Cross references. —

As to rights of accused in criminal prosecutions generally, see art. 1, § 10, Wyo. Const.

For rules of supreme court relating to criminal procedure, see Wyoming Rules of Criminal Procedure.

Revision of title. —

Laws 1985, ch. 147, §§ 1 through 3, and Laws 1987, ch. 157, §§ 1, 3, 4, and 5, revised this title.

Laws 1985, ch. 147, § 1, added §§ 7-1-123, 7-7-108, 7-7-109, 7-8-124 and 7-11-212, which were amended and renumbered by Laws 1987, ch. 157, §§ 4 and 5, as §§ 7-1-103 , 7-7-104 , 7-7-105 , 7-8-105 , and 7-11-206 , respectively.

Laws 1985, ch. 147, § 2, and Laws 1987, ch. 157, §§ 4 and 5, amended and renumbered former §§ 7-3-222 , 7-6-101 , 7-7-101 , 7-7-102 , 7-7-107, 7-8-101 , 7-8-103 , 7-8-107, 7-8-110, 7-9-101 , 7-9-107 , 7-10-101 , 7-10-102 , 7-10-105 , 7-10-106 , 7-10-117, 7-10-120, 7-11-101 through 7-11-107 , 7-11-201 , 7-11-202 , 7-11-207, 7-11-210, 7-11-211, 7-11-301 , 7-11-303 through 7-11-307 , 7-11-401 , 7-11-402 , 7-11-406 through 7-11-410, 7-11-501 , 7-11-503 , 7-11-514 through 7-11-516, 7-11-518, 7-12-101 through 7-12-103 , 7-12-105, 7-12-205 and 7-12-301 as present §§ 7-1-104 through 7-1-106 , 7-3-222 , 7-7-101 through 7-7-103 , 7-8-101 through 7-8-104 , 7-10-101 through 7-10-106 , 7-11-101 through 7-11-107 , 7-11-201 through 7-11-205 , 7-11-301 , 7-11-303 through 7-11-307 , 7-11-401 through 7-11-407 , 7-11-501 through 7-11-506 , 7-12-101 through 7-12-104 , 7-12-201 , and 7-12-301 .

Laws 1985, ch. 147, § 3, repealed former §§ 7-6-102 through 7-6-113 , 7-6-201 through 7-6-204, 7-6-206 through 7-6-217, 7-7-103 through 7-7-106, 7-8-102 , 7-8-104 through 7-8-106 , 7-8-108, 7-8-109, 7-8-111 through 7-8-123, 7-9-102 through 7-9-106 , 7-9-108 through 7-9-122, 7-10-103 , 7-10-104 , 7-10-107 through 7-10-116, 7-10-118, 7-10-119, 7-10-121, 7-11-108, 7-11-203 through 7-11-206 , 7-11-208, 7-11-209, 7-11-403 through 7-11-405 , 7-11-411 through 7-11-417, 7-11-420, 7-11-502 , 7-11-504 through 7-11-513, 7-11-601 through 7-11-604, 7-12-104 , 7-12-201 through 7-12-204, 7-12-206, 7-12-207, 7-12-302 , 7-12-303 , 7-16-101 through 7-16-127, 7-16-129 through 7-16-133 and 7-16-201 through 7-16-211.

Laws 1987, ch. 157, § 1, added § 7-3-611.

Laws 1987, ch. 157, § 3, amended and renumbered former §§ 6-3-702(c), 6-10-110 , 7-1-101 through 7-5-309 , 7-13-101 through 7-15-107 and 7-17-101 through 7-17-103 as §§ 7-1-101 through 7-6-115 (now §§ 7-1-101 through 7-6-114 ; see Laws 1987, ch. 176, below), 7-9-101 through 7-9-112 , and 7-13-101 through 7-17-103 (but see repeal of §§ 7-13-601 through 7-13-614, below).

Also, former §§ 7-1-107 through 7-1-119 and 7-1-121 were amended and renumbered as present §§ 7-6-101 through 7-6-114 , and former § 7-1-120 was repealed, by Laws 1987, ch. 176, §§ 1 and 2, respectively.

Also, § 7-11-408 was added by Laws 1987, ch. 149, § 1.

Also, chapter 19 (§§ 7-19-101 through 7-19-109 ) was added by Laws 1987, ch. 163, § 1, and chapter 20 (§§ 7-20-101 through 7-20-107 ) was added by Laws 1987, ch. 140, § 1.

In addition, various sections in this title were added and amended by Laws 1985, chs. 150, 181, 212 and 219, Laws 1986, chs. 49, 63 and 65, and Laws 1987, chs. 30, 77, 109, 126, 135, 138, 152, 175, 205 and 212. Where there were conflicts between these additions and amendments and the revision of this title by Laws 1985, ch. 147, and Laws 1987, ch. 157, the sections are set out as reconciled by the Wyoming legislative service office.

Former § 7-13-104 was also repealed by Laws 1987, ch. 138, § 2, before being deleted by Laws 1987, ch. 157, § 3.

Former §§ 7-13-601 through 7-13-614 were also repealed by Laws 1987, ch. 41, § 1.

Former § 7-13-707 was also repealed by Laws 1987, ch. 46, § 2, before being deleted by Laws 1987, ch. 157, § 3.

Section 7-11-302 , §§ 7-18-101 through 7-18-107 , and 7-18-109 through 7-18-114 , were unaffected by Laws 1985, ch. 147, or any 1987 legislation.

No detailed explanation of the changes made by the 1985 and 1987 acts has been attempted, but, where appropriate, historical citations to former provisions have been added to corresponding sections, and annotations to cases decided under former provisions have been placed under comparable sections where it was felt they would be useful. For tables of revised and renumbered sections, see Volume 11 of the Wyoming Statutes Annotated.

Laws 1987, ch. 157, § 6, provides: “The amendment to W.S. 7-13-202 made by this act does not apply to any criminal case in which the sentencing court has imposed a sentence prior to the effective date of this act.”

Laws 1987, ch. 157, § 7, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Laws 1987, ch. 157, § 8, makes the act effective on May 22, 1987.

Law reviews. —

For article, “The State, Attorney General and the Changing Face of Criminal Law,” see 19 Wyo. L.J. 1 (1964).

For article, “Supreme Court Jurisdiction and the Wyoming Constitution: Justice v. Judicial Restraint,” see XX Land & Water L. Rev. 159 (1985).

Chapter 1 General Provisions

Am. Jur. 2d, ALR and C.J.S. references. —

21 Am. Jur. 2d Criminal Law § 1 et seq.; 77 Am. Jur. 2d Venue §§ 38, 39.

22 C.J.S. Criminal Law § 1 et seq.

§ 7-1-101. Payment of costs accruing from change of venue.

The costs accruing from a change of venue shall be paid by the county in which the indictment was found or the information filed.

History. C.L. 1876, ch. 14, § 116; R.S. 1887, § 3276; R.S. 1899, § 5336; C.S. 1910, § 6200; C.S. 1920, § 7497; R.S. 1931, § 33-601; C.S. 1945, § 10-1001; W.S. 1957, § 7-4; W.S. 1977, § 7-1-104 ; Laws 1987, ch. 157, § 3.

Cross references. —

As to venue in criminal cases generally, see § 1-7-102 .

As to transfer from county for trial, see Rule 21, W.R. Cr. P.

Costs include allowance to special prosecuting attorney. —

Statute contemplates that “costs” on change of venue shall include reasonable allowance for special assistant prosecuting attorney. Board of Comm'rs v. Board of Comm'rs, 40 Wyo. 144, 275 P. 102, 1929 Wyo. LEXIS 21 (Wyo. 1929).

Payment of special prosecutor's fee by county to which venue was changed was not “voluntary payment” and was recoverable from county in which prosecution commenced. Board of Comm'rs v. Board of Comm'rs, 40 Wyo. 144, 275 P. 102, 1929 Wyo. LEXIS 21 (Wyo. 1929).

Order as to costs is only prima facie correct. —

Ex parte order of district court to which venue was changed fixing fee of prosecutor's assistant is only prima facie correct as against county liable. Board of Comm'rs v. Board of Comm'rs, 40 Wyo. 144, 275 P. 102, 1929 Wyo. LEXIS 21 (Wyo. 1929).

County in which indictment was found audits costs. —

Inasmuch as a county in which an indictment is found is liable for costs of the trial, upon change of venue to another county, the board of the former county is that which should audit and allow claims for such costs. Stoll v. Board of Comm'rs, 6 Wyo. 231, 44 P. 58, 1896 Wyo. LEXIS 8 (Wyo. 1896).

Change of venue bars trial on second information. —

Where venue has been changed, the county from which the change is taken loses jurisdiction to proceed to try the accused on a second information charging same offense. Keefe v. District Court of Judicial Dist., 16 Wyo. 381, 94 P. 459, 1908 Wyo. LEXIS 29 (Wyo. 1908).

Information may be amended in new county. —

The right to amend an information in the new county is as broad as right would have been had no change been taken. State v. Kusel, 29 Wyo. 287, 213 P. 367, 1923 Wyo. LEXIS 14 (Wyo. 1923).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of state to certiorari to compel change of venue in criminal case, 91 ALR2d 1095.

Right of accused in misdemeanor prosecution to change of venue on grounds of inability to secure fair trial and the like, 34 ALR3d 804.

State's right to change of venue in criminal case, 46 ALR3d 295.

Power of state trial court in criminal case to change venue on its own motion, 74 ALR4th 1023.

§ 7-1-102. Record of information for ascertaining condition of crime in state.

All town, city, county and state law enforcement agencies, district courts, courts of limited jurisdiction, district attorneys, state adult and juvenile correctional institutions and state and local probation and parole agencies shall maintain a public record of crime and criminals and the operation of the criminal justice system. The attorney general shall provide uniform forms for reporting all information necessary to obtain reliable statistics to ascertain the true condition of the crime situation in the state. The officer, agency or court shall furnish the information requested by the attorney general, except that upon implementation of a case management system in a circuit or district court that has the capability of transferring information electronically, the supreme court shall, on behalf of the circuit or district court, furnish the abstract of the court record to the attorney general as required under W.S. 7-19-107(k).

History. Laws 1971, ch. 229,§ 1; W.S. 1957, § 7-10.1; W.S. 1977, § 7-1-122; Laws 1987, ch. 157,§ 3; 2020, ch. 4, § 1.

The 2020 amendment, effective July 1, 2020, added “except that upon implementation of a case management system in a circuit or district court that has the capability of transferring information electronically, the supreme court shall, on behalf of the circuit or district court, furnish the abstract of the court record to the attorney general as required under W.S. 7-19-107(k)” at the end.

§ 7-1-103. Payment of costs in misdemeanor cases.

In all misdemeanor cases the county shall pay the costs if the defendant is acquitted.

History. Laws 1985, ch. 147, § 1; W.S. 1977, § 7-1-123.

§ 7-1-104. Custody of convict charged with offense committed while in state penal institution.

If any convict in a state penal institution is charged with any crime committed while confined therein, the convict shall remain in the custody of the department of corrections and shall remain confined in the institution unless otherwise directed by the director of the department or by order of the court in which the indictment or information is filed.

History. C.L. 1876, ch. 14, § 211; R.S. 1887, § 3257; R.S. 1899, § 5316; C.S. 1910, § 6180; C.S. 1920, § 7477; R.S. 1931, § 33-430; C.S. 1945, § 10-803; W.S. 1957, § 7-180; W.S. 1977, § 7-9-101 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4; 1992, ch. 25, § 3.

Cross references. —

As to prosecution by indictment, see art. 1, § 13, Wyo. Const.

As to Wyoming state penitentiary, see § 25-1-201 .

Cited in

State v. Keefe, 17 Wyo. 227, 98 P. 122, 1908 Wyo. LEXIS 16 , 22 L.R.A. (n.s.) 896 (1908).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and application of state statute criminalizing possession of contraband by individual in penal or correctional institution, 45 ALR5th 767.

§ 7-1-105. Representation of minor pleading guilty.

In no criminal case in the district court shall a plea of guilty be received or accepted from a minor unless the minor is represented by counsel.

History. Laws 1961, ch. 90, § 3; W.S. 1957, § 7-183.3; W.S. 1977, § 7-9-107 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Am. Jur. 2d, ALR and C.J.S. references. —

Modern status of rules and standards in state courts as to adequacy of defense counsel's representation of criminal client, 2 ALR4th 27.

Adequacy of defense counsel's representation of criminal client regarding right to and incidents of jury trial, 3 ALR4th 601.

Right of accused in criminal prosecution to presence of counsel at court-appointed or -approved psychiatric examination, 3 ALR4th 910.

Power of court to change counsel appointed for indigent, against objections of accused and original counsel, 3 ALR4th 1227.

§ 7-1-106. Prosecution of crimes.

  1. Crimes shall be prosecuted by indictment, information, complaint or citation as provided by the rules promulgated by the Wyoming supreme court.
  2. All prosecutions shall be carried on in the name and by the authority of the state of Wyoming and shall conclude “against the peace and dignity of the state of Wyoming”.
  3. All matters relating to the content and form of indictments, informations and complaints shall be governed by the rules promulgated by the Wyoming supreme court.

History. Laws 1895, ch. 123, § 1; R.S. 1899, § 5189; C.S. 1910, § 6128; C.S. 1920, § 7425; R.S. 1931, § 33-401; C.S. 1945, § 10-601; W.S. 1957, § 7-118; W.S. 1977, § 7-6-101 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Cross references. —

As to prosecution by indictment, see art. 1, § 13, Wyo. Const.

For Wyoming Rules of Criminal Procedure, see the Wyoming Court Rules Annotated .

Constitutionality. —

Statute providing that all crimes, misdemeanors and offenses may be prosecuted either by indictment or information and that no grand jury shall “hereafter” be summoned unless ordered by the court does not disparage any substantial right or constitutional guaranty, and is not ex post facto. In re Wright, 3 Wyo. 478, 27 P. 565, 1891 Wyo. LEXIS 8 (Wyo. 1891) (decided under prior law).

Prosecution by information permitted. —

A judgment of conviction cannot be attacked as having been obtained without due process of law because procedure was by information instead of by indictment. In re Boulter, 5 Wyo. 329, 40 P. 520, 1895 Wyo. LEXIS 28 (Wyo. 1895).

Document filed in county court, then district court, invokes both courts' jurisdiction. —

A charging document in the county court in a felony prosecution which was titled an information and which then was filed in the district court only as a part of the record transmitted to the district court by the county court was sufficient to invoke the jurisdiction of either the county court or the district court. Cheatham v. State, 719 P.2d 612, 1986 Wyo. LEXIS 553 (Wyo. 1986) (decided under prior law).

Cited in

Webster v. State, 2016 WY 76, 376 P.3d 488, 2016 Wyo. LEXIS 83 (Wyo. 2016).

Stated in

Barnes v. State, 642 P.2d 1263, 1982 Wyo. LEXIS 343 (Wyo. 1982).

Am. Jur. 2d, ALR and C.J.S. references. —

Limitations on state prosecuting attorney's discretion to initiate prosecution by indictment or by information, 44 ALR4th 401.

§ 7-1-107. Detention of juvenile offenders.

  1. Effective July 1, 1995, no minor charged with a status offense as defined by subsection (b) of this section shall be detained in a jail.
  2. As used in W.S. 7-1-107 and 7-1-108 :
    1. “Juvenile detention facility” means any facility which may legally and physically restrict and house a child, other than the Wyoming boys” school, the Wyoming girls” school, the Wyoming state hospital or other private or public psychiatric facility within the state of Wyoming. “Juvenile detention facility” does not include any residential treatment facility which is operated for the primary purpose of providing treatment to a child. A juvenile detention facility may be housed within an adult jail or correction facility if the facility otherwise meets the requirements of state law;
    2. “Minor” means an individual who is under the age of eighteen (18) years;
    3. “Status offense” means an offense which, if committed by an adult, would not constitute an act punishable as a criminal offense by the laws of this state or a violation of a municipal ordinance, but does not include a violation of W.S. 12-6-101(b) or (c) or any similar municipal ordinance;
    4. “Hardware secure juvenile detention facility” means a facility used for the detention of minors that is characterized by locks on the doors and other restrictive hardware designed to restrict the movement of the minors and protect public safety;
    5. “Shelter care” means as defined in W.S. 14-6-201(a)(xxii);
    6. “Staff secure juvenile detention facility” means a facility used for the detention of minors that is characterized by a trained staff to supervise the movement and activities of detained minors at the facility, without the additional use of hardware secure equipment.

History. Laws 1993, ch. 210, § 1; 1995, ch. 122, § 2; ch. 150, § 1; 1996, ch. 106, § 1; 1997, ch. 149, § 1; 1998, ch. 7, § 1; 2010, ch. 22, § 1; 2016, ch. 56, § 1.

The 2010 amendment, effective July 1, 2010, added (b)(iv) through (b)(vi).

The 2016 amendment, effective July 1, 2016, added second sentence in (b)(i).

Appropriations. —

Laws 2004, ch. 95, § 205, as amended by Laws 2005, ch. 191, § 2, appropriates $400,000 for fiscal year 2005-2006, to be expended by the department of education to continue the provision of educational programs and services to children placed in juvenile detention facilities commencing the day following the detention hearing, as originally authorized under and subject to conditions and limitations prescribed by Laws 2004, ch. 111, § 3(b). Unexpended and unencumbered amounts remaining from this appropriation existing on June 30, 2005, are to be reappropriated and expended only for these purposes.

Laws 2005, ch. 191, § 400, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 205.

Am. Jur. 2d, ALR and C.J.S. references. —

Treatment, under Federal Juvenile Delinquency Act (18 USCS §§ 5031-5042), of juvenile alleged to have violated law of United States, 137 ALR Fed 481.

§ 7-1-108. Incarceration of juvenile offenders.

  1. Effective July 1, 1995, no minor convicted of a status offense as defined by W.S. 7-1-107(b) shall be sentenced to a term of imprisonment.
  2. A minor convicted of a misdemeanor or of violating a municipal ordinance, other than a status offense, for which a term of imprisonment is authorized, shall only be imprisoned in a juvenile detention facility.
  3. Except for an alleged delinquent minor who is released to the custody of the minor’s parent, guardian or custodian, with verbal counsel, warning or a written promise to appear in court, the person taking the minor into custody shall ensure a juvenile detention risk assessment shall be promptly performed, using a uniform assessment instrument designed by the county sheriffs. If the risk assessment finds that the minor is a serious risk to himself or to the safety of others, the minor may be:
    1. Placed in a hardware or staff secure juvenile detention facility;
    2. Transferred to a medical facility if the minor is believed to be suffering from a serious physical or mental illness that requires prompt diagnosis or treatment;
    3. If the minor is not held pursuant to paragraph (i) of this subsection, placed in shelter care or a staff secure juvenile detention facility, or released to a parent, guardian or other custodian who can provide supervision and care for the minor pending the minor’s appearance in court. If no space is available in shelter care or a staff secure juvenile detention facility, the minor may be held in a hardware secure juvenile detention facility.
  4. A minor under the age of eleven (11) years shall not be held in a hardware secure juvenile detention facility. If the minor under the age of eleven (11) years poses a substantial risk of harm to himself or others, a peace officer may detain and transport the minor for an emergency mental health evaluation.
  5. If a minor is taken into custody and is not released to the minor’s parent, guardian or custodian, the person taking the minor into custody shall give notice thereof to the minor’s parent, guardian or custodian as soon as possible, and in no case later than twenty-four (24) hours after taking the minor into custody.
  6. The county sheriffs shall report on and the department of family services shall collect and analyze data regarding the application of the juvenile detention risk assessment instruments specified under W.S. 5-6-113(c) and subsection (c) of this section and shall report to the joint judiciary interim committee annually beginning January 1, 2011 and every January 1 thereafter.

History. Laws 1993, ch. 210, § 1; 1995, ch. 150, § 1; 2010, ch. 22, § 1.

The 2010 amendment, effective July 1, 2010, added (c) through (f).

§ 7-1-109. Examination for sexually transmitted diseases required in certain cases; health officers to notify crime victims; results confidential.

  1. Upon the consent of a person accused of any crime wherein it is alleged that there has been an exchange of bodily fluids, that person shall be examined as soon as practicable, but not later than forty-eight (48) hours after the date on which the information or indictment is presented, for sexually transmitted diseases included within the list of reportable diseases developed by rule and regulation of the department of health pursuant to W.S. 35-4-130(b).
  2. For cases in which a person is accused of any crime wherein it is alleged that there has been an exchange of bodily fluids and the accused person is unwilling or unable to give consent as provided in subsection (a) of this section, or when, for any reason it is impractical to seek consent under subsection (a) of this section, the court may by warrant, upon a sufficient showing of probable cause by affidavit, at any time of day or night, order the medical examination of the accused person for sexually transmitted diseases included within the list of reportable diseases developed by rule and regulation of the department of health pursuant to W.S. 35-4-130(b). Testing for sexually transmitted diseases done under this subsection shall be conducted as soon as practicable, but no later than forty-eight (48) hours after the date on which the information or indictment is presented.
  3. Any person convicted of a sex offense shall, at the request of the victim, be examined as soon as practicable, but not later than forty-eight (48) hours after the conviction for sexually transmitted diseases included in the list specified in subsection (a) of this section. The victim shall make the request to the district attorney responsible for prosecuting the offense. If the offender is unwilling or unable to consent to the examination the district attorney shall petition the court for an order requiring the offender to submit to the examination.
  4. Any examination performed under this section shall be performed by a licensed physician or other health care provider. The examination shall be in accordance with procedures prescribed by the department of health under W.S. 35-4-130 through 35-4-134 and the examination results shall be reported to the appropriate health officer. Upon receipt of the examination results, the health officer shall notify the victim, the alleged victim or if a minor, the parents or guardian of the victim or the alleged victim. Additional testing under this section shall be performed as medically appropriate and shall be made available in accordance with the provisions of this section.
  5. Costs of any medical examination undertaken pursuant to this section shall be funded through the department of health. If the court finds that the offender is able to reimburse the department, the offender shall reimburse the department for the costs of any medical examination under this section.
  6. All results which are or can be derived from the examination ordered pursuant to this section are confidential, are not admissible as evidence and shall not be disclosed except:
    1. As provided by this section;
    2. As provided by W.S. 35-4-132(d);
    3. In a civil action for the negligent or intentional infliction of or exposure to a sexually transmitted disease;
    4. In a criminal prosecution for the criminal infliction of or exposure to a sexually transmitted disease; or
    5. As otherwise provided by law.
  7. As used in this section:
    1. “Convicted” includes pleas of guilty, nolo contendere and verdicts of guilty upon which a judgment of conviction may be rendered, and includes juvenile adjudications of delinquency if the adjudication is based upon an act which would constitute a sex offense. “Convicted” shall also include dispositions pursuant to W.S. 7-13-301 ;
    2. “Sex offense” means sexual assault under W.S. 6-2-302 through 6-2-304 , attempted sexual assault, conspiracy to commit sexual assault, incest under W.S. 6-4-402 or sexual abuse of a minor under W.S. 6-2-314 through 6-2-317 .

History. Laws 1992, ch. 82, § 1; W.S. 1977, § 7-8-106 ; Rev. W.S. 1977, § 7-1-107 ; Laws 1993, ch. 173, § 1; 2004, ch. 130, § 1; 2007, ch. 159, § 2; 2011, ch. 17, § 1.

The 2004 amendment, in (g)(ii), substituted “6-2-304” for “6-2-305.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

The 2007 amendment, effective July 1, 2007, in (g)(ii), substituted “sexual abuse of a minor” for “indecent liberties” and substituted “6-2-314 through 6-2-317 ” for “14-3-105” at the end of the sentence.

The 2011 amendment, effective July 1, 2011, in (a), inserted “but not later than forty-eight (48) hours after the date on which the information or indictment is presented”; added the present last sentence in (b) and (d); and in (c), inserted “but not later than forty-eight (48) hours.”

Editor's notes. —

Laws 1993, ch. 173, § 1, renumbered this section as § 7-1-107 ; however, this section was redesignated as § 7-1-109 in light of the enactment of § 7-1-107 by Laws 1993, ch. 210, § 1.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Chapter 2 Peace Officers

Am. Jur. 2d, ALR and C.J.S. references. —

5 Am. Jur. 2d Arrest §§ 1 to 51, 112 to 115; 70 Am. Jur. 2d Sheriffs, Police and Constables §§ 10, 11, 18, 46 to 67.

Determination of whether crime is charged, 40 ALR2d 1151.

Personal liability of sheriff, policeman or constable, or their bonds, for negligence causing personal injury or death, 60 ALR2d 873.

Liability of owner or occupant of premises to police officer coming thereon in discharge of officer's duty, 30 ALR4th 81.

Security guard company's liability for negligent hiring, supervision, retention or assignment of guard, 44 ALR4th 620.

Liability of police or peace officers for false arrest, imprisonment or malicious prosecution as affected by claim of suppression, failure to disclose or failure to investigate exculpatory evidence, 81 ALR4th 1031.

Uninsured and underinsured motorist coverage: enforceability of policy provision limiting appeals from arbitration, 23 ALR5th 834.

Propriety of police action involving application of choke hold, constriction of throat, or the like to prevent accused from swallowing evidence — state cases, 64 ALR5th 741.

When does police officer's use of force during arrest become so excessive as to constitute violation of constitutional rights, imposing liability under Federal Civil Rights Act of 1871 (42 USC § 1983), 60 ALR Fed 204.

80 C.J.S. Sheriffs and Constables §§ 2, 3, 22, 37.

§ 7-2-101. Definitions.

  1. As used in W.S. 7-2-101 through 7-2-107 :
    1. “Deadly weapon” means as defined by W.S. 6-1-104(a)(iv);
    2. “Felony” means as defined by W.S. 6-10-101 ;
    3. “Misdemeanor” means as defined by W.S. 6-10-101 ;
    4. “Peace officer” means:
      1. Any duly authorized sheriff, under sheriff or deputy sheriff who has qualified pursuant to W.S. 9-1-701 through 9-1-707 ;
      2. Any duly authorized member of a municipal police force, a college or university campus police force or the Wyoming highway patrol who has qualified pursuant to W.S. 9-1-701 through 9-1-707 ;
      3. Game and fish law enforcement personnel qualified pursuant to W.S. 9-1-701 through 9-1-707 and:
        1. When enforcing felony statutes following observation or discovery of the commission of a felony which was observed or discovered during the performance of their official duties;
        2. While responding to requests to assist other peace officers performing their official duties or when enforcing a valid arrest warrant for any crime;
        3. When performing their official duties or enforcing any provision of title 23 and chapter 13 of title 41, any rule and regulation promulgated by the Wyoming game and fish commission or any other statute for which they are granted statutory enforcement authority; or
        4. While performing a vehicle identification number (VIN) inspection on any watercraft trailer if performed contemporaneously with a hull identification number (HIN) inspection or motorboat certificate of number inspection on a watercraft being carried on the trailer.
      4. Agents of the division of criminal investigation appointed pursuant to W.S. 9-1-613 who have qualified pursuant to W.S. 9-1-701 through 9-1-707;
      5. Investigators and brand inspectors of the Wyoming livestock board who have qualified pursuant to W.S. 9-1-701 through 9-1-707:
        1. When enforcing W.S. 6-3-201 , 6-3-401 , 6-3-402 , 6-3-410 , 6-3-601 through 6-3-603 , 6-3-607 , 6-3-610 through 6-3-612 , 6-3-1002 , 6-3-1003 , 6-3-1005 , 6-9-202 , 35-10-101 , 35-10-102 and 35-10-104 , the provisions of title 11 and any laws prohibiting theft, killing or mutilation of livestock or any part thereof and any rule or regulation promulgated by the Wyoming livestock board or any other law for which they are granted statutory enforcement authority;
        2. When responding to a request to assist another peace officer as defined in this paragraph performing his official duty; or
        3. Enforcing a valid arrest warrant for a crime specified in subdivision (E)(I) of this paragraph.
      6. Any duly authorized arson investigator employed by the state fire marshal who has qualified pursuant to W.S. 9-1-701 through 9-1-707;
      7. Any superintendent, assistant superintendent or full-time park ranger of any state park, state recreation area, state archeological site or state historic site who has qualified pursuant to W.S. 9-1-701 through 9-1-707, when acting within the boundaries of the state park, state recreation area, state archeological site or state historic site, or when responding to a request to assist other peace officers performing their official duties;
      8. Any duly authorized detention officer in the performance of his duties and who has qualified pursuant to W.S. 9-1-701 through 9-1-707;
      9. Investigators employed by the Wyoming state board of outfitters and professional guides and qualified pursuant to W.S. 9-1-701 through 9-1-707, when enforcing W.S. 23-2-401 and 23-2-406 through 23-2-418 and board rules and regulations promulgated under W.S. 23-2-410(a)(ii);
      10. Any peace officer certified by another state who has been appointed as a special deputy sheriff of a Wyoming county pursuant to W.S. 18-3-602(c);
      11. Certified law enforcement officers of an adjoining state while responding to a request for assistance from a peace officer in this state pursuant to the “Law Enforcement Interstate Mutual Aid Act” or other lawful request;
      12. The director and full-time staff instructors of the Wyoming law enforcement academy when duly appointed and acting pursuant to W.S. 9-1-633(b);
      13. Any duly authorized court security officer employed by the Wyoming supreme court who is qualified pursuant to W.S. 9-1-701 through 9-1-707 when:
        1. Enforcing Wyoming statutes or supreme court rules on premises where the supreme court is conducting business;
        2. In fresh pursuit of a person whom the officer has probable cause to believe has committed within the officer’s jurisdiction a violation of a state statute, or for whom an arrest warrant is outstanding for any criminal offense; or
        3. When responding to a request to assist other peace officers acting within the scope of their official duties in their own jurisdiction.
      14. Any person qualified pursuant to W.S. 9-1-701 through 9-1-707 and employed by the Wyoming gaming commission when engaged in the performance of that person’s duties or when responding to a request to assist other peace officers acting within the scope of their official duties in their own jurisdiction.

History. Laws 1973, ch. 205, § 1; W.S. 1957, § 7-12.1; Laws 1979, ch. 123, § 1; 1987, ch. 157, § 3; 1991, ch. 187, § 1; 1992, ch. 31, § 1; 1994, ch. 47, § 1; 1996, ch. 68, § 1; 2000, ch. 61, § 1; 2001, ch. 45, § 1; ch. 49, § 1; ch. 133, § 1; ch. 177, §§ 1, 2; 2002 Sp. Sess., ch. 64, § 2; 2003, ch. 53, § 2; ch. 118, § 1; 2006, ch. 114, § 1; 2009, ch. 10, § 1; 2010, ch. 73, § 1; 2014, ch. 23, § 1; 2020, ch. 90, § 1; ch. 114, § 2; ch. 121, § 1; 2021, ch. 30, § 2.

Cross references. —

As to county sheriffs, see § 18-3-601 et seq.

As to highway patrol, see chapter 12 of title 24.

The 2006 amendment made a stylistic change in (a)(iv)(M).

Laws 2006, ch. 114, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 24, 2006.

The 2009 amendment, in (a)(iv)(G), inserted “state recreation area, state archeological site” twice, and inserted “state” preceding “historic site” twice.

Laws 2009, ch. 10, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, of the Wyo. Const. Approved February 24, 2009.

The 2010 amendment, effective July 1, 2010, added (a)(iv)(O), and made related changes.

The 2014 amendment, effective July 1, 2014, added (a)(iv)(C)(IV); and made stylistic changes.

The 2020 amendments. — The first 2020 amendment, by ch. 90, § 1, effective July 1, 2020, in (a)(iv)(E)(I) substituted “6-3-401, 6-3-402 , 6-3-410 ” for “6-3-401 through 6-3-403 , 6-3-407 , 6-3-410 .”

The second 2020 amendment, by ch. 114, § 2, added (a)(iv)(P) and made a related change.

Laws 2020, ch. 114, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 17, 2020.

The third 2020 amendment, by ch. 121, § 1, effective July 1, 2020, in (a)(iv)(C)(I) substituted “official duties” for “statutory duties”; and in (a)(iv)(C)(III) substituted “When performing their official duties or enforcing” for “When enforcing.”

While none of the amendments gave effect to the others, all have been given effect in this section as set out above.

The 2021 amendment, effective July 1, 2021, in (a)(iv)(E)(I), deleted "6-3-203" following "6-3-201" and added "6-3-1002, 6-3-1003 , 6-3-1005 ."

Editor's notes. —

There is no subparagraph (a)(iv)(I) or (a)(iv)(L) or subsection (b) in this section as it appears in the printed acts.

Applicability. —

Laws 1996, ch. 68, § 2, effective July 1, 1996, provides that the act applies to capitol police designated and appointed after July 1, 1996. The section further provides that the capitol police employed prior to July 1, 1996 may elect to contribute and receive service retirement benefits under the Wyoming state highway patrol, game and fish warden and criminal investigator retirement program in lieu of contribution under the Wyoming retirement system, provides for the transfer of contributions pursuant to this election, makes these electors subject to certain benefit provisions, provides for the determination by the actuary for the Wyoming retirement system of the financial and actuarial impact of participation in the Wyoming state highway patrol, game and fish warden and criminal investigator retirement program, and provides for payment for the actuary determination by the attorney general.

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “[A]ny other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Peace officer may include federal officers. —

Section 31-6-102 states that a breathalyzer test may be administered by a peace officer which is defined by this section to include various positions, all of which share one important common fact: they are state employees. However, if a federal officer is precluded from administering a breathalyzer test under § 31-6-102 to an individual who is arrested on federal property, then it stands to follow that no one could administer a breath test to that individual. This literal reading would lead to an absurd result; therefore, a federal airman officer could execute the breathalyzer test on federal property. United States v. Santiago, 846 F. Supp. 1486, 1994 U.S. Dist. LEXIS 2766 (D. Wyo. 1994).

Campus police officer. —

A campus police officer acting without a warrant may not lawfully arrest an individual outside of campus boundaries for driving while under the influence unless such arrest is the result of fresh pursuit. Marshall v. State ex rel. DOT, 941 P.2d 42, 1997 Wyo. LEXIS 93 (Wyo. 1997).

Game and fish personnel meet the statutory definition of peace officers only (1) when enforcing Wyoming felony statutes following observation or discovery of the commission of a felony that occurs during the performance of their statutory duties; or (2) while responding to requests to assist other peace officers performing their official duties. Peterson v. Wyoming Game And Fish Comm'n, 989 P.2d 113, 1999 Wyo. LEXIS 166 (Wyo. 1999).

Game and fish personnel serving as bear management officers were not performing the functions of a “peace officer” and thus the officers' alleged negligence in monitoring a grizzly bear who mauled a hunter did not give rise to liability under § 1-39-112 .Peterson v. Wyoming Game And Fish Comm'n, 989 P.2d 113, 1999 Wyo. LEXIS 166 (Wyo. 1999).

Park rangers' cooperative agreement. —

Park rangers had authority to enter into a cooperative law enforcement agreement with game and fish wardens in advance of the need for specific assistance. Nelson v. State, 960 P.2d 1011, 1998 Wyo. LEXIS 86 (Wyo. 1998).

Quoted in

Hurst v. State, 698 P.2d 1130, 1985 Wyo. LEXIS 468 (Wyo. 1985); Van Horn v. State, 802 P.2d 883, 1990 Wyo. LEXIS 160 (Wyo. 1990); W.A.R.M. v. Bonds, 866 P.2d 1291, 1994 Wyo. LEXIS 4 (Wyo. 1994).

Cited in

EEOC v. Wyoming, 514 F. Supp. 595, 1981 U.S. Dist. LEXIS 12203 (D. Wyo. 1981); Graham v. Wyoming Peace Officer Stds. & Training Comm'n, 737 P.2d 1060, 1987 Wyo. LEXIS 458 (Wyo. 1987); Vigil v. Ruettgers, 887 P.2d 521, 1994 Wyo. LEXIS 167 (Wyo. 1994); McKenzie v. Dovala, 2001 U.S. App. LEXIS 3844 , 242 F.3d 967 (10th Cir. 2001); Boyer-Gladden v. Hill, 2010 WY 12, 224 P.3d 21, 2010 Wyo. LEXIS 13 (Feb. 9, 2010).

Am. Jur. 2d, ALR and C.J.S. references. —

Personal liability of policeman, sheriff or similar peace officer, or his bond, for injury suffered as a result of failure to enforce law or arrest law breaker, 41 ALR3d 700.

§ 7-2-102. Preconditions for arrests.

  1. A peace officer may arrest a person when the officer has a warrant commanding that the person be arrested or the officer has reasonable grounds for believing that a warrant for the person’s arrest has been issued in this state or in another jurisdiction.
  2. A peace officer may arrest a person without a warrant when:
    1. Any criminal offense is being committed in the officer’s presence by the person to be arrested;
    2. The officer has probable cause to believe that a felony has been committed and that the person to be arrested has committed it; or
    3. The officer has probable cause to believe that a misdemeanor has been committed, that the person to be arrested has committed it and that the person, unless immediately arrested:
      1. Will not be apprehended;
      2. May cause injury to himself or others or damage to property; or
      3. May destroy or conceal evidence of the commission of the misdemeanor.

History. Laws 1973, ch. 205, § 1; W.S. 1957, § 7-12.2; Laws 1987, ch. 157, § 3; 1993, ch. 165, § 1.

Cross references. —

As to arrests and preliminary hearings, see chapter 8 of this title.

Probable cause. —

Probable cause to arrest without a warrant exists when the facts and circumstances within the knowledge of the arresting officer together with facts and circumstances about which the officer has trustworthy information are sufficient to justify a reasonably cautious or prudent person in the belief that the person to be arrested has committed or is committing an offense. Carroll v. State, 938 P.2d 848, 1997 Wyo. LEXIS 68 (Wyo. 1997), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Uniformed peace officer is lawfully performing official duty when he makes arrest, even if it later appears that arrest warrant is invalid. A person who resists such an arrest can be convicted. Roberts v. State, 711 P.2d 1131, 1985 Wyo. LEXIS 625 (Wyo. 1985).

Municipal police must execute municipal arrest warrants within the “territorial jurisdiction” of the municipal judge who issued the warrant. Van Horn v. State, 802 P.2d 883, 1990 Wyo. LEXIS 160 (Wyo. 1990).

Home, private place, makes probable cause insufficient. —

It is true that subsection (b) authorizes exceptions to the warrant requirement for arrest; however, when the threshold of a home or private place of business intervenes, probable cause is insufficient to warrant entry absent the presence of exigent circumstances or the audience of a neutral and detached magistrate. Mickelson v. State, 906 P.2d 1020, 1995 Wyo. LEXIS 199 (Wyo. 1995).

Probable cause shown. —

Law enforcement officers had probable cause to believe that defendant had purchased cocaine and was carrying it with him where the officers knew that the defendant had twice visited a residence where a confidential informant had successfully purchased cocaine, the owner of the residence had stated that the defendant was coming over and that he was “holding an ounce” for him, and the officers knew that the defendant had previously been convicted of a drug offense. Carroll v. State, 938 P.2d 848, 1997 Wyo. LEXIS 68 (Wyo. 1997), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Defendant's arrest was justified under subparagraph (b)(iii)(B), where officers had probable cause to believe he had committed property destruction and breach of peace, and that he carried an automatic rifle and where they learned of an unfinished encounter between defendant and a third party. United States v. Davis, 197 F.3d 1048, 1999 U.S. App. LEXIS 30654 (10th Cir. Wyo. 1999).

An officer had probable cause to execute the warrantless arrest of defendant for interference with a peace officer where defendant used abusive language to the officer, told that officer that the officer could not investigate a disturbance complaint, and positioned himself between the stairs and the officer. Brown v. State, 2005 WY 37, 109 P.3d 52, 2005 Wyo. LEXIS 43 (Wyo. 2005).

Discretionary function. —

District court properly dismissed wrongful death action against police officer who did not arrest an intoxicated motorist following a traffic stop; a police officer's decision to arrest is a discretionary function, not mandated by Wyoming statutes. McCoy v. Crook County Sheriff's Dep't, 987 P.2d 674, 1999 Wyo. LEXIS 146 (Wyo. 1999).

Sheriff could have owed a duty to have arrested intoxicateddriver. —

Trial court erred in dismissing a wrongful death action brought by mother against sheriff and county, on behalf of her son who was killed by an intoxicated driver; after determining that the intoxicated driver immediately intended to drive to follow an ambulance to the hospital to be with an injured friend, the sheriff had a duty to do what an ordinarily prudent law enforcement officer would have done under like circumstances. Becker v. Mason, 2006 WY 143, 145 P.3d 1268, 2006 Wyo. LEXIS 155 (Wyo. 2006).

Applied in

Nellis v. Wyoming DOT, 932 P.2d 741, 1997 Wyo. LEXIS 30 (Wyo. 1997).

Quoted in

United States v. Maher, 1989 U.S. Dist. LEXIS 13872, 724 F. Supp. 1348 (D. Wyo. 1989).

Cited in

Lobatos v. State, 875 P.2d 716, 1994 Wyo. LEXIS 68 (Wyo. 1994).

Am. Jur. 2d, ALR and C.J.S. references. —

Right to resist excessive force used in accomplishing lawful arrest, 77 ALR3d 281.

Modern status: right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 ALR3d 174.

Peace officer's civil liability for death or personal injuries caused by intentional force in arresting misdemeanant, 83 ALR3d 238.

Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 ALR4th 705.

§ 7-2-103. Issuance of citations.

  1. A citation may issue as a charging document for any misdemeanor which the issuing officer has probable cause to believe was committed by the person to whom the citation was issued.
  2. A person may be released if, after investigation, it appears that the person:
    1. Does not present a danger to himself or others;
    2. Will not injure or destroy the property of others;
    3. Will appear for future court proceedings; and
    4. Is willing to accept the citation, thereby promising to appear in court at the time and on the date specified in the citation.
  3. The person may be released from custody upon the directive of:
    1. The arresting officer;
    2. The district attorney or, for cases being prosecuted in municipal court, the city attorney;
    3. Another peace officer designated by the sheriff or, for cases being prosecuted in municipal court, the chief of police.
  4. The citation for a person in custody may be issued by the arresting officer or by another peace officer designated by:
    1. The district attorney or the city attorney for cases being prosecuted in municipal court; or
    2. The sheriff or the chief of police for cases being prosecuted in municipal court.
  5. For purposes of this section, “issuing officer” means a peace officer, or a special municipal officer acting in accordance with the terms of his appointment under W.S. 15-1-103(a)(l). A “special municipal officer” means a municipal employee whose duties include the areas of animal control, parking or municipal code enforcement.

History. Laws 1973, ch. 205, § 1; W.S. 1957, § 7-12.3; Laws 1981, Sp. Sess., ch. 11, § 1; 1987, ch. 157, § 3; 1993, ch. 165, § 1; 2007, ch. 50, § 1; 2011, ch. 167, § 1.

Cross references. —

As to arrests and preliminary hearings, see chapter 8 of this title.

The 2007 amendment, effective July 1, 2007, added (e).

The 2011 amendment, effective July 1, 2011, in (b)(iv), substituted “accept the citation, thereby” for “sign a citation.”

Authority statutes. —

This section and § 31-5-1204 are authority statutes: they address only what a peace officer may do in his official capacity without running afoul of the due process provisions of the United States and Wyoming Constitutions. They are not jurisdictional statutes. State v. Stahl, 838 P.2d 1193, 1992 Wyo. LEXIS 147 (Wyo. 1992).

Section is appropriate expression of due process. —

This section is an appropriate expression of the state and federal constitutional guarantee of every citizen's right to due process of law. Rodarte v. Riverton, 552 P.2d 1245, 1976 Wyo. LEXIS 208 (Wyo. 1976).

Actions of police officers in escorting defendant to patrol car constituted detention of personal liberty from and after that time. Raigosa v. State, 562 P.2d 1009, 1977 Wyo. LEXIS 246 (Wyo. 1977).

Officer must arrest for offense in his presence. —

It is officer's duty to arrest without warrant when offense is being committed in his presence. State v. Young, 40 Wyo. 508, 281 P. 17, 1929 Wyo. LEXIS 52 (Wyo. 1929).

And may follow and arrest for such offense without warrant.—

A peace officer may follow one who, in his presence, has broken the peace and arrest him without a warrant. Meldrum v. State, 23 Wyo. 12, 146 P. 596, 1915 Wyo. LEXIS 9 (Wyo. 1915).

In felony cases arrest may be based on reasonable suspicion. State v. George, 32 Wyo. 223, 231 P. 683, 1924 Wyo. LEXIS 64 (Wyo. 1924).

Constitutional requirements for arrest without warrant. —

A peace officer may constitutionally arrest a person without a warrant if, at the moment the arrest is made, he has probable cause to believe that a crime had been committed by the person to be arrested or he has reasonable grounds to believe that a crime is being committed in his presence by the person to be arrested. De Herrera v. State, 589 P.2d 845, 1979 Wyo. LEXIS 354 (Wyo. 1979); Neilson v. State, 599 P.2d 1326, 1979 Wyo. LEXIS 447 (Wyo. 1979), cert. denied, 444 U.S. 1079, 100 S. Ct. 1031, 62 L. Ed. 2d 763, 1980 U.S. LEXIS 755 (U.S. 1980).

Probable cause must warrant belief crime has been or is beingcommitted. —

Probable cause exists where the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Rodarte v. Riverton, 552 P.2d 1245, 1976 Wyo. LEXIS 208 (Wyo. 1976); Raigosa v. State, 562 P.2d 1009, 1977 Wyo. LEXIS 246 (Wyo. 1977).

And that person arrested committed or is committing it. —

Criminal probable cause is the cause which logically leads to a conclusion that the person to be arrested is the one who had committed or was engaged in the commission of the crime. Rodarte v. Riverton, 552 P.2d 1245, 1976 Wyo. LEXIS 208 (Wyo. 1976).

Determination of probable cause to arrest without warrant depends upon whether the facts and circumstances within the peace officer's knowledge and of which he has reasonably trustworthy information were sufficient to warrant a reasonably cautious or prudent man to believe that the person arrested has committed or is committing an offense. Neilson v. State, 599 P.2d 1326, 1979 Wyo. LEXIS 447 (Wyo. 1979), cert. denied, 444 U.S. 1079, 100 S. Ct. 1031, 62 L. Ed. 2d 763, 1980 U.S. LEXIS 755 (U.S. 1980).

The facts and circumstances which justify a determination that probable cause was present must amount to more than mere suspicion, but they need not rise to the level of proof of guilt, nor even to the level of prima facie evidence of guilt. The determination of whether the standard was met must be made upon an evaluation of the record. Jandro v. State, 781 P.2d 512, 1989 Wyo. LEXIS 212 (Wyo. 1989).

No exact definition of probable cause. —

What constitutes probable cause, or its functional equivalent in Wyoming law, reasonable grounds sufficient to authorize a warrantless arrest, is, like many other things in the law, incapable of exact definition. Raigosa v. State, 562 P.2d 1009, 1977 Wyo. LEXIS 246 (Wyo. 1977).

Officer may rely on collective knowledge. —

It is not necessary that the arresting officer personally have all of the information about all of the elements which constitute probable cause. He is entitled to rely on the collective knowledge of the other investigating officers. Jandro v. State, 781 P.2d 512, 1989 Wyo. LEXIS 212 (Wyo. 1989).

Undisclosed informant's tip may be used to establish probable cause for arrest if the information is corroborated by other reliable information with the officer's knowledge. De Herrera v. State, 589 P.2d 845, 1979 Wyo. LEXIS 354 (Wyo. 1979).

An arresting officer may use information he gathers to bolster a tip by an informant to the point that there exists probable cause for arrest, if the information gathered by the officer is corroborative of the informant's tip; therefore, where the police made an arrest based upon the information that had come to them from an anonymous informant, and there was further corroboration of that information by the law enforcement officer both prior to and after the investigatory stop and the other information gained at that time, the police officers had the requisite probable cause for a warrantless arrest in accordance with this section. Goettl v. State, 842 P.2d 549, 1992 Wyo. LEXIS 174 (Wyo. 1992).

Evidence demonstrated requisite probable cause for officer to stop defendant for traffic violation (driving in more than one lane of traffic on a four-lane city street, in violation of § 31-5-209(a)(i)). See Norman v. State, 747 P.2d 520, 1987 Wyo. LEXIS 563 (Wyo. 1987), reh'g denied, 1988 Wyo. LEXIS 12 (Wyo. Jan. 12, 1988).

Territorial jurisdiction for arrest by municipal police. —

Municipal police must execute municipal arrest warrants within the “territorial jurisdiction” of the municipal judge who issued the warrant. Van Horn v. State, 802 P.2d 883, 1990 Wyo. LEXIS 160 (Wyo. 1990).

A municipal peace officer acting without a warrant may not lawfully arrest an individual DWUI outside of the boundaries of the municipality which he serves, unless such arrest is the result of fresh pursuit. State v. Stahl, 838 P.2d 1193, 1992 Wyo. LEXIS 147 (Wyo. 1992).

Appellate inquiry into legality of arrest. —

An appellate court's inquiry into whether or not an arrest is legal in a given case is restricted to an objective consideration of the evidence in the record. Neilson v. State, 599 P.2d 1326, 1979 Wyo. LEXIS 447 (Wyo. 1979), cert. denied, 444 U.S. 1079, 100 S. Ct. 1031, 62 L. Ed. 2d 763, 1980 U.S. LEXIS 755 (U.S. 1980).

Arrest justified. —

Deputy sheriff was justified in arresting defendant whom he saw carrying a still to property of another. State v. Rotolo, 39 Wyo. 181, 270 P. 665, 1928 Wyo. LEXIS 90 (Wyo. 1928).

It was duty of officers, on noticing odor of liquor emanating from defendant's automobile, to arrest defendant for violating law in their presence, and reason stated for arrest was immaterial. State v. Young, 40 Wyo. 508, 281 P. 17, 1929 Wyo. LEXIS 52 (Wyo. 1929).

Probable cause not shown. —

Where officers ordered plaintiff into the patrol car, handcuffed, taken to the police station and searched because they suspected that she was in possession of marijuana, they made no efforts to confirm these suspicions and they had no facts upon which to base them except that she was present in a vehicle with others at a time when marijuana was discovered, this constituted the probable cause upon which the officers relied but it did not constitute probable cause in the constitutional context. Rodarte v. Riverton, 552 P.2d 1245, 1976 Wyo. LEXIS 208 (Wyo. 1976).

Subsequent disclosure of crime. —

Disclosure of evidence of crime by search does not legalize preceding unlawful arrest. State v. George, 32 Wyo. 223, 231 P. 683, 1924 Wyo. LEXIS 64 (Wyo. 1924).

Resisting arrest for breach of peace committed in officer'spresence punishable. —

A police officer had probable cause to believe that the defendant was committing a breach of peace as defined by a municipal ordinance. His arrest of the defendant was lawful, therefore, under subsection (a)(i), because a criminal act was occurring in the presence of the officer. The bodily harm that the defendant inflicted on the officer while resisting the lawful arrest occurred while the officer was “in the performance of his official duties” and was properly punishable. Simmons v. State, 712 P.2d 887, 1986 Wyo. LEXIS 449 (Wyo. 1986).

