Summary 2008 WY 48

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: Drake v. State

Citation: 2008 WY 48

Docket Number: S-07-0092

Appeal from the District Court of Converse County, the Honorable John C. Brooks, Judge.

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and Sylvia Lee Hackl, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dana J. Lent, Assistant Attorney General.

Facts/Discussion: Convicted of larceny by bailee, Drake challenged the imposition of a restitution order. The restitution was imposed after Drake filed a voluntary Chapter 7 bankruptcy petition and was granted a debt discharge.
Drake argued that the restitution award was precluded by the bankruptcy discharge.
The Court has addressed questions about restitution before. They noted that in Abeyta, they reasoned that uniformly, courts hold that a civil settlement or release does not absolve the defendant of criminal restitution. Drake asked the Court to apply the “principal motivation test” to determine whether or not the purpose of the prosecution was simply to collect a debt. The Court stated they were unable to apply it in the instant case for two reasons: the first exception is for criminal proceedings against the debtor. Secondly, Drake did not satisfy the first prong of the plain error rule which required the record to be clear as to the alleged error.

Holding: After reviewing the record, the Court found no clear error. Restitution was ordered under the court’s discretion. The Court concluded that Drake’s previous Chapter 7 bankruptcy discharge did not discharge the district court’s restitution order and the Court affirmed the order.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/68pun4 .

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