Summary 2010 WY 135

Summary of Decision issued October 7, 2010

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Case Name: Foster v. State

Citation: 2010 WY 135

Docket Number: S-09-0232

URL: http://tiny.cc/vio49

Appeal from the District Court of Sweetwater County, Honorable Jere A. Ryckman, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel, Wyoming Public Defender Program

Representing Appellee (Defendant): 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

Date of Decision: October 7, 2010


Facts: Appellant challenges the order of the district court revoking his probation and reinstating his original prison sentence

Issues: Whether all of the violations of probation were proven by a preponderance of the evidence. Whether the trial court considered unproven violations in the dispositional phase of the revocation hearing.

Holdings: Revocation proceedings are largely governed by W.R.Cr.P. 39 and consist of a two-part process. The first part, the adjudicatory phase, requires the district court to determine by a preponderance of the evidence whether or not a condition of probation has been violated. This determination must be based on verified facts and must be made in accordance with constitutional due process requirements and the Wyoming Rules of Evidence. The second part, the dispositional phase, is triggered only upon a finding that a condition of probation was violated. During this phase, the district court must determine the appropriate consequences of the probation violation. In making this determination, the district court must consider not only the violation, but also the reasons the condition was originally imposed and the circumstances surrounding the violation.

During the adjudicatory phase of the revocation proceeding in this case, the district court found Appellant had committed six different probation violations. Appellant challenges each of these findings on a variety of grounds, including insufficient proof and alleged due process violations, and asserts the district court erred in reaching these conclusions. He further claims that error was exacerbated when the district court relied on these violations as a basis for revoking his probation and reinstating the original prison sentence. In essence, Appellant contends that if one of the violations was unsubstantiated, then the district court’s consideration of that violation tainted its dispositional decision, necessitating a new dispositional hearing. This is not the law. A single proven violation is all that is necessary to revoke probation. Thus, no matter how many violations are allegedly proven, a district court can either consider each violation individually or consider them as a whole. Should a district court single out one violation, what is then required of the district court is that, in deciding whether to revoke probation based on the one violation, it must conscientiously consider the violation, the reasons for the defendant’s failure to comply with the terms and conditions and the reason those terms and conditions were imposed.

Applying these principles to the instant case, it is clear the district court complied with its duties. Even though Appellant disputes the findings of other violations, it is indisputable that Appellant violated the terms of his probation by failing to make a restitution payment. In the dispositional phase, the district court unambiguously stated that the reason it was revoking probation and reinstating the original sentence was because of this failure to pay restitution.

Under the specific facts and circumstances of this case, the existence of the other alleged violations did not taint the district court’s dispositional decision. The district court did not abuse its discretion in its decision to revoke Appellant’s probation and impose the prison sentence on the sole ground of his failure to pay restitution.

Affirmed.



J. Golden delivered the opinion for the court.