Proof required in suit for false arrest. —

In a civil suit for false arrest, officers are required to allege and prove not only that they believed in good faith that their conduct in the arrest of plaintiff was lawful, but also that such a good-faith belief on their part was reasonable. Town of Jackson v. Shaw, 569 P.2d 1246, 1977 Wyo. LEXIS 288 (Wyo. 1977).

Standard of police conduct in suit for wrongful arrest. —

See Rodarte v. Riverton, 552 P.2d 1245, 1976 Wyo. LEXIS 208 (Wyo. 1976); Town of Jackson v. Shaw, 569 P.2d 1246, 1977 Wyo. LEXIS 288 (Wyo. 1977).

Discretionary function. —

District court properly dismissed wrongful death action against police officer who did not arrest an intoxicated motorist following a traffic stop; a police officer's decision to arrest is a discretionary function, not mandated by Wyoming statutes. McCoy v. Crook County Sheriff's Dep't, 987 P.2d 674, 1999 Wyo. LEXIS 146 (Wyo. 1999).

Sheriff could have owed a duty to have arrested intoxicateddriver. —

Trial court erred in dismissing a wrongful death action brought by mother against sheriff and county, on behalf of her son who was killed by an intoxicated driver; after determining that the intoxicated driver immediately intended to drive to follow an ambulance to the hospital to be with an injured friend, the sheriff had a duty to do what an ordinarily prudent law enforcement officer would have done under like circumstances. Becker v. Mason, 2006 WY 143, 145 P.3d 1268, 2006 Wyo. LEXIS 155 (Wyo. 2006).

Applied in

Ostrowski v. State, 665 P.2d 471, 1983 Wyo. LEXIS 332 (Wyo. 1983); United States v. Maher, 919 F.2d 1482, 1990 U.S. App. LEXIS 21014 (10th Cir. 1990); Lobatos v. State, 875 P.2d 716, 1994 Wyo. LEXIS 68 (Wyo. 1994); Nellis v. Wyoming DOT, 932 P.2d 741, 1997 Wyo. LEXIS 30 (Wyo. 1997).

Quoted in

Sandborn v. State, 735 P.2d 435, 1987 Wyo. LEXIS 420 (Wyo. 1987).

Law reviews. —

For note, “Power of Peace Officers to Arrest Without Warrant in Wyoming,” see VII Wyo. L.J. 100.

Am. Jur. 2d, ALR and C.J.S. references. —

Delay in making arrest without a warrant for misdemeanor or breach of peace, 58 ALR2d 1056.

Police officer's power to enter private house or inclosure to make arrest, without a warrant, for a suspected misdemeanor, 76 ALR2d 1432.

Right to resist excessive force used in accomplishing lawful arrest, 77 ALR3d 281.

Modern status: right of peace officer to use deadly force in attempting to arrest fleeing felon, 83 ALR3d 174.

Peace officers' civil liability for death or personal injuries caused by intentional force in arresting misdemeanant, 83 ALR3d 238.

Validity, in state criminal trial, of arrest without warrant by identified peace officer outside of jurisdiction, when not in fresh pursuit, 34 ALR4th 328.

Burden of proof in civil action for using unreasonable force in making arrest as to reasonableness of force used, 82 ALR4th 598.

§ 7-2-104. Authority to seize deadly weapons; disposition.

  1. A peace officer may take into possession any deadly weapons found in the possession of a person arrested if:
    1. The peace officer has reason to believe the weapon will be used to endanger the safety of the officer or the public; or
    2. The person arrested might seek to use the weapon to resist arrest or to escape.
  2. Except as otherwise provided in this subsection, nothing in this section shall authorize a peace officer to take into possession any deadly weapon when enforcing the game and fish provisions contained in title 23 of the Wyoming statutes provided the safety of the officer or the public is not endangered. A peace officer may take into possession a deadly weapon as authorized by W.S. 23-6-208 .
  3. Deadly weapons seized under this section shall be returned or disposed of as provided by W.S. 7-2-105 unless otherwise ordered by the court.

History. Laws 1957, ch. 162, § 1; W.S. 1957, § 7-20; W.S. 1977, § 7-2-110; Laws 1987, ch. 157, § 3; 1999, ch. 94, § 2.

Cross references. —

As to weapon offenses, see chapter 8 of title 6.

Stated in

United States v. Maher, 1989 U.S. Dist. LEXIS 13872, 724 F. Supp. 1348 (D. Wyo. 1989).

§ 7-2-105. Disposition and appraisal of property seized or held; notice and order to show cause; judgment.

  1. When personal property not subject to be summarily destroyed is seized or held by any peace officer pursuant to any law of this state, or when property seized by any peace officer is delivered to the appropriate law enforcement agency under provisions other than W.S. 35-7-1049 , or property is taken into custody as lost, mislaid or abandoned, the head of the law enforcement agency shall forthwith ascertain as closely as practicable:
    1. The approximate value of the property;
    2. The facts giving rise to the seizure or custody;
    3. The name and position of the person making the seizure or taking the property into custody;
    4. The name and address of the owners of the property or those persons who were in possession of the property at the time of the seizure;
    5. The names and addresses of all persons known to have an interest in the property seized.
  2. Any property seized by a peace officer shall be delivered immediately to the appropriate law enforcement agency. The head of the law enforcement agency shall maintain custody of the property pending an order of disposal by the court pursuant to this section unless the property is otherwise released according to this section.
  3. If the property is lost, mislaid, abandoned or unclaimed or if possession of the property is unlawful, the law enforcement agency shall seek in circuit court or district court an order to show cause why the property should not be sold or forfeited and sold at public auction or transferred to the use of the law enforcement agency. If the lawful owner of the property can reasonably be ascertained, the property shall be delivered to him without judicial action unless the property constitutes evidence of a crime, the possession of the property would be unlawful or ownership and interest are in dispute.
  4. Notice and proceedings on the order to show cause shall be according to the Wyoming Rules of Civil Procedure, provided notice by publication shall be once each week for two (2) consecutive weeks. The trial of the issues shall be by the court.
  5. On final hearing the order to show cause shall be taken as prima facie evidence that the property is abandoned or unclaimed and is sufficient for a judgment of forfeiture in the absence of other proof.
  6. In disputed ownership cases the burden shall be upon the claimants to show that they are the lawful owners or have a legally recognizable interest in the property.
  7. When the property is encumbered, the court shall, after deducting costs, direct the payment of the encumbrance from the proceeds of any sale of the property or distribute the property equitably between those persons having a legal interest.
  8. The proceedings and judgment of forfeiture shall be in rem and shall be primarily against the property itself.
  9. Upon the entry of a judgment of forfeiture the court shall determine the disposition to be made of the property, which may include the destruction or sale of the property or the allocation of the property to some other governmental function or use or otherwise, as the court may determine.
  10. Sale of the property shall be at public auction to the highest bidder for cash after two (2) weeks public notice as the court may direct.
  11. Upon the application of any claimant, the court may fix the value of a forfeitable interest in the seized property and permit the claimant to redeem the property upon the payment of a sum equal to the value, which sum shall be disposed of as would the proceeds of the sale of the property under a judgment of forfeiture.
  12. The balance of the proceeds, if any, shall be deposited in the general operating account of the state, county or municipal entity that has fiscal authority over the law enforcement agency confiscating the property.
  13. This section does not apply to property which is subject to the Uniform Unclaimed Property Act, W.S. 34-24-101 through 34-24-140 .
  14. For purposes of this section, seized property that is not subject to W.S. 35-7-1049 may be summarily destroyed, provided the lawful owner has been contacted and has declined to take possession of the property, including:
    1. Evidence that is no longer needed for the prosecution of a case, or needed for purposes of appellate review of the case;
    2. Evidence in misdemeanor cases in which the district attorney has determined that no suspect has been identified or prosecution has not been pursued for at least one (1) year;
    3. Evidence in felony cases in which the district attorney has determined that no suspect has been identified or prosecution has not been pursued for at least five (5) years;
    4. Soiled, defective, broken or demolished personal property, or waste.
  15. Items of found property with a value of not more than fifty dollars ($50.00) for which the owner cannot be located, or if the owner has not responded after contact was attempted by the law enforcement agency, may be disposed of after the latter of:
    1. Thirty (30) days after the agency has determined that the owner cannot be located; or
    2. Thirty (30) days after the agency has attempted on at least three (3) nonconsecutive days to contact the owner without response from the owner.
  16. Law enforcement agencies shall preserve biological material that was seized or recovered as evidence in the investigation or prosecution that resulted in a conviction or adjudication as a delinquent for a crime of violence and not consumed in previous DNA testing. The biological material shall be preserved for five (5) years or, except as provided in this section, for as long as any person incarcerated in connection with the case or investigation remains in custody, whichever is longer. Notwithstanding any provisions to the contrary in this section, effective July 1, 2008 a law enforcement agency may dispose of the biological material after five (5) years if the law enforcement agency notifies any person who remains incarcerated in connection with the investigation or prosecution and any counsel of record for such person, or if there is no counsel of record, the state public defender, of the intention to dispose of the evidence and the law enforcement agency affords the person not less than one hundred eighty (180) days after the notification to file a motion for DNA testing or preservation of the biological material. The law enforcement agency shall not be required to preserve evidence that is required to be, and has been, returned to its rightful owner, or is of such a size, bulk or physical character as to render retention impracticable. If practicable, the law enforcement agency shall remove and preserve representative portions of the biological material sufficient to permit future DNA testing before returning or disposing of the material.
  17. Whoever willfully or maliciously destroys, alters, conceals or tampers with evidence that is required to be preserved under subsection (r) of this section with the intent to impair the integrity of that evidence, to prevent that evidence from being subjected to DNA testing or to prevent the production or use of that evidence in an official proceeding shall upon conviction be subject to a fine of not more than ten thousand dollars ($10,000.00), imprisonment for not more than five (5) years, or both.

History. Laws 1985, ch. 150, § 1; W.S. 1977, § 7-2-111; Laws 1987, ch. 157, § 3; 1993, ch. 213, § 2; 2000, ch. 24, § 4; 2004, ch. 130, § 1; 2007, ch. 182, § 1; 2008, ch. 92, § 2.

Cross references. —

As to forfeiture of devices and equipment used in taking game illegally, see § 23-6-208 .

As to service of process, see Rules 4 and 5, W.R.C.P.

The 2004 amendment, in (o), substituted “34-24-140” for “34-24-139.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

The 2007 amendment, effective July 1, 2007, added (p) through (r).

The 2008 amendment, effective July 1, 2008, rewrote (r) which read: “Notwithstanding any provisions to the contrary herein, biological evidence relevant to a felony criminal prosecution shall not be destroyed unless and until the person who was convicted in the case has died”; and added (s).

Editor's notes. —

There is no subsection (i) or ( l ) in this section as it appears in the printed acts.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Return of seized property. —

Both W.R.Cr.P. 41(e) and Wyo. Stat. Ann. § 7-2-105 make it plain that a convicted defendant or prisoner may seek to have his property restored to him, absent some justification provided by the State for its continued retention of that property. A prisoner may avail himself of a remedy provided to him by law in said respect, the same being a due process right. Deloge v. State, 2005 WY 152, 123 P.3d 573, 2005 Wyo. LEXIS 181 (Wyo. 2005).

Cited in

Taylor v. State, 7 P.3d 15, 2000 Wyo. LEXIS 129 (Wyo. 2000).

§ 7-2-106. Extraterritorial authority of peace officers; requests for assignment of peace officers; liability; compensation.

  1. Subject to the limitations in subsection (e) of this section, a peace officer, while outside of his jurisdiction, shall have the same authority that applies to him within his jurisdiction to the same degree and extent only when any one (1) of the following conditions exists:
    1. The peace officer is responding to a request for law enforcement assistance made by a law enforcement agency of another jurisdiction or a specific request to assist another peace officer acting within the scope of his official duties in another jurisdiction;
    2. The peace officer possesses reasonable cause to believe that a crime is occurring involving an immediate threat of serious bodily injury or death to any person; or
    3. The peace officer is in fresh pursuit of a person whom the officer has probable cause to believe has committed within the officer’s jurisdiction a violation of a municipal ordinance or state statute, including traffic infractions, or for whom an arrest warrant is outstanding for any criminal or traffic offense.
  2. Subject to the limitations in subsection (e) of this section, the governing body of any municipality that does not have a police department, the chief of police of any municipality or his designee, or the sheriff of any county or his designee, in accordance with the rules and procedures established by the governing body of any municipality or county, may request the chief of police of any other municipality, or his designee, or the sheriff of any other county, or his designee, to assign certified peace officers under their respective command to perform law enforcement duties within the jurisdiction of the requesting chief of police or sheriff. Peace officers, while so assigned and performing duties, are subject to the direction and control of the requesting chief or sheriff and shall have full peace officer authority within the requesting agency’s jurisdiction during the assignment. The assignments under this subsection shall be restricted to the terms of a written memorandum of understanding entered into in advance by each participating sheriff, chief of police or appropriate supervisor of another agency employing peace officers and by the governing bodies of their respective counties or municipalities. The memorandum of understanding shall, at minimum, specify:
    1. The length of term of the assignment, not to exceed one (1) month beyond the current term of office of any participating sheriff or chief of police;
    2. The certified peace officers covered by the assignment;
    3. A general description of the geographical boundaries of territory covered by the assignment;
    4. The responsibilities of each participating county, municipality and law enforcement agency for costs and expenses related to the assignments, including the cost of all wages, salaries, benefits and damage to equipment belonging to an officer or his employer while acting under the provisions of this subsection.
  3. A peace officer acting pursuant to subsection (a), (b) or (f) of this section outside his own jurisdiction, or a peace officer when providing law enforcement assistance on the Wind River Indian Reservation pursuant to a memorandum of understanding entered in advance and approved by the attorney general, between the department of the interior, Federal Bureau of Indian Affairs or the tribes and the state, county, city or town providing the assistance, shall be deemed to be acting within the scope of his duties for purposes of the Wyoming Governmental Claims Act and the state self-insurance program, W.S. 1-41-101 through 1-41-111 , or the local government self-insurance program, W.S. 1-42-201 through 1-42-206 . The memorandum of understanding shall contain a provision for immunity from suit in tribal court for activities occurring pursuant to any law enforcement assistance provided under this subsection. Any suit relating to those activities shall be brought only under the terms of the Wyoming Governmental Claims Act in the state district court having jurisdiction, or in the federal district court for the district of Wyoming, if appropriate. All privileges and immunities from liability, and all pension, disability, worker’s compensation and other benefits which normally apply to peace officers while they perform their duties in their own jurisdiction shall also apply to them when acting as provided in subsection (a), (b) or (f) of this section and shall apply to peace officers when providing law enforcement assistance on the Wind River Indian Reservation pursuant to this subsection. For purposes of W.S. 27-14-104 and subsection (a), (b) or (f) of this section, the requesting and assigning law enforcement agencies shall be a joint employer as defined under W.S. 27-14-102(a)(xix) and the designated peace officer shall be a joint employee as defined under W.S. 27-14-102(a)(xxi).
  4. The cost of salary and benefits accruing to a peace officer acting pursuant to subsection (a) of this section shall be borne by the individual peace officer’s own employing agency. The cost of any damage to equipment belonging to the officer or his employer occurring while acting pursuant to subsection (a) of this section shall be borne by the requesting law enforcement agency.
  5. Nothing in this section shall be construed to authorize a peace officer:
    1. As defined in W.S. 7-2-101(a)(iv)(F), (H) or (J) to act pursuant to subsection (a) or (b) of this section; or
    2. As defined in W.S. 7-2-101(a)(iv)(E) or (G) to act pursuant to paragraph (a)(ii) or (iii) or subsection (b) of this section; or
    3. As defined in W.S. 7-2-101(a)(iv)(E), (F) or (J) to act pursuant to subsection (f) of this section.
  6. Subject to the limitations in paragraph (e)(iii) of this section, the department of state parks and cultural resources may request any other agency or governing body employing peace officers to assign peace officers qualified pursuant to W.S. 9-1-701 through 9-1-707 under their respective command to perform law enforcement duties within the jurisdiction of the department of state parks and cultural resources. Peace officers, while so assigned and performing duties, are subject to the direction and control of the department of state parks and cultural resources and shall have full peace officer authority within the department’s jurisdiction during the assignment. The assignments under this subsection shall be restricted to the terms of a written memorandum of understanding entered into in advance by the department and each participating agency employing peace officers. The memorandum of understanding shall, at minimum, specify:
    1. The length of term of the assignment;
    2. The peace officers covered by the assignment;
    3. A general description of the geographical boundaries of territory covered by the assignment;
    4. The responsibilities of the department and each participating law enforcement agency for costs and expenses related to the assignments, including the cost of all wages, salaries, benefits and damage to equipment belonging to an officer or his employer while acting under the provisions of this subsection.

History. Laws 1997, ch. 167, § 1; 2004, ch. 45, § 1; 2007, ch. 212, § 1; 2008, ch. 44, § 1; 2011, ch. 160, § 1; 2013, ch. 46, § 1.

The 2004 amendment, rewrote the section, amending the extraterritorial authority of peace officers and specifying limitations.

Laws 2004, ch. 45, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 4, 2004.

The 2007 amendment, effective July 1, 2007, substituted “1-42-201” for “1-42-101” in (c).

The 2008 amendment substituted “1-42-206” for “1-42-207” at the end of the first sentence of (c).

Laws 2008, ch. 44, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, of the Wyo. Const. Approved March 5, 2008.

The 2011 amendment, in (c), added “or (f)” throughout, and made related changes; added (e)(iii), and made related changes; and added (f).

Laws 2011, ch. 160, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2011.

The 2013 amendment, effective July 1, 2013, added “, or a peace officer when providing law enforcement assistance on the Wind River Indian Reservation pursuant to a memorandum of understanding entered in advance and approved by the attorney general, between the department of the interior, Federal Bureau of Indian Affairs or the tribes and the state, county, city or town providing the assistance,” in the first sentence, added the second sentence, added “and shall apply to peace officers when providing law enforcement assistance on the Wind River Indian Reservation pursuant to this subsection” at the end of the third sentence, and added “and subsection (a), (b) or (f) of this section” in the fourth sentence in (c).

Wyoming Governmental Claims Act. —

See § 1-39-101 , 1-39-103 (a)(viii).

Conflicting legislation. —

Laws 2008, ch. 44, § 3, states: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act..”

Applicability. —

Laws 2007, ch. 212, § 3, states: “This act shall apply to acts or omissions occurring on or after the effective date of this act.”

§ 7-2-107. Arrest or detention of persons with diplomatic immunities.

  1. This section applies to an individual who upon being stopped, detained or arrested by a peace officer for a violation of W.S. 6-2-106 , a driving while under the influence offense or a moving violation pursuant to the motor vehicle laws of Wyoming or local ordinance, provides a driver’s license issued by the United States department of state or otherwise claims immunities or privileges pursuant to title 22, chapter 6 of the United States Code.
  2. If a driver as described in subsection (a) of this section is stopped, detained or arrested by a peace officer who has probable cause to believe that the driver has committed a violation described in subsection (a) of this section, the peace officer shall:
    1. Within a reasonable amount of time, contact the United States department of state and verify the driver’s status and possible immunity;
    2. Record relevant information from the driver’s license or identification card issued by the United States department of state; and
    3. Within five (5) days after the date of the stop, forward the following to the United States department of state:
      1. A written report of the incident; and
      2. A copy of the citation or other charging document if issued.
  3. The provisions of this section do not prohibit the application of any law to a criminal violation by any individual who claims immunities pursuant to title 22, chapter 6 of the United States Code.

History. Laws 2002, Sp. Sess., ch. 64, § 1.

Editor's notes. —

The provisions pertaining to immunity and privileges for foreign diplomats may be found at 22 U.S.C. § 254a et seq.

§ 7-2-108. [Repealed.]

Repealed by Laws 2007, ch. 91, § 3.

Editor's notes. —

This section, which derived from Laws 2006, ch. 71, § 1, related to the free tuition and fees for education of survivors of deceased peace officers.

Laws 2007, ch. 91, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 22, 2007.

Laws 2007, ch. 96, § 2 states:

“(a) Section 1 of this act is effective only if 2007 House Bill 112 is not enacted into law. If section 1 of this act becomes effective it shall be effective as of July 1, 2007.”

Chapter 3 Fugitives and Prevention of Crime

Am. Jur. 2d, ALR and C.J.S. references. —

5 Am. Jur. 2d Arrest §§ 46, 47; 27A Am. Jur. 2d Escape, Prison Breaking and Rescue § 1 et seq.

Determination, in extradition proceedings, or on habeus corpus in such proceedings, whether crime is charged, 40 ALR2d 1151.

Identification of accused as the person charged, 93 ALR2d 912.

6 C.J.S. Arrest §§ 1 to 22; 22 C.J.S. Criminal Law §§ 13, 110, 115, 144, 146, 150 to 154; 30A C.J.S. Escape § 1 et seq.

Article 1. Interstate Compacts

§ 7-3-101. Legislative findings.

  1. The legislature finds and declares:
    1. The congress of the United States, pursuant to the provisions of section 10 of article I of the constitution of the United States, has granted its consent, by that certain act of June 6, 1934 (Public Law No. 293, H.R. 7353), as amended, that any two (2) or more states may enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of their respective criminal laws and policies, and for the establishment of any agencies, joint or otherwise, as they may deem desirable, for making effective the agreements or compacts;
    2. There is a practical need and utility for these agreements or compacts, between or among the state of Wyoming and any other states of the United States, and particularly between or among the state of Wyoming and those states adjoining the state of Wyoming.

History. Laws 1935, ch. 71, § 1; C.S. 1945, § 10-2601; W.S. 1957, § 7-70; W.S. 1977, § 7-3-530; Laws 1987, ch. 157, § 3; 2009, ch. 168, § 302.

The 2009 amendment, effective July 1, 2009, in (a)(i), substituted “that certain act of June 6, 1934 (Public Law No. 293, H.R. 7353), as amended” for “that certain act (Public Law No. 293, H.R. 7353) approved June 6, 1934.”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Laws 1935, ch. 71, § 10, provides: “The legislature hereby finds, determines and declares that this act is necessary for the immediate preservation of the public peace, health and safety.”

The federal act referred to in subsection (a)(i) appeared as 18 U.S.C. § 420, which was omitted in 1969. For the present provisions as to the consent of congress to compacts for the prevention of crime, see 4 U.S.C. § 112.

§ 7-3-102. Appointment of attorney general to represent state on joint commissions.

The governor shall appoint the attorney general as the commissioner who shall represent Wyoming upon any joint commission created by Wyoming and any one (1) or more states for the purpose of negotiating and entering into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of the respective criminal laws and policies of Wyoming and any other state and for the establishment of agencies deemed desirable for making effective any agreement or compact.

History. Laws 1935, ch. 71, § 2; C.S. 1945, § 10-2602; W.S. 1957, § 7-71; W.S. 1977, § 7-3-531; Laws 1987, ch. 157, § 3.

Cross references. —

As to general duties of the attorney general, see § 9-1-603 .

§ 7-3-103. Purpose and objects; required ratification.

  1. Any agreement or compact entered into under W.S. 7-3-101 through 7-3-107 shall be designed to suppress crime, to circumvent the activities of criminals and to expedite their apprehension and trial, and to enforce generally the respective criminal laws and policies of Wyoming and any other state entering into the agreement or compact. In order to effectuate those purposes, an agreement or compact may contain specific provisions for the accomplishment of any of the following objects:
    1. The arrest of any person who has fled from any one (1) of the compacting states into another, by any pursuing officer of the compacting state from which the person fled;
    2. The return of any witness deemed essential in the prosecution of any criminal case who has gone or fled into any other compacting state from the compacting state in which his presence is required;
    3. The establishment and maintenance by any two (2) or more compacting states of facilities for the investigation of crime and the discovery of criminals, including crime detection agencies, bureaus of registration and identification, crime laboratories and similar agencies;
    4. The proper supervision of any person who, having been paroled or granted probation in one (1) of the compacting states, has become a resident of any other compacting state;
    5. The written agreement of one (1) or more law enforcement agencies of this state to enter into mutual aid agreements with one (1) or more law enforcement agencies of this state or an adjoining state or the United States as authorized by W.S. 7-3-903(a).
  2. Any agreement or compact entered into pursuant to this section shall conform with the purposes for which the consent of the congress has been granted. Any agreement or compact entered into on behalf of Wyoming and any one (1) or more states shall not be binding upon any of the states, or upon their respective citizens, until the agreement or compact has been ratified and approved by the respective legislatures of the several states entering into the agreement or compact.

History. Laws 1935, ch. 71, § 3; C.S. 1945, § 10-2603; W.S. 1957, § 7-72; W.S. 1977, § 7-3-532; Laws 1987, ch. 157, § 3; 2003, ch. 53, § 2; 2008, ch. 116, § 1.

The 2008 amendment made a stylistic change.

Laws 2008, ch. 116, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 13, 2008.

§ 7-3-104. Legal, clerical and stenographic assistance.

When the commissioner of Wyoming is called to enter upon the performance of his duties, as provided under W.S. 7-3-101 through 7-3-107 , he shall be furnished legal, clerical and stenographic assistance as the governor and he deem advisable and necessary.

History. Laws 1935, ch. 71, § 4; C.S. 1945, § 10-2604; W.S. 1957, § 7-73; W.S. 1977, § 7-3-533; Laws 1987, ch. 157, § 3.

§ 7-3-105. Commencement of commissioner's duties.

The commissioner for Wyoming shall not commence the performance of his duties, or be authorized to incur any expenses for traveling, or for legal, clerical or stenographic assistance, until the governor of Wyoming is notified by the governor of another state that he has appointed a commissioner to serve upon a joint commission for the purpose of negotiating and entering into any agreement or compact authorized to be made on behalf of Wyoming under W.S. 7-3-101 through 7-3-107 .

History. Laws 1935, ch. 71, § 5; C.S. 1945, § 10-2605; W.S. 1957, § 7-74; W.S. 1977, § 7-3-534; Laws 1987, ch. 157, § 3.

§ 7-3-106. Investigations.

The commissioner for Wyoming has full authority to make any investigations of conditions in Wyoming or in any other state which may be necessary in negotiating any agreement or compact authorized by W.S. 7-3-101 through 7-3-107 .

History. Laws 1935, ch. 71, § 6; C.S. 1945, § 10-2606; W.S. 1957, § 7-75; W.S. 1977, § 7-3-535; Laws 1987, ch. 157, § 3.

§ 7-3-107. Compensation of commissioner.

The commissioner for Wyoming shall receive no compensation for his services as such, but he and his assistants shall be entitled to receive their traveling and other necessary expenses incurred in the performance of their duties.

History. Laws 1935, ch. 71, § 7; C.S. 1945, § 10-2607; W.S. 1957, § 7-76; W.S. 1977, § 7-3-536; Laws 1987, ch. 157, § 3.

Cited in

Messer v. State, 2006 WY 141, 145 P.3d 457, 2006 Wyo. LEXIS 160 (2006).

Article 2. Extradition

Am. Jur. 2d, ALR and C.J.S. references. —

31A Am. Jur. 2d Extradition § 1 et seq.

Immunity of extradited person from service of process, 20 ALR2d 163.

Extradition under state statutes providing for reciprocal enforcement of duty to support dependents, 42 ALR2d 768.

Test of “dual criminality” where extradition to or from foreign nation is sought, 132 ALR Fed 525.

35 C.J.S. Extradition and Detainers § 1 et seq.

§ 7-3-201. Definitions.

  1. As used in this act:
    1. “Executive authority” includes the governor, and any person performing the functions of governor in a state other than this state;
    2. “Governor” includes any person performing the functions of governor by authority of the law of this state;
    3. “State”, referring to a state other than this state, includes any other organized or unorganized state or territory of the United States of America;
    4. “This act” means W.S. 7-3-201 through 7-3-227 .

History. Laws 1935, ch. 122, § 1; C.S. 1945, § 10-2401; W.S. 1957, § 7-27; Laws 1987, ch. 157, § 3.

Cross references. —

As to the authority of the director of corrections to apply to the governor to seek extradition of an inmate apprehended in another state, see § 25-1-104 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Cited in

Deschenes v. Beall, 61 Wyo. 39, 154 P.2d 524, 1945 Wyo. LEXIS 1 (1945); Long v. Shillinger, 927 F.2d 525, 1991 U.S. App. LEXIS 3473 (10th Cir. 1991); Turner v. State, 2015 WY 29, 2015 Wyo. LEXIS 33 (Feb. 25, 2015).

Law reviews. —

For note, “Wyoming Extradition,” see XI Wyo. L.J. 51.

§ 7-3-202. Duty of governor to have fugitives arrested and delivered up to proper authorities.

Subject to the qualifications of this act, and the applicable provisions of the United States constitution and acts of congress, the governor of this state shall have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.

History. Laws 1935, ch. 122, § 2; C.S. 1945, § 10-2402; W.S. 1957, § 7-28; Laws 1987, ch. 157, § 3.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-201(a)(iv).

§ 7-3-203. General requirements as to demand by another state.

No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found or by an information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information, or affidavit made before the magistrate shall substantially charge the person demanded with having committed a crime under the law of that state and the copy shall be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.

History. Laws 1935, ch. 122, § 3; C.S. 1945, § 10-2403; W.S. 1957, § 7-29; Laws 1987, ch. 157, § 3.

Am. Jur. 2d, ALR and C.J.S. references. —

Necessity that demanding state show probable cause to arrest fugitive in extradition proceedings, 90 ALR3d 1085.

§ 7-3-204. Investigation of demand.

When a demand shall be made upon the governor of this state by the executive authority of another state for a surrender of a person charged with crime, the governor may call upon the attorney general or any district attorney in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he should be surrendered.

History. Laws 1935, ch. 122, § 4; C.S. 1945, § 10-2404; W.S. 1957, § 7-30; Laws 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 157, § 3.

Law reviews. —

For note, “Wyoming Extradition,” see XI Wyo. L.J. 51.

§ 7-3-205. Contents of demand.

  1. A warrant of extradition shall not be issued unless the documents presented by the executive authority making the demand show that the accused:
    1. Except in cases arising under W.S. 7-3-206 , was present in the demanding state at the time of the commission of the alleged crime, and thereafter fled from the state;
    2. Is now in this state; and
    3. Is lawfully charged by indictment found or by information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of a crime in that state and has escaped from confinement or broken his parole.

History. Laws 1935, ch. 122, § 5; C.S. 1945, § 10-2405; W.S. 1957, § 7-31; Laws 1987, ch. 157, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Am. Jur. 2d, ALR and C.J.S. references. —

Necessity that demanding state show probable cause to arrest fugitive in extradition proceedings, 90 ALR3d 1085.

§ 7-3-206. Surrender of accused when not present in demanding state at time of crime.

The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in that other state in the manner provided in W.S. 7-3-205 , with committing an act in this state, or in a third state, intentionally resulting in a crime in that state whose executive authority is making the demand. The provisions of this act not otherwise inconsistent shall apply to this situation notwithstanding the accused was not in that state at the time of the commission of the crime and has not fled therefrom.

History. Laws 1935, ch. 122, § 6; C.S. 1945, § 10-2406; W.S. 1957, § 7-32; Laws 1987, ch. 157, § 3.

Meaning of “this act.” —

For the definition of “this act,” referred to in the second sentence, see § 7-3-201(a)(iv).

§ 7-3-207. Issuance of governor's warrant for arrest; contents.

If the governor decides that the demand should be complied with, he shall sign a warrant of arrest, sealed with the state seal, and directed to a sheriff, marshal, coroner or other person entrusted to execute it. The warrant shall substantially recite the facts necessary to the validity of its issuance.

History. Laws 1935, ch. 122, § 7; C.S. 1945, § 10-2407; W.S. 1957, § 7-33; Laws 1987, ch. 157, § 3.

§ 7-3-208. Effect of warrant.

  1. The warrant shall:
    1. Authorize the officer or other person to whom directed to arrest the accused at any place where he may be found within the state and to deliver him to the duly authorized agent of the demanding state; and
    2. Command the aid of all sheriffs and other peace officers in the execution of the warrant.

History. Laws 1935, ch. 122, § 8; C.S. 1945, § 10-2408; W.S. 1957, § 7-34; Laws 1987, ch. 157, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-3-209. Authority of person making arrest to command assistance.

Every officer or other person authorized by the governor to make the arrest has the same authority in arresting the accused to command assistance as sheriffs and other officers have in the execution of any criminal process directed to them, with the like penalties against those who refuse their assistance.

History. Laws 1935, ch. 122, § 9; C.S. 1945, § 10-2409; W.S. 1957, § 7-35; Laws 1987, ch. 157, § 3.

§ 7-3-210. Right of accused to counsel; opportunity to apply for writ of habeas corpus; notice of writ and hearing.

No person arrested pursuant to W.S. 7-3-208 shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he has been informed of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand legal counsel. If the prisoner, his friends, or counsel shall state that he or they desire to test the legality of the arrest, the prisoner shall be taken forthwith before a judge of a court of record in this state, who shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When the writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the appointed agent of the demanding state.

History. Laws 1935, ch. 122, § 10; C.S. 1945, § 10-2410; W.S. 1957, § 7-36; Laws 1987, ch. 157, § 3.

Cross references. —

As to right to counsel generally, see § 7-6-104 .

As to constitutional right of accused to counsel, see art. 1, § 10, Wyo. Const.

As to habeas corpus, see chapter 27 of title 1.

Power to extradite arises under federal constitution and statutes. Sanders v. Conine, 506 F.2d 530, 1974 U.S. App. LEXIS 5851 (10th Cir. Wyo. 1974).

But procedure for extradition is governed by state law. Sanders v. Conine, 506 F.2d 530, 1974 U.S. App. LEXIS 5851 (10th Cir. Wyo. 1974).

Rights accorded by section for fugitive's benefit. —

The requirement that a person arrested as a fugitive be advised of his right to counsel and be taken before a court patently benefits the prisoner, not the state. Sanders v. Conine, 506 F.2d 530, 1974 U.S. App. LEXIS 5851 (10th Cir. Wyo. 1974).

No appeal if petition dismissed. —

Where petitioner has right to go before other judges and other courts to secure release, a judgment dismissing habeas corpus petition and remanding petitioner to custody under an extradition warrant is not appealable. Ex parte Brugneaux, 51 Wyo. 103, 63 P.2d 800, 1937 Wyo. LEXIS 6 (Wyo. 1937).

Nor if one detained discharged. —

The rule denying the right of appeal in a case in which one detained is discharged on a writ of habeas corpus applies in extradition proceedings. Geyer v. Tuck, 68 Wyo. 52, 229 P.2d 924, 1951 Wyo. LEXIS 17 (Wyo. 1951).

§ 7-3-211. Penalty for surrendering accused without hearing.

Any officer who delivers to the agent for extradition of the demanding state a person in his custody under the governor’s warrant in violation of W.S. 7-3-210 is guilty of a misdemeanor, and on conviction shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned not more than six (6) months, or both.

History. Laws 1935, ch. 122, § 11; C.S. 1945, § 10-2411; W.S. 1957, § 7-37; Laws 1987, ch. 157, § 3.

Stated in

Sanders v. Conine, 506 F.2d 530, 1974 U.S. App. LEXIS 5851 (10th Cir. 1974).

§ 7-3-212. Confinement in jail for safekeeping; expenses.

The officer or person executing the governor’s warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may, when necessary, confine the prisoner in the jail of any county or city en route to his destination. The keeper of the jail shall receive and safely keep the prisoner until the person having charge of him is ready to proceed on his route. The person having charge of the prisoner is chargeable with the expense of keeping him in jail.

History. Laws 1935, ch. 122, § 12; C.S. 1945, § 10-2412; W.S. 1957, § 7-38; Laws 1987, ch. 157, § 3.

Am. Jur. 2d, ALR and C.J.S. references. —

Right of extraditee to bail after issuance of governor's warrant and pending final disposition of habeas corpus claim, 13 ALR5th 118.

§ 7-3-213. Issuance of warrant for arrest by judge or magistrate.

  1. The judge or magistrate shall issue a warrant for arrest when:
    1. Any person within this state is charged on the oath of any credible person before the judge or other magistrate of this state with the commission of a crime in any other state, and except in cases arising under W.S. 7-3-206 , with having fled from justice; or
    2. A complaint has been made before any judge or other magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in that other state and that the accused has been charged in that state with the commission of the crime, and, except in cases arising under W.S. 7-3-206 , has fled therefrom and is believed to have been found in this state.
  2. The warrant to the sheriff of the county in which the oath or complaint is filed shall direct him to apprehend the person charged, wherever he may be found in this state, and bring him before the judge or magistrate or any other judge, court, or magistrate who may be convenient to the place where the arrest may be made, to answer the charge or complaint and affidavit. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

History. Laws 1935, ch. 122, § 13; C.S. 1945, § 10-2413; W.S. 1957, § 7-39; Laws 1987, ch. 157, § 3.

Cross references. —

As to warrant upon complaint generally, see Rule 4, W.R. Cr. P.

§ 7-3-214. Authority to arrest person without warrant.

The arrest of a person may be lawfully made by an officer or a private citizen without a warrant upon reasonable information that the accused is charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one (1) year. When arrested under this section the accused shall be taken before a judge or magistrate as soon as possible and complaint shall be made against him under oath setting forth the ground for the arrest as in W.S. 7-3-213 . Thereafter his answer shall be heard as if he had been arrested on a warrant.

History. Laws 1935, ch. 122, § 14; C.S. 1945, § 10-2414; W.S. 1957, § 7-40; Laws 1987, ch. 157, § 3.

Cross references. —

As to arrest without warrant generally, see § 7-2-102 .

As to when private person may make arrest generally, see § 7-8-101 .

Power to extradite arises under federal constitution and statutes. Sanders v. Conine, 506 F.2d 530, 1974 U.S. App. LEXIS 5851 (10th Cir. Wyo. 1974).

But procedure for extradition governed by state law. Sanders v. Conine, 506 F.2d 530, 1974 U.S. App. LEXIS 5851 (10th Cir. Wyo. 1974).

Rights accorded person arrested as fugitive for his benefit.—

The requirement that a person arrested as a fugitive be advised of his right to counsel and be taken before a court patently benefits the prisoner, not the state. Sanders v. Conine, 506 F.2d 530, 1974 U.S. App. LEXIS 5851 (10th Cir. Wyo. 1974).

§ 7-3-215. Examination of person arrested without warrant; commitment pending demand.

If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and that he probably committed the crime, and, except in cases arising under W.S. 7-3-206 , that he has fled from justice, the judge or magistrate shall commit him to jail by a warrant reciting the accusation and specifying the time as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in W.S. 7-3-216 , or until he shall be legally discharged.

History. Laws 1935, ch. 122, § 15; C.S. 1945, § 10-2415; W.S. 1957, § 7-41; Laws 1987, ch. 157, § 3.

Cross references. —

As to preliminary examination, see Rule 5.1, W.R. Cr. P.

Am. Jur. 2d, ALR and C.J.S. references. —

Right of extraditee to bail after issuance of governor's warrant and pending final disposition of habeas corpus claim, 13 ALR5th 118.

§ 7-3-216. Right of person arrested without warrant to bail.

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, the judge or magistrate shall admit the arrested person to bail by bond or undertaking, with sufficient sureties, and in such sum as he deems proper. The bail or bond shall be conditioned for the appearance of the arrested person before the judge or magistrate at a time specified in the bond or undertaking, and for his surrender, to be arrested upon the warrant of the governor of this state.

History. Laws 1935, ch. 122, § 16; C.S. 1945, § 10-2416; W.S. 1957, § 7-42; Laws 1987, ch. 157, § 3.

Cross references. —

As to bail generally, see chapter 10 of this title and Rule 3.1, W.R. Cr. P.

Am. Jur. 2d, ALR and C.J.S. references. —

Right of extraditee to bail after issuance of governor's warrant and pending final disposition of habeas corpus claim, 13 ALR5th 118.

§ 7-3-217. Failure of state to demand person arrested without warrant within time specified.

If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant, bond, or undertaking, the judge or magistrate may discharge him or may recommit him to a further day, or may again take bail for his appearance and surrender, as provided in W.S. 7-3-216 . At the expiration of the second period of commitment, or if he has been bailed and appeared according to the terms of his bond or undertaking, the judge or magistrate may either discharge him, or may require him to enter into a new bond or undertaking, to appear and surrender himself at another day.

History. Laws 1935, ch. 122, § 17; C.S. 1945, § 10-2417; W.S. 1957, § 7-43; Laws 1987, ch. 157, § 3.

Am. Jur. 2d, ALR and C.J.S. references. —

Right of extraditee to bail after issuance of governor's warrant and pending final disposition of habeas corpus claim, 13 ALR5th 118.

§ 7-3-218. Failure of prisoner admitted to bail to appear.

If the prisoner is admitted to bail, and fails to appear and surrender himself according to the condition of his bond, the court shall order the bond forfeited. Recovery may be had on the bond in the name of the state as in the case of other bonds or undertakings given by the accused in criminal proceedings within this state.

History. Laws 1935, ch. 122, § 18; C.S. 1945, § 10-2418; W.S. 1957, § 7-44; Laws 1987, ch. 157, § 3.

Cross references. —

As to disposition of forfeited bail generally, see § 7-10-105 and Rule 3.1(d), W.R. Cr. P.

Am. Jur. 2d, ALR and C.J.S. references. —

Right of extraditee to bail after issuance of governor's warrant and pending final disposition of habeas corpus claim, 13 ALR5th 118.

§ 7-3-219. Procedure where criminal prosecution pending against accused in state.

If a criminal prosecution has been instituted against the person under the laws of this state and is still pending, the governor at his discretion either may surrender him on the demand of the executive authority of another state, or may hold him until he has been tried and discharged, or convicted and punished in this state.

History. Laws 1935, ch. 122, § 19; C.S. 1945, § 10-2419; W.S. 1957, § 7-45; Laws 1987, ch. 157, § 3.

§ 7-3-220. Inquiry into guilt or innocence of accused.

The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor or in any proceeding after the demand for extradition as provided by W.S. 7-3-203 shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.

History. Laws 1935, ch. 122, § 20; C.S. 1945, § 10-2420; W.S. 1957, § 7-46; Laws 1987, ch. 157, § 3.

§ 7-3-221. Recall of, or issuance of new, warrant.

The governor may recall his warrant of arrest, or may issue another warrant whenever he deems proper.

History. Laws 1935, ch. 122, § 21; C.S. 1945, § 10-2421; W.S. 1957, § 7-47; Laws 1987, ch. 157, § 3.

§ 7-3-222. Demand that accused be returned to this state; issuance of warrant.

  1. Upon receipt of an application as provided by W.S. 7-3-223 , the governor of this state may demand a person charged with crime in this state, or with violation of parole, from the chief executive of any other state, or from the chief justice or an associate justice of the supreme court of the District of Columbia authorized to receive such demand under the laws of the United States.
  2. The governor shall issue a warrant under the seal of this state, to some agent, commending him to receive the person so charged if delivered to him and convey him to the proper officer of the county in this state in which the offense was committed.

History. Laws 1935, ch. 122, § 22; C.S. 1945, § 10-2422; W.S. 1957, § 7-48; Laws 1985, ch. 147, § 2; 1987, ch. 30, § 1; ch. 157, § 3.

§ 7-3-223. Application for return of accused to this state.

  1. When the return to this state of a person charged with crime in this state is required, the district attorney for the county in which the offense is committed shall present to the governor a written application for a requisition for the return of the person charged. The application shall state:
    1. The name of the person charged;
    2. The crime charged against him;
    3. The approximate time, place and circumstances of the commission of the crime; and
    4. The state and address or location where the accused is believed to be at the time the application is made.
  2. As part of the application under subsection (a) of this section the district attorney shall certify that in his opinion justice requires the arrest and return of the accused to this state for trial, and that the proceeding is not instituted to enforce a private claim.
  3. The application under subsection (a) of this section shall be verified by affidavit and shall be executed in duplicate. It shall be accompanied by two (2) certified copies of the indictment returned, or information filed, or of the complaint and affidavit made to the magistrate, stating the offense with which the accused is charged. The district attorney may also attach further affidavits and other documents in duplicate as he deems proper to be submitted with the application. One (1) copy of the application with the action of the governor indicated by his endorsement, and one (1) of the certified copies of the indictment, information or complaint and affidavit, shall be filed in the office of the secretary of state to remain of record in that office. The other copy of all papers shall be forwarded with the governor’s requisition.
  4. When the return to this state of a person charged with violating the conditions of his parole is required, the chairman of the board of parole shall present to the governor a written application for a requisition for the return of the person charged with parole violation. The application shall state:
    1. The name of the parolee;
    2. The parole violation charged against him;
    3. The approximate time, place and circumstances of the commission of the violation; and
    4. The state and address where the parolee is believed to be at the time the application is made.
  5. As part of the application under subsection (d) of this section the chairman of the board of parole shall certify that in his opinion justice requires the arrest and return of the parolee to this state for hearing before the board of parole and that the proceeding is not instituted to enforce a private claim.
  6. The application under subsection (d) of this section shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two (2) certified copies of the judgment and sentence, parole grant, parole agreement, recommendation for revocation of parole and order of arrest issued by the board of parole. The chairman of the board of parole may also attach further affidavits and other documents in duplicate as he deems proper to be submitted with the application. One (1) copy of the application with the action of the governor indicated by his endorsement, and one (1) of the certified copies required by this subsection, shall be filed in the office of the secretary of state to remain of record in that office. The other copy of all papers shall be forwarded with the governor’s requisition.

History. Laws 1935, ch. 122, § 23; C.S. 1945, § 10-2423; W.S. 1957, § 7-49; Laws 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 30, § 2; ch. 157, § 3.

Cross references. —

As to state board of parole, see § 7-13-401 .

§ 7-3-224. Payment of expenses for return of accused to this state.

  1. The state shall pay the expenses involved in the return to this state of a person charged with violating the terms of his parole or who has escaped from a state penal institution or who has escaped from a corrections program provided for inmates of a state penal institution other than a defendant serving a split sentence of incarceration under W.S. 7-13-107 or a probationer participating in a residential or nonresidential community correctional program pursuant to W.S. 7-18-108 . In all other cases the expenses of extradition shall be paid by the county applying for the return of the person.
  2. Expenses authorized under this section include the fees paid to the officers of the state on whose governor the requisition is made, and mileage for all necessary travel in returning the person not exceeding the rate set in W.S. 9-3-103 .

History. Laws 1935, ch. 122, § 24; C.S. 1945, § 10-2424; W.S. 1957, § 7-50; Laws 1975, ch. 141, § 1; 1987, ch 157, § 3; 1989, ch. 32, § 1; 1999, ch. 174, § 1.

Cross references. —

As to Wyoming state penitentiary, see § 25-1-201 .

§ 7-3-225. Service of civil process on person brought into state.

A person brought into this state on extradition based on a criminal charge is not subject to service of personal process in any civil action arising out of the same facts as the criminal proceedings to answer which he is returned, until he has been convicted in the criminal proceedings, or if acquitted, until he has had ample opportunity to return to the state from which he was extradited.

History. Laws 1935, ch. 122, § 25; C.S. 1945, § 10-2425; W.S. 1957, § 7-51; Laws 1987, ch. 157, § 3.

§ 7-3-226. Charging of person brought into state with other crimes.

After a person has been brought back to this state upon extradition proceedings, he may be tried in this state for other crimes which he may be charged with having committed here, as well as that specified in the requisition for his extradition.

History. Laws 1935, ch. 122, § 26; C.S. 1945, § 10-2426; W.S. 1957, § 7-52; Laws 1987, ch. 157, § 3.

Am. Jur. 2d, ALR and C.J.S. references. —

Application of doctrine of specialty to federal criminal prosecution of accused extradited from foreign country, 112 ALR Fed 473.

§ 7-3-227. Construction of provisions.

This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History. Laws 1935, ch. 122, § 27; C.S. 1945, § 10-2427; W.S. 1957, § 7-53; Laws 1987, ch. 157, § 3.

Meaning of “this act.” —

For the definition of “[t]his act,” referred to in this section, see § 7-3-201(a)(iv).

Severability. —

Laws 1935, ch. 122, § 28, provides: “If any part of this act is for any reason declared void, such invalidity shall not affect the validity of the remaining portions of this act.”

Regaining custody. —

Although Wyoming's version of the Uniform Criminal Extradition Act omitted part of § 25 and §§ 25-A and 25-B of the Uniform Criminal Extradition Act, which specifically address the problem of regaining custody, Wyoming's scheme of extradition permits the state to regain custody absent a specific waiver of jurisdiction. Engberg v. State, 874 P.2d 890, 1994 Wyo. LEXIS 60 (Wyo. 1994).

Cited in

Turner v. State, 2015 WY 29, 2015 Wyo. LEXIS 33 (Feb. 25, 2015).

Article 3. Interstate Compact for Arrest of Fugitives and Attendance ofWitnesses

§ 7-3-301. [Repealed.]

Repealed by Laws 2007, ch. 89, § 1.

Editor's notes. —

This section, which derived from Laws 1937, ch. 32, § 1, Part I, pertained to the right to enter other states to arrest persons who have committed felonies or escaped custody.

§ 7-3-302. [Repealed.]

Repealed by Laws 2007, ch. 89, § 1.

Cross references. —

As to reciprocity between states for attendance of witnesses for other reasons, see §§ 7-11-404 through 7-11-406 .

Editor's notes. —

This section, which derived from Laws 1937, ch. 32, § 1, Part II, related to the attendance of witnesses.

Laws 2007, ch. 89, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 22, 2007.

Cited in

Grable v. State, 649 P.2d 663, 1982 Wyo. LEXIS 371 (Wyo. 1982).

§ 7-3-303. [Repealed.]

Repealed by Laws 2007, ch. 89, § 1.

Editor's notes. —

This section, which derived from Laws 1937, ch. 32, § 1, Part IV, related to the force and effect; appointment of administrators.

Laws 2007, ch. 89, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 22, 2007.

Article 4. Western Interstate Corrections Compact

§ 7-3-401. Western Interstate Corrections Compact.

The Western Interstate Corrections Compact as contained herein is hereby enacted into law and entered into on behalf of this state with any and all other states legally joining therein in a form substantially as follows:

History. Laws 1959, ch. 147, § 1; W.S. 1957, § 7-57.1; Laws 1987, ch. 157, § 3; 2010, ch. 69, § 301.

WESTERN INTERSTATE CORRECTIONS COMPACT

Article I Purpose and Policy

The party states, desiring by common action to improve their institutional facilities and provide programs of sufficiently high quality for the confinement, treatment and rehabilitation of various types of offenders, declare that it is the policy of each of the party states to provide such facilities and programs on a basis of cooperation with one another, thereby serving the best interest of such offenders and of society. The purpose of this compact is to provide for the development and execution of such programs of cooperation for the confinement, treatment and rehabilitation of offenders.

