Defendant): R. Michael Vang and E. Kurt Britzius of Brown & Hiser LLC, Laramie, Wyoming.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Schuler was charged with five counts of credit card fraud. He was convicted of one count and acquitted on the other four counts by a jury. The Court stated the issue to be improper duplicitous charging. The Court affirmed the conviction because Schuler waived the duplicity defects by failing to object.
Sufficiency of the Evidence: The Court reviewed the evidence included in the record and determined that a quorum of reasonable and rational jurors could have found Schuler guilty. However, sufficiency of the evidence was not the issue. The Court concluded that the real issue concerned the State’s violation of the rule against charging duplicity. The violation was not grounds for dismissal because Schuler waived the issue by failing to raise it before trial. Pursuant to Rule 12, any objection to the information was waived when it was not raised prior to trial.
The Court noted their decision in McInturff v. State where they said that each distinct transaction should be separately charged and may not be combined with other independent offenses in the state’s proof.
Restitution Order: Schuler claimed the district court imposed an illegal sentence when it ordered him to pay restitution for a transaction which the State alleged took place on a date encompassed in Count Four on which he was acquitted. The Court stated that neither Van Riper (as asserted by Schuler) nor Layton (as asserted by the State) applied to the instant case because neither involved duplicitous charging. The Court reiterated that there was no way of knowing whether the jury found Schuler guilty based on evidence that the transaction occurred or acquitted him because the State failed to prove the date of the transaction.
The State asserted that the restitution order was proper because Schuler admitted in the pre-sentence investigation report that he abused his authority to use the credit card however, the PSI was not part of the record. The Court stated that they will not consider matters not contained in the appellate record.

Holding: The Court affirmed the conviction and reversed the restitution order. The case was remanded for entry of a new judgment and sentence omitting the order requiring Schuler to pay restitution in the amount of $13,266.67.

Conviction affirmed; restitution reversed.

J. Kite delivered the decision.

Link: http://tinyurl.com/58vmq4 .

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