Summary 2009 WY 130

Summary of Decision issued October 23, 2009

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

Case Name: Cummings v. State

Citation: 2009 WY 130

Docket Number: S-08-0218

Appeal from the District Court of Crook County, the Honorable John R. Perry, Judge.

Representing Petitioner Cummings: Julie Nye Tiedeken of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Representing Respondent State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: The case arose out of a motor vehicle accident that resulted in the death of Mary North. A Crook County Circuit Court found Cummings guilty of the traffic offense of improper passing for his role in the accident. Cummings was ordered to pay restitution, which included damages for wrongful death. Cummings appealed the propriety of the wrongful death restitution award to the district court. The district court vacated the award due in part to insufficient proof and remanded to the circuit court for further fact-finding proceedings. On remand, the circuit court again awarded restitution. In the following appeal, the district court upheld the order of restitution but sua sponte reduced the amount awarded.
The Court’s focus was on the initial appellate decision issued by the district court. It determined the State had not produced adequate evidence to support the ordered amount of restitution for lost earnings. The district court then remanded the case to the circuit court for a new determination of the amount of restitution to be charged against Cummings. The Court stated the law in Wyoming concerning restitution is clear cut. The amount fixed by a sentencing court should be supported by evidence sufficient to afford a reasonable basis for estimating the victim’s loss. The State bears the burden and when it fails, is not allowed a second chance. In light of this existing law, the initial remand by the district court was erroneous.

Conclusion: The proceedings should have ended when the district court vacated the challenged portion of the restitution order pertaining to the lost earnings of Mary North. The Court vacated the results of all proceedings occurring after the district court’s initial appellate decision.

Remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/yg6mfj9 .

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