Article II Definitions

  1. As used in this compact, unless the context clearly requires otherwise:
    1. “State” means a state of the United States, or, subject to the limitation contained in article VII, Guam;
    2. “Sending state” means a state party to this compact in which conviction was had;
    3. “Receiving state” means a state party to this compact to which an inmate is sent for confinement other than a state in which conviction was had;
    4. “Inmate” means a male or female offender who is under sentence to or confined in a prison or other correctional institution;
    5. “Institution” means any prison, reformatory or other correctional facility (including but not limited to a facility for the mentally ill or mentally defective) in which inmates may lawfully be confined;
    6. “This compact” means W.S. 7-3-401 .

Article III Contracts

  1. Each party state may make one (1) or more contracts with any one (1) or more of the other party states for the confinement of inmates on behalf of a sending state in institutions situated within receiving states. Any such contract shall provide for:
    1. Its duration;
    2. Payments to be made to the receiving state by the sending state for inmate maintenance, extraordinary medical and dental expenses, and any participation in or receipt by inmates of rehabilitative or correctional services, facilities, programs or treatment not reasonably included as part of normal maintenance;
    3. Participation in programs of inmate employment, if any; the disposition or crediting of any payments received by inmates on account thereof, and the crediting of proceeds from or disposal of any products resulting therefrom;
    4. Delivery and retaking of inmates;
    5. Such other matters as may be necessary and appropriate to fix the obligations, responsibilities and rights of the sending and receiving states.
  2. Prior to the construction or completion of construction of any institution or addition thereto by a party state, any other party state or states may contract therewith for the enlargement of the planned capacity of the institution or addition thereto, or for the inclusion therein of particular equipment or structures, and for the reservation of a specific percentum of the capacity of the institution to be kept available for use by inmates of the sending state or states so contracting. Any sending state so contracting may, to the extent that monies are legally available therefor, pay to the receiving state, a reasonable sum as consideration for such enlargement of capacity, or provision of equipment or structures, and reservation of capacity. Such payment may be in a lump sum or in installments as provided in the contract.
  3. The terms and provisions of this compact shall be a part of any contract entered into by the authority of or pursuant thereto, and nothing in any such contract shall be inconsistent therewith.

Article IV Procedures and Rights

  1. Whenever the duly constituted judicial or administrative authorities in a state party to this compact, and which has entered into a contract pursuant to article III, shall decide that confinement in, or transfer of an inmate to, an institution within the territory of another party state is necessary in order to provide adequate quarters and care or desirable in order to provide an appropriate program of rehabilitation or treatment, said officials may direct that the confinement be within an institution within the territory of said other party state, the receiving state to act in that regard solely as agent for the sending state.
  2. The appropriate officials of any state party to this compact shall have access, at all reasonable times, to any institution in which it has a contractual right to confine inmates for the purpose of inspecting the facilities thereof and visiting such of its inmates as may be confined in the institution.
  3. Inmates confined in an institution pursuant to the terms of this compact shall at all times be subject to the jurisdiction of the sending state and may at any time be removed therefrom for transfer to a prison or other institution within the sending state, for transfer to another institution in which the sending state may have a contractual or other right to confine inmates, for release on probation or parole, for discharge, or for any other purpose permitted by the laws of the sending state; provided that the sending state shall continue to be obligated to such payments as may be required pursuant to the terms of any contract entered into under the terms of article III.
  4. Each receiving state shall provide regular reports to each sending state on the inmates of that sending state in institutions pursuant to this compact including a conduct record of each inmate and certify said record to the official designated by the sending state, in order that each inmate may have the benefit of his or her record in determining and altering the disposition of said inmate in accordance with the law which may obtain in the sending state and in order that the same may be a source of information for the sending state.
  5. All inmates who may be confined in an institution pursuant to the provisions of this compact shall be treated in a reasonable and humane manner and shall be cared for and treated equally with such similar inmates of the receiving state as may be confined in the same institution. The fact of confinement in a receiving state shall not deprive any inmate so confined of any legal rights which said inmate would have had if confined in an appropriate institution of the sending state.
  6. Any hearing or hearings to which an inmate confined pursuant to this compact may be entitled by the laws of the sending state may be had before the appropriate authorities of the sending state, or of the receiving state if authorized by the sending state. The receiving state shall provide adequate facilities for such hearings as may be conducted by the appropriate officials of a sending state. In the event such hearing or hearings are had before officials of the receiving state, the governing law shall be that of the sending state and a record of the hearing or hearings as prescribed by the sending state shall be made. Said record together with any recommendations of the hearing officials shall be transmitted forthwith to the official or officials before whom the hearing would have been had if it had taken place in the sending state. In any and all proceedings had pursuant to the provisions of this subdivision, the officials of the receiving state shall act solely as agents of the sending state and no final determination shall be made in any matter except by the appropriate officials of the sending state. Costs of records made pursuant to this subdivision shall be borne by the sending state.
  7. Any inmate confined pursuant to this compact shall be released within the territory of the sending state unless the inmate, and the sending and receiving states, shall agree upon release in some other place. The sending state shall bear the cost of such return to its territory.
  8. Any inmate confined pursuant to the terms of this compact shall have any and all rights to participate in and derive any benefits or incur or be relieved of any obligations or have such obligations modified or his status changed on account of any action or proceeding in which he could have participated if confined in any appropriate institution of the sending state located within such state.
  9. The parent, guardian, trustee, or other person or persons entitled under the laws of the sending state to act for, advise, or otherwise function with respect to any inmate shall not be deprived of or restricted in his exercise of any power in respect of any inmate confined pursuant to the terms of this compact.

Article V Acts Not Reviewable in Receiving State; Extradition

  1. Any decision of the sending state in respect of any matter over which it retains jurisdiction pursuant to this compact shall be conclusive upon and not reviewable within the receiving state, but if at the time the sending state seeks to remove an inmate from an institution in the receiving state there is pending against the inmate within such state any criminal charge or if the inmate is suspected of having committed within such state a criminal offense, the inmate shall not be returned without the consent of the receiving state until discharged from prosecution or other form of proceeding, imprisonment or detention for such offense. The duly accredited officers of the sending state shall be permitted to transport inmates pursuant to this compact through any and all states party to this compact without interference.
  2. An inmate who escapes from an institution in which he is confined pursuant to this compact shall be deemed a fugitive from the sending state and from the state in which the institution is situated. In the case of an escape to a jurisdiction other than the sending or receiving state, the responsibility for institution of extradition proceedings shall be that of the sending state, but nothing contained herein shall be construed to prevent or affect the activities of officers and agencies of any jurisdiction directed toward the apprehension and return of an escapee.

Article VI Federal Aid

Any state party to this compact may accept federal aid for use in connection with any institution or program, the use of which is or may be affected by this compact or any contract pursuant hereto and any inmate in a receiving state pursuant to this compact may participate in any such federally aided program or activity for which the sending and receiving states have made contractual provision provided that if such program or activity is not part of the customary correctional regimen the express consent of the appropriate official of the sending state shall be required therefor.

Article VII Entry Into Force

This compact shall enter into force and become effective and binding upon the states so acting when it has been enacted into law by any two (2) contiguous states from among the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nebraska, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming. For the purposes of this article, Alaska and Hawaii shall be deemed contiguous to each other; to any and all of the states of California, Oregon and Washington; and to Guam. Thereafter, this compact shall enter into force and become effective and binding as to any other of said states, or any other state contiguous to at least one (1) party state upon similar action by such state. Guam may become party to this compact by taking action similar to that provided for joinder by any other eligible party state and upon the consent of congress to such joinder. For the purposes of this article, Guam shall be deemed contiguous to Alaska, Hawaii, California, Oregon and Washington.

Article VIII Withdrawal and Termination

This compact shall continue in force and remain binding upon a party state until it shall have enacted a statute repealing the same and providing for the sending of formal written notice of withdrawal from the compact to the appropriate officials of all other party states. An actual withdrawal shall not take effect until two (2) years after the notices provided in said statute have been sent. Such withdrawal shall not relieve the withdrawing state from its obligations assumed hereunder prior to the effective date of withdrawal. Before the effective date of withdrawal, a withdrawing state shall remove to its territory, at its own expense, such inmates as it may have confined pursuant to the provisions of this compact.

Article IX Other Arrangements Unaffected

Nothing contained in this compact shall be construed to abrogate or impair any agreement or other arrangement which a party state may have with a nonparty state for the confinement, rehabilitation or treatment of inmates nor to repeal any other laws of a party state authorizing the making of cooperative institutional arrangements.

Article X Construction and Severability

The provisions of this compact shall be liberally construed and shall be severable. If any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Cross references. —

As to state penitentiary, see chapter 2 of title 25.

The 2010 amendment, effective July 1, 2010, added (a)(vi) under Article II.

Editor's notes. —

There is no subsection (b) in article II, and no subsection (i) in article IV in this section as it appears in the printed acts.

Laws 1959, ch. 147, carried no provision as to its effective date, but was enacted at the session which adjourned on February 21, 1959. See § 8-1-108 .

Not a basis for personal jurisdiction.

Provisions of the Western Interstate Corrections Compact (WICC), Wyo. Stat. Ann. § 7-3-401 , did not establish minimum contacts by Minnesota Defendants with the state of Wyoming in order to subject the personal jurisdiction of a Wyoming court. The WICC did not, by its terms, give personal jurisdiction to a transferring state over a receiving state's correctional officers, nor did it evidence contacts by any of the Minnesota defendants with the state of Wyoming, and the fact that the Minnesota defendants may have acted as agents of the state of Minnesota pursuant to the WICC was also not sufficient, on its own, to give the Wyoming district court power to exercise personal jurisdiction. Weldon v. Ramstad-Hvass, 512 Fed. Appx. 783, 2013 U.S. App. LEXIS 4546 (10th Cir. Wyo. 2013).

Am. Jur. 2d, ALR and C.J.S. references. —

Application of doctrine of specialty to federal criminal prosecution of accused extradited from foreign country, 112 ALR Fed 473.

§ 7-3-402. Authority to commit or transfer inmates.

Any court or other agency or officer of this state having power to commit or transfer an inmate (as defined in article II (a)(iv) of the Western Interstate Corrections Compact [§ 7-3-401 ]) to any institution for confinement may commit or transfer such inmate to any institution within or without this state if this state has entered into a contract or contracts for the confinement of inmates in said institution pursuant to article III of the Western Interstate Corrections Compact.

History. Laws 1959, ch. 147, § 1; W.S. 1957, § 7-57.1; Laws 1987, ch. 157, § 3.

§ 7-3-403. Enforcement of compact.

The courts, departments, agencies and officers of this state and its subdivisions shall enforce this compact and shall do all things appropriate to the effectuation of its purposes and intent which may be within their respective jurisdictions including but not limited to the making and submission of such reports as are required by the compact.

History. Laws 1959, ch. 147, § 3; W.S. 1957, § 7-57.3; Laws 1987, ch 157, § 3.

Meaning of “this compact.” —

The term “this compact,” referred to in this section, apparently means the Western Interstate Corrections Compact, which appears as § 7-3-401 .

§ 7-3-404. Hearings.

The governor is hereby authorized and directed to hold such hearings as may be requested by any other party state pursuant to article IV (f) of the Western Interstate Corrections Compact [§ 7-3-401 ].

History. Laws 1959, ch. 147, § 4; W.S. 1957, § 7-57.4; Laws 1987, ch. 157, § 3.

§ 7-3-405. Authority to enter into contracts; force and effect.

The governor is hereby empowered to enter into such contracts on behalf of this state as may be appropriate to implement the participation of this state in the Western Interstate Corrections Compact [§ 7-3-401 ] pursuant to article III thereof. No such contract shall be of any force or effect until approved by the attorney general of the state.

History. Laws 1959, ch. 147, § 5; W.S. 1957, § 7-57.5; Laws 1987, ch. 157, § 3.

§ 7-3-406. Construction and severability of provisions.

The provisions of this act, W.S. 7-3-401 through 7-3-406 , shall be severable and if any phrase, clause, sentence, or provision of this act is declared to be unconstitutional or the applicability thereof to any state, agency, person or circumstance is held invalid, the constitutionality of this act and the applicability thereof to any other state, agency, person or circumstance shall, with respect to all severable matters, not be affected thereby. It is the legislative intent that the provisions of this act be reasonably and liberally construed.

History. Laws 1959, ch. 147, § 6; W.S. 1957, § 7-57.6; Laws 1987, ch. 157, § 3.

Article 5. Prevention of Crime

Law reviews. —

For comment, “Utilizing the Tools: Successfully Implementing the Stalking Statutes,” see XXXV Land & Water L. Rev. 521 (2000).

Am. Jur. 2d, ALR and C.J.S. references. —

8 Am. Jur. 2d Bail and Recognizance § 1 et seq.; 12 Am. Jur. 2d Breach of Peace and Disorderly Conduct §§ 39 to 44.

24 C.J.S. Criminal Law §§ 1724 to 1737.

§ 7-3-501. Filing of complaint; issuance of warrant or summons.

  1. As used in W.S. 7-3-501 through 7-3-505 “judge” means a circuit court judge.
  2. When complaint is made by the district attorney or by any private person to any circuit court judge that a person has threatened or is about to commit a breach of the peace or an offense against the person or property of another, the judge shall:
    1. Examine under oath the complainant and any witnesses who may be produced;
    2. Reduce the complaint and a concise statement of the testimony of the witnesses to writing; and
    3. Cause the complaint to be subscribed and sworn to.
  3. If it appears there is probable cause to believe the offense will be committed, the judge shall issue a warrant for the arrest of the person complained against or issue a summons for him to appear and answer the complaint.

History. C.L. 1876, ch. 14, § 1; R.S. 1887, § 3156; R.S. 1899, § 5430; C.S. 1910, § 6301; C.S. 1920, § 7597; R.S. 1931, § 33-1401; C.S. 1945, § 10-101; W.S. 1957, § 7-58; Laws 1987, ch. 157, § 3; 2000, ch. 24, § 4; 2004, ch. 42, § 1.

Cross references. —

As to issuance of warrants by circuit courts and magistrates, see §§ 5-9-133 and 5-9-208 , respectively.

The 2004 amendment, in (a), deleted “or a justice of the peace” at the end; and in (b) deleted “justice of the peace or” following “any private person to any.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

§ 7-3-502. Examination of party complained against; recognizance to keep peace.

When the party complained against appears before the judge the testimony produced on both sides shall be heard if the allegations of the complaint are controverted. If, upon examination, it appears to the judge that there is no probable cause to believe that the offense will be committed, the person complained against shall be discharged. If, however, the judge finds that there is probable cause to believe that the offense will be committed, he shall order the person complained against to give a recognizance, with good and sufficient surety in the form of cash, bond or other property, in any sum the judge directs. The recognizance shall be conditioned that the person complained against shall keep the peace toward all people of this state, and especially towards the person against whom or whose property there is reason to believe the offense will be committed, for a period of time determined by the judge not exceeding twelve (12) months.

History. C.L. 1876, ch. 14, § 2; R.S. 1887, § 3157; R.S. 1899, § 5431; C.S. 1910, § 6302; C.S. 1920, § 7598; R.S. 1931, § 33-1402; C.S. 1945, § 10-102; W.S. 1957, § 7-59; Laws 1987, ch. 157, § 3.

§ 7-3-503. Compliance with recognizance order; failure to give recognizance.

  1. If a person ordered to give recognizance complies with the order he shall be discharged and the recognizance returned to him.
  2. If a person ordered to give recognizance and surety refuses or neglects to do so, the judge may order the person to show cause why he should not be committed to jail. If the judge finds that the person’s default is willful or is due to his failure to make a good faith effort to obtain the surety required, the judge may order him committed to jail until the surety, or a specified part thereof is given, provided that such commitment shall not exceed six (6) months.

History. C.L. 1876, ch. 14, § 3; R.S. 1887, § 3158; R.S. 1899, § 5432; C.S. 1910, § 6303; C.S. 1920, § 7599; R.S. 1931, § 33-1403; C.S. 1945, § 10-103; W.S. 1957, § 7-60; Laws 1987, ch. 157, § 3.

§ 7-3-504. Judgment against complainant; defects in complaint.

  1. If the person complained against is discharged after hearing because no probable cause is found and if the judge finds that the complaint was commenced maliciously and without reasonable cause on the part of the complainant, the judge may enter judgment against the complainant for the costs of the proceedings and the reasonable attorney’s fees of the person complained against. If the person complained against is required to give recognizance the judge may assess the costs of the proceedings against him.
  2. A proceeding to prevent an offense under this article shall not be dismissed because of any informality or insufficiency of the complaint or other document in the proceeding. The complaint may be amended by the judge to conform to the evidence in the case.

History. C.L. 1876, ch. 14, § 4; R.S. 1887, § 3159; R.S. 1899, § 5433; C.S. 1910, § 6304; C.S. 1920, § 7600; R.S. 1931, § 33-1404; C.S. 1945, § 10-104; W.S. 1957, § 7-61; Laws 1987, ch. 157, § 3; 2010, ch. 69, § 301; ch 82, § 1.

The 2010 amendment, in (b), substituted “under this article” for “under this section.”

Laws 2010, ch. 82, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2010.

Conflicting legislation. —

Laws 2010, ch. 82, § 5, provides: “Except as provided in section 4 of this act, any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Cited in

Dave v. Valdez, 2012 WY 59, 275 P.3d 485, 2012 Wyo. LEXIS 62 (Apr. 13, 2012).

§ 7-3-505. Filing of recognizance; forfeiture.

A recognizance taken in accordance with W.S. 7-3-501 through 7-3-505 shall be filed by the clerk of the court in the court records. Upon a breach of the condition of the recognizance, the court shall declare a forfeiture of the security in the manner provided for the forfeiture of bail in criminal cases, except for good cause shown.

History. C.L. 1876, ch. 14, § 6; R.S. 1887, § 3161; R.S. 1899, § 5435; C.S. 1910, § 6306; C.S. 1920, § 7602; R.S. 1931, § 33-1406; C.S. 1945, § 10-106; W.S. 1957, § 7-63; W.S. 1977, § 7-3-506 ; Laws 1987, ch. 157, § 1.

Cross references. —

As to forfeiture of bail, see Rule 3.1(d), W.R. Cr. P.

§ 7-3-506. Definitions.

  1. As used in W.S. 7-3-506 through 7-3-512 :
    1. “Court” means the circuit court in the county where an alleged victim of stalking or sexual assault resides, or where the alleged perpetrator of the stalking or sexual assault is found;
    2. “Order of protection” means a court order granted for the protection of a victim of stalking or a victim of sexual assault;
    3. “Sexual assault” means any act made criminal pursuant to W.S. 6-2-302 and 6-2-303 and 6-2-314 through 6-2-318 or an attempt or conspiracy to commit such act;
    4. “Stalking” means conduct as defined by W.S. 6-2-506(b).

History. Laws 1993, ch. 92, § 1; 2000, ch. 24, § 4; 2004, ch. 42, § 1; 2015, ch. 144, § 2.

The 2004 amendment, in (a)(i), deleted “justice of the peace court” following “means the.”

The 2015 amendment, effective July 1, 2015, in the introductory language of (a), substituted “through 7-3-512 ” for “through 7-3-511 ”; in (a)(i), deleted “or the district court” following “circuit court,” and inserted “or sexual assault” twice; in (a)(ii), inserted “or a victim of sexual assault”; inserted present (a)(iii); and redesignated former (a)(iii) as (a)(iv).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Statutes constitutional. —

The validity of this section through § 7-3-511 depends upon the constitutionality of the criminal stalking statute adopted by reference in subsection (a)(iii) and the criminal stalking statute has been held to be constitutional; therefore these statutes are constitutional. Luplow v. State, 897 P.2d 463, 1995 Wyo. LEXIS 101 (Wyo. 1995).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 7-3-507. Petition for order of protection; contents; requisites; indigent petitioners.

  1. A petition for an order of protection  for a victim may be filed by:
    1. The victim;
    2. If the victim consents, the district attorney on behalf of the victim; or
    3. Any person with legal authority to act on behalf of the victim if the victim is:
      1. A minor;
      2. A vulnerable adult as defined in W.S. 35-20-102(a)(xviii);
      3. Any other adult who, because of age, disability, health or inaccessibility, cannot file the petition.
  2. The petition shall be accompanied or supplemented by one (1) or more sworn affidavits setting out specific facts showing the alleged stalking or sexual assault and the identity of the alleged perpetrator.
  3. No filing fee shall be charged for the filing of a petition under this section nor shall a fee be charged for service of process.
  4. The attorney general shall promulgate a standard petition form which may be used by petitioners. The clerk of the circuit or district court shall make standard petition forms available to petitioners, with instructions for completion, without charge. If the petition is not filed by the district attorney, the court may appoint an attorney to represent an indigent petitioner. Nothing in this subsection shall prevent the victim from hiring an attorney or filing a petition pro se.
  5. A petition may be filed under this section whether or not the individual who is alleged to have engaged in a course of conduct prohibited under W.S. 6-2-506 or engaged in the conduct specified in W.S. 7-3-506(a)(iii) has been charged or convicted for the alleged crime.

History. Laws 1993, ch. 92, § 1; 2004, ch. 42, § 1; 2015, ch. 144, § 2; 2018, ch. 97, § 1.

The 2004 amendment, in (d), substituted “The clerk of the circuit” for “The justice of the peace or the clerk of the county.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

The 2015 amendment, effective July 1, 2015, rewrote (a), which formerly read: “A victim of stalking, or the district attorney on behalf of the alleged victim, may file with the court a petition for an order of protection”; in (b), inserted “or sexual assault,” and substituted “perpetrator” for “stalker”; in (c), inserted “or engaged in the conduct specified in W.S. 7-3-506(a)(iii),” and substituted “convicted” for “convicted under W.S. 6-2-506 .”

The 2018 amendment, effective July 1, 2018, in the introductory language of (a), deleted the former first sentence, which read: “A petition for an order of protection may be filed by a victim of stalking, or the district attorney on behalf of the alleged victim,” and deleted “sexual assault” preceding “may be filed by.”

Editor’s notes. —

Laws 2018, ch. 97, § 3, provides: “This act shall apply to crimes committed and orders of protection issued on or after the effective date of this act.”

§ 7-3-508. Temporary order of protection; setting hearing.

  1. Upon the filing of a petition for an order of protection, the court shall schedule a hearing on the petition to be conducted within seventy-two (72) hours after the filing of the petition, and shall cause each party to be served, either within or outside of this state, with an order to appear, a copy of the petition and a copy of the supporting affidavits. Service shall be made upon each party at least twenty-four (24) hours before the hearing. The failure to hold or complete the hearing within seventy-two (72) hours shall not affect the validity of the hearing or any order issued thereon.
  2. If the court determines from the specific facts shown by the petition and supporting affidavits that there exists a clear and present danger of further stalking, sexual assault or of serious physical adverse consequences to any person, the court may grant ex parte a temporary order of protection pending the hearing, and shall cause a copy of the temporary order of protection to be served on each party, either within or outside of this state. The court may prescribe terms in the temporary order of protection which it deems sufficient to protect the victim and any other person pending the hearing, including but not limited to the elements described in W.S. 7-3-509(a).
  3. A temporary order of protection issued under paragraph (b) of this section shall contain a notice that willful violation of any provision of the order constitutes a crime as defined by W.S. 7-3-510(c) and can result in immediate arrest. The order shall also state that a violation that constitutes the offense of stalking as defined by W.S. 6-2-506(b) may subject the perpetrator to enhanced penalties for felony stalking under W.S. 6-2-506(e).
  4. An ex parte temporary order of protection issued under this section shall not be admissible as evidence in any subsequent criminal proceeding or civil action for damages arising from the conduct alleged in the petition or the order.
  5. No testimony or evidence of the alleged actor in a hearing pursuant to subsection (a) of this section shall be admissible, including for impeachment purposes, or be deemed a waiver of any protection against self-incrimination under the constitution of the United States or of the state of Wyoming unless, prior to the hearing, an information or indictment has been filed in a district court charging the alleged actor of a violation of sexual assault as defined by W.S. 7-3-506(a)(iii).

History. Laws 1993, ch. 92, § 1; 2011, ch. 108, § 1; 2015, ch. 144, § 2; 2018, ch. 97, § 1.

The 2011 amendment, effective July 1, 2011, in (a) and (b), added “either within or outside of this state.”

The 2015 amendment, effective July 1, 2015, in (b), substituted “sexual assault or of serious physical adverse consequences” for “or of serious adverse consequences” in the first sentence; in (c), divided the existing sentence into two sentences, and added “Orders involving stalking shall also state that a violation” at the beginning of the second sentence; added (d) and (e); and made related changes.

The 2018 amendment, effective July 1, 2018, in the second sentence of (c), substituted “The order shall” for “Orders involving stalking shall” and “that constitutes the offense of stalking as defined by W.S. 6-2-506(b) may” for “may in some cases” following “a violation.”

Editor’s notes. —

Laws 2018, ch. 97, § 3, provides: “This act shall apply to crimes committed and orders of protection issued on or after the effective date of this act.”

Applied in

Dean v. State, 2014 WY 158, 2014 Wyo. LEXIS 180 (Dec. 9, 2014).

§ 7-3-509. Order of protection; contents; remedies; order not to affect title to property.

  1. Following a hearing under W.S. 7-3-508(a) and upon a finding that conduct constituting stalking or sexual assault has been committed, the court shall enter an order of protection ordering the respondent to refrain from any further acts of stalking or sexual assault involving the victim or any other person. As a part of any order of protection, the court may direct that the respondent:
    1. Stay away from the home, school, business or place of employment of the victim or any other locations the court may describe in the order; and
    2. Refrain from contacting, intimidating, threatening or otherwise interfering with the victim of the alleged offense and any other persons, including but not limited to members of the family or household of the victim, as the court may describe in the order. Prohibited contact under this paragraph includes telephone calls, mail, e-mail, texting, fax, contacting through social media using the internet or similar technology and any other form of communication.
  2. The order shall contain a notice that willful violation of any provision of the order constitutes a crime as defined by W.S. 7-3-510(c) and can result in immediate arrest. The order shall also state that a violation that constitutes the offense of stalking as defined by W.S. 6-2-506(b) may subject the perpetrator to enhanced penalties for felony stalking under W.S. 6-2-506(e).
  3. A request by the victim for the perpetrator to violate an order of protection issued under this section or a temporary order of protection issued under W.S. 7-3-508 shall constitute an affirmative defense to a charge of violation of the order by the perpetrator.

History. Laws 1993, ch. 92, § 1; 2015, ch. 144, § 2; 2018, ch. 97, § 1.

The 2015 amendment, effective July 1, 2015, in the introductory language of (a), inserted “or sexual assault” twice; in (a)(ii), added the last sentence; in (b), divided the existing sentence into two sentences, and added “Orders involving stalking shall also state that a violation” at the beginning of the second sentence; added (c); and made related changes.

The 2018 amendment, effective July 1, 2018, in the second sentence (b), substituted “The order shall” for “Orders involving stalking shall” and "“that constitutes the offense of stalking as defined by W.S. 6-2-506(b) may” for “may in some cases” following “a violation.”

Editor's notes. —

Laws 2018, ch. 97, § 3, provides: “This act shall apply to crimes committed and orders of protection issued on or after the effective date of this act.”

Applied in

Dean v. State, 2014 WY 158, 2014 Wyo. LEXIS 180 (Dec. 9, 2014).

§ 7-3-510. Service of order; duration and extension of order; violation; remedies not exclusive.

  1. An order of protection granted under W.S. 7-3-509 shall be served upon the respondent pursuant to the Wyoming Rules of Civil Procedure. A copy of the order of protection shall be filed with the sheriff of the county.
  2. Except as otherwise provided by this subsection, an order of protection granted by the court under W.S. 7-3-509 shall be effective for a fixed period of time not to exceed three (3) years. Either party may move to modify, terminate or extend the order. The order may be extended repetitively upon a showing of good cause for additional periods of time, not to exceed three (3) years each, if the court finds from specific facts that a clear and present danger to the victim continues to exist. If a party subject to an order of protection is sentenced and incarcerated or becomes imprisoned, the running of the time remaining for the order of protection shall be tolled during the term of incarceration or imprisonment. The conditions and provisions of an order of protection shall remain in effect during any period of tolling under this subsection. Upon release from incarceration or imprisonment the effective period of the order of protection shall be the amount of time remaining as of the first day of the term of incarceration or imprisonment or one (1) year from the date of release, whichever is greater.
  3. Willful violation of a temporary order of protection issued under W.S. 7-3-508 or of an order of protection issued under W.S. 7-3-509 is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. A temporary order of protection issued under W.S. 7-3-508 and an order of protection issued under W.S. 7-3-509 shall have statewide applicability and a criminal prosecution under this subsection may be commenced in any county in which the respondent commits an act in violation of the order.
  4. The remedies provided by W.S. 7-3-506 through 7-3-512 are in addition to any other civil or criminal remedy available under the law.

History. Laws 1993, ch. 92, § 1; 2006, ch. 78, § 1; 2015, ch. 144, § 2; 2018, ch. 97, §§ 1, 2; 2019, ch. 151, § 1.

The 2006 amendment, effective July 1, 2006, in (b), substituted “one (1) year” for “three (3) months,” in two places, and inserted the second sentence.

The 2015 amendment, effective July 1, 2015, rewrote (b), which formerly read: “An order of protection granted by the court under W.S. 7-3-509 shall be effective for a fixed period of time not to exceed one (1) year. Either party may move to modify, terminate or extend the order. The order may be extended repetitively upon a showing of good cause for additional periods of time not to exceed one (1) year each”; and in (c), substituted “through 7-3-512 ” for “through 7-3-511 .”

The 2018 amendments. — The first 2018 amendment, by ch. 97, § 1, effective July 1, 2018, in the introductory language of (b), substituted “not to exceed three (3) years” for “as provided in paragraphs (i) and (ii) of this subsection” at the end of the first sentence, and deleted the language at the end, which read: “The period of time for an original order of protection shall be as follows.”

The second 2018 amendment, by ch. 97, § 2, effective July 1, 2018, repealed former (b)(i) which read: "For conduct constituting stalking, the order of protection shall not exceed one (1) year"; and repealed former (b)(ii) which read: "For conduct constituting sexual assault the order of protection shall not exceed the longer of: (A) Six (6) months; or (B) The point in time the respondent is charged with sexual assault or a related criminal offense and the court ordered bond conditions for pre-trial release are at least as restrictive as the original order of protection."

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

The 2019 amendment, effective July 1, 2019, in (b), substituted "Except as otherwise provided by this subsection, an order" for "An order," and "three (3) years" for "one (1) year," and added the fourth, fifth, and sixth sentences.

Editor’s notes. —

Laws 2018, ch. 97, § 3, provides: “This act shall apply to crimes committed and orders of protection issued on or after the effective date of this act.”

Applicability

Laws 2019, ch. 151 § 2, provides: "This act applies to orders of protection granted, modified or extended on or after July 1, 2019."

§ 7-3-511. Emergency assistance by law enforcement officers; limited liability.

  1. A person who allegedly has been a victim of stalking or sexual assault may request the assistance of a law enforcement agency, which shall respond to the request in a manner appropriate to the circumstances.
  2. A law enforcement officer or agency responding to the request for assistance may take whatever steps are reasonably necessary to protect the victim, including:
    1. Advising the victim of the remedies available under W.S. 7-3-506 through 7-3-512 and the availability of shelter, medical care, counseling, safety planning, victim’s rights counseling and other services;
    2. Advising the victim, when appropriate, of the procedure for initiating proceedings under W.S. 7-3-506 through 7-3-512 or criminal proceedings and the importance of preserving evidence; and
    3. Providing or arranging for transportation of the victim to a medical facility or place of shelter.
  3. Any law enforcement agency or officer responding to a request for assistance under W.S. 7-3-506 through 7-3-512 is immune from civil liability when complying with the request, provided that the agency or officer acts in good faith and in a reasonable manner.

History. Laws 1993, ch. 92, § 1; 2015, ch. 144, § 2.

The 2015 amendment, effective July 1, 2015, substituted “through 7-3-512 ” for “through 7-3-511 ” in (b)(i), (b)(ii), and (c); in (a), inserted “or sexual assault”; and in (b)(i), inserted “safety planning, victim's rights counseling,” and made a related change.

§ 7-3-512. Confidentiality in court proceedings.

The court shall enter an order providing for the confidentiality of the name, address, city and state of residence or any other information identifying residence of all parties involved in the sexual assault for all orders issued under W.S. 7-3-508 and 7-3-509 .

History. Laws 2015, ch. 144, § 1.

Effective date. — Laws 2015, ch. 144, § 1 makes the act effective July 1, 2015.

Article 6. Communication Interception

§§ 7-3-601 through 7-3-611. [Repealed.]

Repealed by Laws 2001, ch. 140, § 2.

Cross references. —

For present similar provisions, see article 7 of this chapter.

Editor's notes. —

These sections, which derived from Laws 1985, ch. 121, § 1, related to the interception or disclosure of wire, oral and electronic communications.

Article 7. Communication Interception

Am. Jur. 2d, ALR and C.J.S. references. —

Permissible surveillance, under state communications interception statute, by person other than state or local law enforcement officer or one acting in concert with officer, 24 ALR4th 1208.

Permissible warrantless surveillance, under state communications interception statute, by state or local law enforcement officer or one acting in concert with officer, 27 ALR4th 449.

Construction and application of state statutes authorizing civil cause of action by person whose wire or oral communication is intercepted, disclosed, or used in violation of statutes, 33 ALR4th 506.

Right of immune jury witness to obtain access to government affidavits and other supporting materials in order to challenge legality of court-ordered wiretap or electronic surveillance which provided basis for questions asked in grand jury proceedings, 60 ALR Fed 706.

Delay in sealing or failure to seal tape or wire recording as required by 18 USC § 2518(8)(a) as ground for suppression of such recording at trial, 62 ALR Fed 636.

Interception of telecommunication by or with consent of party as exception, under 18 USC § 2511(2)(c) and (d), to federal proscription of such interception, 67 ALR Fed 429.

When do facts shown as probable cause for wiretap authorization under 18 USC § 2518(3) become “stale,” 68 ALR Fed 953.

What claims are sufficient to require government, pursuant to 18 USC § 3504, to affirm or deny use of unlawful electronic surveillance, 70 ALR Fed 67.

Applicability, in civil action, of provisions of Omnibus Crime Control and Safe Streets Act of 1968, prohibiting interception of communications (18 USC § 2511(1)), to interceptions by spouse, or spouse's agent, of conversations of other spouse, 139 ALR Fed 517.

§ 7-3-701. Definitions.

  1. As used in this act:
    1. “Aggrieved person” means any person who was a party to any oral, wire or electronic communication intercept as defined in this act, or a person against whom the interception was directed;
    2. “Aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception;
    3. “Communication common carrier” shall have the same meaning which is given the term “common carrier” by 47 U.S.C. § 153(10);
    4. “Contents” when used with respect to any oral, wire or electronic communication includes any information concerning the meaning, substance or purport of the communication;
    5. “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce but does not include:
      1. Any wire or oral communication;
      2. Any communication made through a tone-only paging device;
      3. Any communication made through a tracking device as defined in 18 U.S.C. § 3117; or
      4. Electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.
    6. “Electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications;
    7. “Electronic communications system” means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of those communications;
    8. “Electronic, mechanical or other device” means any device or apparatus which can be used to intercept a wire, oral or electronic communication, other than:
      1. Any telephone or telegraph instrument, equipment or facility or component thereof, used in the ordinary course of business or by a peace officer in the ordinary course of his duties; or
      2. A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
    9. “Intercept” means the aural or other acquisition of the contents of any oral, wire or electronic communication by use of an electronic, mechanical or other device;
    10. “Judge of competent jurisdiction” means a judge of a district court;
    11. “Oral communication” means any oral communication uttered by a person who reasonably expects and circumstances justify the expectation that the communication is not subject to interception but does not include any electronic communication;
    12. “Peace officer” means any peace officer included in W.S. 7-2-101(a)(iv)(A), (B) or (D), other than members of a college or university police force, and includes any law enforcement officer with federal criminal enforcement jurisdiction;
    13. “Provider of wire or electronic communication service” means any person who provides a service which consists of communications by wire, radio, electronic, laser or other transmission of energy;
    14. “Readily accessible to the general public” means, with respect to a radio communication, that the communication is not:
      1. Scrambled or encrypted;
      2. Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication;
      3. Carried on a subcarrier or other signal subsidiary to a radio transmission;
      4. Transmitted over a communication system provided by a common carrier, unless the communication is a tone only paging system communication; or
      5. Transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the rules of the federal communications commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio.
    15. “User” means any person or entity who:
      1. Uses an electronic communication service; and
      2. Is duly authorized by the provider of the service to engage in the use.
    16. “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection, including the use of such connection in a switching station, between the point of origin and the point of reception, furnished or operated by any person engaged in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications, and includes any electronic storage of such communication;
    17. “This act” means W.S. 7-3-701 through 7-3-712 .

History. Laws 2001, ch. 140, § 1; 2006, ch. 114, § 1.

The 2006 amendment substituted “47 U.S.C. § 153(10)” for “47 U.S.C. § 153(h)” in (a)(iii).

Laws 2006, ch. 114, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 24, 2006.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “[A]ny other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Telephone records access not “interruption” or “interception.”—

Drug enforcement agent's acquisition of incriminatory leading information from records kept by the telephone company in its ordinary course of business was not an “interception” for purposes of former § 7-3-601 (now see this section). Wells v. State, 846 P.2d 589, 1992 Wyo. LEXIS 203 (Wyo. 1992).

Where the equipment used to track the calls to, and from, defendant's residence was equipment used by the telephone company to record connections in the interests of assessing charges in the ordinary course of its business and the information it furnished was specifically obtained for telephone company purposes, and released to the authorities only by virtue of a lawfully issued subpoena, the device was not an “electronic, mechanical or other device,” and the information obtained by virtue of this equipment was not “intercepted.” Saldana v. State, 846 P.2d 604, 1993 Wyo. LEXIS 26 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 34 (Wyo. Feb. 24, 1993).

Cited in

Sheaffer v. State Ex Rel. University of Wyoming, 2006 WY 99, 139 P.3d 468, 2006 Wyo. LEXIS 103 (2006).

§ 7-3-702. Prohibition against interception or disclosure of wire, oral or electronic communications; exceptions; penalties.

  1. Except as provided in subsection (b) of this section, no person shall intentionally:
    1. Intercept, attempt to intercept, or procure any other person to intercept or attempt to intercept any wire, oral or electronic communication;
    2. Use, attempt to use, or procure any other person to use or attempt to use any electronic, mechanical or other device to intercept any oral communication when:
      1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable or other like connection used in wire communication; or
      2. Such device transmits communications by radio or interferes with the transmission of such communication.
    3. Disclose or attempt to disclose to another person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this section;
    4. Use or attempt to use the contents of any wire, oral or electronic communication knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this section;
    5. Disclose, or attempt to disclose, to any other person the contents of any wire, oral or electronic communication, intercepted by means authorized by this act:
      1. Knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation;
      2. Having obtained or received the information in connection with a criminal investigation; and
      3. With intent to improperly obstruct, impede or interfere with a duly authorized criminal investigation.
  2. Nothing in subsection (a) of this section prohibits:
    1. An operator of a switchboard, or an officer, employee or agent of a wire or electronic communication service whose facilities are used in the transmission of a wire communication from intercepting, disclosing or using a wire or electronic communication intercepted in the normal course of that person’s employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks;
    2. An officer, employee or agent of any provider of wire or electronic communications service, landlords, custodians or other persons from providing information, facilities or technical assistance to a peace officer who is authorized pursuant to this act to intercept a wire, oral or electronic communication if any such person has been provided with a court order directing such assistance. No provider of wire or electronic communication service, officer, employee or agent thereof, or landlord, custodian or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished a court order under this act, except as may otherwise be required by legal process and then only after prior notification to the attorney general. Any such disclosure, shall render such person liable for the civil damages provided for in W.S. 7-3-710 . No criminal or civil cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees or agents, landlord, custodian or other specified person for providing information, facilities or assistance in accordance with the terms of a court order under this act;
    3. An officer, employee or agent of the federal communications commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the commission in the enforcement of 47 U.S.C. § 151 et seq., from intercepting a wire or electronic communication, or oral communication transmitted by radio, or disclosing or using the information thereby obtained;
    4. Any person from intercepting an oral, wire or electronic communication where the person is a party to the communication or where one (1) of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act;
    5. A peace officer from intercepting, using or disclosing to another peace officer in the course of his official duties any wire, oral or electronic communication pursuant to an order permitting the interception under this act;
    6. An employee of a telephone company from intercepting a wire communication for the sole purpose of tracing the origin of the communication upon request by the recipient of the communication who alleges that the communication is obscene, harassing or threatening in nature. The person conducting the interception shall notify local law enforcement authorities of the interception within forty-eight (48) hours;
    7. A person from intercepting or accessing an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;
    8. A person from intercepting any radio communication which is transmitted:
      1. By any station for the use of the general public, or that relates to ships, aircraft, vehicles or persons in distress;
      2. By any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire, readily accessible to the general public;
      3. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band or general mobile radio services; or
      4. By any marine or aeronautical communications system.
    9. A person from intercepting any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference;
    10. Other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted; or
    11. Conduct described in this paragraph unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain. Conduct that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted:
      1. To a broadcasting station for purposes of retransmission to the general public; or
      2. As an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls.
  3. It shall not be unlawful under this act:
    1. To use a pen register or a trap and trace device authorized by article 8 of this chapter; or
    2. For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service.
  4. Except as provided in subsection (e) of this section, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.
  5. A person or entity providing electronic communication service to the public may divulge the contents of any such communication:
    1. As otherwise authorized in W.S. 7-3-702(b)(i), (ii) or 7-3-706 ;
    2. With the lawful consent of the originator or any addressee or intended recipient of such communication;
    3. To a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or
    4. Which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency.
  6. Except as otherwise provided in this subsection, any person who violates this section is guilty of a felony punishable by a fine of not more than one thousand dollars ($1,000.00), imprisonment for not more than five (5) years, or both. If the intercepted communication is the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless handset and the base unit, a public land mobile radio service communication or a paging service communication, a violation of this section is a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00), imprisonment for not more than six (6) months, or both.

History. Laws 2001, ch. 140, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-701(a)(xvii).

No right of privacy in criminal activity. —

Participant monitoring without a warrant or court order pursuant to Wyoming's Communication Interception Act does not violate art. 1, § 4, Wyo. Const., because the accused assumes the risk of disclosure by engaging in criminal activity with another, forfeiting the reasonable expectation of privacy which might otherwise sustain a constitutional challenge to the evidence. Almada v. State, 994 P.2d 299, 1999 Wyo. LEXIS 192 (Wyo. 1999) (decided under prior law).

No violation for use of telephone records. —

Where drug enforcement agent acquired incriminatory leading information from records kept by the telephone company in its ordinary course of business, no “interception” occurred, and there was no consequent violation of this section. Wells v. State, 846 P.2d 589, 1992 Wyo. LEXIS 203 (Wyo. 1992) (decided under prior law).

Court order not required under (b)(iv). —

Only subsection (b)(v) refers to “an order permitting the interception under this act,” and thus no such order was required, and §§ 7-3-605 and 7-3-606 [now see §§ 7-3-705 and 7-3-707 ] were not implicated when law enforcement officers intercepted the communication the informant had with defendant during the drug transaction. Almada v. State, 994 P.2d 299, 1999 Wyo. LEXIS 192 (Wyo. 1999) (decided under prior law).

Private right of action.—

Although plaintiff invoked this section, plaintiff cited no authority for the proposition that this section gave him right to sue governmental defendants because they convinced him to erase recording that he made; as plaintiff was not being criminally prosecuted, this section did not apply. Serna v. BLM Worland Field Office, 614 Fed. Appx. 384, 2015 U.S. App. LEXIS 16398 (10th Cir. Wyo. 2015), cert. denied, 136 S. Ct. 1197, 194 L. Ed. 2d 206, 2016 U.S. LEXIS 1547 (U.S. 2016).

Cited in

Sheaffer v. State Ex Rel. University of Wyoming, 2006 WY 99, 139 P.3d 468, 2006 Wyo. LEXIS 103 (2006).

Am. Jur. 2d, ALR and C.J.S. references. —

Eavesdropping on extension telephone as invasion of privacy, 49 ALR4th 430.

Intrusion by news-gathering entity as invasion of right of privacy, 69 ALR4th 1059.

“Caller ID” system, allowing telephone call recipient to ascertain number of telephone from which call originated, as violation of right to privacy, wiretapping statute, or similar protections, 9 ALR5th 553.

Construction and application of § 2A6.1 of United States Sentencing Guidelines (U.S.S.G. § 2A6.1), pertaining to sentence to be imposed for making threatening communications, 148 ALR Fed 501.

Construction and application of provision of Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2520) authorizing civil cause of action by person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of Act, 164 ALR Fed 139.

§ 7-3-703. Prohibition against manufacture and possession of wire, oral or electronic communication intercepting devices; exceptions; penalties.

  1. Except as provided in subsection (b) of this section, no person shall intentionally manufacture, assemble, possess, sell or offer for sale any electronic, mechanical or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral or electronic communications.
  2. Nothing in subsection (a) of this section prohibits an officer, agent, employee of or person under contract with or bidding upon contract with a provider of wire or electronic communication services, the United States, a state or a political subdivision thereof, in the normal course of the activities of the United States, a state or a political subdivision thereof, to send through the mail, send or carry in interstate or foreign commerce, or manufacture, assemble, possess or sell any electronic, mechanical or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral or electronic communications.
  3. Nothing in subsection (a) of this section shall prohibit the manufacture, possession or use of an electronic or mechanical device to access a communication system that is configured so that the communication is readily accessible to the public.
  4. Any person who violates this section is guilty of a felony punishable as provided in W.S. 7-3-702(f) for felony violations.

History. Laws 2001, ch. 140, § 1.

§ 7-3-704. Seizure and forfeiture of wire or oral communication intercepting devices.

Any electronic, mechanical or other device manufactured, assembled, used, sold or possessed in violation of this act may be seized by any peace officer upon process issued by any district court or district court commissioner having jurisdiction over the property, or without process if the seizure is incident to an arrest or a search under a search warrant or if the peace officer seizing the device has probable cause to believe the property was used or is intended to be used in violation of this act. Devices subject to seizure under this act are contraband subject to forfeiture in accordance with law.

History. Laws 2001, ch. 140, § 1.

Cross references. —

As to district court commissioners, see § 5-3-301 .

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-701(a)(xvii).

§ 7-3-705. Authorization for interception of wire, oral or electronic communications.

  1. The attorney general or the district attorney within whose jurisdiction the order is sought in conjunction with the attorney general, may authorize an application to a judge of competent jurisdiction for an order authorizing the interception of wire, oral or electronic communications by the Wyoming division of criminal investigation, federal criminal law enforcement agency or any law enforcement agency of the state having responsibility for investigation of the offense for which the application is made, if the interception may provide evidence of an attempt to commit, conspiracy to commit, solicitation to commit or the commission of any of the following felony offenses or comparable crimes in any other jurisdiction:
    1. Violations of the Wyoming Controlled Substances Act of 1971;
    2. Any of the following, if incident to or discovered during investigation of a violation of the Wyoming Controlled Substances Act of 1971:
      1. Murder as defined in W.S. 6-2-101 and 6-2-104 ;
      2. Kidnapping or related felony offense as defined in W.S. 6-2-201 , 6-2-202 and 6-2-204 ;
      3. First or second degree sexual assault as defined in W.S. 6-2-302 and 6-2-303 ;
      4. Robbery as defined in W.S. 6-2-401 ;
      5. Blackmail as defined in W.S. 6-2-402 ;
      6. Burglary as defined in W.S. 6-3-301 ; or
      7. Felony theft or related felony offense defined in W.S. 6-3-402 .

History. Laws 2001, ch. 140, § 1; 2013, ch. 191, § 2; 2020, ch. 90, § 1.

Cross references. —

As to division of criminal investigation, see § 9-1-611 .

The 2013 amendment, effective July 1, 2013, in (a)(ii)(G), substituted “theft” for “larceny” and added “or 6-3-413 ” at the end.

The 2020 amendment, effective July 1, 2020, in (a)(ii)(G) substituted “W.S. 6-3-402 ” for “W.S. 6-3-401 through 6-3-410 or 6-3-413 .”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Wyoming Controlled Substances Act of 1971. —

See §§ 35-7-1001 , 35-7-1002(a)(xxviii).

§ 7-3-706. Authorization for disclosure and use of intercepted communications.

  1. Any peace officer who, by any means authorized by this act, has obtained knowledge of the contents of any wire, oral or electronic communication, or evidence derived therefrom, may disclose such contents to another peace officer to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
  2. Any peace officer who, by any means authorized by this act, has obtained knowledge of the contents of any wire, oral or electronic communication or evidence derived therefrom may use such contents to the extent the use is appropriate to the proper performance of his official duties.
  3. Any person who has received, by any means authorized by this act, any information concerning a wire, oral or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this act, may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the state or political subdivision thereof.

History. Laws 2001, ch. 140, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-701(a)(xvii).

§ 7-3-707. Procedure for interception of wire, oral or electronic communications.

  1. Each application for an order authorizing the interception of wire, oral or electronic communications shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority under W.S. 7-3-705(a) to make the application. Each application shall include the following information:
    1. The identity of the peace officer making the application and of the officer authorizing the application;
    2. A full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued, including:
      1. Specific facts concerning the particular offense that is being investigated;
      2. Except as provided in subsection (t) of this section, a particular description of the nature and location of the facilities from which, or the place where, the communication is to be intercepted;
      3. A particular description of the type of communication sought to be intercepted;
      4. The identity of the person or persons, if known, who are suspected of committing the offense and whose communications are to be intercepted.
    3. A full and complete statement as to whether or not other investigative procedures have been tried and have failed, or why they reasonably appear to be unlikely to succeed or would be too dangerous;
    4. A statement of the required duration of the interception. If the nature of the investigation will require that the interception not automatically terminate when the described type of communication has been first obtained, the application shall state a particular description of facts sufficient to establish probable cause to believe that additional communications of the same type will occur after the initial interception;
    5. A full and complete statement by the applicant concerning all previous applications known to the individual authorizing and making the application to have been made to any judge:
      1. For permission to intercept wire, oral or electronic communications involving any of the same persons, facilities or places specified in the application; and
      2. Action taken by the judge on each previous application.
    6. If the application is for extension of an order, a complete statement shall be made setting forth the results thus far obtained from the interception or a reasonable explanation of the failure to obtain any results.
  2. The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
  3. Upon an application, the judge may issue an ex parte order, as requested or modified, authorizing interception of wire, oral or electronic communications within the territorial jurisdiction of the court in which the judge is sitting, and outside that jurisdiction but within the state of Wyoming in the case of a mobile interception device authorized by a district court within such district, if the judge determines on the basis of the facts submitted by the applicant that:
    1. There is probable cause for belief that the named person is committing or has committed any of the offenses enumerated in W.S. 7-3-705 ;
    2. There is probable cause for belief that particular communications concerning those offenses will be intercepted;
    3. Normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed or would be too dangerous;
    4. Except as provided in subsection (u) of this section, there is probable cause for belief that the facilities from which, or the place where, the wire, oral or electronic communications are to be intercepted is or is about to be used in connection with any of the offenses enumerated in W.S. 7-3-705 or is leased to, listed in the name of or used by the person suspected in the commission of any enumerated offense.
  4. Each order authorizing interception of wire, oral or electronic communications shall specify:
    1. The identity of the person or persons, if known, whose communications are to be intercepted;
    2. The nature and location of the communications facilities as to which, or place where the authority to intercept is granted;
    3. A particular description of the type of communication sought to be intercepted and a statement of the particular offense or offenses to which it relates;
    4. The period of time during which an interception is authorized including a statement as to whether or not the interception shall automatically terminate when the described communication is first obtained;
    5. The identity of the agency authorized to intercept the communications and of the person authorizing the application.
  5. No order entered under this section may authorize the interception of any wire, oral or electronic communication for any period longer than is necessary to achieve the objective of the authorization, or in any event no longer than thirty (30) days unless extended under subsection (f) of this section. The thirty (30) day period provided by this subsection begins on the earlier of the day on which the peace officer first begins to conduct an interception under the order or ten (10) days after the order is entered.
  6. Extensions of an order may be granted upon an application for extension made in accordance with subsection (a) of this section and upon the findings required by subsection (c) of this section. The period of the extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in any event no longer than thirty (30) days.
  7. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, and that the execution of the permission shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this act. Every order or extension thereof shall also provide that the interception terminate upon attainment of the objective, or in any event in thirty (30) days.
  8. Whenever an order authorizing interception is entered pursuant to this act, the order may require reports to be made to the judge issuing the order, stating the progress which has been made toward achievement of the authorized objective and the need for continued interception. The reports shall be made at intervals as the judge may require.
  9. The contents of any wire, oral or electronic communication intercepted shall, if possible, be recorded on tape, electronic, wire, computer storage media or other comparable device. The recording shall be performed to protect it from editing or other alterations. Immediately upon expiration of the period of the order, or extension thereof, the recording shall be submitted to the judge issuing the order and shall be sealed under his directions. Custody of the recordings shall be wherever the judge orders. A recording shall not be destroyed except upon an order of the judge, and in any event shall be kept for ten (10) years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of this section. The presence of the seal provided for by this subsection, or a satisfactory explanation for its absence, is a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom.
  10. Applications made and orders granted under this act shall be sealed by the judge. Custody of the sealed applications and orders shall be maintained at the direction of the judge. The applications and orders shall be disclosed only upon a showing of good cause before a judge and shall not be destroyed except upon order of the judge to whom the application was presented, and in any event shall be kept for ten (10) years. Any information obtained pursuant to a court order permitting interception of wire, oral or electronic communications shall not be used, published or divulged except in accordance with the provisions of this act. Any violations of the provisions of this subsection or subsection (j) of this section may be punished as contempt of the issuing or denying judge.
  11. Within a reasonable time, but not later than ninety (90) days after the denial of an application or the termination of the period of an order authorizing interception or extension thereof, the judge shall cause to be served upon each person named in the order or application and any other person the judge determines as in the interest of justice, notice of the following:
    1. That an order or application has been entered under this section;
    2. The date of the entry and the period of permitted interception or the denial of the application; and
    3. Whether wire, oral or electronic communications were or were not intercepted.
  12. The judge, upon the filing of a motion, may, in his discretion, make available to the person or his counsel for inspection any portion of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the service of the matter required by subsection (m) of this section may be postponed.
  13. The contents of any wire, oral or electronic communication intercepted pursuant to this section or evidence derived from that communication shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding unless the party offering the evidence, not less than twenty (20) days before the trial, hearing or proceeding, gives notice to the court or hearing officer and all other parties. The court may then order disclosure of the court order and accompanying application. If the order of interception and accompanying application has previously been disclosed, the offering party may furnish all other parties with the order of interception and accompanying application without further order of the court or hearing officer upon proper notice. This twenty (20) day period may be waived by the court or hearing officer if it finds that it was not possible to furnish the party with the information twenty (20) days before the trial, hearing or proceeding and that no party will be prejudiced by the delay in receiving the information.
  14. The contents of any intercepted wire, oral or electronic communication or evidence derived therefrom shall not be admitted as evidence in any trial, hearing or other proceeding in this state unless the interception was performed in accordance with this act.
  15. No otherwise privileged wire, oral or electronic communication intercepted in accordance with or in violation of this act shall lose its privileged character, unless the communications are in furtherance of a criminal act in violation of the laws of the United States or this state.
  16. When a peace officer, while engaged in intercepting wire, oral or electronic communications relating to an offense specified in the order permitting interception, intercepts wire, oral or electronic communications relating to an offense other than those specified in the order, the contents thereof, and evidence derived therefrom, may be disclosed or used only if the offense constitutes a felony under the laws of the United States or this state. If the communication concerns an enumerated offense listed in W.S. 7-3-705 , the agency executing the order of interception shall apply to the issuing court for an expansion of the order of interception pursuant to paragraph (a)(ii) of this section. The application shall be made as soon as practicable.
  17. In the event an intercepted communication is in a code or a foreign language, and an expert in that code or foreign language is not reasonably available during the interception period, any minimization required under this section shall be accomplished as soon as practicable after the interception.
  18. The requirements of subparagraph (a)(ii)(B) and paragraph (c)(iv) of this section relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if:
    1. In the case of an application with respect to the interception of an oral communication:
      1. The application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and
      2. The judge finds that such specification is not practical.
    2. In the case of an application with respect to a wire or electronic communication:
      1. The application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing that there is probable cause to believe that the person’s actions could have the effect of thwarting interception from a specified facility;
      2. The judge finds that such showing has been adequately made; and
      3. The order authorizing the interception is limited to interception only for such time as it is reasonable to presume that the person identified in the application is or was reasonably proximate to the instrument through which such communication will be or was transmitted.
  19. An interception of a communication under an order with respect to which the requirements of subparagraph (a)(ii)(B) and paragraph (c)(iv) of this section do not apply by reason of paragraph (t)(i) of this section shall not begin until the place where the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order as provided for in paragraph (t)(ii) of this section may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the prosecuting authority, shall decide such a motion expeditiously.

History. Laws 2001, ch. 140, § 1.

Editor's notes. —

There is no subsection (i) or (l) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-701(a)(xvii).

Notice of use of wiretap evidence. —

The defendant received sufficient, timely notice, pursuant to subsection (o), of the government's intent to use wiretap evidence against him. United States v. Caro, 965 F.2d 1548, 1992 U.S. App. LEXIS 12972 (10th Cir. Wyo. 1992) (decided under prior law).

Am. Jur. 2d, ALR and C.J.S. references. —

Duty of court, in federal criminal prosecution, to conduct inquiry into voluntariness of accused's statement — modern cases, 132 ALR Fed 415.

§ 7-3-708. Order directing others to furnish assistance.

An order permitting the interception of a wire, oral or electronic communication shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall immediately furnish the applicant all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian or other person is supplying the person whose communication is to be intercepted. Any provider of wire or electronic communication service, landlord, custodian or other person furnishing these facilities or technical assistance shall be compensated therefor by the applicant for reasonable expenses incurred in providing the facilities or assistance.

History. Laws 2001, ch. 140, § 1.

§ 7-3-709. Information furnished to attorney general by executing agency; report to legislature.

  1. Upon final execution of an order of interception, the executing agency shall furnish the following information within ten (10) working days to the attorney general:
    1. The fact that an order or extension was applied for, information as to the number of orders, extensions and expansions made by the court including:
      1. Whether or not the order was one with respect to which the requirements of W.S. 7-3-707(a)(ii)(B) and (c)(iv) did not apply by reason of W.S. 7-3-707(t);
      2. The fact that the order or extension was granted as applied for, was modified or was denied;
      3. The period of interceptions authorized by the order, and the number and duration of any extensions of the order; and
      4. The identity of the applying peace officer and agency making the application and the person authorizing the application.
    2. Each offense specified in the application order or extension of an order;
    3. The nature of the facilities from which or the place where communications were to be intercepted;
    4. A general description of the interceptions made under any order or extension, including the approximate nature and frequency of incriminating communications intercepted and approximate nature and frequency of other communications intercepted, the number of persons whose communications were intercepted and the nature, amount and cost of the manpower and other resources used in the interceptions.
  2. The prosecuting authority or investigating law enforcement agency shall report to the attorney general by April 1, for the preceding calendar year in which an order was applied for under this act:
    1. The number of arrests resulting from interceptions made under the order or extension and the offenses for which arrests were made;
    2. The number of trials resulting from such interceptions;
    3. The number of motions to suppress made with respect to such interceptions, and the number granted or denied; and
    4. The number of convictions resulting from such interceptions and the offenses for which the convictions were obtained and a general assessment of the importance of the interceptions.
  3. The attorney general shall report to the joint judiciary interim committee no later than July 1 of each year. The report shall contain the information required by subsections (a) and (b) of this section.

History. Laws 2001, ch. 140, § 1; 2008, ch. 116, § 1.

The 2008 amendment made a stylistic change.

Laws 2008, ch. 116, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 13, 2008.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-701(a)(xvii).

§ 7-3-710. Recovery of civil damages for violations; good faith defense.

  1. Subject to W.S. 7-3-702(b)(ii), any person whose wire, oral or electronic communication is intercepted, disclosed or used in violation of this act may recover damages against any person who intercepts, discloses, uses or procures any other person to intercept, disclose or use the communications as follows:
    1. Actual damages but not less than one thousand dollars ($1,000.00) a day for each day of violation;
    2. Punitive damages; and
    3. Reasonable attorney’s fees and other litigation costs reasonably incurred.
  2. A good faith reliance on a court order constitutes a complete defense to any civil or criminal action brought under this act.

History. Laws 2001, ch. 140, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-701(a)(xvii).

§ 7-3-711. Exclusivity of provisions.

This act shall be the exclusive means by which any interception of wire, oral or electronic communications may be permitted for investigation of the violation of any law, statute or ordinance of the state of Wyoming or any local, municipal or other governmental unit.

History. Laws 2001, ch. 140, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-701(a)(xvii).

§ 7-3-712. Reports by attorney general and state courts.

The attorney general and Wyoming courts shall report to the administrative office of the United States courts pursuant to 18 U.S.C. § 2519.

History. Laws 2001, ch. 140, § 1.

Article 8. Pen Registers

§ 7-3-801. Definitions.

  1. As used in this act:
    1. “Attorney for the state” means the attorney general or his designee, or district attorney;
    2. “Court of competent jurisdiction” means a district court;
    3. “Peace officer” means as defined in W.S. 7-3-701 ;
    4. “Pen register” means a device which identifies on hook and off hook conditions and records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached, but the term does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business;
    5. “Trap and trace device” means a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted;
    6. “Wire communication”, “electronic communication” and “electronic communication service” have the same meanings set forth in W.S. 7-3-701 ;
    7. “This act” means W.S. 7-3-801 through 7-3-806 .

History. Laws 2001, ch. 140, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-3-802. General prohibition on pen register and trap and trace device use; exception.

  1. Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under W.S. 7-3-804 .
  2. The prohibition of subsection (a) of this section does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service:
    1. Relating to the operation, maintenance and testing of a wire or electronic communication service or to the protection of the rights or property of such provider, or to the protection of users of that service from abuse of service or unlawful use of service;
    2. To record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or
    3. Where the consent of the user of that service has been obtained.
  3. A state or local agency authorized to install and use a pen register under this act shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing and signaling information utilized in call processing.
  4. Whoever knowingly violates subsection (a) of this section shall be fined not more than one thousand dollars ($1,000.00), imprisoned not more than one (1) year, or both.

History. Laws 2001, ch. 140, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-801(a)(vii).

§ 7-3-803. Application for an order for a pen register or a trap and trace device.

  1. An attorney for the state may make application for an order or an extension of an order under W.S. 7-3-804 authorizing the installation and use of a pen register or a trap and trace device under this act, in writing under oath or equivalent affirmation, to a court of competent jurisdiction only for investigations of violations of the Wyoming Controlled Substances Act of 1971.
  2. An application under subsection (a) of this section shall include:
    1. The identity of the attorney for the state, making the application and the identity of the law enforcement agency conducting the investigation; and
    2. A certification by the applicant that the information likely to be obtained is relevant to an ongoing investigation of a violation of the Wyoming Controlled Substances Act of 1971 being conducted by that agency.

History. Laws 2001, ch. 140, § 1.

Wyoming Controlled Substances Act of 1971. —

See §§ 35-7-1001 , 35-7-1002(a)(xxviii).

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-801(a)(vii).

§ 7-3-804. Issuance of an order for a pen register or a trap and trace device.

  1. Upon an application made under W.S. 7-3-803 , the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the state if the court finds that the attorney for the state has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing investigation of a violation of the Wyoming Controlled Substances Act of 1971.
  2. An order issued under this section:
    1. Shall specify:
      1. The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached;
      2. The identity, if known, of the person who is the subject of the criminal investigation;
      3. The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order; and
      4. A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
    2. Shall direct, upon the request of the applicant, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under W.S. 7-3-805 .
  3. An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed sixty (60) days. Extensions of the order may be granted, but only upon an application for an extension meeting the requirements of W.S. 7-3-803 and upon the judicial finding required by subsection (a) of this section. Each period of extension shall be for a period not to exceed sixty (60) days.
  4. An order authorizing the installation and use of a pen register or a trap and trace device shall direct that:
    1. The order be sealed until otherwise ordered by the court; and
    2. The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.

History. Laws 2001, ch. 140, § 1.

Wyoming Controlled Substances Act of 1971. —

See §§ 35-7-1001 , 35-7-1002(a)(xxviii).

§ 7-3-805. Assistance in installation and use of a pen register or a trap and trace device.

  1. Upon the request of an attorney for the state or an officer of a law enforcement agency authorized to install and use a pen register under this act, a provider of wire or electronic communication service, landlord, custodian or other person shall furnish such investigative or peace officer forthwith all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if such assistance is directed by a court order as provided in W.S. 7-3-804(b)(ii).
  2. Upon the request of an attorney for the state or an officer of a law enforcement agency authorized to receive the results of a trap and trace device under this act, a provider of a wire or electronic communication service, landlord, custodian or other person shall install such device forthwith on the appropriate line and shall furnish such investigative or peace officer all additional information, facilities and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if such installation and assistance is directed by a court order as provided in W.S. 7-3-804(b)(ii). Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished, pursuant to W.S. 7-3-804(b), to the officer of a law enforcement agency, designated in the court order, at reasonable intervals during regular business hours for the duration of the order.
  3. A provider of a wire or electronic communication service, landlord, custodian or other person who furnishes facilities or technical assistance pursuant to this section shall be reasonably compensated for such reasonable expenses incurred in providing such facilities and assistance.
  4. No cause of action shall lie in any court against any provider of a wire or electronic communication service, its officers, employees, agents or other specified persons for providing information, facilities or assistance in accordance with the terms of a court order under this act.
  5. A good faith reliance on a court order under this act, a legislative authorization, or a statutory authorization is a complete defense against any civil or criminal action brought under this act or any other law.

History. Laws 2001, ch. 140, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-801(a)(vii).

§ 7-3-806. Reports concerning pen registers and trap and trace devices.

The attorney general shall annually report to the joint judiciary interim committee on the number of pen register orders and orders for trap and trace devices applied for under this act. The report shall be provided no later than July 1 of each year.

History. Laws 2001, ch. 140, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-801(a)(vii).

Article 9. Law Enforcement Interstate Mutual Aid

§ 7-3-901. Short title.

This act shall be known and may be cited as the “Law Enforcement Interstate Mutual Aid Act.”

History. Laws 2003, ch. 53, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-902(a)(viii).

§ 7-3-902. Definitions.

  1. When used in this act, unless the context requires otherwise, the following definitions apply:
    1. “Law enforcement agency” means a lawfully established federal, state or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory or criminal laws;
    2. “Law enforcement agency of an adjoining state” includes a law enforcement agency of an adjoining state and any political subdivision of that state;
    3. “Law enforcement employee of an adjoining state” means an employee of a law enforcement agency trained and certified in accordance with the laws of the state or jurisdiction where regularly employed by the United States, an adjoining state or political subdivision;
    4. “Mutual aid agreement” or “an agreement” means an agreement between two (2) or more law enforcement agencies consistent with the purposes of this act;
    5. “Party law enforcement agency” means a law enforcement agency that is a party to a mutual aid agreement as set forth in this act;
    6. “Wyoming law enforcement agency” includes a sheriff, municipal, college or university police force, Wyoming highway patrol and the division of criminal investigation;
    7. “Wyoming law enforcement employee” has the same meaning as “peace officer” as defined in W.S. 7-2-101 but does not include those officers specified in W.S. 7-2-101 (a)(iv)(K);
    8. “This act” means W.S. 7-3-901 through 7-3-910 .

History. Laws 2003, ch. 53, § 1.

§ 7-3-903. Authorization to enter agreement; general content; authority of law enforcement employee.

  1. Any one (1) or more law enforcement agencies of this state may enter into a mutual aid agreement with any one (1) or more law enforcement agencies of an adjoining state or the United States to render assistance in the provision of the law enforcement or emergency services that the requesting party is authorized by law to perform. Except as authorized by W.S. 7-3-904(b), any agreement under this act shall be limited to providing assistance in an emergency or special event as determined by the governor. The governor shall have emergency procedures in place for immediate approval of any mutual aid agreement, which may include oral authorization by the governor, subject to subsequent written agreement as provided by this act. If required by applicable law, the agreement shall be authorized and approved by the governing body of each party to the agreement.
  2. The written agreement shall fully set forth the powers, rights and obligations of the parties to the agreement.
  3. A mutual aid agreement may grant a law enforcement employee or officer of any party law enforcement agency acting within the territorial jurisdiction of any other party law enforcement agency authority to act as if he were a duly appointed and qualified law enforcement employee or officer of the law enforcement agency he is assisting.

History. Laws 2003, ch. 53, § 1; 2007, ch. 179, § 1.

The 2007 amendment, effective July 1, 2007, added “Except as authorized by W.S. 7-3-904(b), any,” and made a related change.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-902(a)(viii).

§ 7-3-904. Detailed content of agreement.

  1. Any written agreement under this act shall specify the following:
    1. Its duration, which shall be not more than four (4) years;
    2. The purpose of the agreement;
    3. The manner of financing the agreement and establishing and maintaining a budget therefor;
    4. The method to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such partial or complete termination;
    5. Provision for administering the agreement, which may include creation of a joint board responsible for such administration;
    6. The manner of acquiring, holding and disposing of real and personal property used in the agreement;
    7. The minimum standards for law enforcement employees implementing the provisions of the agreement;
    8. The respective liability of each party to the agreement for the actions of law enforcement employees when acting under the provisions of the agreement;
    9. The minimum insurance, if any, required of each party to the agreement;
    10. The exact chain of command or delegation of authority to be followed by law enforcement employees acting under the provisions of the agreement;
    11. The enforcement authority that the law enforcement employee of each party law enforcement agency may exercise;
    12. Provisions for any specific immunities not listed in W.S. 7-3-910 and for defending law enforcement employees in civil litigation;
    13. Any other necessary and proper matters.
  2. The agreement may include specified emergency or special events for which the parties to the agreement and the governor concur that law enforcement may respond under the mutual aid agreement without the governor’s authorization required under W.S. 7-3-903 .

History. Laws 2003, ch. 53, § 1; 2007, ch. 179, § 1.

The 2007 amendment, effective July 1, 2007, added (b).

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-902(a)(viii).

§ 7-3-905. Right of state in actions involving agreements.

In any case or controversy involving performance or interpretation of, or liability under, a mutual aid agreement entered into between one (1) or more law enforcement agencies of this state or political subdivisions of this state and one (1) or more law enforcement agencies of an adjoining state or of the United States, the parties to the agreement are the real parties in interest.

History. Laws 2003, ch. 53, § 1.

§ 7-3-906. Agreement not to relieve agency of duties.

No agreement made under this act may relieve any law enforcement agency of this state of any duty imposed upon it by law. Timely performance of such a duty by a joint board or other legal or administrative entity created by a mutual aid agreement may be offered in satisfaction of the duty.

History. Laws 2003, ch. 53, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-902(a)(viii).

§ 7-3-907. Limitation of powers.

Except for the right granted by this act to jointly exercise powers, this act does not authorize any law enforcement agency of this state to exercise any power within this state that it is not otherwise authorized to exercise.

History. Laws 2003, ch. 53, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-902(a)(viii).

§ 7-3-908. Submission of agreement to attorney general.

As a condition precedent to a written agreement becoming effective under this act, the agreement shall be submitted to and receive the approval of the attorney general. Except as provided by W.S. 7-3-903 , no agreement shall become effective under this act until signed by the governor.

History. Laws 2003, ch. 53, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-902(a)(viii).

§ 7-3-909. Filing of agreement.

Within twenty (20) days after approval by the attorney general, a written agreement made pursuant to this act shall be filed in the office of the secretary of state.

History. Laws 2003, ch. 53, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-902(a)(viii).

§ 7-3-910. Immunity.

Whenever the employees of a law enforcement agency of an adjoining state are rendering aid pursuant to the request of a Wyoming law enforcement agency under an agreement pursuant to this act, the employees shall have the same powers, duties, rights, privileges and immunities as comparable Wyoming law enforcement employees as provided for in the agreement.

History. Laws 2003, ch. 53, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-3-902(a)(viii).

Chapter 4 County Coroners

Am. Jur. 2d, ALR and C.J.S. references. —

18 Am. Jur. 2d Coroners or Medical Examiners §§ 1 to 17; 70 Am. Jur. 2d Sheriffs, Police and Constables § 28.

18 C.J.S. Coroners §§ 1, 3 to 7, 30; 80 C.J.S. Sheriffs and Constables § 61.

Article 1. In General

§ 7-4-101. Election; oath; bond.

A coroner shall be elected in each county for a term of four (4) years. He shall take the oath prescribed by the constitution of the state and give bond to the state of Wyoming, in the penal sum of one thousand dollars ($1,000.00), with sufficient sureties, to be approved by the board of county commissioners, conditioned that he will faithfully perform all duties required by law.

History. C.L. 1876, ch. 28, Art. VI, § 1; R.S. 1887, § 1876; R.S. 1899, § 1170; C.S. 1910, § 1276; C.S. 1920, § 1528; R.S. 1931, § 30-701; Laws 1937, ch. 85, § 4; C.S. 1945, § 27-901; W.S. 1957, § 7-77; Laws 1987, ch. 157, § 3.

Cross references. —

As to constitutional oath of office, see art. 6, §§ 20 and 21, Wyo. Const.

As to election of coroners at general election and term thereof, see § 22-2-105(a)(ii).

As to filling of vacancy in elective county office, see § 22-18-111 .

§ 7-4-102. Deputy coroners.

The county coroner may appoint deputy coroners, who shall serve in the absence or inability of the coroner and who shall receive compensation as the board of county commissioners determines by resolution.

History. Laws 1925, ch. 88, § 8; R.S. 1931, § 30-715; C.S. 1945, § 27-915; W.S. 1957, § 7-80; W.S. 1977, § 7-4-104 ; Laws 1979, ch. 99, § 1; 1987, ch. 157, § 3; 2003, ch. 17, § 1.

Cited in

Veile v. Board of County Comm'rs, 860 P.2d 1174, 1993 Wyo. LEXIS 163 (Wyo. 1993).

§ 7-4-103. Certification requirements; penalty; expenses.

  1. After January 5, 1987, no person shall continue in office as county coroner or deputy coroner unless he has been certified under W.S. 9-1-634 as having completed:
    1. Not later than one (1) year after assuming office, a basic coroner course;
    2. Continuing education requirements promulgated by the board of coroner standards pursuant to W.S. 7-4-211(c)(iii).
  2. Any person who knowingly fails to comply with subsection (a) of this section and continues in office is guilty of a misdemeanor punishable by a fine of twenty-five dollars ($25.00) for each day of noncompliance.
  3. Each coroner or deputy coroner attending approved classes to receive the certification required by subsection (a) of this section shall receive his present salary or per diem in the same manner and amount as state employees, whichever is greater, and shall be reimbursed for his actual travel and other necessary expenses reasonably incurred in obtaining the required training. The expenses shall be paid by the county in which the coroner or deputy coroner is serving.
  4. After July 1, 2001, no person shall serve as deputy coroner or as an employee of a county coroner who does not meet the employment standards adopted by the board of coroner standards pursuant to W.S. 7-4-211(c)(v).

History. Laws 1985, ch. 212, § 1; W.S. 1977, § 7-4-105 ; Laws 1987, ch. 152, § 1; ch. 157, § 3; 1990, ch. 70, § 1; 2001, ch. 165, § 1.

Expenses reasonably incurred. —

The county could not be charged with the expenses of operating the county coroner's mortuary while the coroner attended continuing education courses; the phrase “expenses reasonably incurred” does not anticipate the expenses of operating a private business. The statute is referring to expenses for lodging or meals necessitated by out-of-town travel that are not paid by other means, such as per diem. Veile v. Board of County Comm'rs, 860 P.2d 1174, 1993 Wyo. LEXIS 163 (Wyo. 1993).

§ 7-4-104. Definitions.

  1. As used in this chapter:
    1. “Coroner’s case” means a case involving a death which was not anticipated and which may involve any of the following conditions:
      1. Violent or criminal action;
      2. Apparent suicide;
      3. Accident;
      4. Apparent drug or chemical overdose or toxicity;
      5. The deceased was unattended by a physician or other licensed health care provider;
      6. Apparent child abuse causes;
      7. The deceased was a prisoner, trustee, inmate or patient of any county or state corrections facility or state hospital, whether or not the death is unanticipated;
      8. If the cause is unknown or cannot be certified by a physician;
      9. A public health hazard is presented; or
      10. The identity of the victim is unknown or the body is unclaimed.
    2. “Coroner’s office” means all personnel appointed and elected to the office of coroner, including the county coroner, deputies and assistants;
    3. “County coroner” means the elected or appointed officer of the county whose task is to investigate the cause of death in a coroner’s case;
    4. “Anticipated death” means the death of an individual who had been diagnosed by a physician acting within the scope of his license as being afflicted with an illness or disease reasonably likely to result in death, and there is no cause to believe the death occurred for any reasons other than those associated with the illness or disease;
    5. “Unattended” means the deceased had not been under the care of a physician or other health care provider acting within the scope of his license within sixty (60) days immediately prior to the date of death.

History. Laws 1985, ch. 212, § 1; W.S. 1977, § 7-4-106 ; Laws 1987, ch. 157, § 3; 2005, ch. 39, § 1.

Cross references. —

As to offenses against morals, see chapter 4 of title 6, and § 6-2-314 et seq.

The 2005 amendment inserted “which was not anticipated and” in (a)(i), substituted “by a physician or other licensed health care provider” for “or had not seen a physician within six (6) months prior to death” in (a)(i)(E), inserted “whether or not the death is unanticipated” in (a)(i)(G), added “or cannot be certified by a physician” in (a)(i)(H), added (a)(i)(J) and (K), and added (a)(iv) and (a)(v), and made stylistic and related changes.

Laws 2005, ch. 39, § 1, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 18, 2005.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Discretion of board. —

The board of county commissioners is given discretionary authority to approve the claim for expenses and costs submitted by the coroner. Veile v. Board of County Comm'rs, 860 P.2d 1174, 1993 Wyo. LEXIS 163 (Wyo. 1993).

Quoted in

Johnson v. State ex rel. Workers' Comp. Div., 911 P.2d 1054, 1996 Wyo. LEXIS 26 (Wyo. 1996); Veile v. Martinson, 258 F.3d 1180, 2001 U.S. App. LEXIS 17097 (10th Cir. 2001).

§ 7-4-105. Confidentiality of reports, photos and recordings; exceptions; penalties.

  1. After viewing the body and completing his investigation, the coroner shall draw up and sign his verdict on the death under consideration. The coroner shall also make a written docket giving an accurate description of the deceased person, his name if it can be determined, cause and manner of death, including relevant toxicological factors, age of decedent, date and time of death and the description of money and other property found with the body. The verdict and written docket are public records and may be viewed or obtained by request to the coroner, pursuant to W.S. 16-4-202 .
  2. Except as provided in subsections (c), (d), (e), (g) and (o) of this section a toxicology report, a photograph, video recording or audio recording made at the scene of the death or made in the course of a postmortem examination or autopsy made or caused by a coroner shall be confidential and are not public records.
  3. A surviving spouse, surviving parent, an adult child, personal representative, legal representative, or a legal guardian may:
    1. View and copy a toxicology report, a photograph or video recording made at the scene of the death or made in the course of a postmortem examination or autopsy made by or caused by a coroner; and
    2. Listen to and copy an audio recording made at the scene of the death or made in the course of a postmortem examination or autopsy made by or caused by a coroner.
  4. Upon making a written request, a law enforcement entity of the state of Wyoming or United States government, a district attorney, the United States attorney for the district of Wyoming, a county, state or federal public health agency, a board licensing health care professionals under title 33 of the Wyoming statutes, the division responsible for administering the Wyoming Workers’ Compensation Act, the state occupational epidemiologist, the department and the division responsible for administering the Wyoming Occupational Health and Safety Act, the office of the inspector of mines, insurance companies with legitimate interest in the death, all parties in civil litigation proceedings with legitimate interest in the death or a treating physician, while in performance of his official duty may:
    1. View and copy a toxicology report, photograph or video recording made at the scene of the death or made in the course of a postmortem examination or autopsy made by or caused by a coroner; and
    2. Listen to and copy an audio recording made at the scene of the death or made in the course of a postmortem examination or autopsy made by or caused by a coroner.
  5. Unless otherwise required in the performance of official duties, the identity of the deceased shall remain confidential in any record obtained under subsection (d) of this section.
  6. The coroner having custody of a toxicology report, a photograph, a video recording or an audio recording made at any scene of the death or made in the course of a postmortem examination or autopsy may allow the use for case consultation with an appropriate expert. The coroner may also allow the use of a toxicology report, a photograph, a video recording or an audio recording made at the scene of the death or made in the course of a postmortem examination or autopsy by legitimate scientific research organizations or for training purposes provided the identity of the decedent is not published or otherwise made public.
  7. A court upon showing of good cause, may issue an order authorizing a person to:
    1. View or copy a toxicology report, photograph or video recording made at the scene of the death or made in the course of a postmortem examination or autopsy made or caused by a coroner; and
    2. Listen to and copy an audio recording made at the scene of the death or made in the course of a postmortem examination or autopsy made or caused by a coroner.
  8. In determining good cause under subsection (g) of this section, the court shall consider:
    1. Whether the disclosure is necessary for the public evaluation of governmental performance;
    2. The seriousness of the intrusion into the family’s privacy;
    3. Whether the disclosure of the toxicology report, photograph, video recording or audio recording is by the least intrusive means available; and
    4. The availability of similar information in other public records regardless of form.
  9. A surviving spouse shall be given reasonable notice and a copy of any petition filed with the court under subsection (g) of this section and reasonable opportunity to be present and be heard on the matter. If there is no surviving spouse, the notice of the petition being filed and the opportunity to be heard shall be given to the deceased’s parents and if the deceased has no living parent, the notice of the petition being filed and the opportunity to be heard shall be given to the adult children of the deceased or legal guardian, personal representative or legal representative of the children of the deceased.
  10. A coroner or coroner’s designee that knowingly violates this section shall be guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than one thousand dollars ($1,000.00), or both.
  11. A person who knowingly or purposefully uses the information in a manner other than the specified purpose for which it was released or violates a court order issued under subsection (g) of this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than one thousand dollars ($1,000.00), or both.
  12. In all cases, the viewing, copying, listening to, or other handling of a toxicology report, photograph, video recording, or audio recording made at a scene of the death or made in the course of a postmortem examination or autopsy made or caused by a coroner shall be under the direct supervision of the coroner, or the coroner’s designee, who is the custodian of the record.
  13. In the event that the coroner, or the coroner’s designee, determines that a person’s death was caused by an infectious disease, biological toxin or any other cause which may constitute a public health emergency as defined in W.S. 35-4-115(a)(i), the coroner shall release to the state health officer or his designee all information and records required under W.S. 35-4-107 . If the state health official or his designee determines upon an examination of the results of the autopsy and the toxicology report that a public health emergency may in fact exist, he shall release the appropriate information to the general public as provided by department of health rules and regulations.

History. Laws 2011, ch. 144, § 1.

Effective date. —

Laws 2011, ch. 144, § 3, makes the act effective July 1, 2011.

Coroner's verdict and case docket sufficient.—

County coroner produced all of the information required because the coroner's verdict and case docket included a reason for the death of the decedent—blood loss resulting from gunshot wounds to the torso—and explained the injuries that caused the fatal blood loss. The coroner did not have an absolute, clear and indisputable duty to provide the detailed information requested by a party, such as additional details or diagrams when listing the cause of death. Williams v. Sundstrom, 2016 WY 122, 385 P.3d 789, 2016 Wyo. LEXIS 137 (Wyo. 2016).

§ 7-4-106. Archaeological human burial sites.

  1. The county coroner shall have jurisdiction over all archaeological human burials discovered in the county on state or private lands.
  2. When human remains are discovered:
    1. The person who discovers the remains shall cease the activity that caused the discovery of the remains and immediately notify law enforcement. If the remains are discovered on private land and the person who discovers the remains is not an agent of the landowner, the individual shall also notify the landowner;
    2. When law enforcement is notified that human remains have been discovered within the limits of the county, law enforcement shall notify the coroner who shall determine the approximate age of the burial site. If the human remains constitute an archaeological human burial:
      1. On private land, the coroner shall notify the state archaeologist and the landowner;
      2. On state land, the coroner shall notify the state archaeologist and the office of state lands and investments. The office of state lands and investments shall notify any leaseholder;
      3. The state archaeologist’s investigation to determine the forensic value and archaeological context shall be:
        1. Commenced within two (2) business days of the discovery to protect the integrity of the remains;
        2. Limited to the discovered human burial site.
  3. When human remains are exhumed:
    1. An archaeological human burial shall only be exhumed under the direction and supervision of the state archaeologist in coordination with the county coroner, and provided:
      1. The coroner shall notify the landowner of exhumation; and
      2. If the state archaeologist determines that the remains are Native American, the state archaeologist shall notify the Eastern Shoshone and Northern Arapaho Tribes before exhumation.
    2. Absent extraordinary circumstances, exhumation shall be completed not more than six (6) business days from the date the coroner notifies the state archaeologist of the archeological human burial discovery to protect the safety and integrity of the remains.
  4. When human remains are reinterred:
    1. When the state archaeologist determines that an archaeological human burial is Native American, after archaeological human remains are exhumed and before reinterment or repatriation, the state archaeologist and county coroner shall:
      1. Notify and consult with culturally affiliated Native American tribes in accordance with the protocol developed pursuant to subsection (f) of this section; and
      2. Expend reasonable effort to identify present day descendants.
    2. When the state archaeologist determines that an archaeological human burial is not Native American, the state archaeologist shall expend reasonable effort to identify present day descendants and consult with them before reinterment;
    3. If no descendants of the person whose remains were exhumed are identifiable, remains may be reinterred on state lands;
    4. Subject to the notification of law enforcement, the coroner and the state archaeologist and the procedures in this section, nothing in this section precludes a landowner from working with descendants or Native American tribes to reinter human remains on private lands with the landowner’s consent.
  5. Human remains shall be treated with respect, dignity and with consideration of religious, spiritual and ethnic evidence present at the burial site.
  6. The state archaeologist in cooperation with the state historic preservation office and county coroners shall work with culturally affiliated tribes including the Eastern Shoshone and Northern Arapaho tribes to develop a protocol for consultation, repatriation and reinterment or other disposition of Native American human remains.
  7. For purposes of this section, “archaeological human burial” includes human remains and funerary objects that, as part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains at the time of death or later but does not include remains found in known or marked graves, found in established cemeteries or that demonstrate present medicolegal significance.
  8. A person who knowingly violates this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 2019, ch. 59, § 1.

Effective dates. —

Laws 2019, ch. 59 § 4, makes the act effective July 1, 2019.

Editor's Note. —

Laws 2019, ch. 59, § 3 states as follows: “(a) Not later than January 30, 2020, each county coroner shall provide the state archaeologist an inventory of the archaeological or potential archaeological human remains that the coroner has in the coroner's storage facilities.

“(b) The state archaeologist with the county coroner shall act in accordance with W.S. 7-4-106(d) and (e) as created by this act for the disposition of archaeological human remains identified in subsection (a) of this section.”

Article 2. Inquests

There is no statutory requirement for inquest as condition precedent to prosecution. Raigosa v. State, 562 P.2d 1009, 1977 Wyo. LEXIS 246 (Wyo. 1977).

Am. Jur. 2d, ALR and C.J.S. references. —

Homicide: cremation of victim's body as violation of accused's rights, 70 ALR4th 1091.

§ 7-4-201. Reports of death; investigation; summoning of jurors; fees and costs; inspection of medical records.

  1. When any person is found dead and the death appears to have occurred under circumstances indicating the death is a coroner’s case, the person who discovers the death shall report it immediately to law enforcement authorities who shall in turn notify the coroner. A person who knowingly violates this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  2. When the coroner is notified that the dead body of any person has been found within the limits of the county or that the death resulted from injury sustained within the county and he suspects that the death is a coroner’s case, he shall conduct an investigation which may include:
    1. An examination of the body and an investigation into the medical history of the case;
    2. The appointment of a qualified physician to assist in determining the cause of death;
    3. An autopsy if the physician appointed to assist the coroner under this subsection determines an autopsy is necessary;
    4. An inquest; or
    5. Any other reasonable procedure which may be necessary to determine the cause of death.
  3. If the coroner determines to hold an inquest he shall summon three (3) citizens of the county to appear before him to act as jurors at the time and place named. The jurors shall receive the same fee paid jurors in district court as provided in W.S. 1-11-303 and per diem and travel expenses in the same manner as state employees. The coroner may furnish transportation for the jury and witnesses to and from the place of inquest and for the removal of the dead body.
  4. If a coroner determines the injuries which caused the person’s death were received in a county other than that in which the body was found, he shall transfer authority for the investigation and inquest to the coroner for that county.
  5. The expense and costs of conducting the investigation or holding the inquest shall be paid by the county in which the injuries were received. The accounts of the claimants shall be attested by the coroner or acting coroner, and shall be presented in duplicate to the board of county commissioners of the proper county. If the board of county commissioners finds that the inquest was necessary and in accordance with law, and the accounts are correct and just, the accounts shall be paid in warrants properly drawn upon the order of the county commissioners.
  6. Notwithstanding any other provision of law to the contrary, the coroner may inspect medical and psychological data relating to the person whose death is being investigated if the coroner determines the information is relevant and necessary to the investigation.

History. C.L. 1876, ch. 28, Art. VI, § 4; R.S. 1887, § 1879; Laws 1888, ch. 80, § 1; 1890, ch. 43, § 2; R.S. 1899, § 1173; Laws 1905, ch. 86, § 1; C.S. 1910, § 1279; C.S. 1920, § 1531; R.S. 1931, § 30-704; C.S. 1945, § 27-904; W.S. 1957, § 7-81; Laws 1961, ch. 160, § 1; 1975, ch. 141, § 1; 1979, ch. 125, § 1; 1985, ch. 212, § 3; 1987, ch. 157, § 3; 1990, ch. 70, § 1.

Cross references. —

As to limited disclosure of client treatment records, see § 9-2-125 .

As to receipt of meal, lodging and travel expenses by state employees, see § 9-3-102 .

As to holding coroner's inquest with respect to fatal mine accidents generally, see § 30-2-212 .

As to when coroner's permission required to embalm dead human bodies, see § 33-16-108 .

Subject matter jurisdiction.—

District court properly dismissed for lack of jurisdiction a motion filed by a homeowner and a decedent’s father to set aside the coroner’s inquest verdict because a coroner’s inquest was an executive matter conducted outside of the courts and was not a final order and had no probative effect. Cassidy v. Teton Cty. Coroner (In re Birkholz), 2019 WY 19, 434 P.3d 1102, 2019 Wyo. LEXIS 19 (Wyo. 2019).

Filing of records with the district court does not, without more, confer jurisdiction on the district court since a coroner’s inquest verdict is not a final order or judgment, and the court’s equitable powers to grant relief do not come into play; questions raised about the propriety of the process, the lack of fundamental safeguards in an inquisition, and bias in the proceeding can best be addressed by the legislature. Cassidy v. Teton Cty. Coroner (In re Birkholz), 2019 WY 19, 434 P.3d 1102, 2019 Wyo. LEXIS 19 (Wyo. 2019).

Subject matter jurisdiction.

Coroner’s inquest is an executive matter conducted outside of the courts, and the coroner’s inquest verdict is not a final order and has no probative effect; the filing of the coroner’s inquest verdict and other associated documents with the district court is ministerial and does not confer jurisdiction on the district court. Cassidy v. Teton Cty. Coroner (In re Birkholz), 2019 WY 19, 434 P.3d 1102, 2019 Wyo. LEXIS 19 (Wyo. 2019).

Discretion of board. —

The board of county commissioners is given discretionary authority to approve the claim for expenses and costs submitted by the coroner. Veile v. Board of County Comm'rs, 860 P.2d 1174, 1993 Wyo. LEXIS 163 (Wyo. 1993).

Coroner's inquest unnecessary to acquire jurisdiction where evidence overwhelming and defendant pleads guilty. —

The failure to hold a coroner's inquest did not prevent the district court from acquiring jurisdiction in a criminal case. In light of the record which established five bullet wounds in the victim's body and the defendant's plea of guilty, the coroner's inquest would have been an exercise in futility. The defendant admitted by his plea all the essential elements of the offense, including the fact that he had killed the victim unlawfully. Holmes v. State, 715 P.2d 196, 1986 Wyo. LEXIS 506 (Wyo. 1986), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Authority to draw blood samples. —

The coroner was completely within statutory duties and authority in withdrawing blood samples from the decedent's body; permission was not required of anyone for the coroner to conduct the taking of such samples. Johnson v. State ex rel. Wyoming Workers' Compensation Div., 911 P.2d 1054, 1996 Wyo. LEXIS 26 (Wyo. 1996).

§ 7-4-202. Impaneling of bystanders as jurors; oath.

If any juror fails to appear, the coroner shall immediately summon the proper number from the bystanders and proceed to impanel them. He shall administer the following oath: “You do solemnly swear (or affirm) that you will diligently inquire and truly present if known or determinable, the time and date of death, and by what means and manner the death of (NAME OF DECEASED) was caused, according to your knowledge and the evidence given you, so help you God.”

History. C.L. 1876, ch. 28, Art. VI, § 5; R.S. 1887, § 1880; R.S. 1899, § 1174; C.S. 1910, § 1280; C.S. 1920, § 1532; R.S. 1931, § 30-705; C.S. 1945, § 27-905; W.S. 1957, § 7-84; Laws 1985, ch. 212, § 3; 1987, ch. 152, § 1; ch. 157, § 3.

Cross references. —

As to oaths generally, see chapter 2 of title 1.

§ 7-4-203. Issuance of subpoenas; witness fees; enforcement of attendance.

The coroner may issue subpoenas and compel the attendance of witnesses to testify at the inquest. Witnesses shall be allowed the same fees as in cases before a circuit court, and the coroner shall have the same authority to enforce the attendance of witnesses and to punish for contempt as provided by W.S. 1-21-901 through 1-21-909 .

History. C.L. 1876, ch. 28, Art. VI, § 6; R.S. 1887, § 1881; R.S. 1899, § 1175; C.S. 1910, § 1281; C.S. 1920, § 1533; R.S. 1931, § 30-706; C.S. 1945, § 27-906; W.S. 1957, § 7-83; Laws 1985, ch. 212, § 3; 1987, ch. 157, § 3; 2000, ch. 24, § 4; 2004, ch. 42, § 1.

Cross references. —

As to amount of witness fees, see § 1-14-102 .

The 2004 amendment deleted “justice of the peace or” following “in cases before a.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

§ 7-4-204. Oath of witness; recording of testimony; compensation of reporter.

An oath shall be administered to each witness as follows: “You do solemnly swear (or affirm) that the testimony which you shall give to this inquest concerning the death of the person about whom this inquest is being held, shall be the truth, the whole truth and nothing but the truth, so help you God.” The coroner shall insure that all testimony in an inquest shall be recorded. The compensation of the court reporter or of the person transcribing the audio tape shall be as prescribed by the board of county commissioners. Unless specifically requested by the coroner or prosecuting attorney, audio tapes need not be transcribed.

History. C.L. 1876, ch. 28, Art. VI, § 7; R.S. 1887, § 1882; R.S. 1899, § 1176; Laws 1905, ch. 15, § 1; C.S. 1910, § 1282; C.S. 1920, § 1534; R.S. 1931, § 30-707; C.S. 1945, § 27-907; Laws 1953, ch. 80, § 1; W.S. 1957, § 7-84; Laws 1985, ch. 212, § 3; 1987, ch. 157, § 3.

Cross references. —

As to oaths generally, see chapter 2 of title 1.

§ 7-4-205. Return of inquisition by jury.

After hearing testimony and making necessary inquiries, the jurors shall return to the coroner their signed inquisition stating the name of the person and when, how and by what means, if known, he came to his death.

History. C.L. 1876, ch. 28, Art. VI, § 8; R.S. 1887, § 1883; R.S. 1899, § 1177; C.S. 1910, § 1283; C.S. 1920, § 1535; R.S. 1931, § 30-708; C.S. 1945, § 27-908; W.S. 1957, § 7-85; Laws 1985, ch. 212, § 3; 1987, ch. 157, § 3.

§ 7-4-206. Coroner's return to court.

The coroner shall return to the district court the inquisition, the written evidence and a list of witnesses providing material testimony.

History. C.L. 1876, ch. 28, Art. VI, § 10; R.S. 1887, § 1885; R.S. 1899, § 1179; C.S. 1910, § 1285; C.S. 1920, § 1537; R.S. 1931, § 30-710; C.S. 1945, § 27-910; W.S. 1957, § 7-87; W.S. 1977, § 7-4-207 ; Laws 1985, ch. 212, § 3; 1987, ch. 157, § 3.

Subject matter jurisdiction.—

Construction.— Subject matter jurisdiction.—

District court properly dismissed for lack of jurisdiction a motion filed by a homeowner and a decedent’s father to set aside the coroner’s inquest verdict because a coroner’s inquest was an executive matter conducted outside of the courts and was not a final order and had no probative effect. Cassidy v. Teton Cty. Coroner (In re Birkholz), 2019 WY 19, 434 P.3d 1102, 2019 Wyo. LEXIS 19 (Wyo. 2019).

Filing of records with the district court does not, without more, confer jurisdiction on the district court since a coroner’s inquest verdict is not a final order or judgment, and the court’s equitable powers to grant relief do not come into play; questions raised about the propriety of the process, the lack of fundamental safeguards in an inquisition, and bias in the proceeding can best be addressed by the legislature. Cassidy v. Teton Cty. Coroner (In re Birkholz), 2019 WY 19, 434 P.3d 1102, 2019 Wyo. LEXIS 19 (Wyo. 2019).

Coroner’s inquest is an executive matter conducted outside of the courts, and the coroner’s inquest verdict is not a final order and has no probative effect; the filing of the coroner’s inquest verdict and other associated documents with the district court is ministerial and does not confer jurisdiction on the district court. Cassidy v. Teton Cty. Coroner (In re Birkholz), 2019 WY 19, 434 P.3d 1102, 2019 Wyo. LEXIS 19 (Wyo. 2019).

Construction.—

Phrases “the inquisition,” the “written evidence,” and “a list of witnesses” are construed in reference to each other, and while the word inquisition could refer to the official inquiry conducted by the jury, there is no doubt given “its company” that it refers to the record of the findings of the jury; the meaning of the word “inquisition” is evident, and the statute directs that a record of the proceedings be filed with the district court. Cassidy v. Teton Cty. Coroner (In re Birkholz), 2019 WY 19, 434 P.3d 1102, 2019 Wyo. LEXIS 19 (Wyo. 2019).

§ 7-4-207. Disposition of body and effects of deceased.

  1. When the coroner investigates the death of a person whose body is not claimed by a friend or relative within five (5) days of the date of discovery and whose death does not require further investigation, he shall cause the body to be decently buried. The expense of the burial shall be paid from any property found with the body. If no property is found, the expense of the burial shall be paid by the county in which the investigation occurs.
  2. The coroner shall within a reasonable time after completing the investigation, turn over to the appointed personal representative of the estate of the deceased or, if none, to the clerk of the district court of the county, all money or other property found upon the body of the deceased. Personal items valued at less than fifty dollars ($50.00) and items necessary for the convenience of the deceased’s next of kin may be released to the deceased’s next of kin.

History. C.L. 1876, ch. 28, Art. VI, § 11; R.S. 1887, § 1886; R.S. 1899, § 1180; C.S. 1910, § 1286; C.S. 1920, § 1538; R.S. 1931, § 30-711; C.S. 1945, § 27-911; W.S. 1957, § 7-88; W.S. 1977, § 7-4-208 ; Laws 1985, ch. 212, § 3; 1987, ch. 157, § 3.

Cross references. —

As to when coroner's permission required to embalm dead human bodies, see § 33-16-108 .

§ 7-4-208. Authority of sheriff to perform duties of coroner.

If there is no coroner, deputy coroner or in case of their absence, or inability to act, the county sheriff of the same county, the state health officer pursuant to W.S. 35-1-241 , or the coroner of another county if there is a joint powers agreement pursuant to W.S. 16-1-102 through 16-1-108 between the counties authorizing the coroner to so act, is authorized to perform the duties of coroner in relation to dead bodies.

History. C.L. 1876, ch. 28, Art. VI, § 12; R.S. 1887, § 1887; R.S. 1899, § 1181; C.S. 1910, § 1287; C.S. 1920, § 1539; R.S. 1931, § 30-712; C.S. 1945, § 27-912; W.S. 1957, § 7-89; W.S. 1977, § 7-4-209 ; Laws 1985, ch. 212, § 3; 1987, ch. 157, § 3; 2003, ch. 83, § 2; 2006, ch. 53, § 1.

Cross references. —

As to county sheriffs, see § 18-3-601 et seq.

As to safe disposal of corpses in emergency circumstances, see § 35-1-241 .

The 2006 amendment, effective July 1, 2006, inserted “or the coroner of another county if there is a joint powers agreement pursuant to W.S. 16-1-102 through 16-1-108 between the counties authorizing the coroner to so act” and made related changes.

Appropriations. —

Laws 2006, ch. 53, § 2 appropriates ten thousand dollars ($10,000.00) from the general fund to the office of the attorney general for payments to the board of coroners as authorized under W.S. 7-4-211(b).

§ 7-4-209. Postmortem examination; liability limitation.

  1. When an inquisition is being held, if the coroner or the jury shall deem it requisite, he may summon one (1) or more physicians or surgeons, to make an autopsy or postmortem examination.
  2. If it is necessary to obtain or preserve evidence of the cause of death, the district attorney may order that a qualified physician perform an autopsy or postmortem examination of the body of any person who appears to have died by unlawful means, by violence, or when the cause of death is unknown.
  3. No person is subject to civil liability solely because he requested or was involved in the performing of an autopsy that was ordered by a coroner or district attorney.

History. C.L. 1876, ch. 28, Art. VI, § 13; R.S. 1887, § 1888; R.S. 1899, § 1882; C.S. 1910, § 1288; C.S. 1920, § 1540; R.S. 1931, § 30-713; C.S. 1945, § 27-913; W.S. 1957, § 7-90; W.S. 1977, § 7-4-210 ; Laws 1985, ch. 212, § 3; 1987, ch. 152, § 1; ch. 157, § 3.

Cross references. —

As to fee of physician or surgeon testifying as an expert or making postmortem examination, see §§ 1-14-104 and 1-14-105 .

Am. Jur. 2d, ALR and C.J.S. references. —

Liability for wrongful autopsy, 18 ALR4th 858.

Civil liability in conjunction with autopsy, 97 ALR5th 419.

§ 7-4-210. Fees and mileage; salary.

  1. The coroner or deputy coroner of each county within this state shall receive fees and mileage, if any, as set by the board of county commissioners.
  2. The board of county commissioners shall set the salary of the coroner and deputy coroner. A coroner or deputy coroner shall not be prohibited from receiving other fees for their services unrelated to their official duties as coroner or deputy coroner.

History. Laws 1895, ch. 60, § 1; 1897, ch. 22, § 1; R.S. 1899, § 1183; C.S. 1910, § 1289; C.S. 1920, § 1541; R.S. 1931, § 30-714; C.S. 1945, § 27-914; W.S. 1957, § 7-91; Laws 1975, ch. 141, § 1; W.S. 1977, § 7-4-211 ; Laws 1979, ch. 105, § 1; 1985, ch. 212, § 3; 1987, ch. 157, § 3; 2005, ch. 220, § 1.

Cross references. —

As to deputy coroners receiving same compensation as provided in this section, see § 7-4-102 .

The 2005 amendment added (b), designating the existing provisions as (a).

Laws 2005, ch. 220, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March, 2005.

Prospective application. —

Laws 2005, ch. 220, § 2, provides: “This act shall not be construed to authorize an increase in the salary of any coroner during the term of office being currently served for which he was elected as prohibited by Wyoming Constitution, Article 3, Section 32.”

Discretion of board. —

The board of county commissioners is given discretionary authority to approve the claim for expenses and costs submitted by the coroner. Veile v. Board of County Comm'rs, 860 P.2d 1174, 1993 Wyo. LEXIS 163 (Wyo. 1993).

Acts within scope of duties. —

Approving budgets and determining compensation for the county coroner's office are statutory functions expressly within the scope of duties required of a member of a board of county commissioners. Therefore allegations of insufficient budget allocations and determination of inadequate compensation levels could not form the basis of a claim for tortious conduct against members of a board of county commissioners. Veile v. Board of County Comm'rs, 860 P.2d 1174, 1993 Wyo. LEXIS 163 (Wyo. 1993).

§ 7-4-211. Board of coroner standards.

  1. There is created a board of coroner standards. The board shall consist of one (1) chairman and six (6) members appointed by and who shall serve at the pleasure of the governor as follows:
    1. One (1) shall be a physician with a specialty in pathology who is licensed to practice in this state;
    2. Three (3) shall be duly elected coroners in this state;
    3. One (1) shall be a funeral director in this state;
    4. One (1) shall be a duly elected district attorney in this state;
    5. One (1) shall be a peace officer certified under W.S. 9-1-701 through 9-1-711 .
  2. The members of the board shall be appointed to terms of four (4) years which are concurrent with the terms of the office of coroner. Board members not otherwise compensated for attending board meetings shall receive travel expenses and per diem in the same manner and amount as state employees, and any other reasonable expenses upon board approval. Board members not otherwise compensated shall have their expenses paid from the general fund by appropriation to the office of the attorney general.
  3. The board shall:
    1. Meet at least biannually and at the call of the chairman or of a majority of the membership;
    2. Promulgate standards dealing with the investigation of coroner’s cases;
    3. Promulgate educational and training requirements for coroner basic and continuing education requirements and review those requirements annually;
    4. Cooperate with the peace officer standards and training commission in developing basic and continuing education courses for coroners;
    5. Promulgate employment standards for deputy coroners and coroner employees. The standards may include the requirement that deputy coroners and coroner employees provide to the employing coroner fingerprints and other information necessary for a state and national criminal history record background check and release of information as provided in W.S. 7-19-106(k)(ii) and federal P.L. 92-544 and consent to the release of any criminal history information to the employing coroner;
    6. Promulgate rules and regulations to provide for the review of complaints if a coroner or deputy coroner has failed to comply with any provision of W.S. 7-4-103 or this subsection or has failed to meet any educational or training requirement provided under this section. The board shall make recommendations to the peace officer standards and training commission regarding revocation of certifications based on these investigations;
    7. Provide for a system to offer educational programs to assist coroners and deputy coroners in meeting educational and training requirements provided under this section.
  4. The peace officer standards and training commission shall cooperate with the board of coroner standards in establishing course requirements and continuing education requirements required by law.
  5. The board shall contact the district attorney for the county or the attorney general to initiate an action and may serve as complaining party in an action under W.S. 7-4-103 (b) or 18-3-902 to remove any coroner who is not in compliance with W.S. 7-4-103 .
  6. In addition to any action under subsection (e) of this section, the board shall notify the county commissioners for the county of any coroner or deputy coroner who has had his certification revoked.

History. Laws 1985, ch. 212, § 5; Laws 1986, ch. 49, § 1; W.S. 1977, § 7-4-212; Laws 1987, ch. 152, § 1; ch. 157, § 3; 1990, ch. 70, § 1; 2001, ch. 165, § 1; 2006, ch. 53, § 1; 2011, ch. 176, § 1; 2014, ch. 57, § 1.

Cross references. —

As to peace officer standards and training commission, see § 9-1-701 et seq.

As to receipt of meal, lodging and travel expenses by state employees, see § 9-3-102 .

The 2006 amendment, effective July 1, 2006, in (b), substituted “not otherwise compensated for attending board meetings” for “who are not elected county officers or employees of a government agency,” inserted “and any other reasonable expenses upon board approval,” added the last sentence; in (c)(i), inserted “at least biannually and”; inserted “and review those requirements annually” in (c)(iii); in (e), inserted “the attorney general,” inserted “7-4-103(b) or”; and made related changes.

The 2011 amendment, in (a)(v), substituted “9-1-711” for “9-1-707.”

Laws 2011, ch. 176 § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2011.

The 2014 amendment, effective July 1, 2014, added (c)(vi), (c)(vii) and (f).

Editor's notes. —

Laws 1986, ch. 49, § 1, amended and numbered Laws 1985, ch. 212, § 5, which had appeared as a temporary provision under § 9-1-634 , as former § 7-4-212, which was renumbered as § 7-4-211 as a result of the 1987 revision of this title.

Federal law. —

P.L. 92-544, 86 Stat. 119, is codified in various provisions in titles 22, 28, 42, 48, and 50 Appx. of the U.S. Code.

Appropriations. —

Laws 2006, ch. 53, § 2 provides ten thousand dollars ($10,000.00) from the general fund to the office of the attorney general for payments to the board of coroners as authorized under W.S. 7-4-211(b).

Authority of the Board of Coroner Standards.—

Board of Coroner Standards did not have the authority to review complaints alleging that a coroner committed misconduct while conducting an inquest, and therefore the Board’s refusal to investigate the coroner’s alleged misconduct was affirmed, because this section authorized Board investigation for failure to comply with that subsection and made no reference to authority to investigate for alleged failure to comply with Board standards. The remainder of this section bolstered the court’s conclusion that the Board only had authority to review complaints related to coroner education and training. Hayse v. Wyo. Bd. of Coroner Stds., 2020 WY 4, 455 P.3d 267, 2020 Wyo. LEXIS 3 (Wyo. 2020).

Chapter 5 Grand Jury

Am. Jur. 2d, ALR and C.J.S. references. —

38 Am. Jur. 2d Grand Jury § 1 et seq.

Who are “government personnel” within meaning of Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure to whom matters occurring before grand jury may be disclosed, 54 ALR Fed 805.

Civil liability of witness in action under 42 USC § 1983 for deprivation of civil rights, based on testimony given at pretrial criminal proceeding, 94 ALR Fed 892.

Propriety of blanket or per se rule prohibiting federal grand jury from indicting witness who has previously testified before same grand jury under grant of use immunity, 139 ALR Fed 489.

23 C.J.S. Criminal Law § 930; 38A C.J.S. Grand Juries § 1 et seq.

Article 1. In General

Am. Jur. 2d, ALR and C.J.S. references. —

Bail: effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial, 32 ALR4th 600.

Age group underrepresentation in grand jury or petit jury venire, 62 ALR4th 859.

Propriety of blanket or per se rule prohibiting federal grand jury from indicting witness who has previously testified before same grand jury under grant of use immunity, 139 ALR Fed 489.

§ 7-5-101. Required court order for summoning.

A grand jury shall be summoned only when ordered by a judge of the district court.

History. Laws 1895, ch. 114, § 1; R.S. 1899, § 5278; C.S. 1910, § 6142; C.S. 1920, § 7439; R.S. 1931, § 61-103; C.S. 1945, § 12-201; W.S. 1957, § 7-92; Laws 1987, ch. 157, § 3.

Section constitutional. —

Statute providing that all crimes, misdemeanors and offenses may be prosecuted either by indictment or information and that no grand jury shall “hereafter” be summoned unless ordered by the court does not disparage any substantial right or constitutional guaranty, and is not ex post facto. (decided under prior law). In re Wright, 3 Wyo. 478, 27 P. 565, 1891 Wyo. LEXIS 8 (Wyo. 1891).

Former provisions for grand jury were continued in force for pending cases when this section was originally enacted. In re Boulter, 5 Wyo. 329, 40 P. 520, 1895 Wyo. LEXIS 28 (Wyo. 1895).

Applied in

Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo. 1983).

§ 7-5-102. Manner of summoning; term.

A grand jury shall be selected, summoned and impaneled in the same manner as trial juries in civil actions and shall serve for one (1) year following selection unless discharged sooner by the district judge.

History. Laws 1899, ch. 23, § 35; R.S. 1899, § 3374; C.S. 1910, § 6140; C.S. 1920, § 7437; R.S. 1931, § 61-101; C.S. 1945, § 12-136; W.S. 1957, § 7-93; Laws 1987, ch. 157, § 3; 2014, ch. 53, § 1.

Cross references. —

As to qualifications, selection and empaneling of trial juries, see § 1-11-101 et seq.

The 2014 amendment, substituted “shall be selected” for “shall be drawn.”

Formal finding of necessity not necessary. —

A formal finding of necessity by the district court (i.e., a statement of facts or the citing of this section) is not necessary to impanel a grand jury. Where the district court states that the grand jury is necessary, that is sufficient. Hennigan v. State, 746 P.2d 360, 1987 Wyo. LEXIS 536 (Wyo. 1987) (decided prior to 1987 revision).

Challenge to array. —

The only mode by which objections are available against the body of persons summoned to serve as grand jurors is by challenge to the array. Cook v. Territory, 3 Wyo. 110, 4 P. 887, 1884 Wyo. LEXIS 4 (Wyo. 1884).

By pleading guilty, defendant forfeited right to challenge conviction by claiming that the grand jury was convened and conducted improperly. Sword v. State, 746 P.2d 423, 1987 Wyo. LEXIS 537 (Wyo. 1987).

§ 7-5-103. Composition; qualifications; alternates.

  1. A grand jury shall consist of twelve (12) persons who shall possess the qualifications of trial jurors as provided by W.S. 1-11-101 .
  2. The district judge may direct the selection of one (1) or more alternate jurors who shall sit as regular jurors before an indictment is found. If a member of the grand jury becomes unable or disqualified to perform his duty he shall be replaced by an alternate juror.

History. Laws 1895, ch. 114, § 2; R.S. 1899, § 5279; C.S. 1910, § 6143; C.S. 1920, § 7440; R.S. 1931, § 61-104; C.S. 1945, § 12-202; W.S. 1957, § 7-94; Laws 1987, ch. 157, § 3.

Cross references. —

For constitutional requirement as to number of persons on grand jury, see art. 1, § 9, Wyo. Const.

Cited in

In re Boulter, 5 Wyo. 329, 40 P. 520, 1895 Wyo. LEXIS 28 (1895).

Am. Jur. 2d, ALR and C.J.S. references. —

Exclusion of women as violation of constitutional rights of accused or as ground for reversal of conviction, 9 ALR2d 661.

Exclusion of attorneys from jury list in criminal cases, 32 ALR2d 890.

Police officers or other law enforcement officers as grand jurors, 72 ALR3d 895, 72 ALR3d 958.

Standing of criminal defendant to challenge, on constitutional grounds, discriminatory composition of federal jury where defendant is not member of class allegedly excluded, 68 ALR Fed 175.

§ 7-5-104. Finding of indictment.

  1. No indictment shall be found unless the finding is concurred in by at least nine (9) members of the grand jury.
  2. Not less than nine (9) jurors may act as the grand jury in which event it is required that all of them concur in finding an indictment.
  3. If an indictment is found as provided by this section the foreman of the grand jury shall endorse upon the indictment the words “A True Bill” and shall sign the indictment.

History. Laws 1895, ch. 114, § 3; R.S. 1899, § 5280; C.S. 1910, § 6144; C.S. 1920, § 7441; R.S. 1931, § 61-105; C.S. 1945, § 12-203; W.S. 1957, § 7-97; W.S. 1977, § 7-5-106; Laws 1987, ch. 157, § 3.

Cross references. —

As to presentation and filing of indictment, see § 7-5-209 .

As to impermissibility of habeas corpus to question correctness of grand jury in finding bill of indictment, see § 1-27-125 .

As to indictments and information, see Rule 9, W.R. Cr. P.

Prosecution by information constitutional. —

Judgment cannot be attacked, as having been obtained without due process of law, because prosecution was by information instead of indictment. In re Boulter, 5 Wyo. 329, 40 P. 520, 1895 Wyo. LEXIS 28 (Wyo. 1895).

Strict compliance with subsection (c) not necessary. —

An indictment was not required to be dismissed even though the foreman of the grand jury did not endorse the words “A True Bill” on the indictment (the words “A True Bill” were typed upon the indictment), as required by subsection (c). The indictment was returned in open court in the presence of all jurors; the foreman personally signed the verdict; and the words “A True Bill” were contained in each of the indictments. Strict compliance with subsection (c) was not necessary, as this state of facts resulted in a clear manifestation that the grand jury found probable cause. Hennigan v. State, 746 P.2d 360, 1987 Wyo. LEXIS 536 (Wyo. 1987).

Article 2. Proceedings

It must be presumed that grand jury followed court's instructions as to its powers, duties and obligations and that each grand juror fully lived up to and observed his solemn oath, presumably administered in accordance with § 7-5-201 .Hennigan v. State, 746 P.2d 360, 1987 Wyo. LEXIS 536 (Wyo. 1987).

Am. Jur. 2d, ALR and C.J.S. references. —

Privilege against self-incrimination in regard to testimony before grand jury, 38 ALR2d 225.

Contempt by perjury or false swearing in proceedings before grand jury, 89 ALR2d 1258.

Accused's right to inspection of minutes of state grand jury, 20 ALR3d 7.

Refusal to answer questions before state grand jury as direct contempt of court, 69 ALR3d 501.

Individual's right to present complaint or evidence of criminal offense to grand jury, 24 ALR4th 316.

Propriety of blanket or per se rule prohibiting federal grand jury from indicting witness who has previously testified before same grand jury under grant of use immunity, 139 ALR Fed 489.

§ 7-5-201. Appointment of foreman; oath of jurors.

  1. The district judge shall appoint one (1) of the jurors to be foreman. The foreman is authorized to administer oaths to witnesses and shall sign indictments as provided by W.S. 7-5-104 .
  2. Before entering upon their duties, an oath or affirmation shall be administered to the foreman and each of the jurors providing, in substance, that each of them will:
    1. Diligently inquire into all matters coming before them;
    2. Find and present indictments truthfully and without malice, fear of reprisal or hope of reward; and
    3. Keep secret matters occurring before the grand jury unless disclosure is directed or permitted by the court.

History. C.L. 1876, ch. 14, § 64; R.S. 1887, § 3223; R.S. 1899, § 5282; C.S. 1910, § 6146; C.S. 1920, § 7443; R.S. 1931, § 61-107; C.S. 1945, § 10-503; W.S. 1957, § 7-101; W.S. 1977, § 7-5-203 ; Laws 1987, ch. 157, § 3.

Cross references. —

As to oaths generally, see chapter 2 of title 1.

Cited in

Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo. 1983).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of governmental requirement of oath of allegiance or loyalty as applied to jurors, 18 ALR2d 268.

§ 7-5-202. Charging of duties; powers.

  1. After the grand jury is impaneled and sworn, the district judge shall charge the jurors as to their duties particularly to the obligation of secrecy which their oaths impose, and give them any information the court deems proper concerning any offenses known to the court and likely to come before the grand jury.
  2. The grand jury may:
    1. Inquire into any crimes committed or triable within the county and present them to the court by indictment; and
    2. Investigate and report to the court concerning the condition of the county jail and the treatment of prisoners.

History. C.L. 1876, ch. 14, § 66; R.S. 1887, § 3225; R.S. 1899, § 5284; C.S. 1910, § 6148; C.S. 1920, § 7445; R.S. 1931, § 61-109; C.S. 1945, § 10-505; W.S. 1957, § 7-103; W.S. 1977, § 7-5-205 ; Laws 1987, ch. 157, § 3.

Sufficient if members understand elements of offenses. —

The several counts in the indictment encompassed the appropriate elements for the offenses charged, and, whatever instruction may have been given to the grand jury, it was apparent that its members did understand the elements of these offenses. Hennigan v. State, 746 P.2d 360, 1987 Wyo. LEXIS 536 (Wyo. 1987).

Continuing investigation after indictment deemed proper. —

A continuing grand jury investigation, even after the issuance of an indictment, is proper. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983).

Cited in

McBride v. Union Pac. R.R., 3 Wyo. 247, 21 P. 687, 1889 Wyo. LEXIS 1 (1889).

§ 7-5-203. Right of district attorney to appear before jury; presence of other persons during deliberations.

  1. The district attorney, or the deputy or assistant district attorney may appear before the grand jury for the purpose of:
    1. Giving information relative to any matter under inquiry;
    2. Giving requested advice upon any legal matter; and
    3. Interrogating witnesses.
  2. No person other than the grand jurors shall be present during the deliberations of the grand jury or when the jurors are voting.

History. C.L. 1876, ch. 14, § 67; R.S. 1887, § 3226; R.S. 1899, § 5285; C.S. 1910, § 6149; C.S. 1920, § 7446; R.S. 1931, § 61-110; C.S. 1945, § 10-506; W.S. 1957, § 7-104; W.S. 1977, § 7-5-206 ; Laws 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 157, § 3.

Applied in

Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo. 1983).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity and construction of statutes permitting grand jury witnesses to be accompanied by counsel, 90 ALR3d 1340.

Presence of unauthorized persons during state grand jury proceedings as affecting indictment, 23 ALR4th 397.

Propriety of appointing attorney for federal agency as special assistant United States attorney for grand jury proceeding in which agency is interested, 58 ALR Fed 696.

Presence of persons not authorized by Rule 6(d) of Federal Rules of Criminal Procedure during session of grand jury as warranting dismissal of indictment, 68 ALR Fed 798.

§ 7-5-204. Process for witnesses.

If requested by the grand jury or the district attorney, the clerk of the court in which the jury is impaneled shall issue subpoenas for the attendance of witnesses to testify before the grand jury.

History. C.L. 1876, ch. 14, § 68; R.S. 1887, § 3227; R.S. 1899, § 5286; C.S. 1910, § 6150; C.S. 1920, § 7447; R.S. 1931, § 61-111; C.S. 1945, § 10-507; W.S. 1957, § 7-105; W.S. 1977, § 7-5-207 ; Laws 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 157, § 3.

Cross references. —

As to subpoenas, see Rule 17, W.R. Cr. P.

§ 7-5-205. Administration of oath or affirmation to witnesses.

Before any witness is examined by the grand jury, an oath or affirmation shall be administered to him by the foreman.

History. C.L. 1876, ch. 14, § 69; R.S. 1887, § 3228; R.S. 1899, § 5287; C.S. 1910, § 6151; C.S. 1920, § 7448; R.S. 1931, § 61-112; C.S. 1945, § 10-508; W.S. 1957, § 7-106; W.S. 1977, § 7-5-208 ; Laws 1987, ch. 157, § 3.

Cross references. —

As to oaths generally, see chapter 2 of title 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Failure to swear or irregularity in swearing witnesses appearing before grand jury as ground for dismissal of indictment, 23 ALR4th 154.

§ 7-5-206. Proceedings upon refusal of witness to testify.

If a witness appearing before a grand jury refuses, without just cause shown, to testify or provide other information, the district attorney may take the witness before the court for an order directing the witness to show cause why the witness should not be held in contempt. If after hearing the court finds that the refusal was without just cause, and if the witness continues to refuse to testify or produce evidence, the court may hold the witness in contempt subject to the punishment provided by W.S. 1-12-108(a)(ii).

History. C.L. 1876, ch. 14, § 70; R.S. 1887, § 3229; R.S. 1899, § 5288; C.S. 1910, § 6152; C.S. 1920, § 7449; R.S. 1931, § 61-113; C.S. 1945, § 10-509; W.S. 1957, § 7-107; W.S. 1977, § 7-5-209 ; Laws 1987, ch. 157, § 3.

Prosecutors have no authority to grant immunity. —

A prosecuting attorney (district attorney or county attorney) in Wyoming has no authority to grant immunity to a witness. Hall v. State, 851 P.2d 1262, 1993 Wyo. LEXIS 88 (Wyo. 1993).

Am. Jur. 2d, ALR and C.J.S. references. —

Privilege against self-incrimination in regard to testimony before grand jury, 38 ALR2d 225.

Validity and construction of statutes permitting grand jury witnesses to be accompanied by counsel, 90 ALR3d 1340.

§ 7-5-207. Secrecy of indictments against persons not under control.

The district judge may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.

History. C.L. 1876, ch. 14, § 74; R.S. 1887, § 3233; R.S. 1899, § 5291; C.S. 1910, § 6155; C.S. 1920, § 7452; R.S. 1931, § 61-116; C.S. 1945, § 10-512; W.S. 1957, § 7-110; W.S. 1977, § 7-5-212; Laws 1987, ch. 157, § 3.

§ 7-5-208. Confidentiality.

  1. Disclosure of matters occurring before the grand jury, other than its deliberations and the vote of any juror, may be made to the district attorney for use in the performance of his duties. The district attorney may disclose so much of the grand jury’s proceeding to law enforcement agencies as he deems essential to the public interest and effective law enforcement.
  2. Except as provided in subsection (a) of this section, a juror, attorney, interpreter, stenographer, operator of a recording device or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that a particularized need exists for a motion to dismiss the indictment because of matters occurring before the grand jury.
  3. No obligation of secrecy may be imposed upon any person except in accordance with this section and W.S. 7-5-207 .

History. C.L. 1876, ch. 14, § 75; R.S. 1887, § 3234; R.S. 1899, § 5992; C.S. 1910, § 6156; C.S. 1920, § 7453; R.S. 1931, § 61-117; C.S. 1945, § 10-513; W.S. 1957, § 7-111; W.S. 1977, § 7-5-213; Laws 1987, ch. 157, § 3.

Am. Jur. 2d, ALR and C.J.S. references. —

Competency of grand juror to testify in a criminal prosecution to a voluntary statement or confession made by the defendant before the grand jury, 38 ALR2d 225.

Discovery, in civil proceeding, of records of criminal investigation by state grand jury, 69 ALR4th 298.

Who are “government personnel” within meaning of Rule 6(a)(3)(A)(ii) of the Federal Rules of Criminal Procedure to whom matters occurring before grand jury may be disclosed, 54 ALR Fed 805.

Right of party in civil action to obtain disclosure, under Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure, of matters occurring before grand jury, 71 ALR Fed 10.

Relief, remedy or sanction for violation of Rule 6(e) of Federal Rules of Criminal Procedure, prohibiting disclosure of matters occurring before grand jury, 73 ALR Fed 112.

§ 7-5-209. Presentation and filing of indictment.

Indictments found by the grand jury shall be presented by the foreman to the court in the presence of the jury and filed with the clerk.

History. C.L. 1876, ch. 14, § 80; R.S. 1887, § 3239; Laws 1890, ch. 73, § 131; R.S. 1899, § 5296; C.S. 1910, § 6160; C.S. 1920, § 7457; R.S. 1931, § 61-121; C.S. 1945, § 10-517; W.S. 1957, § 7-115; W.S. 1977, § 7-5-217; Laws 1987, ch. 157, § 3.

Cross references. —

As to finding of indictment, see § 7-5-104 .

Article 3. State Grand Jury

§ 7-5-301. Petition for impaneling; determination by district judge.

If the attorney general or the governor deems it to be in the public interest to convene a grand jury which shall have jurisdiction extending beyond the boundaries of any single county, he may petition the judge of any district court for an order in accordance with the provisions of W.S. 7-5-301 through 7-5-309 . The district judge may, for good cause shown, order the impaneling of a state grand jury which shall have statewide jurisdiction. In making his determination as to the need for impaneling a state grand jury, the judge shall require a showing that the matter cannot be effectively handled by a county grand jury impaneled pursuant to W.S. 7-5-101 through 7-5-209 .

History. Laws 1973, ch. 150, § 1; W.S. 1957, § 7-117.1; Laws 1987, ch. 157, § 3.

Stated in

Nimmo v. State, 603 P.2d 386, 1979 Wyo. LEXIS 485 (Wyo. 1979).

§ 7-5-302. Powers and duties; applicable law; procedural rules.

A state grand jury shall have the same powers and duties and shall function in the same manner as a county grand jury, except for the provisions of W.S. 7-5-202(b)(ii), and except that its jurisdiction shall extend throughout the state. The law applicable to county grand juries shall apply to state grand juries except when the law is inconsistent with the provisions of W.S. 7-5-301 through 7-5-309 . The supreme court may promulgate any rules it deems necessary to govern the procedures of state grand juries.

History. Laws 1973, ch. 150, § 1; W.S. 1957, § 7-117.2; Laws 1987, ch. 157, § 3.

§ 7-5-303. Selection and term of members.

The district judge granting the petition to convene a state grand jury shall impanel the state grand jury from a base jury list for the state compiled by the supreme court. The district court judge may specify that the base jury list for the state not include the names of jurors from every county within the state to limit juror expense and inconvenience of travel. A state grand jury shall be composed of twelve (12) persons, but not more than one-half (1/2) of the members of the state grand jury shall be residents of any one (1) county. The members of the state grand jury shall be selected by the court in the same manner as jurors of county grand juries and shall serve for one (1) year following selection unless discharged sooner by the district judge.

History. Laws 1973, ch. 150, § 1; W.S. 1957, § 7-117.3; Laws 1987, ch. 157, § 3; 2014, ch. 53, § 1.

The 2014 amendment, deleted the former first two sentences; substituted “petition to convene a state grand jury” for “order,” “a base jury list for the state” for “the lists,” and “supreme court” for “clerks of court” in the present first sentence; and substituted “district court judge may specify that the base jury list for the state” for “judge preparing the final list from which the grand jurors will be chosen need” and to limit juror” for “having due regard for the” in the present second sentence.

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of indictment as affected by substitution or addition of grand jurors after commencement of investigation, 2 ALR4th 980.

§ 7-5-304. Summoning of jurors.

Jurors shall be summoned and selected in the same manner as jurors of county grand juries.

History. Laws 1973, ch. 150, § 1; W.S. 1957, § 7-117.4; Laws 1987, ch. 157, § 3.

Cross references. —

As to summoning of county grand juries, see § 7-5-102 .

§ 7-5-305. Judicial supervision.

Judicial supervision of the state grand jury shall be maintained by the district judge who issued the order impaneling the grand jury, and all indictments, reports and other formal returns of any kind made by the grand jury shall be returned to that judge.

History. Laws 1973, ch. 150, § 1; W.S. 1957, § 7-117.5; Laws 1987, ch. 157, § 3.

§ 7-5-306. Presentation of evidence.

The presentation of the evidence shall be made to the state grand jury by the attorney general or his designee. In the event the office of the attorney general is under investigation, the presentation of evidence shall be made to the state grand jury by an attorney appointed by the Wyoming supreme court.

History. Laws 1973, ch. 150, § 1; W.S. 1957, § 7-117.6; Laws 1987, ch. 157, § 3.

Am. Jur. 2d, ALR and C.J.S. references. —

Duty of prosecutor to present exculpatory evidence to state grand jury, 49 ALR5th 639.

§ 7-5-307. Return of indictment; designation of venue; consolidation of indictments.

Any indictment by the state grand jury shall be returned to the district judge without any designation of venue. Thereupon, the judge shall, by order, designate the county of venue for the purpose of trial. The judge may order the consolidation of an indictment returned by a county grand jury with an indictment returned by a state grand jury and fix venue for trial.

History. Laws 1973, ch. 150, § 1; W.S. 1957, § 7-117.7; Laws 1987, ch. 157, § 3.

Cross references. —

As to venue in criminal cases generally, see § 1-7-102 .

§ 7-5-308. Investigative powers; secrecy of proceedings.

  1. In addition to its powers of indictment, a statewide grand jury impaneled under W.S. 7-5-301 through 7-5-309 may, at the request of the attorney general, cause an investigation to be made into the extent of organized criminal activity within the state and return a report to the attorney general.
  2. Disclosure of matters occurring before the grand jury, other than its deliberations and the vote of any juror, may be made to the attorney general and to any district attorney for use in the performance of their duties. Those officials may disclose so much of the grand jury’s proceedings to law enforcement agencies as they deem essential to the public interest and effective law enforcement.
  3. Except as provided in subsection (b) of this section, a juror, attorney, interpreter, stenographer, operator of a recording device or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that a particularized need exists for a motion to dismiss the indictment because of matters occurring before the grand jury.
  4. No obligation of secrecy may be imposed upon any person except in accordance with this section. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event, the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.

History. Laws 1973, ch. 150, § 1; W.S. 1957, § 7-117.8; Laws 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 157, § 3.

Am. Jur. 2d, ALR and C.J.S. references. —

Discovery, in civil proceeding, of records of criminal investigation by state grand jury, 69 ALR4th 298.

What is “judicial proceeding” within Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure permitting disclosure of matters occurring before grand jury when so directed by court preliminarily to or in connection with such proceeding, 52 ALR Fed 411.

Relief, remedy or sanction for violation of Rule 6(e) of Federal Rules of Criminal Procedure, prohibiting disclosure of matters occurring before grand jury, 73 ALR Fed 112.

§ 7-5-309. Costs and expenses.

The costs and expenses incurred in impaneling a state grand jury and in the performance of its functions and duties shall be paid by the state out of funds appropriated to the attorney general for that purpose.

History. Laws 1973, ch. 150, § 1; W.S. 1957, § 7-117.9; Laws 1987, ch. 157, § 3.

Chapter 6 Public Defender

Law reviews. —

For comment, “Post Conviction Relief: Do It Once, Do It Right and Be Done With It,” see XXIV Land & Water L. Rev. 473 (1989).

§ 7-6-101. Short title.

This act shall be known and may be cited as the “Public Defender Act”.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.17; W.S. 1977, § 7-1-107 ; Laws 1987, ch. 157, § 3; 176, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-6-102(a)(vi).

Cited in

Schepp v. Fremont County, 685 F. Supp. 1200, 1988 U.S. Dist. LEXIS 4206 (D. Wyo. 1988); Page v. State, 949 P.2d 466, 1997 Wyo. LEXIS 163 (Wyo. 1997).

§ 7-6-102. Definitions.

  1. As used in this act:
    1. and (ii) Repealed by Laws 1989, ch. 121, § 2.
    2. “Expenses”, when used with reference to representation under this act, include the expenses of investigation, other preparation and trial;
    3. “Needy person” means a person who at the time of his need of an attorney is unable to provide for the full payment of an attorney and all other necessary expenses of representation without prejudicing his financial ability to provide basic economic necessities for himself or his family considering the person’s available funds and the anticipated cost of the attorney.
    4. “Serious crime” means:
      1. Any felony or misdemeanor under the laws of the state of Wyoming for which incarceration as a punishment is a practical possibility, provided, however, that counsel need not be appointed for a misdemeanor if the judge, at the initial appearance, determines and states on the record that he will not sentence the defendant to any period of imprisonment if the defendant is convicted of the misdemeanor; and
      2. Any misdemeanor offense charged under W.S. 6-2-501 , 6-2-510 or 6-2-511 , or any other provision, a conviction of which is a “misdemeanor crime of domestic violence” as defined in 18 U.S.C. § 921(a)(33), and which may therefore result in the disqualification of the person to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(9) and 924(a)(2), regardless of the determination of the judge that he intends not to impose a term of incarceration for the state offense.
    5. “This act” means W.S. 7-6-101 through 7-6-114 .

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.18; W.S. 1977, § 7-1-108 ; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1989, ch. 121, § 2; 1999, ch. 95, § 1; 2009, ch. 19, § 2; 2014, ch. 13, § 2; 2020, ch. 34, § 1.

Cross references. —

As to crimes and offenses, see title 6.

The 2009 amendment, added (B) in (a)(v) and made related changes.

Laws 2009, ch. 19, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 24, 2009.

The 2014 amendment, effective July 1, 2014, inserted “6-2-510 or 6-2-511 ” in (a)(v)(B).

The 2020 amendment, effective July 1, 2020, in (a)(iv) substituted “at the time of his need of an attorney is unable” for “at the time his need is determined is unable,” and added “representation without prejudicing his financial ability to provide basic economic necessities for himself or his family considering the person’s available funds and the anticipated cost of the attorney” at the end.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Court declines to follow U.S. Supreme Court. —

The court declined to follow the United States Supreme Court's actual incarceration approach to determine the right to counsel, and declined the holding that an uncounseled conviction can be used to enhance a subsequent offense. Brisson v. State, 955 P.2d 888, 1998 Wyo. LEXIS 33 (Wyo. 1998).

Court inquiry. —

Proper inquiries were not made to determine whether defendant wanted to be represented by appointed counsel; rather the court merely queried whether defendant intended to represent himself, hire an attorney, or ask the court to consider appointment of a public defender, and when defendant said he made about $1,000 a month, the court ordered that he sign a waiver of his right to assistance of counsel. Wilkie v. State, 2002 WY 164, 56 P.3d 1023, 2002 Wyo. LEXIS 184 (Wyo. 2002).

Violation of city ordinance is not “serious crime” within the definition of the Public Defender Act. State ex rel. Hoke v. Owens, 733 P.2d 240, 1987 Wyo. LEXIS 396 (Wyo. 1987).

Applied in

Alberts v. State, 745 P.2d 898, 1987 Wyo. LEXIS 539 (Wyo. 1987).

Quoted in

Long v. State, 745 P.2d 547, 1987 Wyo. LEXIS 542 (Wyo. 1987); Juarez v. State, 791 P.2d 287, 1990 Wyo. LEXIS 47 (Wyo. 1990).

Stated in

Jackson v. State, 624 P.2d 751, 1981 Wyo. LEXIS 277 (Wyo. 1981).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 7-6-103. Creation of office of state public defender; appointment of state public defender and assistants; duties; removal.

  1. There is created the office of the state public defender. The office of the state public defender shall be deemed a state agency for budgeting purposes pursuant to W.S. 9-2-1001 .1 through 9-2-1014 .2.
  2. The state public defender shall be appointed by and shall serve at the pleasure of the governor.
  3. The state public defender shall:
    1. Be a member in good standing of the Wyoming state bar;
    2. Have had experience in defense or prosecution of persons accused of crime in this state;
    3. Be compensated as determined by the Wyoming personnel division;
    4. Devote full time to the performance of his duties;
    5. Administer the public defender program of the state;
    6. Promulgate rules and regulations establishing a standard fee schedule for services provided by attorneys appointed pursuant to W.S. 7-6-109 and post the schedule on the agency’s website;
    7. Repealed by Laws 2013, ch. 87, §  2.
    8. Repealed by Laws 2020, ch. 122, § 3.
  4. The state public defender shall not engage in private practice except to complete business pending at the time of his appointment.
  5. Any assistant public defender may serve in another judicial district on a case by case basis at the request of the state public defender.
  6. The governor may appoint full or part-time assistant public defenders in each judicial district with the advice of the state public defender, the district judge of the district and the boards of county commissioners in the district. In appointing assistant public defenders the governor shall consider the recommendations submitted to him, the demand for legal services, the criminal case load statistics, the population, the geographical characteristics and any other relevant factors.
  7. Each assistant public defender shall:
    1. Serve at the pleasure of the state public defender;
    2. Be a member in good standing of the Wyoming state bar. The governor may remove any assistant public defender as provided in W.S. 9-1-202 ;
    3. Be compensated as determined by the Wyoming personnel division, or by the state public defender if appointed under a purchase order contract; and
    4. Devote full time to the performance of his duties when directed by the state public defender.
  8. A full time assistant public defender shall not engage in private practice except to complete business pending at the time of his appointment.
  9. The state public defender may act as his own attorney or may be represented by the attorney general in any actions, suits or claims in which the office of the state public defender or the state public defender himself is a party.
  10. Notwithstanding any other provision of law to the contrary, any attorney providing services for the office of the state public defender in the defense of a criminal case shall, for matters arising out of such services, be considered a state employee for purposes of coverage and representation under the Wyoming Governmental Claims Act, W.S. 1-39-101 through 1-39-120 , and the state self-insurance program, W.S. 1-41-101 through 1-41-111 .

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.19; W.S. 1977, § 7-1-109 ; Laws 1987, ch. 157, § 3; ch. 175, § 1; ch. 176, § 1; 1989, ch. 121, § 1; 1999, ch. 95, § 1; 2006, ch. 114, § 1; 2012, ch. 76, § 3; 2013, ch. 87, §§ 1, 2; 2017, ch. 41, § 1; 2020, ch. 122, § 3; 2021, ch. 56, § 3.

Cross references. —

As to personnel division, see § 9-2-1019 .

As to Wyoming state bar, see Rules Providing for Organization and Government of the Bar Association, see Wyoming Court Rules Annotated.

The 2006 amendment substituted “1-39-121” for “1-39-120” in (k); and made a stylistic change.

The 2012 amendment, added (c)(viii) and made related change.

The 2013 amendment, effective July 1, 2013, added “and post the schedule on the agency’s website” following “ W.S. 7-6-109 ” in (c)(vi) and repealed (c)(vii) which read: “On or before June 8, 1989, promulgate rules and regulations in cooperation with the supreme court of Wyoming establishing standards for determining who is a needy person as defined W.S. 7-6-102(a)(iv). The standards shall require the person to file with the court a written affidavit under oath stating his financial assets and liabilities;”.

The 2017 amendment, effective July 1, 2017, in the middle of (k), substituted “1-39-120” for “1-39-121.”

The 2020 amendment, effective July 1, 2020, repealed (c)(viii), which read “Administer the guardian ad litem program as provided in W.S. 14-12-101 through 14-12-104 .”

The 2021 amendment , in (a), substituted "9-2-1001.1" for "9-2-1001" and "9-2-1014.2" for "9-2-1026."

Laws 2021, ch. 56, § 7, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 1, 2021.

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “[A]ny other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Applied in

Wilkie v. State, 2002 WY 164, 56 P.3d 1023, 2002 Wyo. LEXIS 184 (Wyo. 2002).

Cited in

Juarez v. State, 791 P.2d 287, 1990 Wyo. LEXIS 47 (Wyo. 1990).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and effect of statutes providing for office of public defender, 36 ALR3d 1403.

Right of public defenders to join collective bargaining unit, 108 ALR5th 241.

§ 7-6-104. Representation of needy persons.

  1. The public defender shall represent as counsel any needy person who is under arrest for or formally charged with having committed a serious crime if:
    1. The defendant requests counsel; or
    2. The court, on its own motion or otherwise, orders appointment of counsel and the defendant does not affirmatively waive or reject, on the record, the opportunity to be represented by legal counsel in the proceeding.
  2. Appointed counsel, services and facilities necessary for representation, and court costs shall be provided at public expense to the extent that the person, at the time the court determines need, is unable to provide for their payment.
  3. A needy person who is entitled to be represented by an attorney under subsection (a) of this section is entitled:
    1. To be represented by the public defender in a proceeding for revocation of probation when it is determined by the court to be statutorily or constitutionally required;
    2. To be represented in any appeal to a Wyoming court, and in cases in which the death penalty has been imposed or in such other cases as the state public defender deems appropriate, in a writ of certiorari to the United States supreme court, and in proceedings under W.S. 7-14-101 through 7-14-108 ;
    3. Repealed by Laws 1989, ch. 121, § 2.
    4. Repealed by Laws 1999, ch. 95, § 2.
    5. To be represented by the public defender when requested by a fugitive in a proceeding for extradition for the limited purpose provided in W.S. 7-3-210 or for fugitive juveniles under the Interstate Compact on Juveniles, W.S. 14-6-102 , when requested by the juvenile or the court;
    6. To be represented by counsel at every stage of the proceedings, from the time of the initial appointment by the court until the entry of final judgment, at which time the representation shall end, unless the court appoints counsel for purposes of appeal, correction or modification of sentence;
    7. To be represented by the public defender in a motion brought in accordance with the provisions of the Post–Conviction DNA Testing Act or in accordance with W.S. 7-12-405 .
  4. A needy person’s right to a benefit under subsection (a) or (c) of this section is not affected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.20; W.S. 1977, § 7-1-110; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1989, ch. 121, §§ 1, 2; 1990, ch. 95, § 1; 1999, ch. 95, §§ 1, 2; 2008, ch. 92, § 2; 2013, ch. 170, § 1; 2018, ch. 77, § 2.

Cross references. —

As to right of minor to counsel, see § 7-1-105 .

As to right to counsel of person subject to extradition, see § 7-3-210 .

As to constitutional right of accused to defend in person and by counsel, see art. 1, § 10, Wyo. Const.

As to right to counsel at preliminary examinations, see Rule 5.1, W.R. Cr. P.

The 2008 amendment, effective July 1, 2008, added (c)(vii).

The 2013 amendment, added the language beginning “or for fugitive juveniles” to the end of (c)(v).

Laws 2013, ch. 170, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved March 13, 2013.

The 2018 amendment, in (c)(vii), added “or in accordance with W.S. 7-12-405 ” at the end.

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

Court declines to follow U.S. Supreme Court. —

The court declined to follow the United States Supreme Court's actual incarceration approach to determine the right to counsel, and declined the holding that an uncounseled conviction can be used to enhance a subsequent offense. Brisson v. State, 955 P.2d 888, 1998 Wyo. LEXIS 33 (Wyo. 1998).

Construction.—

The right to representation described in this section attaches when the qualifying defendant indicates one way or the other that he wants an attorney; the right is not dependent on a court appointment, and the reference to the court’s appointment serves only to aid in determining whether the defendant has invoked the right to counsel. As interpreted, there is no conflict between this section and Wyo. Stat. Ann. § 7-6-105(b). Lozano v. Circuit Court of the Sixth Judicial Dist., 2020 WY 44, 460 P.3d 721, 2020 Wyo. LEXIS 45 (Wyo. 2020).

Attorney required to investigate options for indigent client. —

If trial counsel actually knew or had reason to believe his client was indigent, it is deficient performance not to investigate the options available to the client under this section. An attorney is presumed to know the applicable law. McCoy v. State, 886 P.2d 252, 1994 Wyo. LEXIS 154 (Wyo. 1994), reh'g denied, 1994 Wyo. LEXIS 169 (Wyo. Dec. 20, 1994).

Plea of not guilty without representation allowed. —

In a prosecution for murder, no right of defendant was prejudiced by taking his plea of not guilty at time of arraignment when he was not represented by counsel. James v. State, 27 Wyo. 378, 196 P. 1045, 1921 Wyo. LEXIS 19 (Wyo. 1921).

Absence of counsel when instruction given not necessarily prejudicial. —

Where the state waived any objections to the failure of counsel to object to a supplemental instruction, either before or immediately after it was given, and the trial judge was given an opportunity to rule on the propriety of his instruction, brought to his attention before appeal to the supreme court, so the question was properly raised on appeal, defendant was not prejudiced by the absence of counsel, even if true that defendant was unrepresented at the time the instruction was given to the jury. Hoskins v. State, 552 P.2d 342, 1976 Wyo. LEXIS 204 (Wyo. 1976), reh'g denied, 553 P.2d 1390, 1976 Wyo. LEXIS 213 (Wyo. 1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1602, 51 L. Ed. 2d 806, 1977 U.S. LEXIS 1392 (U.S. 1977).

No requirement for appointment of appellate counsel. —

Defendant was not denied meaningful access to the law and the courts by an appellate court's denial of a motion for the appointment of appellate counsel; under Wyo. Stat. Ann. § 7-6-104(c)(vi), there was no statutory requirement for appointment of counsel at every posttrial motion. Eckdahl v. State, 2011 WY 152, 264 P.3d 22, 2011 Wyo. LEXIS 157 (Wyo. 2011).

District court properly rejected defendant's motion to have counsel appointed for him in his appeal of the denial of his motions to correct an illegal sentence because an appeal of the denial of a motion to correct an illegal sentence was not a critical stage, and defendant not have the right to be represented by appointed counsel in his appeal; because there was no requirement to appoint counsel, the decision was made at the discretion of the district court. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Payment of expenses may be compelled. —

Section 7-6-106(c) authorizes a court order to compel payment by the defendant of such amount as he is able to provide for necessary expenses of representation after determination of need, as provided in subsection (b) of this section and § 7-6-106(a). Phillips v. State, 553 P.2d 1037, 1976 Wyo. LEXIS 210 (Wyo. 1976).

Court may not impose anticipatory requirement for periodic payments. —

This section provides for the representation of a needy person on appeal, but imposing an anticipatory requirement for periodic payments is not consistent with the statutory language. Smith v. State, 902 P.2d 1271, 1995 Wyo. LEXIS 161 (Wyo. 1995).

Revocation of probation. —

Although Rule 44(a)(2), W.R.Cr.P., limits the circumstances under which the court is required to appoint counsel in a probation revocation proceeding, a defendant is constitutionally entitled to court-appointed counsel in the specific circumstance when the proceeding includes sentencing. Nelson v. State, 934 P.2d 1238, 1997 Wyo. LEXIS 55 (Wyo. 1997).

Under Wyoming's judicial revocation procedure where the state is represented by a prosecutor and the rules of evidence apply to a portion of the proceedings, the Sixth Amendment requires appointment of counsel for indigent probationers when the indigent probationer is entitled to be represented by an attorney under subsection (a). An inescapable corollary to such a holding is the invalidation of W.R.Cr.P. 44(a)(2), in the context of judicial revocations. Pearl v. State, 996 P.2d 688, 2000 Wyo. LEXIS 25 (Wyo. 2000).

Post-conviction standard. —

The standard for determining the proceeding “is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense” is entirely subjective and results in unbridled discretion. Long v. State, 745 P.2d 547, 1987 Wyo. LEXIS 542 (Wyo. 1987) (decided prior to 1989 amendment).

The legislature should settle for the test of indigence for post-conviction proceedings and permit counsel to pursue all potential avenues of relief for a convicted indigent. Long v. State, 745 P.2d 547, 1987 Wyo. LEXIS 542 (Wyo. 1987) (decided prior to 1989 amendment).

This section, which provides that the court must also determine that the proceeding is one which a reasonable person with adequate means would be willing to bring at his own expense, does not prevail over § 7-14-104 as relating to the representation by counsel at the post-conviction relief stage. Therefore, a petitioner for post-conviction relief who is without means for procuring counsel is entitled to have court-appointed counsel represent him commencing with the preparation of the petition. Alberts v. State, 745 P.2d 898, 1987 Wyo. LEXIS 539 (Wyo. 1987) (decided prior to 1989 amendment).

Court properly denied defendants' motions for appointment of counsel in their motions to correct illegal sentences, because a motion to correct an illegal sentence was not a critical stage of criminal proceedings, and although defendants made uncorroborated claims about the deficiencies in the legal resources available to them in prison, they did not establish the actual injury required to demonstrate a violation of their constitutional right to access to courts. Gould v. State, 2006 WY 157, 151 P.3d 261, 2006 Wyo. LEXIS 176 (Wyo. 2006), cert. denied, 552 U.S. 854, 128 S. Ct. 125, 169 L. Ed. 2d 88, 2007 U.S. LEXIS 9472 (U.S. 2007).

Applied in

Burke v. State, 746 P.2d 852, 1987 Wyo. LEXIS 550 (Wyo. 1987); Aden v. State, 761 P.2d 88, 1988 Wyo. LEXIS 114 (Wyo. 1988); Wilkie v. State, 2002 WY 164, 56 P.3d 1023, 2002 Wyo. LEXIS 184 (Wyo. 2002).

Stated in

Jackson v. State, 624 P.2d 751, 1981 Wyo. LEXIS 277 (Wyo. 1981).

Cited in

Bibbins v. State, 741 P.2d 115, 1987 Wyo. LEXIS 492 (Wyo. 1987); Jones v. State, 771 P.2d 368, 1989 Wyo. LEXIS 87 (Wyo. 1989); Van Riper v. State, 882 P.2d 230, 1994 Wyo. LEXIS 108 (Wyo. 1994); Keats v. State, 2005 WY 81, 115 P.3d 1110, 2005 Wyo. LEXIS 95 (2005).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Duty to advise accused of right to assistance of counsel, 3 ALR2d 1003.

Absence of counsel for accused at time of sentence as requiring vacation thereof or other relief, 20 ALR2d 1240.

Indigent defendant's right to aid of state as regards new trial or appeal, 55 ALR2d 1072.

Constitutionally protected right of indigent accused to appointment of counsel in state court prosecution, 93 ALR2d 747.

Accused's right to assistance of counsel at or prior to arraignment, 5 ALR3d 1269.

Conflict of interest between or among codefendants precluding representation by same counsel, 34 ALR3d 470.

Right to assistance of counsel at proceedings to revoke probation, 44 ALR3d 306.

Determination of indigency entitling accused to appointment of counsel, 51 ALR3d 1108.

Right to counsel in contempt proceedings, 52 ALR3d 1002.

Right of indigent to choose counsel to be appointed to assist him, 66 ALR3d 996.

Modern status of rules and standards in state courts as to adequacy of defense counsel's representation of criminal client, 2 ALR4th 27.

Right of accused in criminal prosecution to presence of counsel at court-appointed or -approved psychiatric examination, 3 ALR4th 910.

Adequacy of defense counsel's representation of criminal client regarding argument, 6 ALR4th 16.

Propriety of using otherwise inadmissible statement, taken in violation of Miranda rule, to impeach criminal defendant's credibility — state cases, 14 ALR4th 676.

Denial of, or interference with, accused's right to have attorney initially contact accused, 18 ALR4th 669.

Denial of accused's request for initial contact with attorney — cases involving offenses other than drunk driving, 18 ALR4th 743.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 ALR4th 183.

Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of guilty plea — state cases, 65 ALR4th 719.

Right of indigent defendant in state criminal case to assistance of fingerprint expert, 72 ALR4th 874.

Right of indigent defendant in state criminal case to assistance of expert in social attitudes, 74 ALR4th 330.

Right of indigent defendant in state criminal case to assistance of chemist, toxicologist, technician, narcotics expert or similar nonmedical specialist in substance analysis, 74 ALR4th 388.

Right of indigent defendant in state criminal case to assistance of investigators, 81 ALR4th 259.

Right to appointment of counsel in contempt proceedings, 32 ALR5th 31.

Right of indigent defendant in state criminal prosecution to ex parte in camera hearing on request for state-funded expert witness, 83 ALR5th 541.

Appealability of federal court order denying motion for appointment of counsel for indigent party, 67 ALR Fed 925.

What constitutes assertion of right to counsel following Miranda warnings — federal cases, 80 ALR Fed 622.

§ 7-6-105. Advisement of rights; appointment of attorney.

  1. A needy person who is being interrogated by law enforcement personnel for a serious crime, or who is a probationer or parolee, shall be informed of his right to be represented by an attorney at public expense. If the person being interrogated does not have an attorney and wishes to have the services of an attorney, he shall be provided the opportunity to contact the nearest public defender.
  2. At the person’s initial appearance the court shall advise any defendant who is a needy person of his right to be represented by an attorney at public expense. The court shall further explain to the needy person the possibility that he may be ordered to reimburse the state for the costs associated with his legal representation. If the person charged does not have an attorney and wishes one, the court shall notify an available public defender for the judicial district or shall appoint an attorney to represent the needy person if no public defender is available.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.21; W.S. 1977, § 7-1-111; Laws 1987, ch. 157, § 3; ch. 176, § 1.

Unavailability.—

Because this section contemplates that the determination of availability may be made before or simultaneously with the court’s notification, the Supreme Court of Wyoming cannot read it to mandate that a determination of unavailability may occur only through the filing of a motion to withdraw. Lozano v. Circuit Court of the Sixth Judicial Dist., 2020 WY 44, 460 P.3d 721, 2020 Wyo. LEXIS 45 (Wyo. 2020).

Neither this section nor any other provision of the Public Defender Act dictates a procedure for determining a public defender’s availability at the initial appearance stage of the proceedings. Given this lack of a required procedure, and the fact that this section directs the court to notify an available public defender, the Supreme Court of Wyoming reads this section to contemplate that it is the public defender who will make the determination of its availability before representation is undertaken. Lozano v. Circuit Court of the Sixth Judicial Dist., 2020 WY 44, 460 P.3d 721, 2020 Wyo. LEXIS 45 (Wyo. 2020).

Interrogated needy person's right to counsel. —

Wyo. Stat. Ann. § 7-6-105(a) is not applicable unless a defendant is a “needy person” who is “being interrogated”; the resolution of claims under § 7-6-105(a) can require a determination as to whether the defendant is “being interrogated” at the time that he insists § 7-6-105(a) should have been invoked. Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo., cert. denied, 540 U.S. 970, 124 S. Ct. 438, 157 L. Ed. 2d 317, 2003 U.S. LEXIS 7776 (U.S. 2003), reh'g denied, 2003 Wyo. LEXIS 85 (Wyo. May 20, 2003).

When representation of needy person begins. —

The representation of a needy person does not occur until there is some acknowledgment by counsel of the appointment, although that acknowledgment may be a failure to assess a conflict of interest and ask for a removal in a prompt fashion after learning of the appointment. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980).

Where defendant's right to counsel had been waived, his argument based on this section, that he was not provided with counsel before making his confessions and statements, was not viable; and admission of his statements and confessions was not error. Raigosa v. State, 562 P.2d 1009, 1977 Wyo. LEXIS 246 (Wyo. 1977).

Bradshaw voluntariness test satisfied. —

Defendant's statement to investigators satisfied the Bradshaw voluntariness test and was properly not suppressed; he was informed of his rights, and, after requesting counsel, he initiated a conversation with investigators in which he made incriminating statements, and, by doing so, he waived his rights to silence and representation. Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo., cert. denied, 540 U.S. 970, 124 S. Ct. 438, 157 L. Ed. 2d 317, 2003 U.S. LEXIS 7776 (U.S. 2003), reh'g denied, 2003 Wyo. LEXIS 85 (Wyo. May 20, 2003).

Quoted in

Wilkie v. State, 2002 WY 164, 56 P.3d 1023, 2002 Wyo. LEXIS 184 (Wyo. 2002).

Cited in

Cherniwchan v. State, 594 P.2d 464, 1979 Wyo. LEXIS 406 (Wyo. 1979); Mapp v. State, 953 P.2d 140, 1998 Wyo. LEXIS 17 (Wyo. 1998); Trujillo v. State, 2 P.3d 567, 2000 Wyo. LEXIS 108 (Wyo. 2000).

Construction.—

Trial court erred in ruling that the public defender had to accept all appointments to serve as counsel for indigent defendants unless and until the appointing court ruled otherwise, and therefore its order holding the state public defender in contempt for declining two appointments based on the unavailability of counsel was reversed, because this section afforded the public defender discretion to decline an appointment or appointments. The court further held that in exercising that discretion, there was no requirement, statutory or otherwise, that the public defender show an individualized injury in fact or meet the Strickland post-conviction showing of prejudice. Lozano v. Circuit Court of the Sixth Judicial Dist., 2020 WY 44, 460 P.3d 721, 2020 Wyo. LEXIS 45 (Wyo. 2020).

The right to representation described in Wyo. Stat. Ann. § 7-6-104(a) attaches when the qualifying defendant indicates one way or the other that he wants an attorney; the right is not dependent on a court appointment, and the reference to the court’s appointment serves only to aid in determining whether the defendant has invoked the right to counsel. As interpreted, there is no conflict between § 104 and this section. Lozano v. Circuit Court of the Sixth Judicial Dist., 2020 WY 44, 460 P.3d 721, 2020 Wyo. LEXIS 45 (Wyo. 2020).

§ 7-6-106. Determination of need; reimbursement for services.

  1. The determination of whether a person covered by W.S. 7-6-104 is a needy person shall be deferred until his first appearance in court or in a suit for payment or reimbursement under W.S. 7-6-108 , whichever occurs earlier. Thereafter, the court shall determine, with respect to each proceeding, whether he is a needy person. For purposes of this section, an appeal, probation revocation or proceeding to correct or modify a sentence is a separate proceeding. The determination of need shall be based on a separate application submitted at the time of each proceeding.
  2. In determining whether a person is a needy person and in determining the extent of his inability to pay, and, in the case of an unemancipated minor, the inability to pay of his custodial parent or another person who has a legal obligation of support, the court shall consider the standards set forth in subsections (f) through (h) of this section and Rule 44(d), Wyoming Rules of Criminal Procedure. Release on bail does not necessarily prevent a person from being determined to be needy. In each case the person, subject to the penalties for perjury, shall certify in writing, or by other record, the material factors relating to his ability to pay as the court prescribes.
  3. In every case in which a person has received services under W.S. 7-6-104 , the presiding judge shall determine whether the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is able to provide any funds towards payment of part or all of the cost associated with such services. If the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is not able to provide any funds towards payment of costs, the court shall enter a specific finding on the record. If the court determines the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is able to provide any amount as reimbursement, the court shall order the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, to reimburse the state for all or part of the costs of the services provided or shall state on the record the reasons why an order for reimbursement was not entered. Where a person is initially provided with counsel pursuant to W.S. 7-6-105(a), but subsequently retains private counsel, the court may order the person to reimburse the state for the services already provided. All reimbursements under this act shall be made through the clerk of court.
  4. The state public defender shall report in the agency’s annual report concerning:
    1. The number of cases by court in which an attorney was appointed to represent a person at public expense under this act during the preceding calendar quarter;
    2. For each case in which an attorney was appointed, whether the court ordered reimbursement under this section or, if reimbursement was not ordered, whether the court complied with subsection (c) of this section;
    3. Repealed by Laws 2020, ch. 122, § 3.
  5. If the court orders release on bail pending trial or appeal, probation before sentence, suspended sentence or probation, the court shall order the needy person as a condition of bail, sentence or probation to repay the state for expenses and services provided by appointed attorneys pursuant to the state public defender’s standard fee schedule if the court determines the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.
  6. The following income standards shall be used to determine whether a person is needy for purposes of this article:
    1. A person whose annual gross income is less than one hundred twenty-five percent (125%) of the current federally established poverty level for his immediate family unit is needy;
    2. A person whose annual gross income is between one hundred twenty-five percent (125%) and two hundred eighteen percent (218%) of the current federally established poverty level for his immediate family unit may be deemed needy;
    3. A person whose annual gross income is greater than two hundred eighteen percent (218%) of the current federally established poverty level for his immediate family unit shall not be deemed needy under this article.
  7. Notwithstanding subsection (f) of this section, a person may be deemed needy if the person is charged with a felony and the court, in its discretion, determines on the record after consideration of the standards set forth in Rule 44(d), Wyoming Rules of Criminal Procedure that extraordinary circumstances exist such that the person is entitled to representation.
  8. Notwithstanding subsection (f) of this section, a person shall be presumed needy if:
    1. He receives at least one (1) of the following types of public assistance:
      1. Temporary Assistance for Needy Families (TANF);
      2. Emergency Aid to Elderly, Disabled and Children (EAEDC);
      3. Poverty related veteran’s benefits;
      4. Supplemental nutrition assistance program;
      5. Medicaid;
      6. Supplemental Security Income (SSI).
    2. He resides in a public mental health facility and has no available funds or liquid assets;
    3. He is serving a sentence in a state correctional institution and has no available funds or liquid assets; or
    4. He is in custody in a county jail and has no available funds or liquid assets.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.22; W.S. 1977, § 7-1-112; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1991, ch. 155, § 1; ch. 167, § 2; 1996, ch. 1, § 312; 1998, ch. 30, § 314; 1999, ch. 95, § 1; 2012, ch. 76, § 3; 2013, ch. 87, § 1; 2020, ch. 34, § 1; ch. 122, § 3.

The 2012 amendment, added (d)(iii) and made related change.

The 2013 amendment, effective July 1, 2013, substituted “set forth in Rule 44(d), Wyoming Rules of Criminal Procedure” for “promulgated pursuant to W.S. 7-6-103(c)(vii) in (b).

The 2020 amendments. —

The first 2020 amendment, by ch. 34, § 1, effective July 1, 2020, in (b) added “subsections (f) through (h) of this section and” preceding “Rule 44(d)”; and added (f) through (h).

The second 2020 amendment, by ch. 122, § 3, effective July 1, 2020, repealed (d)(iii), which read “For the guardian ad litem program, the number of cases, the amount of monies expended and the amounts of reimbursements from participating counties.”

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

Cross references. —

As to penalty for perjury, see § 6-5-301 .

Amended Sentence.—

Construction.—

Sentence Not Illegal.—

Amended Sentence.—

District court had the authority on remand to amend defendant's sentence because the amended sentence was consistent with the district court's original sentence and merely reconfirmed that the statutorily-mandated fees remained part of defendant sentence; the statutory assessments were imposed because defendant had been convicted of a crime, and on remand, he still was convicted of a crime. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Construction.—

Statutes indicate that the fees are imposed as a result of being convicted in a criminal case, not as part of the sentence for any particular crime; the statutes envision that sentencing courts impose the mandated fees separately as part of the overall sentence, rather than as part of the sentence for an individual charge. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Sentence Not Illegal.—

District court properly denied defendant's motions to correct an illegal sentence because there was no increase in punishment and no violation of his double jeopardy protections; all of the fees imposed upon defendant's conviction were mandated by statute, and thus, it was unnecessary for the district court to attach the fees to the stalking charge in the initial sentence. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Express findings concerning statutory factors required. —

When read together, as they must be, the provisions of this section require that the trial court make express findings concerning the factors set forth in the statutory language. Juarez v. State, 791 P.2d 287, 1990 Wyo. LEXIS 47 (Wyo. 1990).

Specific conclusion not required. —

Subsection (c) of this section does not require a sentencing court to make a specific oral or written conclusion that defendant has the ability to pay for court-appointed counsel. Nixon v. State, 4 P.3d 864, 2000 Wyo. LEXIS 97 (Wyo. 2000).

District court did not violate any clear rule of law in ordering defendant to reimburse the State for his public defender fees because: (1) the legislative intent was that sentencing courts were to presume a present or future ability to pay unless a defendant proved otherwise, and (2) no evidence was presented to suggest that defendant did not or would not have the ability to pay. Glover v. State, 2007 WY 169, 169 P.3d 553, 2007 Wyo. LEXIS 182 (Wyo. 2007).

Payment of expenses may be compelled. —

Subsection (c) of this section authorizes a court order to compel payment by the defendant of such amount as he is able to provide for necessary expenses of representation after determination of need, as provided in subsection (a) of this section and § 7-1-110(b) (repealed). Phillips v. State, 553 P.2d 1037, 1976 Wyo. LEXIS 210 (Wyo. 1976).

The court can order payment of attorney's fees and defense expenses when defense services are first provided at defendant's initial appearance in court, or after a lawsuit has determined the rightful owner of money seized from the defendant, or after an action determines that the state is entitled to reimbursement. Phillips v. State, 553 P.2d 1037, 1976 Wyo. LEXIS 210 (Wyo. 1976).

But defendant must be afforded due process. —

A court exceeds its authority in ordering money seized from the defendant held at the sentencing hearing for payment of defense services without any due process afforded the defendant. Phillips v. State, 553 P.2d 1037, 1976 Wyo. LEXIS 210 (Wyo. 1976).

Defendant's rights violated. —

Proper inquiries were not made to determine whether defendant wanted to be represented by appointed counsel; rather the court merely queried whether defendant intended to represent himself, hire an attorney, or ask the court to consider appointment of a public defender, and when defendant said he made about $1,000 a month, the court ordered that he sign a waiver of his right to assistance of counsel. Wilkie v. State, 2002 WY 164, 56 P.3d 1023, 2002 Wyo. LEXIS 184 (Wyo. 2002).

Future ability to repay costs of court-appointed counsel. —

Trial court's order to repay costs of court-appointed counsel must be reasonable, and consideration of reasonableness may include future ability to pay. Nixon v. State, 4 P.3d 864, 2000 Wyo. LEXIS 97 (Wyo. 2000).

No repayment without determining ability to pay. —

The district court erred in ordering the defendant to repay the state for the services of a public defender without first determining the defendant's ability to pay. King v. State, 780 P.2d 943, 1989 Wyo. LEXIS 202 (Wyo. 1989) (decided prior to 1991 amendments).

Ability to pay includes a foreseeable ability to pay. —

The statute does not require any more than the district court finding that a defendant has or will have an ability to pay, and the ability to pay is not limited to present ability, but includes a foreseeable ability to pay. James v. State, 998 P.2d 389, 2000 Wyo. LEXIS 41 (Wyo. 2000).

Court cannot assess prosecution costs. —

Because the legislature, in enacting § 6-10-104 , specifically deleted the language permitting assessment of costs of prosecution, the trial judge exceeded his authority by assessing costs of prosecution as a condition of probation. Burke v. State, 746 P.2d 852, 1987 Wyo. LEXIS 550 (Wyo. 1987) (decided under facts existing prior to 1987 revision).

Nor require reimbursement for public defender. —

The district court erred by requiring the defendant to reimburse the state for the services of her public defender as a condition of her probation. Burke v. State, 746 P.2d 852, 1987 Wyo. LEXIS 550 (Wyo. 1987)Burke v. State, 746 P.2d 852, 1987 Wyo. LEXIS 550 (Wyo. 1987) (decided under facts existing prior to 1987 revision).

No reimbursement through forfeiture. —

District court erred in ordering reimbursement of public defender's office to be partially paid from forfeiture of defendant's truck, since relevant statutes did not authorize such an action. Mitchell v. State, 982 P.2d 717, 1999 Wyo. LEXIS 103 (Wyo. 1999).

No reimbursement for costs where crime pre-1987. —

The district court could not require defendant to make reimbursement for the costs of court-appointed counsel, where the crime which he committed occurred before the effective date of subsection (d), May 22, 1987. Schiefer v. State, 774 P.2d 133, 1989 Wyo. LEXIS 126 (Wyo. 1989).

Nor for appeal costs. —

The statutes make no provision for assessment of attorney fees by the district court upon conclusion of the appeal. Schiefer v. State, 774 P.2d 133, 1989 Wyo. LEXIS 126 (Wyo. 1989).

Record must demonstrate new attorney fees computed. —

Because the record provided no evidence demonstrating how the defense attorney fee reimbursement charge was computed, including hourly rate, time or any lode star itemization, the order for reimbursement failed. Seaton v. State, 811 P.2d 276, 1991 Wyo. LEXIS 79 (Wyo. 1991).

Applied in

Billis v. State, 800 P.2d 401, 1990 Wyo. LEXIS 119 (Wyo. 1990).

Quoted in

Smith v. State, 902 P.2d 1271, 1995 Wyo. LEXIS 161 (Wyo. 1995).

Cited in

Jones v. State, 771 P.2d 368, 1989 Wyo. LEXIS 87 (Wyo. 1989); Keller v. State, 771 P.2d 379, 1989 Wyo. LEXIS 94 (Wyo. 1989); Penner v. State, 2003 WY 143, 78 P.3d 1045, 2003 Wyo. LEXIS 173 (Wyo. 2003); Penner v. State, 2003 WY 143, 78 P.3d 1045, 2003 Wyo. LEXIS 173 (Wyo. 2003).

Am. Jur. 2d, ALR and C.J.S. references. —

Recovery under state law of attorney's fees by lay pro se litigant, 14 ALR5th 947.

§ 7-6-107. Waiver of rights.

A person who has been advised of his rights under W.S. 7-6-105 may waive any right provided by this act if at the time of or after waiver, the court finds that the person has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise made according to law. Before making its findings, the court shall consider such factors as the person’s age, education, familiarity with the English language and the complexity of the crime involved. A person who knowingly and voluntarily waives his right to counsel and who elects to represent himself shall not be entitled to standby counsel under this act.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.23; W.S. 1977, § 7-1-113; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1999, ch. 95, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in the first sentence, see § 7-6-102(a)(vi).

Waiver of counsel. —

The record demonstrates that defendant knowingly waived his right to representation by the Public Defender and chose to represent himself, even though the inquiry by the court into the defendant's understanding of the issues may have been less than complete. Mapp v. State, 953 P.2d 140, 1998 Wyo. LEXIS 17 (Wyo. 1998).

Waiver by conduct. —

A waiver of counsel by conduct is not knowingly and voluntarily made when defendant has not been warned that waiver will be the result of his continued dilatory and obstructive behavior. Trujillo v. State, 2 P.3d 567, 2000 Wyo. LEXIS 108 (Wyo. 2000).

Applied in

Van Riper v. State, 882 P.2d 230, 1994 Wyo. LEXIS 108 (Wyo. 1994); Wilkie v. State, 2002 WY 164, 56 P.3d 1023, 2002 Wyo. LEXIS 184 (Wyo. 2002).

Cited in

Jandro v. State, 781 P.2d 512, 1989 Wyo. LEXIS 212 (Wyo. 1989); Reifer v. State, 2014 WY 139, 2014 Wyo. LEXIS 160 (Nov. 5, 2014).

§ 7-6-108. Recovery of payment.

  1. Within six (6) years after the date the services were rendered, the attorney general may sue on behalf of the state to recover payment or reimbursement from each person who has received legal assistance or other benefits under this act or, in the case of an unemancipated minor, from his custodial parent or any other person who has a legal obligation of support.
  2. Amounts recovered under this act shall be paid into the state general fund.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.24; W.S. 1977, § 7-1-114; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1999, ch. 95, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in subsection (a), see § 7-6-102(a)(vi).

Payment of expenses may be compelled. —

The court can order payment of attorney's fees and defense expenses when defense services are first provided at defendant's initial appearance in court, or after a lawsuit has determined the rightful owner of money seized from the defendant, or after an action under this section determines that the state is entitled to reimbursement. Phillips v. State, 553 P.2d 1037, 1976 Wyo. LEXIS 210 (Wyo. 1976).

But defendant must be afforded due process. —

A court exceeds its authority in ordering money seized from the defendant held at the sentencing hearing for payment of defense expenses without any due process afforded the defendant. Phillips v. State, 553 P.2d 1037, 1976 Wyo. LEXIS 210 (Wyo. 1976).

Applicability.—

There was no merit to the claim that the Department was required to seek reimbursement pursuant to Wyo. Stat. Ann. § 7-6-108 as appellant failed to show that the original judgment and sentencing orders were not valid orders. Heinemann v. State, 2018 WY 31, 413 P.3d 644, 2018 Wyo. LEXIS 32 (Wyo. 2018).

Applied in

Burke v. State, 746 P.2d 852, 1987 Wyo. LEXIS 550 (Wyo. 1987).

Stated in

King v. State, 780 P.2d 943, 1989 Wyo. LEXIS 202 (Wyo. 1989).

Cited in

Jones v. State, 771 P.2d 368, 1989 Wyo. LEXIS 87 (Wyo. 1989); Keller v. State, 771 P.2d 379, 1989 Wyo. LEXIS 94 (Wyo. 1989).

Am. Jur. 2d, ALR and C.J.S. references. —

Recovery under state law of attorney's fees by lay pro se litigant, 14 ALR5th 947.

§ 7-6-109. Appointment of outside attorney.

  1. Nothing in this act shall prevent a court on its own motion or upon application by the state public defender or by the individual defendant, from appointing an attorney other than the public defender to represent the defendant or to assist in the representation of the defendant at any stage of the proceedings or on appeal.
  2. If a court assigns an attorney to represent a needy person, it may recommend a reasonable rate of compensation for his services and shall determine the direct expenses for which he should be reimbursed. The state public defender shall consider the court’s recommendation and the customary compensation as prescribed by the standard fee schedule promulgated pursuant to W.S. 7-6-103(c)(vi), and shall pay the appointed attorney for his services when the case for which he was appointed is concluded.
  3. An attorney appointed under subsection (b) of this section shall be compensated for his services with regard to the complexity of the issues, the time involved, prevailing local fees of attorneys, the amount reasonably necessary to provide a defense as is required by constitutional process and other relevant considerations as determined by the court.
  4. If a defendant initially retains counsel and then requests the provision of counsel or any other defense services, including but not limited to mental evaluations, expert witnesses and witness travel expenses, the court shall make a determination whether the defendant is a “needy person” under this act, subject to the following:
    1. The procedures set forth in W.S. 7-6-106 shall be followed;
    2. The court shall make the findings required by W.S. 7-6-106 and rule 44 of the Wyoming Rules of Criminal Procedure;
    3. The defendant shall complete an affidavit or otherwise disclose on the record his entire financial situation, including the amount he has already paid to retain defense counsel, the source of those funds and whether additional funds are available to him through any means;
    4. The defendant shall disclose the disposition of any retainer and any amounts remaining; and
    5. The state public defender shall be served by the defendant’s retained counsel with a copy of any such request and shall be heard by the court prior to any decision on the request.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.25; W.S. 1977, § 7-1-115; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1999, ch. 95, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in subsection (a), see § 7-6-102(a)(vi).

County responsible for payment of guardian ad litem fees. —

A guardian ad litem appointed pursuant to § 14-6-216 , because the interests of the juvenile party's mother were adverse to the interests of the juvenile party, should have been paid by the county for service as a guardian ad litem, and not by the public defender; public defender is responsible for payment of guardian ad litem fees only when one is appointed to provide additional representation on the delinquency allegation pursuant to this section. Munker v. Juvenile Court, Seventh Judicial Dist., 837 P.2d 676, 1992 Wyo. LEXIS 125 (Wyo. 1992).

Quoted in

State v. Board of County Comm'rs, 642 P.2d 456, 1982 Wyo. LEXIS 317 (Wyo. 1982).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction of state statutes providing for compensation of attorney appointed by court to defend indigent accused, 18 ALR3d 1074.

Modern status of rules and standards in state courts as to adequacy of defense counsel's representation of criminal client, 2 ALR4th 27.

Power of court to change counsel appointed for indigent, against objections of accused and original counsel, 3 ALR4th 1227.

§ 7-6-110. Use of state or private facilities.

  1. The public defender or an appointed defending attorney is entitled to use the same state facilities for the evaluation of evidence as are available to the prosecuting attorney. If it appears the use of state facilities is unavailable or inappropriate, the court may authorize the use of private facilities to be paid for by the state public defender.
  2. When the public defender or an appointed defending attorney requests service of process from the sheriff, no fees shall be charged for such service.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.26; W.S. 1977, § 7-1-116; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1999, ch. 95, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Right of indigent defendant in state criminal case to assistance of chemist, toxicologist, technician, narcotics expert or similar nonmedical specialist in substance analysis, 74 ALR4th 388.

§ 7-6-111. Office space.

The county commissioners of each county shall provide suitable office space and utility services, other than telephone service, for the use of the state public defender and his assistants. If suitable office space for all assistant public defenders cannot be provided, the county commissioners shall provide a monthly stipend to all assistants housed in private facilities.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.27; W.S. 1977, § 7-1-117; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1999, ch. 95, § 1.

§ 7-6-112. Applicability of provisions.

  1. This act does not apply to:
    1. Matters arising out of an action pending in the juvenile courts of this state unless it is in a juvenile delinquency proceeding or a child in need of supervision proceeding;
    2. Representation of an individual in proceedings for hospitalization of mentally ill persons under W.S. 25-10-101 through 25-10-127 ;
    3. Representation of a person charged in municipal court with violation of a municipal ordinance;
    4. Representation of a person in a federal court, except pursuant to W.S. 7-6-104(c)(ii);
    5. Repealed by Laws 2020, ch. 122, § 3.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.28; W.S. 1977, § 7-1-118; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1999, ch. 95, § 1; 2004, ch. 130, § 1; 2012, ch. 76, § 3; 2013, ch. 171, § 1; 2020, ch. 122, § 3.

The 2004 amendment, in (a)(ii), substituted “25-10-127” for “25-10-126.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

Laws 2012, ch. 76 § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 13, 2012.

The 2012 amendment, added (a)(v) and made related change.

The 2013 amendment, in (a)(i) added “or a child in need of supervision proceeding”.

Laws 2013, ch. 171, § 1, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 2, Wyo. Const. Approved March 13, 2013.

The 2020 amendment, effective July 1, 2020, repealed (a)(v), which read “Administration of the guardian ad litem program under W.S. 14-12-101 through 14-12-104 , except as provided in W.S. 7-6-103(c)(viii) and 7-6-106(d)(iii).”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “[t]his act,” referred to in the introductory language of subsection (a), see § 7-6-102(a)(vi).

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

County responsible for payment of guardian ad litem fees. —

A guardian ad litem appointed pursuant to § 14-6-216 , because the interests of the juvenile party's mother were adverse to the interests of the juvenile party, should have been paid by the county for service as a guardian ad litem, and not by the public defender; public defender is responsible for payment of guardian ad litem fees only when one is appointed to provide additional representation on the delinquency allegation pursuant to § 7-6-109 .Munker v. Juvenile Court, Seventh Judicial Dist., 837 P.2d 676, 1992 Wyo. LEXIS 125 (Wyo. 1992).

§ 7-6-113. Funding.

  1. The total state and federal funding of the public defender program shall be eighty-five percent (85%) of the state public defender budget.
  2. Each county shall appropriate funds to supplement the state public defender budget in accordance with an equitable formula determined by the state public defender and the state budget department in cooperation with the legislative service office, taking into account the following factors:
    1. The population of each county;
    2. The assessed valuation of each county; and
    3. The serious crime case load of each county.
  3. The total amount of money collected from the counties shall equal fifteen percent (15%) of the state public defender budget. The state public defender shall notify each county of its proportional share and shall by June 30 of each fiscal year invoice the county for its proportionate share. In the event a county does not make payments within ninety (90) days, the state treasurer may deduct the amount from sales tax revenues due to the county from the state and shall credit the amount to the general fund.
  4. Repealed by Laws 2020, ch. 122, § 3.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.29; W.S. 1977, § 7-1-119; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1991, ch. 29, § 3; 1999, ch. 95, § 1; 2003, ch. 189, § 1; 2009, ch. 170, § 1; 2012, ch. 76, § 3; 2020, ch. 122, § 3; 2021, ch. 56, § 3.

Cross references. —

As to budget division, see § 9-2-1004 .

The 2009 amendment, effective July 1, 2009, deleted “based on the latest federal census as periodically updated by the bureau of the census” from the end in (b)(i).

The 2012 amendment, added (d).

Laws 2012, ch. 76 § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 13, 2012.

The 2020 amendment, effective July 1, 2020, repealed (d), which read “The provisions of this section shall not be applicable to the guardian ad litem program administered by the office of the public defender and the budget for that program shall be as provided in W.S. 14-12-101 through 14-12-104 .”

The 2021 amendment, in (b), added "state" following "defender and the," deleted "division of the" preceding "department" and "of administration and information" preceding "in cooperation."

Laws 2021, ch. 56, § 7, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 1, 2021.

Editor's notes. —

Laws 2009 ch 170 § 3 provides:

“(a) No authority to issue any license based upon population shall be diminished by application of this act until the 2010 federal decennial census has been conducted and officially released by the bureau of census.

“(b) No distribution of funding shall be diminished or increased based upon application of this act until the 2010 federal decennial census has been conducted and officially released by the bureau of census. To the extent any entity's share of funding would be reduced or increased by application of this act before that time, the distribution of funds shall be administered in accordance with the provisions of law prior to the amendment or repeal of such law by this act.”

§ 7-6-114. Other legal protections or sanctions.

The protections provided by this act do not exclude any protection or sanction that the law otherwise provides.

History. Laws 1977, ch. 170, § 1; W.S. 1957, § 7-9.31; W.S. 1977, § 7-1-121; Laws 1987, ch. 157, § 3; ch. 176, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-6-102(a)(vi).

Cited in

Penner v. State, 2003 WY 143, 78 P.3d 1045, 2003 Wyo. LEXIS 173 (Wyo. 2003); Penner v. State, 2003 WY 143, 78 P.3d 1045, 2003 Wyo. LEXIS 173 (Wyo. 2003).

Chapter 7 Search Warrants

Cross references. —

For authority of arresting officer to break open building in execution of warrant, see § 7-8-104 .

As to security against search and seizure, see art. 1, § 4, Wyo. Const.

As to issuance of warrants by circuit courts and magistrates, see §§ 5-9-133 and 5-9-208 .

As to search without warrant for wildlife unlawfully taken, see § 23-6-109 .

As to search warrants and administrative inspection warrants under Controlled Substances Act, see §§ 35-7-1045 and 35-7-1046 .

As to procedure relating to search and seizure, see Rule 41, W.R. Cr. P.

Am. Jur. 2d, ALR and C.J.S. references. —

68 Am. Jur. 2d Searches and Seizures §§ 109 to 228.

Unlawful search as invasion of right of privacy, 14 ALR2d 750, 57 ALR3d 16.

Forfeiture of money seized in a search of premises used for gambling or lottery, 19 ALR2d 1228.

Propriety and legality of issuing only one search warrant to search more than one place or premises occupied by same person, 31 ALR2d 864.

Sufficiency of description in search warrant of automobile or other conveyance to be searched, 47 ALR2d 1444.

Propriety or lawfulness of seizure, not incident to arrest, of papers, documents, letters, books and records not described in warrant, 79 ALR2d 1005.

Lawfulness of nonconsensual search and seizure, without warrant, prior to arrest, 89 ALR2d 715.

Sufficiency of the affidavit in regard to time of occurrence of events justifying issuance of warrant, 100 ALR2d 525.

Validity of consent to search given by one in custody of officers, 9 ALR3d 858.

Propriety of considering hearsay or other incompetent evidence in establishing probable cause for the issuance of search warrant, 10 ALR3d 359.

Sufficiency of description, in search warrant, of apartment or room to be searched in multiple occupancy structure, 11 ALR3d 1330.

Right of search and seizure incident to lawful arrest, without a search warrant, 19 ALR3d 727.

“Furtive” movement or gesture as justifying police search, 45 ALR3d 581.

Disputation of truth of matters stated in affidavit in support of search warrant — modern cases, 24 ALR4th 1266.

Searches and seizures: reasonable expectation of privacy in contents of garbage or trash receptacle, 28 ALR4th 1219.

Searches and seizures: validity of searches conducted as condition of entering public premises — state cases, 28 ALR4th 1250.

Lawfulness of warrantless search of purse or wallet of person arrested or suspected of crime, 29 ALR4th 771.

Propriety of state or local government health officer's warrantless search — post-Camara cases, 53 ALR4th 1168.

Seizure of books, documents or other papers under search warrant not describing such items, 54 ALR4th 391.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber's constitutional rights, 76 ALR4th 536.

Search and seizure of bank records pertaining to customer as violation of customer's rights under state law, 33 ALR5th 453.

Sufficiency of description in warrant of person to be searched, 43 ALR5th 1.

Application of “plain-feel” exception to warrant requirements — state cases, 50 ALR5th 581.

Propriety of search of nonoccupant visitor's belongings pursuant to warrant issued for another's premises, 51 ALR5th 375.

Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor child — state cases, 51 ALR5th 425.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property — state cases, 61 ALR5th 1.

Belief that burglary is in progress or has recently been committed as exigent circumstance justifying warrantless search of premises, 64 ALR5th 637.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (resident or nonresident) — state cases, 65 ALR5th 407.

Propriety in federal prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant, 69 ALR Fed 522.

79 C.J.S. Searches and Seizures §§ 63 to 84, 91 to 97, 112 to 117.

§ 7-7-101. Authority to issue; grounds.

  1. Any district judge, district court commissioner, circuit judge or magistrate authorized pursuant to W.S. 5-9-208(a), (b) or (c)(xv) or 5-9-212(a)(ix) may issue a search warrant to search for and seize any property:
    1. Stolen or embezzled in violation of law;
    2. Designed or intended for use or which is or has been used as the means of committing a criminal offense;
    3. Possessed, controlled, or designed or intended for use or which is or has been used in violation of any law; or
    4. When the property or things to be seized consist of any item, or constitute any evidence which tends to show a crime has been committed, or tends to show that a particular person has committed a crime.

History. C.L. 1876, ch. 14, § 13; R.S. 1887, § 3168; R.S. 1899, § 5442; C.S. 1910, § 6313; C.S. 1920, § 7609; R.S. 1931, § 33-1801; Laws 1941, ch. 92, § 1; C.S. 1945, § 10-201; W.S. 1957, § 7-148; W.S. 1977, § 7-7-101 ; Laws 1985, ch. 147, § 2; 2000, ch. 24, § 4; 2001, ch. 164, § 2; 2004, ch. 42, § 1.

Cross references. —

As to district court commissioners, see § 5-3-301 .

As to magistrates, see § 5-9-208 .

As to grounds for issuance of search warrants under the rules, see Rule 41, W.R. Cr. P.

The 2004 amendment, in (a), deleted “or any justice of the peace” following “5-9-212(a)(ix)”; and made stylistic changes.

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Article, Warranting Legislative Action: The Search for Wyoming Court Authority To Issue Extraterritorial Search Warrants for Electronically Stored Information,16 Wyo. L. Rev. 199 (2016).

Jurisdiction of justices. —

Justices of the peace did not have jurisdiction to issue search warrants for intoxicating liquor under the former prohibition laws of the state, such jurisdiction not having been given either by statute, the state constitution or the common law. State v. Peterson, 27 Wyo. 185, 194 P. 342, 1920 Wyo. LEXIS 33 (Wyo. 1920) (decided prior to 1987 revision of this title).

County court had jurisdiction to issue a warrant to search the murder scene after the case had been transferred to the district court. Ryan v. State, 988 P.2d 46, 1999 Wyo. LEXIS 153 (Wyo. 1999).

Game warden can obtain unemployment insurance records. —

A game warden who complies with the strict requirements of obtaining a search warrant from a judge or a court commissioner can obtain confidential records of the division of unemployment insurance. Wyoming Dep't of Employment, Div. of Unemployment Ins. v. Patrick, 818 P.2d 54, 1991 Wyo. LEXIS 149 (Wyo. 1991).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of anticipatory search warrants — state cases, 67 ALR5th 361.

Civilian participation in execution of search warrant as affecting legality of search, 68 ALR5th 549.

Application to extension telephones of title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 USC § 2510 et seq.), pertaining to interception of wire communications, 58 ALR Fed 594.

Authority of district court to order telephone company to assist law enforcement agents in tracing telephone calls, 58 ALR Fed 719.

Delay in sealing or failure to seal tape or wire recording as required by 18 USC § 2518(8)(a) as ground for suppression of such recording at trial, 62 ALR Fed 636.

§ 7-7-102. Procedures governed by rules.

Except as provided by W.S. 7-7-105 , the Wyoming Rules of Criminal Procedure shall govern procedures relating to the issuance, form, execution and return of search warrants and procedures relating to motions to return unlawfully seized property and to suppress evidence.

History. C.L. 1876, ch. 14, § 14; R.S. 1887, § 3169; R.S. 1899, § 5443; C.S. 1910, § 6314; C.S. 1920, § 7610; R.S. 1931, § 33-1802; C.S. 1945, § 10-202; W.S. 1957, § 7-149; W.S. 1977, § 7-7-102 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 5.

Cross references. —

As to procedures related to search warrants, see Rule 41, W.R. Cr. P.

Affidavit not showing probable cause insufficient. —

Affidavit for search and seizure not showing probable cause and made merely upon the belief of the affiant was insufficient, and a warrant for search and seizure issued thereon was invalid. Wiggin v. State, 28 Wyo. 480, 206 P. 373, 1922 Wyo. LEXIS 39 (Wyo. 1922).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of, and admissibility of evidence discovered in, search authorized by judge over telephone, 38 ALR4th 1145.

§ 7-7-103. Disposition of property.

  1. Except as otherwise provided by law, property seized pursuant to a search warrant shall be disposed of as follows:
    1. If the defendant is convicted:
      1. Property which was stolen or embezzled shall be returned to the owner;
      2. Other property shall be destroyed or otherwise disposed of as directed by the court.
    2. If the criminal charges against the defendant are dismissed or he is acquitted, the property shall be returned to the owner or otherwise disposed of as directed by the court.

History. C.L. 1876, ch. 14, § 19; R.S. 1887, § 3174; R.S. 1899, § 5448; C.S. 1910, § 6319; C.S. 1920, § 7615; R.S. 1931, § 33-1807; C.S. 1945, § 10-207; W.S. 1957, § 7-154; W.S. 1977, § 7-7-107; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of search of nonoccupant visitor's belongings pursuant to warrant issued for another's premises, 51 ALR5th 375.

Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor child — state cases, 51 ALR5th 425.

§ 7-7-104. Authority of officer to break open building in execution of warrant.

Except as otherwise specifically provided by law, an officer executing a search warrant may break a door or window of any building described in the warrant if he is not admitted after he has announced his authority and purpose.

History. Laws 1985, ch. 147, § 1; W.S. 1977, § 7-7-108; Laws 1987, ch. 157, § 4.

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of execution of search warrant at nighttime, 41 ALR5th 171.

What constitutes compliance with knock-and-announce rule in search of private premises — State cases, 85 ALR5th 1.

§ 7-7-105. Applicability of more specific provisions.

Notwithstanding any provision of W.S. 7-7-101 through 7-7-104 , specific procedures contained in another statute governing search and seizure, the issuance and execution of search warrants or the disposition to be made of seized property shall govern in those circumstances to which the more specific statute applies.

History. Laws 1985, ch. 147, § 1; W.S. 1977, § 7-7-109; Laws 1987, ch. 157, § 5.

Article, Warranting Legislative Action: The Search for Wyoming Court Authority To Issue Extraterritorial Search Warrants for Electronically Stored Information, 16 Wyo. L. Rev. 199 (2016).

Chapter 8 Arrest and Preliminary Hearing

Cross references. —

As to arrests by peace officer, see §§ 7-2-102 and 7-2-103 .

As to exemption of witnesses coming into state to testify from arrest, see § 7-11-406 .

As to preliminary hearings in circuit courts, see § 5-9-132 .

As to preliminary examination, see Rule 5.1, W.R. Cr. P.

Am. Jur. 2d, ALR and C.J.S. references. —

5 Am. Jur. 2d Arrest §§ 3 to 51, 69 to 94; 21 Am. Jur. 2d Criminal Law §§ 550 to 790; 68 Am. Jur. 2d Searches and Seizures §§ 66 to 73.

Private citizen's right to institute mandamus to compel a magistrate or other appropriate official to issue a warrant for an arrest, 49 ALR2d 1285.

Peace officer's delay in making arrest without warrant for misdemeanor or breach of peace committed in his presence, 58 ALR2d 1056.

Delay between filing of complaint or other charge and arrest of accused as violation of right to speedy trial, 85 ALR2d 980.

Right of person accused of crime to exclude public from preliminary hearing or examination, 31 ALR3d 816.

Right to forcefully resist illegal arrest, 44 ALR3d 1078.

Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 ALR3d 826.

Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for false arrest or imprisonment, 93 ALR3d 1109.

Validity of arrest made in reliance upon uncorrected or outdated warrant, list or similar police record, 45 ALR4th 550.

When does police officer's use of force during arrest become so excessive as to constitute violation of constitutional rights, imposing liability under Federal Civil Rights Act of 1871 (42 USC § 1983), 60 ALR Fed 204.

Civil liability of witness in action under 42 USC § 1983 for deprivation of civil rights, based on testimony given at pretrial criminal proceeding, 94 ALR Fed 892.

6 C.J.S. Arrests § 1 et seq.; 22 C.J.S. Criminal Law §§ 168 to 170, 321 to 351.

§ 7-8-101. Arrest by private person.

  1. A person who is not a peace officer may arrest another for:
    1. A felony committed in his presence;
    2. A felony which has been committed, even though not in his presence, if he has probable cause to believe the person to be arrested committed it; or
    3. The following misdemeanors committed in his presence:
      1. A misdemeanor theft offense defined by W.S. 6-3-402 ; or
      2. A misdemeanor property destruction offense defined by W.S. 6-3-201 .

History. C.L. 1876, ch. 14, § 21; R.S. 1887, § 3179; R.S. 1899, § 5216; C.S. 1910, § 6053; C.S. 1920, § 7350; R.S. 1931, § 33-113; C.S. 1945, § 10-302; W.S. 1957, § 7-156; Laws 1985, ch. 147, § 2; 2013, ch. 191, § 2.

Cross references. —

As to power of railroad conductor to make arrest as special constable in connection with unlawful riding of trains, see § 37-12-106 .

As to power of water commissioners or their assistants to arrest persons, see § 41-3-605 .

The 2013 amendment, in (a)(iii)(A), substituted “theft” for “larceny” and “6-3-402” for “6-3-402(a) or (e).”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Misdemeanor DWUI. —

This statute does not apply where a campus police officer makes an arrest for misdemeanor driving while under the influence. Marshall v. State ex rel. DOT, 941 P.2d 42, 1997 Wyo. LEXIS 93 (Wyo. 1997).

Cited in

State v. Young, 40 Wyo. 508, 281 P. 17, 1929 Wyo. LEXIS 52 (1929).

Am. Jur. 2d, ALR and C.J.S. references. —

Private person's authority, in making arrest for felony, to shoot or kill alleged felon, 32 ALR3d 1078.

§ 7-8-102. Issuance and execution of warrant or summons on indictment; procedures governed by rules.

  1. A warrant or summons may be issued on an indictment found in any county.
  2. The warrant may be executed or the summons may be served at any place within the state.
  3. Procedures relating to the issuance, form, execution or service and the return of the warrant or summons shall be governed by the Wyoming Rules of Criminal Procedure.

History. C.L. 1876, ch. 14, § 95; R.S. 1887, § 3255; R.S. 1899, § 5314; C.S. 1910, § 6178; C.S. 1920, § 7475; R.S. 1931, § 33-428; C.S. 1945, § 10-801; W.S. 1957, § 7-158; W.S. 1977, § 7-8-103 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Cross references. —

As to warrant or summons on indictment, see Rule 9, W.R. Cr. P.

Court is authorized to send its warrant into any county for the arrest of the defendant. State v. Keefe, 17 Wyo. 227, 98 P. 122, 1908 Wyo. LEXIS 16 (Wyo. 1908) (decided prior to 1987 revision of this title).

Am. Jur. 2d, ALR and C.J.S. references. —

Right to waive indictment or other formal accusation, 56 ALR2d 837.

§ 7-8-103. Issuance and execution of warrant or summons on information or complaint; procedures governed by rules.

  1. A warrant or summons issued by any circuit court based upon a complaint or information charging any criminal offense may be executed or served at any place within the jurisdiction of the state of Wyoming.
  2. Procedures relating to the issuance, form, execution or service and the return of the warrant or summons shall be governed by rules promulgated by the supreme court of Wyoming.

History. C.L. 1876, ch. 14, § 25; R.S. 1887, § 3183; R.S. 1899, § 5211; C.S. 1910, § 6048; C.S. 1920, § 7345; R.S. 1931, § 33-108; C.S. 1945, § 10-306; W.S. 1957, § 7-162; W.S. 1977, § 7-8-107; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4; 2000, ch. 24, § 4; 2004, ch. 42, § 1.

Cross references. —

As to warrant or summons upon complaint, see Rule 4, W.R. Cr. P.

The 2004 amendment, in (a), deleted “justice of the peace court or” following “issued by any.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

Quoted in

Van Horn v. State, 802 P.2d 883, 1990 Wyo. LEXIS 160 (Wyo. 1990).

Cited in

Katona v. City of Cheyenne, 686 F. Supp. 287, 1988 U.S. Dist. LEXIS 4215 (D. Wyo. 1988).

§ 7-8-104. Authority of officer to break open building in execution of warrant.

In executing a warrant for the arrest of a person charged with an offense, a peace officer may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if the officer is not admitted after he has announced his authority and purpose.

History. C.L. 1876, ch. 14, § 28; R.S. 1887, § 3186; R.S. 1899, § 5214; C.S. 1910, § 6051; C.S. 1920, § 7348; R.S. 1931, § 33-111; C.S. 1945, § 10-309; W.S. 1957, § 7-165; W.S. 1977, § 7-8-110; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Am. Jur. 2d, ALR and C.J.S. references. —

Right of peace officer to enter private house or enclosure for purpose of making arrest without a warrant for a suspected misdemeanor, 76 ALR2d 1432.

Sufficiency of showing of reasonable belief of danger to officers or others excusing compliance with “knock and announce” requirement — state criminal cases, 17 ALR4th 301.

§ 7-8-105. Right to preliminary hearing.

In all cases triable in district court, except upon indictment, the defendant is entitled to a preliminary hearing.

History. Laws 1985, ch. 147, § 1; W.S. 1977, § 7-8-124; 1987, ch. 157, § 4.

Quoted in

Yellowbear v. State, 2008 WY 4, 174 P.3d 1270, 2008 Wyo. LEXIS 5 (Jan. 14, 2008).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of consideration of credibility of witness in determining probable cause at state preliminary hearing, 84 ALR3d 811.

§ 7-8-106. [Renumbered.]

Renumbered as 7-1-109 by Laws 1993, ch. 173, § 1.

Chapter 9 Victim Restitution

§ 7-9-101. Definitions.

  1. As used in this chapter:
    1. “Criminal activity” means  any crime for which there is a plea of guilty, nolo contendere or  verdict of guilty upon which a judgment of conviction may be rendered  and includes any other crime which is admitted by the defendant, whether  or not prosecuted. In the case of restitution ordered under W.S. 7-13-301 , “criminal activity” also includes a crime  charged against the defendant;
    2. “Long-term physical health care  restitution order” means an order entered pursuant to W.S. 7-9-113 through 7-9-115 ;
    3. “Pecuniary damage” means  all damages which a victim could recover against the defendant in  a civil action arising out of the same facts or event, including damages  for wrongful death. It does not include punitive damages and damages  for pain, suffering, mental anguish and loss of consortium;
    4. “Restitution” means full  or partial payment of pecuniary damage to a victim;
    5. “Victim” means a person  who has suffered pecuniary damage as a result of a defendant’s criminal  activities. An insurer which paid any part of a victim’s pecuniary  damages shall be regarded as the victim only if the insurer has no  right of subrogation and the insured has no duty to pay the proceeds  of restitution to the insurer.

History. Laws 1980, ch. 34, § 1; W.S. 1977, § 7-13-307 ; Laws 1987, ch. 157, § 3; 1991, ch. 77, § 1; ch. 167, § 2.

Cross references. —

As to civil liability for the theft of identity, see § 1-1-128 .

As to unauthorized use of personal identifying information, see § 6-3-901 .

As to actions for wrongful death, see chapter 38 of title 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

“Victim.” —

Defendant was properly ordered to pay restitution to an insured victim because (1) there was no evidence in the record of a subrogation right, or lack thereof, so the insurer was not a victim entitled to restitution, (2) it was absurd not to order the defendant to pay anyone for damage defendant caused, and (3) equitable subrogation did not assist defendant, since, if a right of subrogation existed, the court had to award restitution to the owner of property defendant damaged, and (4) whether the victim would receive a double recovery was of no consequence, since restitution was a criminal penalty meant to have deterrent and rehabilitative effects. Hudson v. State, 2020 WY 86, 466 P.3d 839, 2020 Wyo. LEXIS 94 (Wyo. 2020).

Types of damages awardable. —

This section and § 7-9-103 allow a court in a criminal case to award as restitution the same damages as are available in a civil case; however, certain types of damages, such as punitive damages and damages for pain, suffering, mental anguish, and loss of consortium, may not be awarded. Meerscheidt v. State, 931 P.2d 220, 1997 Wyo. LEXIS 7 (Wyo. 1997).

“Pecuniary damage.” —

The trial court erred by awarding restitution to crime victims for their loss of enjoyment of life, because the legislature intended to exclude such damages from the definition of “pecuniary damages.” Meerscheidt v. State, 931 P.2d 220, 1997 Wyo. LEXIS 7 (Wyo. 1997).

Order that the defendant pay as restitution, following his conviction for felony larceny, the entire cost of a surveillance system installed by his employer to investigate the ongoing thefts defendant was later convicted of, was error since the store owner admitted the surveillance equipment would be used after defendant's apprehension, and its continued benefit was a reason why he purchased the equipment. Alcaraz v. State, 2002 WY 57, 44 P.3d 68, 2002 Wyo. LEXIS 58 (Wyo. 2002).

After defendant pled guilty to wrongfully taking or disposing of property, a district court erred by failing to set restitution based on the readily ascertainable fair market value of a stolen pickup truck since there was no support for the contention that the truck had a special, unique, or sentimental value; moreover, defendant did not waive the right to challenge the sentence imposed by signing the plea agreement. Bush v. State, 2003 WY 156, 79 P.3d 1178, 2003 Wyo. LEXIS 186 (Wyo. 2003).

Defendant's judgment and sentence violated Wyo. R. Crim. P. 32(c)(2)(H) where, under Wyo. Stat. Ann. § 7-9-103(b) and Wyo. Stat. Ann. § 7-9-101(a)(iii), the sentencing court did not specify a victim, and it was impossible to tell if “loss of support” fit the statutory definition of “pecuniary damage”; the state failed to prove a victim's legal entitlement to restitution. Hite v. State, 2007 WY 199, 172 P.3d 737, 2007 Wyo. LEXIS 212 (Wyo. 2007).

After defendant was convicted of felony property destruction, he claimed that the district court erred in ordering him to pay restitution in the amount of $1,400, the estimated value of the vehicle before the damage; it was not clear whether the district court ordered defendant to pay that amount because defense counsel did not object to the presentence investigation or because it concluded that the fair market value was the appropriate measure of restitution. Defense counsel did not waive the issue by his failure to object to the PSI because he sufficiently placed it before the sentencing court in challenging the appropriateness of the amount at the sentencing hearing and should the issue arise in any proceedings upon remand, the district court was required to take into account the prevailing law under Wyo. Stat. Ann. § 7-9-101(a)(iii). Morris v. State, 2009 WY 88, 210 P.3d 1101, 2009 Wyo. LEXIS 96 (Wyo. 2009).

In a larceny by bailee case, a restitution order was erroneous due to calculation errors made by the prosecution, and this amount was not offset by a claim made by the State. Moreover, there was no abuse of discretion in failing to find that certain expenses were legitimate where such claim was rejected by the jury, and no new evidence was offered on appeal. Hibsman v. State, 2015 WY 122, 355 P.3d 1240, 2015 Wyo. LEXIS 137 (Wyo. 2015).

Cost for changing locks result of “criminal activity.” —

An order of restitution for the costs associated with the changing of the victim's locks was proper where the victim had her locks changed as a result of the defendant's criminal activity in burglarizing her home. Dreiman v. State, 825 P.2d 758, 1992 Wyo. LEXIS 15 (Wyo. 1992).

Cost avoided. —

In a prosecution for obtaining property by false pretenses arising from a construction contract that the defendant never completed, the appropriate amount of restitution was the cost of completion of the unfinished structure less the cost avoided as a result of the substitute completion transaction. Graham v. State, 2001 WY 5, 16 P.3d 712, 2001 Wyo. LEXIS 5 (Wyo. 2001).

Costs of incarceration. —

This section does not authorize imposition of restitution for costs of incarceration in county detention center. Lee v. State, 2 P.3d 517, 2000 Wyo. LEXIS 68 (Wyo. 2000), dismissed, 2007 WY 81, 157 P.3d 947, 2007 Wyo. LEXIS 87 (Wyo. 2007).

“Restitution.” —

Where defendant challenged that portion of the original sentencing order relating to the imposition of assessments for the court automation fee, public defender fees and the Wyoming Victims' Compensation Fund, arguing that he was not informed of the possibility or specific amounts of such, his argument was misguided as none of the challenged assessments fell within the definition of restitution. Whitten v. State, 2005 WY 55, 110 P.3d 892, 2005 Wyo. LEXIS 63 (Wyo. 2005).

District court acted within its authority in awarding restitution for the victim's personal items that were inside his stolen vehicle because defendant admitted to stealing the vehicle and a jury convicted him of felony larceny, when defendant stole the vehicle, he stole the items that were contained therein, and defendant never denied taking the personal property, and at sentencing never contested the restitution requested on the stolen items. Layton v. State, 2007 WY 1, 150 P.3d 173, 2007 Wyo. LEXIS 1 (Wyo. 2007).

Restitution where defendant did not plead guilty. —

Crimes for which defendant could be ordered to pay restitution included only those to which he pleaded guilty and those he admitted in his plea agreement, and since defendant denied taking personal property from truck and, after preliminary hearing, district court dismissed count charging him with larceny of those items, court was without authority to order restitution for value of items. Van Riper v. State, 999 P.2d 646, 2000 Wyo. LEXIS 52 (Wyo. 2000).

Where defendant pled nolo contendere to one of three burglary charges, the trial court erred by including in its order of restitution payments to the victims of the burglaries that were dismissed as part of the plea agreement as defendant did not admit to the crimes to which he did not plead and did not agree to pay restitution for those crimes. Penner v. State, 2003 WY 143, 78 P.3d 1045, 2003 Wyo. LEXIS 173 (Wyo. 2003).

Restitution based on civil judgment. —

The statute makes room for a district court judge to use a civil judgment amount as the restitution amount; thus, where a civil judgment has been rendered against the defendant arising out of the same facts of the criminal case, the court may rely on that judgment to determine the appropriate amount of restitution. Graham v. State, 2001 WY 5, 16 P.3d 712, 2001 Wyo. LEXIS 5 (Wyo. 2001).

“Victim.” —

An insurer may be considered a victim of a crime, and therefore eligible to receive restitution payments, only if the insurer does not have a subrogation right. Meerscheidt v. State, 931 P.2d 220, 1997 Wyo. LEXIS 7 (Wyo. 1997).

District court had authority to order the appellant to pay the costs of a forensic examination to the agency that ordered the examination, where the agency suffered pecuniary damage as a result of the appellant's crime and the agency's statement as to the amount of the examination was credible evidence upon which to impose restitution. Frederick v. State, 2007 WY 27, 151 P.3d 1136, 2007 Wyo. LEXIS 26 (Wyo. 2007).

In a welfare fraud case where restitution was ordered, a victim impact statement from the Wyoming Department of Family Services was properly considered because the Department was a “person.” Shafer v. State, 2015 WY 38, 344 P.3d 284, 2015 Wyo. LEXIS 42 (Wyo. 2015).

The term “person,” as defined in § 8-1-102(a)(vi), is the meaning the legislature intended to incorporate into the restitution statutes when it utilized the term in the definition of a “victim.” DCI. Merkison v. State, 996 P.2d 1138, 2000 Wyo. LEXIS 24 (Wyo. 2000).

Workers' compensation division not an insurer for purposes of restitution. —

It would be against public policy to allow a criminal defendant to avoid responsibility for damages he caused merely because the injured party was acting within the scope of his employment, and therefore, for purposes of the restitution statute, the workers' compensation division qualifies as a “victim.” Nixon v. State, 994 P.2d 324, 1999 Wyo. LEXIS 198 (Wyo. 1999).

Division of criminal investigation. —

The division of criminal investigation (DCI) was a “victim” which had suffered “pecuniary damage” as a result of defendant's criminal activities, and therefore the district court did not err in awarding restitution in the amount of the buy money expended by DCI. Merkison v. State, 996 P.2d 1138, 2000 Wyo. LEXIS 24 (Wyo. 2000).

Causation not shown. —

Restitution for the amount lost due to a victim's inability to secure loans after defendant allegedly ruined his credit was improperly awarded because causation was not established; there was no evidence that the victim would have qualified for the loans absent defendant's criminal conduct. Hampton v. State, 2006 WY 103, 141 P.3d 101, 2006 Wyo. LEXIS 107 (Wyo. 2006).

Quoted in

Jackson v. State, 891 P.2d 70, 1995 Wyo. LEXIS 36 (Wyo. 1995); Fales v. State, 908 P.2d 404, 1995 Wyo. LEXIS 214 (Wyo. 1995); Coleman v. State, 2005 WY 69, 115 P.3d 411, 2005 Wyo. LEXIS 81 (2005); Glover v. State, 2007 WY 169, 169 P.3d 553, 2007 Wyo. LEXIS 182 (Oct. 25, 2007); Guinard v. State, 2014 WY 140, 2014 Wyo. LEXIS 162 (Nov. 5, 2014).

Cited in

Kaess v. State, 748 P.2d 698, 1987 Wyo. LEXIS 553 (Wyo. 1987); Jones v. State, 2002 WY 35, 41 P.3d 1247, 2002 Wyo. LEXIS 38 (Wyo. 2002); Abeyta v. State, 2002 WY 44, 42 P.3d 1009, 2002 Wyo. LEXIS 45 (Wyo. 2002); Crapo v. State, 2007 WY 194, 172 P.3d 393, 2007 Wyo. LEXIS 205 (Dec. 11, 2007); Smith v. State, 2012 WY 130; 2012 Wyo. LEXIS 137 (Oct 5, 2012); Hamilton v. State, 2015 WY 39, 2015 Wyo. LEXIS 43 (Mar. 9, 2015).

For article, "Unpaid Restitution: An Underenforced Right of Victimsand Suggestions to Improve the Collection of Restitution in Wyoming”, see 12 Wyo. L. Rev. 367 (2012).

Am. Jur. 2d, ALR and C.J.S. references. —

Statutes providing for governmental compensation for victims of crime, .

Persons or entities entitled to restitution as “victim” under state criminal restitution statute, 92 ALR5th 35.

§ 7-9-102. Order to pay upon conviction.

In addition to any other punishment prescribed by law the court shall, upon conviction for any misdemeanor or felony, order a defendant to pay restitution to each victim as determined under W.S. 7-9-103 and 7-9-114 unless the court specifically finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay.

History. Laws 1984, ch. 27, § 1; W.S. 1977, § 6-10-110 ; Laws 1985, ch. 72, § 1; 1987, ch. 157, § 3; 1991, ch. 167, § 2.

Cross references. —

As to restitution as condition of parole, see § 7-13-421 .

Finding of ability to pay not required. —

After accepting defendant's plea agreement for committing arson, district court did not err by failing to make a specific finding that defendant had an ability to pay restitution; such a finding is not required under this section. Whitten v. State, 2005 WY 55, 110 P.3d 892, 2005 Wyo. LEXIS 63 (Wyo. 2005).

Where the district court ordered $335,387 in restitution and did not find defendant unable to pay, it was not required to make any factual findings as to ability to pay. The conclusion that defendant was not unable to pay over time was supported by the facts that defendant was young and apparently capable, and an employer was willing to let him work 10-to-12-hour shifts at a minimum of $10 per hour. Smith v. State, 2012 WY 130, 286 P.3d 429, 2012 Wyo. LEXIS 137 (Wyo. 2012).

District court did not err in ordering defendant to pay restitution as it was not shown that there was no reasonable probability that defendant could at some future point in time assist her husband in paying a portion of the ordered restitution because the court was not required to analyze defendant’s financial resources in detail or to make findings as to her income or financial obligations; there was no evidence that her physical condition could not improve or otherwise allow her to earn money through prison work in the course of her lengthy incarceration; and no evidence was introduced that the government assistance she received would be eliminated once she was imprisoned. Smiley v. State, 2018 WY 50, 417 P.3d 174, 2018 Wyo. LEXIS 51 (Wyo. 2018).

Court's authority. —

Restitution is not limited to the amount that must be proved for conviction so long as the amount ordered is consistent with the applicable Wyoming statutes. Kuebel v. State, 2019 WY 75, 446 P.3d 179, 2019 Wyo. LEXIS 76 (Wyo. 2019).

Specific finding only when no ability to pay. —

A court must make a specific finding only when a defendant does not have a present or prospective ability to pay. Murray v. State, 855 P.2d 350, 1993 Wyo. LEXIS 110 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 129 (Wyo. July 20, 1993), cert. denied, 510 U.S. 1045, 114 S. Ct. 693, 126 L. Ed. 2d 660, 1994 U.S. LEXIS 129 (U.S. 1994).

No error was found in the failure of court to articulate a specific finding of ability to pay the ordered restitution where the record was replete with facts from which the ability to pay could have been inferred. Leger v. State, 855 P.2d 359, 1993 Wyo. LEXIS 117 (Wyo. 1993).

Sentencing court is under no obligation to determine that there is an ability to pay restitution. Nixon v. State, 4 P.3d 864, 2000 Wyo. LEXIS 97 (Wyo. 2000).

In a welfare fraud case, restitution was properly ordered in the amount of $ 90,722.79 because a district court did not have to make findings concerning the amount of defendant's income and other financial obligations in the absence of an express finding that defendant did not have the ability to pay. Defendant was thirty-one years old, had a general equivalency diploma, and had been employed at a job prior to a work injury in which her annual take-home pay was approximately $24,000. Shafer v. State, 2015 WY 38, 344 P.3d 284, 2015 Wyo. LEXIS 42 (Wyo. 2015).

“Strong suspicion” of inability to pay insufficient. —

The sentencing court's “strong suspicion” that a “reasonable possibility” existed that the defendant would not be able to make complete restitution did not rise to the level of being the specific finding required under this section that the defendant was unable to pay. Brenning v. State, 870 P.2d 349, 1994 Wyo. LEXIS 28 (Wyo. 1994).

“Victim.” —

An insurer may be considered a victim of a crime, and therefore eligible to receive restitution payments, only if the insurer does not have a subrogation right. Meerscheidt v. State, 931 P.2d 220, 1997 Wyo. LEXIS 7 (Wyo. 1997).

Workers' compensation division not an insurer for purposes of restitution. —

It would be against public policy to allow a criminal defendant to avoid responsibility for damages he caused merely because the injured party was acting within the scope of his employment, and therefore, for purposes of the restitution statute, the workers' compensation division qualifies as a “victim.” Nixon v. State, 994 P.2d 324, 1999 Wyo. LEXIS 198 (Wyo. 1999).

Statute-based remedy. —

Absent statutory authority, sentencing court has no power to order restitution. Bishop v. State, 687 P.2d 242, 1984 Wyo. LEXIS 310 (Wyo. 1984), cert. denied, 469 U.S. 1219, 105 S. Ct. 1203, 84 L. Ed. 2d 345, 1985 U.S. LEXIS 998 (U.S. 1985).

Sentencing court authorized to impose restitution. —

The correct reading of §§ 7-9-102 and -103 and § 7-13-421(b), collectively, is that these statutes specifically authorize a sentencing court to impose restitution ordered a condition of parole unless the Board of Parole intervenes. Helmlinger v. State, 855 P.2d 363, 1993 Wyo. LEXIS 115 (Wyo. 1993).

District court had authority to order the appellant to pay the costs of a forensic examination to the agency that ordered the examination where the agency suffered pecuniary damage as a result of the appellant's crime and the agency's statement as to the amount of the examination was credible evidence upon which to impose restitution. Frederick v. State, 2007 WY 27, 151 P.3d 1136, 2007 Wyo. LEXIS 26 (Wyo. 2007).

Costs of incarceration. —

This section does not authorize imposition of restitution for costs of incarceration in county detention center. Lee v. State, 2 P.3d 517, 2000 Wyo. LEXIS 68 (Wyo. 2000), dismissed, 2007 WY 81, 157 P.3d 947, 2007 Wyo. LEXIS 87 (Wyo. 2007).

Defendant must be advised on possibility of restitution. —

Rule 15(c), W.R. Cr. P., requires the trial judge to inform a defendant of the court's power to order restitution, although the exact amount of upper limit of restitution need not be specified at the time of the plea. Keller v. State, 723 P.2d 1244, 1986 Wyo. LEXIS 604 (Wyo. 1986).

Restitution improper where defendant not convicted. —

Crimes for which defendant could be ordered to pay restitution included only those to which he pleaded guilty and those he admitted in his plea agreement, and since defendant denied taking personal property from truck and, after preliminary hearing, district court dismissed count charging him with larceny of those items, court was without authority to order restitution for value of items. Van Riper v. State, 999 P.2d 646, 2000 Wyo. LEXIS 52 (Wyo. 2000).

Restitution proper. —

In a prosecution for larceny by a bailee of a motor vehicle, the evidence was sufficient to support an order of restitution where the victim impact statement detailed unpaid rental charges, costs of damages, towing, and storage, and the cost of a missing bench seat. Stowe v. State, 10 P.3d 551, 2000 Wyo. LEXIS 186 (Wyo. 2000).

Trial court did not err in ordering a battery defendant to pay restitution to the victim because: (1) there was substantial evidence showing that defendant inflicted the victim's injuries, (2) the victim could have recovered damages in the amount of her medical bills in a civil action, and (3) a reasonable probability existed that defendant had or would have an ability to pay. Glover v. State, 2007 WY 169, 169 P.3d 553, 2007 Wyo. LEXIS 182 (Wyo. 2007).

District court did not abuse its discretion in ordering restitution against defendant where the victims' testimony concerning the value of their claims was credible and uncontradicted and based on the actual or fair market value of the items. Brown v. State, 2003 WY 72, 70 P.3d 238, 2003 Wyo. LEXIS 89 (Wyo. 2003).

Where the district court found no evidence in the record regarding subrogation rights of the insurer, the district court did not err in requiring that restitution be paid to the homeowner. Whitten v. State, 2005 WY 55, 110 P.3d 892, 2005 Wyo. LEXIS 63 (Wyo. 2005).

In a case in which defendant was convicted of being an accessory to the second-degree sexual abuse of a minor and third-degree sexual abuse of a second minor, defendant and her husband were jointly and severally liable for the requested amount of restitution of $17,515.20 to Wyoming Medicaid for its expenditures on behalf of the second victim as a result of defendant’s offenses because the presentence investigation report and the victim impact statement made by the second victim’s mother at the sentencing hearing together provided minimal but sufficient support for the district court’s award as the mother’s statement established that her daughter’s treatment included two periods of residential treatment at the Wyoming Behavioral Institute. Smiley v. State, 2018 WY 50, 417 P.3d 174, 2018 Wyo. LEXIS 51 (Wyo. 2018).

District court did not abuse its discretion by ordering restitution in an amount greater than $1,000 for the misdemeanor theft conviction of a motorcycle where the State called a witness who testified that he had nearly life-long experience working with motorcycles, jet skis and cars, the witness was familiar with the Norton motorcycles owned by the victims, he testified, without objection, that the motorcycle had a value between $2,500 and $3,500, and defendant testified that the motorcycle was in poor condition, but he presented no contrary evidence as to its value. Kuebel v. State, 2019 WY 75, 446 P.3d 179, 2019 Wyo. LEXIS 76 (Wyo. 2019).

Challenge to amount of restitution. —

Any challenge by the defendant concerning the restitution amount was waived by agreeing to a plan of restitution containing a specific amount owed and monthly payments and by making the required payments under the plan. Daniels v. State, 909 P.2d 972, 1996 Wyo. LEXIS 5 (Wyo. 1996).

The demand for a hearing to develop a factual showing in the record concerning the reasonableness of the restitution amount is a challenge to the terms of the probation agreement. Any challenge to the validity of a probation agreement term must be made when the amount of restitution is determined at sentencing or within the time permitted by the rules after sentencing. Daniels v. State, 909 P.2d 972, 1996 Wyo. LEXIS 5 (Wyo. 1996).

Where defendant admitted in writing to defendant's employer that defendant stole cameras, CDs, and DVDs, but only the cameras were mentioned in the criminal proceeding for larceny, it was error to order restitution under Wyo. Stat. Ann. § 7-9-101(a)(i) for the DVDs and CDs because defendant did not admit to the crimes in the context of a criminal proceeding. Coleman v. State, 2005 WY 69, 115 P.3d 411, 2005 Wyo. LEXIS 81 (Wyo. 2005).

Trial court erred in awarding restitution to a victim because there was simply nothing in the record to verify the replacement cost of the brass defendant took from her property other than her testimony, which unsupported by any documentation other than her written statement of the replacement value of the brass. Guinard v. State, 2014 WY 140, 337 P.3d 426, 2014 Wyo. LEXIS 162 (Wyo. 2014).

Waiver. —

Defendant waived his right to challenge the factual basis of a restitution order because he entered into a plea agreement providing that restitution would be determined and did not object to the final amount of restitution ordered by the district court. Smith v. State, 2012 WY 130, 286 P.3d 429, 2012 Wyo. LEXIS 137 (Wyo. 2012).

Restitution plan. —

District court did not have authority under this section to require defendant to make a “bona fide effort” to have a total $335,387 of restitution paid within a five-year period. A restitution plan could not be imposed because the one-year jail sentence was not suspended. Smith v. State, 2012 WY 130, 286 P.3d 429, 2012 Wyo. LEXIS 137 (Wyo. 2012).

Causation not shown. —

Restitution for the amount lost due to a victim's inability to secure loans after defendant allegedly ruined his credit was improperly awarded because causation was not established; there was no evidence that the victim would have qualified for the loans absent defendant's criminal conduct. Hampton v. State, 2006 WY 103, 141 P.3d 101, 2006 Wyo. LEXIS 107 (Wyo. 2006).

Applied in

Farbotnik v. State, 850 P.2d 594, 1993 Wyo. LEXIS 70 (Wyo. 1993).

Quoted in

Hart v. State, 2002 WY 3, 37 P.3d 1286, 2002 Wyo. LEXIS 3 (Wyo. 2002); Jones v. State, 2002 WY 35, 41 P.3d 1247, 2002 Wyo. LEXIS 3 8 (Wyo. 2002); Alcaraz v. State, 2002 WY 57, 44 P.3d 68, 2002 Wyo. LEXIS 58 (Wyo. 2002).

Cited in

Graham v. State, 2001 WY 5, 16 P.3d 712, 2001 Wyo. LEXIS 5 (Wyo. 2001); Abeyta v. State, 2002 WY 44, 42 P.3d 1009, 2002 Wyo. LEXIS 45 (Wyo. 2002); Penner v. State, 2003 WY 143, 78 P.3d 1045, 2003 Wyo. LEXIS 173 (Wyo. 2003); Penner v. State, 2003 WY 143, 78 P.3d 1045, 2003 Wyo. LEXIS 173 (Wyo. 2003); Crapo v. State, 2007 WY 194, 172 P.3d 393, 2007 Wyo. LEXIS 205 (Dec. 11, 2007).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Jurisdiction or power of juvenile court to order parent of juvenile to make restitution for juvenile's offense, 66 ALR4th 985.

Requirement, as condition of probation, pursuant to 18 USC § 3651 (Repeal), that defendant make restitution to aggrieved parties, 71 ALR Fed 789.

Restitutional sentencing under Victim and Witness Protection Act § 5 (18 USC §§ 3579, 3580) [ 18 USC §§ 3663, 3664], 79 ALR Fed 724.

§ 7-9-103. Determination of amount owed; execution.

  1. As part of the sentencing process including deferred prosecutions under W.S. 7-13-301 , in any misdemeanor or felony case, the prosecuting attorney shall present to the court any claim for restitution submitted by any victim.
  2. In every case in which a claim for restitution is submitted, the court shall fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant’s criminal activity, and shall include its determination of the pecuniary damage as a special finding in the judgment of conviction or in the order placing the defendant on probation under W.S. 7-13-301 . In determining the amount of restitution, the court shall consider and include as a special finding, each victim’s reasonably foreseeable actual pecuniary damage that will result in the future as a result of the defendant’s criminal activity. A long-term physical health care restitution order shall be entered as provided in W.S. 7-9-113 through 7-9-115 .
  3. The court shall order the defendant to pay all or part of the restitution claimed or shall state on the record specific reasons why an order for restitution was not entered. If the court determines that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay in the future, the court shall enter specific findings in the record supporting its determination.
  4. Any order for restitution under this chapter constitutes a judgment by operation of law on the date it is entered. To satisfy the judgment, the clerk, upon request of the victim, the division of victim services or the district attorney, shall issue execution in the same manner as in a civil action.
  5. The court’s determination of the amount of restitution owed under this section is not admissible as evidence in any civil action.
  6. The defendant shall be given credit against his restitution obligation for payments made to the victim by the defendant’s insurer for injuries arising out of the same facts or event.

History. Laws 1984, ch. 27, § 1; W.S. 1977, § 7-13-109 ; Laws 1987, ch. 157, § 3; 1991, ch. 77, § 1; ch. 155, § 1; ch. 167, § 2; 2000, ch. 90, § 1; 2011, ch. 30, § 1.

Cross references. —

As to attachment, replevin and garnishment, see chapter 15 of title 1.

The 2011 amendment, effective July 1, 2011, in (d), inserted “the division of victim services,” and substituted “shall issue” for “may issue.”

Losses covered by insurance. —

Defendant was properly ordered to pay restitution to an insured victim because (1) there was no evidence in the record of a subrogation right, or lack thereof, so the insurer was not a victim entitled to restitution, (2) it was absurd not to order the defendant to pay anyone for damage defendant caused, and (3) equitable subrogation did not assist defendant, since, if a right of subrogation existed, the court had to award restitution to the owner of property defendant damaged, and (4) whether the victim would receive a double recovery was of no consequence, since restitution was a criminal penalty meant to have deterrent and rehabilitative effects. Hudson v. State, 2020 WY 86, 466 P.3d 839, 2020 Wyo. LEXIS 94 (Wyo. 2020).

Court's authority. —

Restitution is not limited to the amount that must be proved for conviction so long as the amount ordered is consistent with the applicable Wyoming statutes. Kuebel v. State, 2019 WY 75, 446 P.3d 179, 2019 Wyo. LEXIS 76 (Wyo. 2019).

Types of damages awardable. —

Section 7-9-101 and this section allow a court in a criminal case to award as restitution the same damages as are available in a civil case; however, certain types of damages, such as punitive damages and damages for pain, suffering, mental anguish, and loss of consortium, may not be awarded. Meerscheidt v. State, 931 P.2d 220, 1997 Wyo. LEXIS 7 (Wyo. 1997).

Court's authority.—

Nothing in Wyo. Stat. Ann. § 7-9-103(d) operates to restrict a sentencing court’s authority; the provision facilitates executions by victims, the division of victims services, and district attorneys, but it contains no language restricting the district court’s authority to otherwise impose probation conditions to facilitate the payment of restitution. Anderson v. State, 2018 WY 6, 408 P.3d 1148, 2018 Wyo. LEXIS 6 (Wyo. 2018).

“Pecuniary damage.” —

The trial court erred by awarding restitution to crime victims for their loss of enjoyment of life, because the legislature intended to exclude such damages from the definition of “pecuniary damages.” Meerscheidt v. State, 931 P.2d 220, 1997 Wyo. LEXIS 7 (Wyo. 1997).

Defendant's judgment and sentence violated Wyo. R. Crim. P. 32(c)(2)(H) where, under Wyo. Stat. Ann. § 7-9-103(b) and Wyo. Stat. Ann. § 7-9-101(a)(iii), the sentencing court did not specify a victim, and it was impossible to tell if “loss of support” fit the statutory definition of “pecuniary damage”; the state failed to prove a victim's legal entitlement to restitution. Hite v. State, 2007 WY 199, 172 P.3d 737, 2007 Wyo. LEXIS 212 (Wyo. 2007).

In a criminal action, the record was insufficiently specific to permit the conclusion that the “loss of support” portion of the restitution order comported with statutory definition of “pecuniary damages.” Jones v. State, 2009 WY 33, 203 P.3d 1091, 2009 Wyo. LEXIS 32 (Wyo. 2009).

Damage resulting from “criminal activity.” —

Crimes for which defendant could be ordered to pay restitution included only those to which he pleaded guilty and those he admitted in his plea agreement, and since defendant denied taking personal property from truck and, after preliminary hearing, district court dismissed count charging him with larceny of those items, court was without authority to order restitution for value of items. Van Riper v. State, 999 P.2d 646, 2000 Wyo. LEXIS 52 (Wyo. 2000).

Where defendant admitted in writing to defendant's employer that defendant stole cameras, CDs, and DVDs, but only the cameras were mentioned in the criminal proceeding for larceny, it was error to order restitution under Wyo. Stat. Ann. § 7-9-101(a)(i) for the DVDs and CDs because defendant did not admit to the crimes in the context of a criminal proceeding. Coleman v. State, 2005 WY 69, 115 P.3d 411, 2005 Wyo. LEXIS 81 (Wyo. 2005).

In a case in which defendant pleaded guilty to receiving stolen property pursuant to a plea agreement, the district court had no authority to order defendant to pay restitution to burglary victims where defendant did not plead guilty to the burglaries or conspiracy to commit the burglaries and did not, as part of his plea agreement, agree to pay restitution to the burglary victims; the district court's authority to order restitution was limited to pecuniary damages incurred by victims arising from that criminal activity, but the restitution award was predicated upon the pecuniary loss resulting from the burglaries, not the criminal activity admitted to by defendant. Crapo v. State, 2007 WY 194, 172 P.3d 393, 2007 Wyo. LEXIS 205 (Wyo. 2007).

Probation revocation unconstitutional absent capacity to pay. —

The convicted person cannot be subjected to revocation of probation for noncompliance with restitution unless, in accord with the statutes, a plan has been developed which demonstrates the required criteria, including capacity to pay. In the absence of capacity to pay with reasonable effort made, imprisonment for debt occurs in contravention of art. 1, § 5, Wyo. Const.Seaton v. State, 811 P.2d 276, 1991 Wyo. LEXIS 79 (Wyo. 1991).

Ability to pay not a condition precedent. —

The first sentence of subsection (a) which indicates that finding an ability to pay is a condition precedent to ordering restitution is to be disregarded. Murray v. State, 855 P.2d 350, 1993 Wyo. LEXIS 110 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 129 (Wyo. July 20, 1993), cert. denied, 510 U.S. 1045, 114 S. Ct. 693, 126 L. Ed. 2d 660, 1994 U.S. LEXIS 129 (U.S. 1994).

Where the district court ordered $335,387 in restitution and did not find defendant unable to pay, it was not required to make any factual findings as to ability to pay. The conclusion that defendant was not unable to pay over time was supported by the facts that defendant was young and apparently capable, and an employer was willing to let him work 10-to-12-hour shifts at a minimum of $10 per hour. Smith v. State, 2012 WY 130, 286 P.3d 429, 2012 Wyo. LEXIS 137 (Wyo. 2012).

District court did not err in ordering defendant to pay restitution as it was not shown that there was no reasonable probability that defendant could at some future point in time assist her husband in paying a portion of the ordered restitution because the court was not required to analyze defendant’s financial resources in detail or to make findings as to her income or financial obligations; there was no evidence that her physical condition could not improve or otherwise allow her to earn money through prison work in the course of her lengthy incarceration; and no evidence was introduced that the government assistance she received would be eliminated once she was imprisoned. Smiley v. State, 2018 WY 50, 417 P.3d 174, 2018 Wyo. LEXIS 51 (Wyo. 2018).

Minimal inquiry into defendant's ability to pay sufficient. —

The court's actions in ordering restitution at sentencing without engaging in a reasoned inquiry into the defendant's ability to pay was proper under this section because there is no statutory requirement that the court inquire into the defendant's ability to pay at the time of sentencing. Dreiman v. State, 825 P.2d 758, 1992 Wyo. LEXIS 15 (Wyo. 1992).

Amount must be specified. —

Subsection (a) requires that a trial court fix a specific amount of restitution. Leger v. State, 855 P.2d 359, 1993 Wyo. LEXIS 117 (Wyo. 1993).

A trial court erred in ordering convicted arsonists to pay for the future moving expenses of their victims where the court (1) did not make a finding that the moving expenses were reasonably foreseeable, actual pecuniary damages, and (2) did not specify the actual restitution amount at the time of sentencing. Meerscheidt v. State, 931 P.2d 220, 1997 Wyo. LEXIS 7 (Wyo. 1997).

This section requires court to order restitution in a fixed, reasonable amount unless it specifically finds defendant is unable to pay, and amount should be supported by evidence sufficient to afford a reasonable basis for estimating the loss; a challenge to the amount of restitution must demonstrate an abuse of discretion. Brock v. State, 967 P.2d 26, 1998 Wyo. LEXIS 159 (Wyo. 1998).

Defendant properly advised. —

District court properly advised defendant, prior to acceptance of his guilty plea, of his potential restitution obligation where the court specifically advised defendant that there were money losses, and that he might well be required to pay those as restitution and he confirmed that he had understood the advisement and had no questions. Whitten v. State, 2005 WY 55, 110 P.3d 892, 2005 Wyo. LEXIS 63 (Wyo. 2005).

Fair market value an appropriate measure. —

After defendant pled guilty to wrongfully taking or disposing of property, a district court erred by failing to set restitution based on the readily ascertainable fair market value of a stolen pickup truck because there was no support for the contention that the truck had a special, unique, or sentimental value. Bush v. State, 2003 WY 156, 79 P.3d 1178, 2003 Wyo. LEXIS 186 (Wyo. 2003).

Burden of proof. —

Proof of the restitution amount as a question of the sentence need only be proved by credible evidence, by a preponderance, or burden, of the evidence. Renfro v. State, 785 P.2d 491, 1990 Wyo. LEXIS 2 (Wyo. 1990).

Determining reasonableness of restitution. —

The court's refusal to hear defendant's objection to the amount of restitution set by the court vitiated the “knowing” quality of defendant's waiver and rendered it impossible to determine, from the record, whether the amount finally determined was, indeed, reasonable. Aldridge v. State, 956 P.2d 341, 1998 Wyo. LEXIS 45 (Wyo. 1998).

Restitution withdrawn from prison earnings. —

District court did not by ordering restitution that the Department of Corrections could withdraw from defendant's prison earnings because unless the district court found that defendant was unable to pay restitution, it was required to set the total amount she had to repay the victim, and its order to that effect constituted a judgment upon which the victim could execute. McEwan v. State, 2013 WY 158, 314 P.3d 1160, 2013 Wyo. LEXIS 164 (Wyo. 2013).

Challenge to amount of restitution. —

The defendant must challenge the amount of restitution determined at sentencing (or within the time permitted by the rules after sentencing) or the amount is fixed as res judicata, not subject to attack at a probation revocation hearing. Badura v. State, 832 P.2d 1390, 1992 Wyo. LEXIS 72 (Wyo. 1992).

Any challenge by the defendant concerning the restitution amount was waived by agreeing to a plan of restitution containing a specific amount owed and monthly payments and by making the required payments under the plan. Daniels v. State, 909 P.2d 972, 1996 Wyo. LEXIS 5 (Wyo. 1996).

The demand for a hearing to develop a factual showing in the record concerning the reasonableness of the restitution amount is a challenge to the terms of the probation agreement. Any challenge to the validity of a probation agreement term must be made when the amount of restitution is determined at sentencing or within the time permitted by the rules after sentencing. Daniels v. State, 909 P.2d 972, 1996 Wyo. LEXIS 5 (Wyo. 1996).

After defendant was convicted of felony property destruction, he claimed that the district court erred in ordering him to pay restitution in the amount of $1,400, the estimated value of the vehicle before the damage; it was not clear whether the district court ordered defendant to pay that amount because defense counsel did not object to the presentence investigation or because it concluded that the fair market value was the appropriate measure of restitution, Wyo. Stat. Ann. § 7-9-103(b). Defense counsel did not waive the issue by his failure to object to the PSI because he sufficiently placed it before the sentencing court in challenging the appropriateness of the amount at the sentencing hearing and should the issue arise in any proceedings upon remand, the district court was required to take into account the prevailing law under Wyo. Stat. Ann. § 7-9-101(a)(iii). Morris v. State, 2009 WY 88, 210 P.3d 1101, 2009 Wyo. LEXIS 96 (Wyo. 2009).

In a larceny by bailee case, a restitution order was erroneous due to calculation errors made by the prosecution, and this amount was not offset by a claim made by the State. Moreover, there was no abuse of discretion in failing to find that certain expenses were legitimate where such claim was rejected by the jury, and no new evidence was offered on appeal. Hibsman v. State, 2015 WY 122, 355 P.3d 1240, 2015 Wyo. LEXIS 137 (Wyo. 2015).

Evidence sufficient to support restitution order. —

Evidence was sufficient to afford the court a reasonable basis for estimating the victim's loss, and the court's restitution order was therefore appropriate. Hilterbrand v. State, 930 P.2d 1248, 1997 Wyo. LEXIS 6 (Wyo. 1997).

Trial court did not err in ordering a battery defendant to pay restitution to the victim because: (1) there was substantial evidence showing that defendant inflicted the victim's injuries, (2) the victim could have recovered damages in the amount of her medical bills in a civil action, and (3) a reasonable probability existed that defendant had or would have an ability to pay. Glover v. State, 2007 WY 169, 169 P.3d 553, 2007 Wyo. LEXIS 182 (Wyo. 2007).

District court did not abuse its discretion in sentencing defendant to make restitution in the amount of $500, where mother of minor with whom defendant had taken indecent liberties requested in victim impact statement that defendant pay her insurance policy deductible of $500 to cover costs of counseling for daughter; this information was sufficient to afford a reasonable basis for estimating the victim's loss. Brock v. State, 967 P.2d 26, 1998 Wyo. LEXIS 159 (Wyo. 1998).

District court did not abuse its discretion in ordering restitution against defendant where the victims' testimony concerning the value of their claims was credible and uncontradicted and based on the actual or fair market value of the items. Brown v. State, 2003 WY 72, 70 P.3d 238, 2003 Wyo. LEXIS 89 (Wyo. 2003).

In a case in which defendant was convicted of being an accessory to the second-degree sexual abuse of a minor and third-degree sexual abuse of a second minor, defendant and her husband were jointly and severally liable for the requested amount of restitution of $17,515.20 to Wyoming Medicaid for its expenditures on behalf of the second victim as a result of defendant’s offenses because the presentence investigation report and the victim impact statement made by the second victim’s mother at the sentencing hearing together provided minimal but sufficient support for the district court’s award as the mother’s statement established that her daughter’s treatment included two periods of residential treatment at the Wyoming Behavioral Institute. Smiley v. State, 2018 WY 50, 417 P.3d 174, 2018 Wyo. LEXIS 51 (Wyo. 2018).

District court did not abuse its discretion by ordering restitution in an amount greater than $1,000 for the misdemeanor theft conviction of a motorcycle where the State called a witness who testified that he had nearly life-long experience working with motorcycles, jet skis and cars, the witness was familiar with the Norton motorcycles owned by the victims, he testified, without objection, that the motorcycle had a value between $2,500 and $3,500, and defendant testified that the motorcycle was in poor condition, but he presented no contrary evidence as to its value. Kuebel v. State, 2019 WY 75, 446 P.3d 179, 2019 Wyo. LEXIS 76 (Wyo. 2019).

District court acted within its authority in awarding restitution for the victim's personal items that were inside his stolen vehicle because defendant admitted to stealing the vehicle and a jury convicted him of felony larceny, when defendant stole the vehicle, he stole the items that were contained therein, and defendant never denied taking the personal property, and at sentencing never contested the restitution requested on the stolen items. Layton v. State, 2007 WY 1, 150 P.3d 173, 2007 Wyo. LEXIS 1 (Wyo. 2007).

Evidence insufficient to support restitution order. —

Restitution order was not supported by sufficient evidence because, even though restitution was generally measured by the damages to the victim, the State could not ignore the terms of the plea agreement, which limited the amount of defendant's restitution to amounts that he actually received. The State did not meet its burden of proving that defendant received or otherwise benefitted from a welfare fraud scheme in the amount of $ 2,600.15. O'Halloran v. State, 2014 WY 95, 331 P.3d 121, 2014 Wyo. LEXIS 111 (Wyo. 2014).

Prosecuting attorney's comments not considered evidence. —

Comments of the prosecuting attorney, unless identifying trial evidence or directing attention to file documentation or other credible evidence, cannot be substituted for proof of the amount of restitution. Renfro v. State, 785 P.2d 491, 1990 Wyo. LEXIS 2 (Wyo. 1990).

Sentencing court authorized to impose restitution. —

The correct reading of §§ 7-9-102 and -103 and § 7-13-421(b), collectively, is that these statutes specifically authorize a sentencing court to impose restitution ordered a condition of parole unless the Board of Parole intervenes. Helmlinger v. State, 855 P.2d 363, 1993 Wyo. LEXIS 115 (Wyo. 1993).

District court had authority to order the appellant to pay the costs of a forensic examination to the agency that ordered the examination where the agency suffered pecuniary damage as a result of the appellant's crime and the agency's statement as to the amount of the examination was credible evidence upon which to impose restitution. Frederick v. State, 2007 WY 27, 151 P.3d 1136, 2007 Wyo. LEXIS 26 (Wyo. 2007).

Losses covered by insurance. —

Although homeowner's insurance covered some of his victims' losses, the court refused to relieve defendant of the restitution obligation as described by his plea agreement, because the court was uninterested in rewarding a confessed burglar for the foresight of his victims in maintaining insurance coverage, and even less intrigued by the notion of allowing a felon to profit from his criminal enterprise. Williams v. State, 949 P.2d 878, 1997 Wyo. LEXIS 160 (Wyo. 1997).

Collateral source rule. —

Court rejected defendant's concern that the individual victims may have received a windfall in the form of duplicative insurance and restitution payments in violation of the collateral source, because the collateral source rule has application to tort cases and is inapposite in the context of criminal law. Williams v. State, 949 P.2d 878, 1997 Wyo. LEXIS 160 (Wyo. 1997).

Satisfaction. —

Trial court properly ruled that a civil liability settlement entered into by defendant, who was convicted of reckless endangering, with the victims of his criminal conduct did not extinguish the restitution order earlier imposed against him. Abeyta v. State, 2002 WY 44, 42 P.3d 1009, 2002 Wyo. LEXIS 45 (Wyo. 2002).

Restitution plan. —

District court did not have authority under this section to require defendant to make a “bona fide effort” to have a total $335,387 of restitution paid within a five-year period. A restitution plan could not be imposed because the one-year jail sentence was not suspended. Smith v. State, 2012 WY 130, 286 P.3d 429, 2012 Wyo. LEXIS 137 (Wyo. 2012).

Statutory requirement that court make finding waived by defendant. —

The statutory requirement that the trial court, for purposes of restitution, make a specific finding as to the amount of pecuniary damage supported by credible evidence in the record is a right personal to the defendant which she may waive. The defendant waived this requirement by agreeing to a plan of restitution containing a specific figure owed with fixed monthly payments, and by making some payments under the plan. Kahlsdorf v. State, 823 P.2d 1184, 1991 Wyo. LEXIS 202 (Wyo. 1991) (decided under prior law).

Waiver. —

Defendant waived his right to challenge the factual basis of a restitution order because he entered into a plea agreement providing that restitution would be determined and did not object to the final amount of restitution ordered by the district court. Smith v. State, 2012 WY 130, 286 P.3d 429, 2012 Wyo. LEXIS 137 (Wyo. 2012).

Remand for recomputation not normally allowed. —

Where the initial computation of the amount of restitution is the result of a failure of proof, the supreme court will not normally remand for a recomputation unless it is remanding for other sentencing changes as well. Renfro v. State, 785 P.2d 491, 1990 Wyo. LEXIS 2 (Wyo. 1990).

Cost for changing locks result of “criminal activity.” —

An order of restitution for the costs associated with the changing of the victim's locks was proper where the victim had her locks changed as a result of the defendant's criminal activity in burglarizing her home. Dreiman v. State, 825 P.2d 758, 1992 Wyo. LEXIS 15 (Wyo. 1992).

Court properly required defendant pay child support for victim's daughter, where the defendant admitted to unlawful sexual intrusion with the victim which could reasonably have been considered to have resulted in the pregnancy. Jackson v. State, 891 P.2d 70, 1995 Wyo. LEXIS 36 (Wyo. 1995).

Court cannot require body tissue, sperm specimen. —

Part of the sentence ordering the defendant convicted of second-degree sexual assault to leave a sample of body tissue or sperm specimen for use in future DNA testing was beyond the court's authority. Jackson v. State, 891 P.2d 70, 1995 Wyo. LEXIS 36 (Wyo. 1995).

Causation not shown. —

Restitution for the amount lost due to a victim's inability to secure loans after defendant allegedly ruined his credit was improperly awarded because causation was not established; there was no evidence that the victim would have qualified for the loans absent defendant's criminal conduct. Hampton v. State, 2006 WY 103, 141 P.3d 101, 2006 Wyo. LEXIS 107 (Wyo. 2006).

Specific finding only when no ability to pay. —

In a welfare fraud case, restitution was properly ordered in the amount of $ 90,722.79 because a district court did not have to make findings concerning the amount of defendant's income and other financial obligations in the absence of an express finding that defendant did not have the ability to pay. Defendant was thirty-one years old, had a general equivalency diploma, and had been employed at a job prior to a work injury in which her annual take-home pay was approximately $24,000. Shafer v. State, 2015 WY 38, 344 P.3d 284, 2015 Wyo. LEXIS 42 (Wyo. 2015).

Applied in

Shongutsie v. State, 827 P.2d 361, 1992 Wyo. LEXIS 25 (Wyo. 1992); Leach v. State, 836 P.2d 336, 1992 Wyo. LEXIS 118 (Wyo. 1992); Brenning v. State, 870 P.2d 349, 1994 Wyo. LEXIS 28 (Wyo. 1994); Fales v. State, 908 P.2d 404, 1995 Wyo. LEXIS 214 (Wyo. 1995); Alcaraz v. State, 2002 WY 57, 44 P.3d 68, 2002 Wyo. LEXIS 58 (Wyo. 2002).

Quoted in

Hart v. State, 2002 WY 3, 37 P.3d 1286, 2002 Wyo. LEXIS 3 (Wyo. 2002); Guinard v. State, 2014 WY 140, 2014 Wyo. LEXIS 162 (Nov. 5, 2014).

Stated in

Keller v. State, 723 P.2d 1244, 1986 Wyo. LEXIS 604 (Wyo. 1986).

Cited in

Perritt v. State, 2005 WY 121, 120 P.3d 181, 2005 Wyo. LEXIS 147 (2005).

Nixon v. State, 4 P.3d 864, 2000 Wyo. LEXIS 97 (Wyo. 2000); Graham v. State, 2001 WY 5, 16 P.3d 712, 2001 Wyo. LEXIS 5 (Wyo. 2001); Jones v. State, 2002 WY 35, 41 P.3d 1247, 2002 Wyo. LEXIS 38 (Wyo. 2002); Penner v. State, 2003 WY 143, 78 P.3d 1045, 2003 Wyo. LEXIS 173 (Wyo. 2003)King v. Wyo. Dep't of Transp., 2007 WY 109, 161 P.3d 1086, 2007 Wyo. LEXIS 116 (July 12, 2007).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Measure and elements of restitution to which victim is entitled under state criminal statute, 15 ALR5th 391.

Requirement, as condition of probation, pursuant to 18 USC § 3651, that defendant make restitution to aggrieved parties, 71 ALR Fed 789.

Restitutional sentencing under Victim and Witness Protection Act § 5 (18 USC §§ 3579, 3580) [ 18 USC §§ 3663, 3664], 79 ALR Fed 724.

Deductibility, as nonbusiness loss under 26 USC § 165(c)(2), of restitution payments made pursuant to sentencing order, 112 ALR Fed 289.

§ 7-9-104. Preparation of plan; contents.

  1. In any case in which the court has ordered restitution under W.S. 7-9-102 , 7-9-113 or 7-13-301 , if the sentencing court orders suspended imposition of sentence, suspended sentence or probation, the court shall require that the defendant in cooperation with the probation and parole officer assigned to the defendant, or in the case of unsupervised probation any probation and parole officer or any other person the court directs, promptly prepare a plan of restitution including the name and address of each victim, the amount of restitution determined to be owed to each victim pursuant to W.S. 7-9-103 or 7-9-114 and a schedule of restitution payments. If the defendant is presently unable to make any restitution but there is a reasonable possibility that the defendant may be able to do so at some time during his probation period, the plan of restitution shall also state the conditions under which or the event after which the defendant shall make restitution. In structuring a plan for reimbursement under this section, victim restitution shall be paid in the following order:
    1. Pecuniary damages suffered by the victim which have not been paid by insurance or from the crime victim’s compensation account;
    2. Payment of other amounts owed by the defendant arising from the case.

History. Laws 1980, ch. 34, § 1; W.S. 1977, § 7-13-308; Laws 1983, ch. 162, § 1; 1984, ch. 27, § 2; 1987, ch. 157, § 3; 1991, ch. 77, § 1; ch. 155, § 1; ch. 167, § 2; 2000, ch. 90, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Applicability. —

This section did not give the trial court authority to require defendant to make a “bona fide effort” to have a total $335,387 of restitution paid within a five-year period. Defendant's one-year jail sentence was not suspended and he was not given probation; therefore, his sentence was not a sentence for which a restitution plan could be imposed. Smith v. State, 2012 WY 130, 286 P.3d 429, 2012 Wyo. LEXIS 137 (Wyo. 2012).

Court's authority.—

Statutory requirement for a restitution plan may contemplate that restitution-related conditions be included in a restitution plan, but it contains no language restricting a sentencing court’s authority to impose such conditions outside a formalized restitution plan, and the requirement of a restitution plan does not act to constrain the court’s discretion over restitution terms. Anderson v. State, 2018 WY 6, 408 P.3d 1148, 2018 Wyo. LEXIS 6 (Wyo. 2018).

It would be nonsensical to allow the sentencing court full discretion to set restitution terms as part of a restitution plan, but declare that exercise of discretion invalid if the court orders the same terms as separate probation conditions, and there is nothing that requires such a result; a district court has authority to impose restitution-related probation conditions in a restitution plan or separately, and the district court did not abuse its discretion or exceed its authority in imposing such conditions in this case. Anderson v. State, 2018 WY 6, 408 P.3d 1148, 2018 Wyo. LEXIS 6 (Wyo. 2018).

Restitution withdrawn from prison earnings. —

District court did not by ordering restitution that the Department of Corrections could withdraw from defendant's prison earnings because unless the district court found that defendant was unable to pay restitution, it was required to set the total amount she had to repay the victim, and its order to that effect constituted a judgment upon which the victim could execute. McEwan v. State, 2013 WY 158, 314 P.3d 1160, 2013 Wyo. LEXIS 164 (Wyo. 2013).

Absent statutory authority, sentencing court has no power to order restitution. Bishop v. State, 687 P.2d 242, 1984 Wyo. LEXIS 310 (Wyo. 1984), cert. denied, 469 U.S. 1219, 105 S. Ct. 1203, 84 L. Ed. 2d 345, 1985 U.S. LEXIS 998 (U.S. 1985).

Under former law, sentence which required restitution to victim was illegal because neither this section nor any other section authorized restitution when the defendant is sentenced to incarceration. Barnes v. State, 670 P.2d 302, 1983 Wyo. LEXIS 368 (Wyo. 1983).

Probation revocation unconstitutional absent capacity to pay. —

The convicted person cannot be subjected to revocation of probation for noncompliance with restitution unless, in accord with the statutes, a plan has been developed which demonstrates the required criteria, including capacity to pay. In the absence of capacity to pay with reasonable effort made, imprisonment for debt occurs in contravention of art. 1, § 5, Wyo. Const.Seaton v. State, 811 P.2d 276, 1991 Wyo. LEXIS 79 (Wyo. 1991).

Cited in

Badura v. State, 832 P.2d 1390, 1992 Wyo. LEXIS 72 (Wyo. 1992); Hart v. State, 2002 WY 3, 37 P.3d 1286, 2002 Wyo. LEXIS 3 (Wyo. 2002).

Law reviews. —

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

For comment, “Victim Compensation and Restitution: Legislative Alternatives,” see XX Land & Water L. Rev. 681 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Requirement, as condition of probation, pursuant to 18 USC § 3651 [Repealed], that defendant make restitution to aggrieved parties, 71 ALR Fed 789.

§ 7-9-105. Submission of plan to court; approval or modification.

The defendant’s plan of restitution and the comments of the probation and parole officer or any other person directed by the court to assist in the preparation of the restitution plan shall be submitted promptly to the court. The court shall promptly enter an order approving the plan or modifying it and providing for restitution payments to the extent that the defendant is or may become reasonably able to make restitution, taking into account the factors enumerated in W.S. 7-9-106 . The court may modify the plan at any time upon the defendant’s request, upon the court’s own motion and, for those cases within the provisions of W.S. 7-9-113 through 7-9-115 , upon the motion of the victim.

History. Laws 1980, ch. 34, § 1; W.S. 1977, § 7-13-309; Laws 1987, ch. 157, § 3; 1991, ch. 155, § 1; ch. 167, § 2.

Cited in

Hart v. State, 2002 WY 3, 37 P.3d 1286, 2002 Wyo. LEXIS 3 (Wyo. 2002); Shafer v. State, 2015 WY 38, 2015 Wyo. LEXIS 42 (Mar. 9, 2015).

§ 7-9-106. Factors considered by probation and parole officer, and by court.

  1. The probation and parole officer or other person directed by the court when assisting the defendant in preparing the plan of restitution, and the court before approving or modifying the plan of restitution, shall consider:
    1. The number of victims;
    2. The pecuniary damages of each victim including, for those cases within the provisions of W.S. 7-9-113 through 7-9-115 , the long-term physical health care cost of the victim;
    3. The defendant’s:
      1. Physical and mental health and condition;
      2. Age;
      3. Education;
      4. Employment circumstances;
      5. Potential for employment and vocational training;
      6. Family circumstances; and
      7. Financial condition and whether the defendant has an ability to pay or whether a reasonable probability exists that the defendant will have an ability to pay.
    4. Whether compensation has been paid to any victim under the Crime Victims Compensation Act [§§ 1-40-101 through 1-40-119 ];
    5. What plan of restitution will most effectively aid the rehabilitation of the defendant; and
    6. Other appropriate factors.

History. Laws 1980, ch. 34, § 1; W.S. 1977, § 7-13-310; Laws 1987, ch. 157, § 3; 1991, ch. 155, § 1; ch. 167, § 2.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Restitution proper. —

There was nothing unreasonable in the district court's requirement that the defendant work more hours in order to pay restitution to burglary victims, hours that the defendant originally stated that he worked anyway. Hart v. State, 2002 WY 3, 37 P.3d 1286, 2002 Wyo. LEXIS 3 (Wyo. 2002).

Cited in

Jones v. State, 2002 WY 35, 41 P.3d 1247, 2002 Wyo. LEXIS 38 (Wyo. 2002).

Am. Jur. 2d, ALR and C.J.S. references. —

Vulnerability of victim as aggravating factor under state sentencing guidelines, 73 ALR5th 383.

Deductibility, as nonbusiness loss under 26 USC § 165(c)(2), of restitution payments made pursuant to sentencing order, 112 ALR Fed 289.

§ 7-9-107. Notice to victims.

  1. The probation and parole officer or other person directed by the court to assist in preparation of the restitution plan shall attempt to determine the name and address of each victim and the amount of his pecuniary damages and may rely on a victim’s impact statement made pursuant to W.S. 7-21-101 through 7-21-103 .
  2. The clerk of the court shall mail to each known victim a copy of the court’s order approving or modifying the plan of restitution.

History. Laws 1980, ch. 34, § 1; W.S. 1977, § 7-13-311; Laws 1987, ch. 157, § 3; 1990, ch. 112, § 2; 1991, ch. 155, § 1; ch. 167, § 2.

§ 7-9-108. Compliance with plan as condition of probation or suspension; payments to clerk.

  1. Compliance with the plan of restitution as approved or modified by the court shall be a condition of the defendant’s probation or suspension.
  2. Restitution payments by the defendant shall be made payable to the office of the clerk in a form acceptable to the clerk.
  3. Any restitution payment mailed to the last known address of the victim and returned to the clerk without a forwarding address shall be held by the clerk for a period of one (1) year following the date of receipt of the returned payment. A victim who fails to claim the returned payment or to provide a forwarding address within the one (1) year period forfeits his right to the payment and the clerk shall forward the amount of payment to the victim services division within the office of the attorney general for deposit in the account established under W.S. 1-40-114 .

History. Laws 1980, ch. 34, § 1; W.S. 1977, § 7-13-312; Laws 1987, ch. 157, § 3; 1989, ch. 54, § 1; 1998, ch. 81, § 2.

§ 7-9-109. Failure to comply; modification or extension of plan.

Failure of the defendant to comply with W.S. 7-9-104 or to comply with the plan of restitution as approved or modified by the court is a violation of the conditions of probation. If the probation period has expired, the restitution order may be enforced by either civil or criminal contempt proceedings. Criminal contempt under this section is punishable by imprisonment for not more than one (1) year. The court may modify the plan of restitution or extend the period of time for restitution, but, except for those cases falling within the provisions of W.S. 7-9-113 through 7-9-115 , the court may not extend the period of time for restitution beyond ten (10) years following the date of the defendant’s discharge from sentence or expiration of probation under W.S. 7-13-301 .

History. Laws 1980, ch. 34, § 1; W.S. 1977, § 7-13-313; Laws 1987, ch. 157, § 3; 1991, ch. 167, § 2; 1995, ch. 36, § 1; 2000, ch. 90, § 1.

Cited in

Daniels v. State, 909 P.2d 972, 1996 Wyo. LEXIS 5 (Wyo. 1996).

§ 7-9-110. Civil action.

  1. Proceedings, orders and judgments under W.S. 7-9-101 through 7-9-115 shall not estop, limit or impair the rights of victims to sue and recover damages from the defendant in a separate civil action. Any restitution payment by the defendant to a victim shall be set off against any judgment in favor of the victim, however, in a civil action arising out of the same facts or event.
  2. The fact that restitution was required or made shall not be admissible as evidence in a civil action unless offered by the defendant.

History. Laws 1980, ch. 34, § 1; W.S. 1977, § 7-13-314; Laws 1987, ch. 157, § 3; 1991, ch. 167, § 2.

Cross references. —

As to crime victims compensation, see chapter 40 of title 1.

§ 7-9-111. Limitations on duty of prosecutor; victim's remedy.

Except as provided by W.S. 7-9-103(a), the prosecuting attorney has no obligation to investigate alleged pecuniary damages or to petition the court for restitution on behalf of a victim. In the event that the victim is not satisfied with the restitution plan approved or modified by the court, the victim’s sole and exclusive remedy is a civil action.

History. Laws 1980, ch. 34, § 1; W.S. 1977, § 7-13-315; Laws 1987, ch. 157, § 3; 2000, ch. 90, § 1.

§ 7-9-112. Check fraud.

Notwithstanding any other provision of this chapter, the sentencing court may require any person convicted of check fraud to make restitution in an amount not to exceed twice the amount of the dishonored check in addition to any other punishment imposed under W.S. 6-3-702 .

History. Laws 1982, ch. 75, § 3; W.S. 1977, § 6-3-702 ; Laws 1983, ch. 96, § 2; ch. 171, § 1; 1984, ch. 44, §§ 2, 3; 1987, ch. 157, § 3.

Cited in

King v. Wyo. Dep't of Transp., 2007 WY 109, 161 P.3d 1086, 2007 Wyo. LEXIS 116 (July 12, 2007).

§ 7-9-113. Restitution for long-term care.

  1. In addition to any other punishment prescribed by law and any restitution ordered pursuant to W.S. 7-9-102 which did not include long-term physical health care costs, the court may, upon conviction of any misdemeanor or felony, order a defendant to pay restitution to a victim in accordance with the provisions of W.S. 7-9-114 if the victim has suffered physical injury as a result of the crime which is reasonably probable to require or has required long-term physical health care for more than three (3) months.
  2. As used in W.S. 7-9-113 through 7-9-115 “long-term physical health care” includes mental health care.

History. Laws 1991, ch. 167, § 1; 2000, ch. 90, § 1.

Restitution upheld. —

As part of a sentence for aggravated assault and battery, order that defendant pay $2,116.66 to defray the costs of long-term health care for the victim was appropriate, despite defendant's contention that he had no reasonable ability to pay while incarcerated. Hodgins v. State, 962 P.2d 153, 1998 Wyo. LEXIS 103 (Wyo. 1998).

§ 7-9-114. Determination of long-term restitution; time for order; enforcement.

  1. In determining the amount of restitution to be ordered for long-term physical health care, the court shall consider the factors stated in W.S. 7-9-106 together with an estimated monthly cost of long-term physical health care of the victim provided by the victim or his representative. The victim’s estimate of long-term physical health care costs may be made as part of a victim impact statement under W.S. 7-21-103 or made separately. The court shall enter the long-term physical health care restitution order at the time of sentencing. An order of restitution made pursuant to this section shall fix a monthly amount to be paid by the defendant for as long as long-term physical health care of the victim is required as a result of the crime. The order may exceed the length of any sentence imposed upon the defendant for the criminal activity. The court shall include as a special finding in the judgment of conviction its determination of the monthly cost of long-term physical health care.
  2. Restitution ordered under this section shall be paid as provided in W.S. 7-9-108 . The restitution order shall be a civil judgment against the defendant and may be enforced by any means provided for enforcing other restitution orders and civil judgments.

History. Laws 1991, ch. 167, § 1.

Payment of victim's long-term health care. —

As part of a sentence for aggravated assault and battery, order that defendant pay $2,116.66 to defray the costs of long-term health care for the victim was appropriate, despite defendant's contention that he had no reasonable ability to pay while incarcerated. Hodgins v. State, 962 P.2d 153, 1998 Wyo. LEXIS 103 (Wyo. 1998).

Cited in

Crapo v. State, 2007 WY 194, 172 P.3d 393, 2007 Wyo. LEXIS 205 (Dec. 11, 2007); Shafer v. State, 2015 WY 38, 2015 Wyo. LEXIS 42 (Mar. 9, 2015).

§ 7-9-115. Modification of order.

After a long-term physical health care restitution order has been entered, the court may from time to time, on the petition of either the defendant or the victim, or upon its own motion, modify the order as to the amount of monthly payments. Any modification of the order shall only be based upon a substantial change of circumstances relating to the cost of long-term physical health care or the financial condition of either the defendant or the victim. The petition shall be filed as part of the original criminal docket.

History. Laws 1991, ch. 167, § 1.

Chapter 10 Bail

Construction of territorial provision. —

Though a federal statute had reference to the giving of a recognizance rather than a bond as means of securing the offender, a territorial act which provided for bail bond was construed not to be in conflict therewith. Swan v. United States, 3 Wyo. 151, 9 P. 931, 1886 Wyo. LEXIS 1 (Wyo. 1886).

Am. Jur. 2d, ALR and C.J.S. references. —

8 Am. Jur. 2d Bail and Recognizance § 1 et seq.

Immunity from service of process of nonresident defendant in criminal case, released on bail, 20 ALR2d 163.

Mandamus to compel judge or other officer to grant bail to accused or to accept proferred sureties, 23 ALR2d 803.

Failure to appear, and the like, resulting in forfeiture or conditional forfeiture to bail, as affecting right to second admission to bail in same noncapital criminal case, 29 ALR2d 945.

Death of principal as defense available to surety on bail or appearance bond, 63 ALR2d 830.

Appealability of order relating to forfeiture of bail, 78 ALR2d 1180.

Insanity of accused as affecting right to bail in criminal case, 11 ALR3d 1385.

Validity, construction and application of statutes regulating bail bond business, 13 ALR3d 618.

Dismissal or vacation of indictment as terminating liability of surety on bail bond, 18 ALR3d 1354.

Pretrial preventive detention by state courts, 75 ALR3d 956.

Application of state statutes establishing pretrial release of accused on personal recognizance as presumptive form of release, 78 ALR3d 780.

Validity of statute abolishing commercial bail bond business, 19 ALR4th 355.

Liability of surety on bail bond taken without authority, 27 ALR4th 246.

Right of defendant in state court to bail pending appeal from conviction — modern cases, 28 ALR4th 227.

Bail: duration of surety's liability on pretrial bond, 32 ALR4th 504.

Bail: effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial, 32 ALR4th 600.

Bail: effect on surety's liability under bail bond of principal's incarceration in other jurisdiction, 33 ALR4th 663.

Bail: effect on surety's liability under bail bond of principal's subsequent incarceration in same jurisdiction, 35 ALR4th 1192.

Propriety of applying cash bail to payment of fine, 42 ALR5th 547.

Bail bond forfeiture proceedings as civil or criminal for purposes of time for appeal under Rule 4 of Federal Rules of Appellate Procedure, 70 ALR Fed 952.

Propriety of denial of pretrial bail under Bail Reform Act (18 USC §§ 3141 et seq.), 75 ALR Fed 806.

What is “a substantial question of law or fact likely to result in reversal or an order for a new trial” pursuant to 18 USC § 3143(b)(2) [18 USC § 3143(b)(1)(B)] respecting bail pending appeal, 79 ALR Fed 573.

8 C.J.S. Bail §§ 29 to 31, 59.

§ 7-10-101. Right of defendant.

  1. A person arrested for an offense not punishable by death may be admitted to bail.
  2. A person arrested for an offense punishable by death may be admitted to bail at the discretion of the authorized judicial officer as defined by W.S. 7-10-104 , except the defendant shall not be admitted to bail if the proof is evident or the presumption great in the case.
  3. During the pendency of an appeal in a bailable case, the judge of the court having jurisdiction may admit the defendant to bail in any sum he deems proper. The judge allowing bail may at any time revoke or amend the order admitting the defendant to bail.

History. C.L. 1876, ch. 14, § 42; R.S. 1887, § 3199; R.S. 1899, § 5162; C.S. 1910, § 6067; C.S. 1920, § 7364; R.S. 1931, § 33-301; C.S. 1945, § 10-401; W.S. 1957, § 7-199; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 5; 2004, ch. 42, § 1.

Cross references. —

As to right to bail of person subject to extradition, see § 7-3-216 .

As to constitutional right to bail, see art. 1, § 14, Wyo. Const.

The 2004 amendment, in (c), twice deleted “or justice” following “the judge.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

No right of parolee to bail. —

A parolee who has been arrested and detained on a parole violation warrant has no right to be admitted to bail. Pisano v. Shillinger, 814 P.2d 274, 1991 Wyo. LEXIS 121 (Wyo. 1991).

Quoted in

Morrison v. State, 2012 WY 41, 272 P.3d 321, 2012 Wyo. LEXIS 44 (Mar. 20, 2012).

Stated in

Garton v. State, 910 P.2d 1348, 1996 Wyo. LEXIS 16 (Wyo. 1996).

§ 7-10-102. Matters governed by rules.

The rules promulgated by the Wyoming supreme court shall govern in all matters relating to the terms, amount and conditions of bail, justification of sureties and procedures for forfeiture, enforcement and exoneration upon breach or default of the conditions of bail.

History. C.L. 1876, ch. 14, § 43; R.S. 1887, § 3200; R.S. 1899, § 5163; C.S. 1910, § 6068; C.S. 1920, § 7365; R.S. 1931, § 33-302; C.S. 1945, § 10-402; W.S. 1957, § 7-200; Laws 1985, ch 147, § 2.

Cross references. —

As to procedures in regard to bail, see Rule 3.1, W.R. Cr. P.

Quoted in

Morrison v. State, 2012 WY 41, 272 P.3d 321, 2012 Wyo. LEXIS 44 (Mar. 20, 2012).

§ 7-10-103. Continuation for defendant bound over to district court.

An order admitting to bail a defendant who is subsequently bound over to answer for a criminal offense in district court shall continue unless amended or revoked by the district court. The order of the court of limited jurisdiction admitting the defendant to bail, together with any cash, appearance bond or other security, shall be transmitted to the clerk of the district court and made a part of the record.

History. C.L. 1876, ch. 14, § 46; R.S. 1887, § 3203; R.S. 1899, § 5166; C.S. 1910, § 6071; C.S. 1920, § 7368; R.S. 1931, § 33-305; C.S. 1945, § 10-405; W.S. 1957, § 7-203; W.S. 1977, § 7-10-105 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Justice's jurisdiction. —

Justice binding accused over to district court may admit him to bail at such time or at any time after filing transcript of preliminary proceedings in district court, on or without application, up until time district court obtains complete jurisdiction on filing indictment or information. Doherty v. Patterson, 33 Wyo. 374, 239 P. 1045, 1925 Wyo. LEXIS 45 (Wyo. 1925).

§ 7-10-104. Authorized judicial officers.

  1. A person charged with the commission of any bailable offense may be admitted to bail by:
    1. A justice of the supreme court;
    2. A district judge or district court commissioner of the district in which the person is charged; or
    3. A circuit judge, or magistrate of the county in which the person is charged.
    4. Repealed by Laws 2004, ch. 42, § 2.

History. C.L. 1876, ch. 14, § 47; R.S. 1887, § 3204; Laws 1890, ch. 30, § 1; R.S. 1899, § 5167; C.S. 1910, § 6072; C.S. 1920, § 7369; R.S. 1931, § 33-306; C.S. 1945, § 10-406; W.S. 1957, § 7-204; W.S. 1977, § 7-10-106 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4; 2000, ch. 24, § 4; 2004, ch. 42, §§ 1, 2.

Cross references. —

As to powers of district court commissioner, see § 5-3-307 .

As to powers of magistrate with respect to bail, see § 5-9-208(c)(vi).

The 2004 amendment deleted former (a)(iv), which read: “A justice of the peace of the county in which the person is charged,” and made related changes.

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Clerk taking bail not unconstitutional. —

Law permitting clerk of court, in vacation, to take bail and fix its amount is not unconstitutional, as conferring judicial power on said clerk. State v. Sureties of Krohne, 4 Wyo. 347, 34 P. 3, 1893 Wyo. LEXIS 18 (Wyo. 1893) (decided prior to 1987 revision of this title).

Cited in

Doherty v. Patterson, 33 Wyo. 374, 239 P. 1045, 1925 Wyo. LEXIS 45 (1925).

Am. Jur. 2d, ALR and C.J.S. references. —

Court's power and duty, pending determination of habeas corpus proceedings on merits, to admit petitioner to bail, 56 ALR2d 668.

§ 7-10-105. Disposition of forfeited proceeds.

Any proceeds recovered as a result of the forfeiture of bail in any criminal case shall be paid into the county treasury to the credit of the public school fund of the county in which the defendant was admitted to bail.

History. C.L. 1876, ch. 14, § 58; Laws 1884, ch. 36, § 1; afd1886, ch. 103, § 2; R.S. 1887, § 3215; R.S. 1899, § 5178; C.S. 1910, § 6083; C.S. 1920, § 7380; R.S. 1931, § 33-317; C.S. 1945, § 10-417; W.S. 1957, § 7-215; W.S. 1977, § 7-10-117; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Cross references. —

As to apportionment of funds belonging to county school fund, see § 21-13-207 .

Cited in

Beagle v. State, 2004 WY 30, 86 P.3d 1271, 2004 Wyo. LEXIS 39 (2004).

§ 7-10-106. Technical defects.

In any proceeding to enforce or forfeit bail it shall be no defense that there was a failure by the court to note or record the default nor that there was a defect in the form of the appearance bond unless the defect misled the defendant to his prejudice.

History. C.L. 1876, ch. 14, § 61; R.S. 1887, § 3219; R.S. 1899, § 5181; C.S. 1910, § 6086; C.S. 1920, § 7383; R.S. 1931, § 33-320; C.S. 1945, § 10-420; W.S. 1957, § 7-218; W.S. 1977, § 7-10-120; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Chapter 11 Trial and Matters Incident Thereto

Article 1. Selection and Challenges of Juries

Cross references. —

As to procedure relating to trial jurors, see Rule 24, W.R. Cr. P.

Am. Jur. 2d, ALR and C.J.S. references. —

47 Am. Jur. 2d Jury §§ 159 to 338.

Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case, 1 ALR2d 1291.

Excluding women from jury panel as violating accused's constitutional rights and ground for reversal, 9 ALR2d 661.

Right to jury trial before revocation of probation or suspension of sentence, parole or conditional pardon, 29 ALR2d 1074, 44 ALR3d 306.

Exclusion of attorneys from jury lists in criminal cases, 32 ALR2d 890.

Withdrawal of waiver of right to jury trial in criminal case, 46 ALR2d 919.

Right of counsel in criminal case personally to conduct the voir dire examination of prospective jurors, 73 ALR2d 1187.

Religious belief as ground for exemption or excuse from jury service, 2 ALR3d 1392.

Juror's voir dire denial or nondisclosure of acquaintance or relationship with attorney in case, or with partner or associate of the attorney, as ground for new trial or mistrial, 64 ALR3d 126.

Law enforcement officers as qualified jurors in criminal cases, 72 ALR3d 895.

Former law enforcement officers as qualified jurors in criminal cases, 72 ALR3d 958.

Propriety of order forbidding news media from publishing names and addresses of jurors in criminal cases, 36 ALR4th 1126.

Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror, 3 ALR5th 963.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case, 16 ALR5th 152.

Oral stipulation to proceed in federal criminal trial with less than 12 jurors and satisfying Rule 23(b) of Federal Rules of Criminal Procedure, 57 ALR Fed 367.

Examination and challenge of federal case jurors on basis of attitudes toward homosexuality, 85 ALR Fed 864.

Stranger's alleged communication with juror, other than threat of violence, as prejudicial in federal criminal prosecution, 131 ALR Fed 465.

50A C.J.S. Juries §§ 264 to 348.

§ 7-11-101. Impaneling in criminal cases.

Trial juries for criminal actions in district courts and in circuit courts are formed in the same manner as trial juries in civil actions.

History. Laws 1899, ch. 23, § 34; R.S. 1899, § 3373; C.S. 1910, § 1012; C.S. 1920, § 1237; R.S. 1931, § 61-234; C.S. 1945, § 12-135; W.S. 1957, § 7-220; Laws 1985, ch. 147, § 2; 2004, ch. 42, § 1.

Cross references. —

As to qualifications, selection and impaneling of juries in civil actions, see §§ 1-11-101 to 1-11-129 and Rule 47, W.R.C.P.

For Wyoming Rules of Criminal Procedure for Justice of the Peace Courts and Municipal Courts, see Wyoming Court Rules Annotated.

The 2004 amendment substituted “circuit courts” for “county courts,” and deleted the former last sentence which read: “Procedures for impaneling juries in justice of the peace courts shall be governed by the Wyoming Rules of Criminal Procedure for Justice Courts.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

Rule 10, W.R. Cr. P.J.C. provides manner for impaneling juries in justice of peace criminal actions and statutes in conflict with these procedural matters are no longer applicable. Petersen v. State, 594 P.2d 978, 1979 Wyo. LEXIS 411 (Wyo. 1979) (decided prior to 1987 revision of this title).

§ 7-11-102. Trial of accused.

In all criminal cases the jury summoned and impaneled according to the laws relating to the summoning or impaneling of juries in other cases, shall try the accused.

History. C.L. 1876, ch. 14, § 119; R.S. 1887, § 3279; R.S. 1899, § 5340; C.S. 1910, § 6204; C.S. 1920, § 7501; R.S. 1931, § 33-701; C.S. 1945, § 10-1101; W.S. 1957, § 7-221; Laws 1985, ch. 147, § 2.

Cross references. —

As to inviolate right to trial by jury in criminal cases, see art. 1, § 9, Wyo. Const.

Quoted in

State ex rel. Suchta v. District Court, 74 Wyo. 48, 283 P.2d 1023, 1955 Wyo. LEXIS 15 (1955).

§ 7-11-103. Peremptory challenges.

  1. The defendant may challenge peremptorily, in capital cases, twelve (12) jurors, in other felonies eight (8) jurors, and in misdemeanors four (4) jurors. The prosecution may challenge peremptorily, in capital cases, twelve (12) jurors, in other felonies eight (8) jurors, and in misdemeanors four (4) jurors. The number of peremptory challenges allowed to the prosecution shall be multiplied by the number of defendants on trial in each case. Each defendant shall be allowed separate peremptory challenges.
  2. All challenges made under subsection (a) of this section shall be secret challenges.

History. C.L. 1876, ch. 14, § 120; Laws 1884, ch. 38, § 1; R.S. 1887, § 3280; Laws 1890, ch. 73, § 135; R.S. 1899, § 5341; C.S. 1910, § 6205; C.S. 1920, § 7502; R.S. 1931, § 33-702; Laws 1937, ch. 65, § 1; 1939, ch. 43, § 1; C.S. 1945, § 10-1102; W.S. 1957, § 7-222; Laws 1985, ch. 147, § 2.

Cross references. —

As to peremptory challenges under the rules, see Rule 24(d), W.R. Cr. P.

Peremptory challenges proper. —

In an attempted first-degree murder case, defendant's equal protection rights under Batson were not violated by the prosecutor's exercise of two peremptory challenges against Hispanic jurors, where one of the Hispanic jurors knew one of the law enforcement witnesses, knew another witness's mother, and preferred not to miss an upcoming doctor's appointment, and the other Hispanic juror knew a witness. Mattern v. State, 2007 WY 24, 151 P.3d 1116, 2007 Wyo. LEXIS 27 (Wyo.), cert. denied, 551 U.S. 1153, 127 S. Ct. 3021, 168 L. Ed. 2d 741, 2007 U.S. LEXIS 8451 (U.S. 2007).

District court did not err in denying the motion asserting defendant’s trial attorney provided ineffective assistance of counsel when he failed to raise a challenge under Batson as the prosecutor testified that he struck Juror #116 because he did not have a spouse or children, did not have a job that interacts with people, and had recently changed jobs, and he or a family member had been a complainant, defendant, or witness in a criminal case; and the State’s reasons for utilizing a peremptory challenge on Juror # 116 were neutral and non-discriminatory. Yazzie v. State, 2021 WY 72, 487 P.3d 555, 2021 Wyo. LEXIS 80 (Wyo. 2021).

Additional peremptory challenge improperly allowed. —

Court committed reversible error in allowing prosecution an additional peremptory challenge after it had waived its last challenge, and after defendant had exercised all his peremptory challenges. State v. Jones, 27 Wyo. 46, 191 P. 1075, 1920 Wyo. LEXIS 24 (Wyo. 1920).

Overruling challenge for cause when peremptory challenges notexhausted. —

There is no error in overruling challenge of a juror for cause, where defendant does not exhaust his right of peremptory challenges. Carter v. Territory, 3 Wyo. 193, 18 P. 750, 1888 Wyo. LEXIS 5 (Wyo. 1888).

Cited in

Schaeffer v. State, 2012 WY 9, 268 P.3d 1045, 2012 Wyo. LEXIS 8 (Jan. 20, 2012).

Am. Jur. 2d, ALR and C.J.S. references. —

Peremptory challenge after acceptance of juror, 3 ALR2d 499.

Effect of allowing excessive number of peremptory challenges, 95 ALR2d 957.

Number of peremptory challenges available where two or more defendants are tried together, 21 ALR3d 725.

Additional peremptory challenges because of multiple criminal charges, 5 ALR4th 533.

Use of peremptory challenges to exclude ethnic and racial groups, other than black Americans, from criminal jury—Post-Batson state cases, 20 ALR5th 398.

Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation — post-Batson state cases, 63 ALR5th 375.

§ 7-11-104. Trial of challenges for cause.

Both the defense and the prosecution may challenge jurors for cause prior to the jury being sworn. Challenges for cause shall be tried by the court.

History. C.L. 1876, ch. 14, § 121; Laws 1879, ch. 20, § 1; 1884, ch. 38, § 2; R.S. 1887, § 3281; Laws 1890, ch. 73, § 136; R.S. 1899, § 5342; C.S. 1910, § 6206; C.S. 1920, § 7503; R.S. 1931, § 33-703; C.S. 1945, § 10-1103; W.S. 1957, § 7-223; Laws 1985, ch. 147, § 2.

It is obligation of defendant to examine jurors on voir dire and discover by proper investigation facts affecting their qualifications, and then to seasonably raise that objection with respect to any member of the panel. Lopez v. State, 544 P.2d 855, 1976 Wyo. LEXIS 159 (Wyo. 1976).

Failure to examine on particular ground waives it. —

A failure to directly and plainly examine jurors with respect to a particular basis for bias or prejudice, which later is developed, constitutes a waiver of that ground. Lopez v. State, 544 P.2d 855, 1976 Wyo. LEXIS 159 (Wyo. 1976).

A failure to directly and plainly examine jurors with respect to a particular basis for bias or prejudice constitutes a waiver of a later claim of prejudice. If the jurors do not respond to the defendant's questions and the defendant has concerns about whether any of the jurors are prejudiced, he may challenge them for cause, as permitted under this section. Hamburg v. State, 820 P.2d 523, 1991 Wyo. LEXIS 166 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 189 (Wyo. Dec. 4, 1991).

Trial of question presented by challenge for having formedopinion. —

Question presented by a challenge to a juror, as having formed an opinion which would disqualify him, is one of mixed law and fact, and as far as the facts are concerned is to be decided by the court upon the evidence. Loy v. State, 26 Wyo. 381, 185 P. 796, 1919 Wyo. LEXIS 27 (Wyo. 1919).

Quoted in

Summers v. State, 725 P.2d 1033, 1986 Wyo. LEXIS 614 (Wyo. 1986).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of defense in criminal prosecution to disclosure of prosecution information regarding prospective jurors, 86 ALR3d 571.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality, 80 ALR5th 469.

§ 7-11-105. General grounds for challenging jurors.

  1. The following is good cause for challenge to any person called as a juror in a criminal case:
    1. That he was a member of the grand jury which found the indictment;
    2. That he has formed or expressed an opinion as to the guilt or innocence of the accused, or is biased or prejudiced for or against the accused;
    3. In a case in which the death penalty may be imposed, he states that his views on capital punishment would prevent or substantially impair performance of his duties as a juror in accordance with his oath or affirmation and the instructions of the court;
    4. That he is a relation within the fifth degree to the person alleged to be injured, or attempted to be injured, by the offense charged or to the person on whose complaint the prosecution was instituted, or to the defendant;
    5. That he has served on a petit jury which was sworn in the same cause against the same defendant, and which jury either rendered a verdict which was set aside, or was discharged after hearing the evidence;
    6. That he has served as a juror in a civil case brought against the defendant for the same act;
    7. That he has been subpoenaed as a witness in the case.
  2. The same challenges for cause shall be allowed in criminal prosecutions that are allowed to parties in civil cases.

History. C.L. 1876, ch. 14, § 123; R.S. 1887, § 3282; R.S. 1899, § 5343; C.S. 1910, § 6207; C.S. 1920, § 7504; R.S. 1931, § 33-704; C.S. 1945, § 10-1104; W.S. 1957, § 7-224; Laws 1985, ch. 147, § 2.

Cross references. —

As to challenges for cause allowed in civil cases, see § 1-11-203 .

As to death penalty, see §§ 6-2-101 through 6-2-103 .

Whether jurors are impartial is a question of fact to be decided by the trial judge. Summers v. State, 725 P.2d 1033, 1986 Wyo. LEXIS 614 (Wyo. 1986).

Membership in association as ground for challenge. —

In prosecution for stealing sheep, fact that certain jurors were active members of cattle and sheep growers' associations, the purpose of which was to protect sheep growers, did not disqualify them, in absence of a showing that association was connected with or interested in the present prosecution. Starke v. State, 17 Wyo. 55, 96 P. 148, 1908 Wyo. LEXIS 6 (Wyo. 1908).

Crime victim not biased as matter of law. —

The fact that a juror has been the victim of a crime not disclosed on voir dire does not require a conclusion of bias or partiality as a matter of law. Lopez v. State, 544 P.2d 855, 1976 Wyo. LEXIS 159 (Wyo. 1976).

And absence of showing of actual bias prevents relief fromwaiver. —

With respect to the contention that the defendants, who were convicted of rape, were denied their right to a trial by an impartial jury where one of the jurors, a victim of a prior rape, had not disclosed that information at the voir dire examination, defendants not only waived that right as to this ground by their failure to examine with respect to it, but, furthermore, their failure to demonstrate on the record actual bias on the part of the juror would foreclose the possibility that they could, as a fundamental matter, claim any right to be relieved of the consequences of their waiver. Lopez v. State, 544 P.2d 855, 1976 Wyo. LEXIS 159 (Wyo. 1976).

Speculative bias will not result in successful challenge if the trial court determines that the prospective juror is able to decide the case solely on the evidence presented and according to the trial court's instructions on the law. Schwenke v. State, 768 P.2d 1031, 1989 Wyo. LEXIS 32 (Wyo. 1989).

Questions as to child discipline and justification for takinghuman life properly refused. —

In a murder case where the accused was a victim of abuse by the deceased, there was no abuse of discretion in the refusal of the trial court to permit the defendant to raise specific questions relating to child discipline with members of the jury panel, as such questions were not designed to reveal bias or prejudice but to obtain the reaction of potential jurors to the defendant's defense theory and to anticipated evidence, and there was no error in refusing permission to the defendant to question jurors about their attitudes with respect to the justification for the taking of a human life. Jahnke v. State, 682 P.2d 991, 1984 Wyo. LEXIS 292 (Wyo. 1984), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Juror's insistence on applying wrong evidentiary standard.—

The bias or prejudice of a juror, who had the avowed intention to apply the standard of “preponderance of the evidence,” rather than “proof beyond a reasonable doubt,” as required by the instructions, was definitely evidenced. Patterson v. State, 691 P.2d 253, 1984 Wyo. LEXIS 348 (Wyo. 1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311, 1985 U.S. LEXIS 2663 (U.S. 1985), overruled, Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995).

Finding of qualification not erroneous. —

A finding that a juror was not disqualified as having formed an opinion under this section was not manifestly erroneous under the evidence. See Loy v. State, 26 Wyo. 381, 185 P. 796, 1919 Wyo. LEXIS 27 (Wyo. 1919).

Jury may be asked about death penalty views. —

In first degree murder prosecution, asking jury whether they had conscientious scruples against inflicting death penalty was not error, in view of the provision of subsection (a)(iii). State v. Aragon, 41 Wyo. 308, 285 P. 803, 1930 Wyo. LEXIS 14 (Wyo. 1930); Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

And jurors irrevocably opposed may be challenged. —

The trial court did not err by allowing all prospective jurors who were irrevocably opposed to the death penalty to be challenged for cause. Sims v. State, 496 P.2d 185, 1972 Wyo. LEXIS 314 (Wyo. 1972).

An unqualified opinion that under no circumstances could the prospective juror vote for the death penalty is a proper ground for a challenge for cause under this section. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

There is nothing in the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, 1968 U.S. LEXIS 1469 (1968), which denies the right of the prosecution to challenge for cause those prospective jurors who say they could never vote to impose the death penalty. The case does condemn the dismissal of veniremen merely because they do not believe in capital punishment and acknowledge that they have conscientious or religious scruples against the infliction of the death penalty. Sims v. State, 496 P.2d 185, 1972 Wyo. LEXIS 314 (Wyo. 1972).

Passing jury panel for cause waived defendant's claim of reversible error based on trial court's failure to dismiss a potential juror for cause. Prindle v. State, 945 P.2d 1180, 1997 Wyo. LEXIS 123 (Wyo. 1997), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Appellant not facing death sentence may not complain. —

Because the matter of a death penalty was eliminated when the jury returned a verdict of guilty in the second degree, appellant could not complain because jurors who said they could never vote to impose the death penalty were excluded for cause, since he was not facing a death sentence. Sims v. State, 496 P.2d 185, 1972 Wyo. LEXIS 314 (Wyo. 1972).

Juror cannot hear separate trials of defendants. —

Where two persons charged with a crime arising out of the same transaction are granted separate trials, a juror hearing the trial of the first defendant is not qualified as a juror for the subsequent trial of the second defendant, the reason being that the juror has formed or expressed an opinion upon the merits of the case. The refusal to excuse such an unqualified juror for cause is prejudicial where the defendant challenges the juror for cause, the court denies the challenge, the defendant does not accept the jury because of it, and he exhausts his peremptory challenges. Lee v. State, 743 P.2d 296, 1987 Wyo. LEXIS 513 (Wyo. 1987).

Simplest method to challenge jury as being selected by systematic and intentional exclusion of any group of persons would be to present the names of various persons who were entitled to be on the jury list and whose names were not contained thereon. Boyd v. State, 528 P.2d 287, 1974 Wyo. LEXIS 247 (Wyo. 1974), cert. denied, 423 U.S. 871, 96 S. Ct. 137, 46 L. Ed. 2d 102, 1975 U.S. LEXIS 2819 (U.S. 1975).

Absence of class because of discrimination must be shown. —

In questioning the composition of a jury, mere showing that a class was not represented on a particular jury is not enough; there must be a clear showing that its absence was caused by discrimination. Boyd v. State, 528 P.2d 287, 1974 Wyo. LEXIS 247 (Wyo. 1974), cert. denied, 423 U.S. 871, 96 S. Ct. 137, 46 L. Ed. 2d 102, 1975 U.S. LEXIS 2819 (U.S. 1975).

As result of systematic exclusion. —

Wherever the challenge to the jury array on the basis of racial exclusion has been recognized, it has stemmed from evidence of systematic and intentional exclusion of some group and not merely from the fact that there are numbers of a group in the community and a lack of their members on the jury array. Simms v. State, 492 P.2d 516, 1972 Wyo. LEXIS 213 (Wyo.), cert. denied, 409 U.S. 886, 93 S. Ct. 104, 34 L. Ed. 2d 142, 1972 U.S. LEXIS 1757 (U.S. 1972).

Systematic exclusion not presumed from absence of blacks. —

Merely because no blacks are on a jury panel there is no presumption of systematic and intentional exclusion because of color. Boyd v. State, 528 P.2d 287, 1974 Wyo. LEXIS 247 (Wyo. 1974), cert. denied, 423 U.S. 871, 96 S. Ct. 137, 46 L. Ed. 2d 102, 1975 U.S. LEXIS 2819 (U.S. 1975).

Specific evidence of racial exclusion essential. —

Conjecture can have no part in challenges to the jury array on the basis of racial exclusion, and specific evidence is essential to establish a prima facie case of exclusion. Simms v. State, 492 P.2d 516, 1972 Wyo. LEXIS 213 (Wyo.), cert. denied, 409 U.S. 886, 93 S. Ct. 104, 34 L. Ed. 2d 142, 1972 U.S. LEXIS 1757 (U.S. 1972).

Applied in

Shaffer v. State, 640 P.2d 88, 1982 Wyo. LEXIS 297 , 31 A.L.R.4th 166 (Wyo. 1982); Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003); Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo. 2003).

Quoted in

Lopez v. State, 544 P.2d 855, 1976 Wyo. LEXIS 159 (Wyo. 1976); Engberg v. State, 686 P.2d 541, 1984 Wyo. LEXIS 301 (Wyo. 1984); Smethurst v. State, 756 P.2d 196, 1988 Wyo. LEXIS 87 (Wyo. 1988); Smith v. State, 773 P.2d 139, 1989 Wyo. LEXIS 104 (Wyo. 1989); Smith v. State, 2008 WY 98, 190 P.3d 522, 2008 Wyo. LEXIS 101 (Aug. 19, 2008); Smith v. State, 2009 WY 2, 199 P.3d 1052, 2009 Wyo. LEXIS 2 (Jan. 13, 2009).

Stated in

Vivion v. Brittain, 510 P.2d 21, 1973 Wyo. LEXIS 158 (Wyo. 1973).

Cited in

Murdica v. State, 22 Wyo. 196, 137 P. 574, 1914 Wyo. LEXIS 2 (1913).

Law reviews. —

For case note, “Is the Current Test of the Constitutionality of Capital Punishment Proper? Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (1982),” see XVII Land & Water L. Rev. 681 (1982).

For case note, “Constitutional Law — Does the New Death Qualification Standard Ensure a Biased Jury? Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841, 105 S. Ct. 844, 1985 U.S. LEXIS 43 (1985),” see XXI Land & Water L. Rev. 579 (1986).

Am. Jur. 2d, ALR and C.J.S. references. —

Racial, religious, economic, social or political prejudice of proposed juror as ground of challenge on voir dire in criminal case, 54 ALR2d 1204, 63 ALR3d 1052, 94 ALR3d 15, 95 ALR3d 172, 88 ALR Fed 7.

Right to interrogate juror on voir dire as to prejudice for or against particular class of witnesses, 99 ALR2d 7.

Claustrophobia or other neurosis of juror as subject of inquiry on voir dire or of disqualification of juror, 20 ALR3d 1420.

Prior service on grand jury which considered indictment against accused as disqualification for service on petit jury, 24 ALR3d 1236.

Violation of constitutional guarantee of trial by jury by permitting challenge for cause of prospective jurors having convictions against capital punishment, 39 ALR3d 550.

Membership in racially biased or prejudiced organization as proper subject of voir dire inquiry or ground for challenge, 63 ALR3d 1052.

Cure of prejudice resulting from statement by prospective juror during voir dire, in presence of other prospective jurors, as to defendant's guilt, 50 ALR4th 969.

Professional or business relations between proposed juror and attorney as ground for challenge for cause, 52 ALR4th 964.

Fact that juror in criminal case, or juror's relative or friend, has previously been victim of criminal incident as ground of disqualification, 65 ALR4th 743.

Propriety of inquiry on voir dire as to juror's attitude toward, or acquaintance with literature dealing with, amount of damage awards, 63 ALR5th 285.

§ 7-11-106. Opinion formed from news reports or rumors.

  1. It is not cause for challenge that a person called to act as a juror in a criminal case has formed or expressed an opinion as to the guilt or innocence of the accused from news media reports or rumor if:
    1. The prospective juror states that he can lay aside his impression or opinion and render a verdict based on the evidence presented in court; and
    2. The court is satisfied, from the examination of the prospective juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at trial.

History. C.L. 1876, ch. 70, § 1; R.S. 1887, § 3283; Laws 1890, ch. 73, § 137; R.S. 1899, § 5343; C.S. 1910, § 6207; C.S. 1920, § 7504; R.S. 1931, § 33-704; C.S. 1945, § 10-1105; W.S. 1957, § 7-225; Laws 1985, ch. 147, § 2.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Individual jury query not required.—

Defendant’s right to a fair trial was not denied when the district court refused to individually query jurors about pretrial publicity where all of the jurors who had seen the two articles at issue averred that they could decide the case based on the evidence at trial and the court’s instructions. Pickering v. State, 2020 WY 66, 464 P.3d 236, 2020 Wyo. LEXIS 74 (Wyo. 2020).

Defendant to demonstrate bias. —

Once the mandates of this section are satisfied, it becomes incumbent upon the defendant to demonstrate impartiality or bias. Smethurst v. State, 756 P.2d 196, 1988 Wyo. LEXIS 87 (Wyo. 1988).

Defendant in criminal prosecution is entitled to impartial jury, not sympathetic one. A corollary to that rule is that a defendant is not entitled to a jury ignorant of current events. Smethurst v. State, 756 P.2d 196, 1988 Wyo. LEXIS 87 (Wyo. 1988).

Opinions which can be disregarded not cause for challenge. —

Opinions formed by persons summoned as jurors as to guilt or innocence of accused, from newspaper reports and neighborhood rumor, are not cause for challenge, if they swear they can disregard such opinions, and render impartial verdict, though such jurymen also say it will require proof to remove such opinions. Carter v. Territory of Wyo., 3 Wyo. 193, 18 P. 750, 1888 Wyo. LEXIS 5 (1888), rehearing denied, 3 Wyo. 193, 19 P. 443, 18 P. 750, 1888 Wyo. LEXIS 6 (1888), See, also, Loy v. State, 26 Wyo. 381, 185 P. 796, 1919 Wyo. LEXIS 27 (Wyo. 1919).

Juror exposure to publicity about a criminal case is to be anticipated and, indeed, jurors may even have formed an opinion as to the guilt of the accused, which, by itself, is not a ground for requiring a change of venue. The test is whether a juror can lay aside his opinion and render a verdict based on the evidence. Amin v. State, 811 P.2d 255, 1991 Wyo. LEXIS 72 (Wyo. 1991); Nixon v. State, 994 P.2d 324, 1999 Wyo. LEXIS 198 (Wyo. 1999).

Section must not be taken too literally, because it has definite constitutional limitations. —

Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979).

One of safeguards against effects of pretrial publicity is the use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court. Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979).

Denial of venue change upheld. —

Denial of defendant's motion for a change of venue based on pretrial publicity was not an abuse of discretion where, even though many prospective jurors heard of the case, there was nothing to suggest prejudicial publicity and, where, as part of his overall trial strategy, defendant's counsel actually read portions of newspaper articles to the jury. Sides v. State, 963 P.2d 227, 1998 Wyo. LEXIS 109 (Wyo. 1998).

Applied in

Shaffer v. State, 640 P.2d 88, 1982 Wyo. LEXIS 297 , 31 A.L.R.4th 166 (Wyo. 1982); Smith v. State, 773 P.2d 139, 1989 Wyo. LEXIS 104 (Wyo. 1989).

Quoted in

Armstrong v. State, 826 P.2d 1106, 1992 Wyo. LEXIS 28 (Wyo. 1992).

Am. Jur. 2d, ALR and C.J.S. references. —

Juror's reading of newspaper account of trial in federal criminal case during its progress as ground for mistrial, new trial or reversal, 85 ALR Fed 13.

§ 7-11-107. Oath or affirmation.

As soon as the jury is selected an oath or affirmation shall be administered to the jurors providing, in substance, that they and each of them will well and truly try the matter in issue between the state of Wyoming, plaintiff, and the named defendant, and render a true verdict according to the evidence.

History. C.L. 1876, ch. 14, § 126; R.S. 1887, § 3286; R.S. 1899, § 5344; C.S. 1910, § 6208; C.S. 1920, § 7505; R.S. 1931, § 33-705; C.S. 1945, § 10-1106; W.S. 1957, § 7-226; Laws 1985, ch. 147, § 2.

Cross references. —

As to oaths generally, see chapter 2 of title 1.

Failure to administer oath before beginning trial not reversibleerror. —

Trial court's denial of defendant's motion for a mistrial was upheld on appeal where the mistake was discovered in the afternoon of the second day of a seven-day trial after the testimony of only three of 37 witnesses testifying for the state, the jury was sworn in long before deliberations, and the jury was informed it was to consider all the evidence presented, both before and after the oath, in the same manner. Urbigkit v. State, 2003 WY 57, 67 P.3d 1207, 2003 Wyo. LEXIS 70 (Wyo. 2003).

Am. Jur. 2d, ALR and C.J.S. references. —

Absence of accused during swearing of jury, 33 ALR4th 429.

Article 2. Trial

Cross references. —

As to transfer from the county for trial, see Rule 21, W.R. Cr. P.

As to trial by the jury or by the court, see Rule 23, W.R. Cr. P.

Imprisonment of accused for another offense does not excuse delay in prosecution. State v. Keefe, 17 Wyo. 227, 98 P. 122, 1908 Wyo. LEXIS 16 (Wyo. 1908).

Purpose of jury view is to help it understand and comprehend the evidence which has already been presented, and not to take new evidence. Lansing v. State, 669 P.2d 923, 1983 Wyo. LEXIS 365 (Wyo. 1983).

Jury view within discretion of court. —

The decision whether or not to allow the jury to view the scene is within the sound discretion of the trial court. Lansing v. State, 669 P.2d 923, 1983 Wyo. LEXIS 365 (Wyo. 1983).

It is appropriate for court to reserve ruling on request to view premises. Ordinarily the court would not know if a view was appropriate until it heard the evidence. Eckert v. State, 680 P.2d 478, 1984 Wyo. LEXIS 281 (Wyo. 1984).

Sheriff or other person appointed may speak to jury concerning the case outside of the court's presence in order to point out the premises. Jenkins v. State, 22 Wyo. 34, 134 P. 260, 1913 Wyo. LEXIS 35 (1913), rehearing denied, 22 Wyo. 78, 135 P. 749 (1913) (decided under prior law).

Disqualification of sheriff for bias must be proved. —

Statement by defendant's counsel, in making an objection to appointment of sheriff to accompany jury when it viewed premises, that the sheriff was prejudiced is not sufficient to disqualify him in absence of any showing of bias or prejudice on his part, and his appointment was not error. Jenkins v. State, 22 Wyo. 34, 134 P. 260, 1913 Wyo. LEXIS 35 (1913), rehearing denied, 22 Wyo. 78, 135 P. 749 (1913) (decided under prior law).

It is not necessary that court stenographer be present during view of premises — by the jury to report all that was said. Jenkins v. State, 22 Wyo. 34, 134 P. 260, 1913 Wyo. LEXIS 35 (Wyo.), reh'g denied, 22 Wyo. 34, 135 P. 749, 1913 Wyo. LEXIS 36 (Wyo. 1913).

Am. Jur. 2d, ALR and C.J.S. references. —

75 Am. Jur. 2d Trial § 1 et seq.

Necessity for presence of judge at view by jury in criminal case, 47 ALR2d 1227.

Objections and exceptions with respect to absence of judge at view by jury in criminal case, 47 ALR2d 1227.

Unauthorized view of premises by juror or jury in criminal case as ground for new trial, 58 ALR2d 1147.

Antagonistic defenses as grounds for separate trials of codefendants in criminal case, 82 ALR3d 245.

Right of defendants in prosecution for criminal conspiracy to separate trials, 82 ALR3d 366.

Sufficiency of courtroom facilities as affecting rights of accused, 85 ALR3d 918.

Unauthorized view of premises by juror or jury in criminal case as ground for reversal, new trial or mistrial, 50 ALR4th 995.

Exclusion of public from state criminal trial in order to preserve confidentiality of undercover witness, 54 ALR4th 1156.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time, 70 ALR4th 632.

Prosecutor's appeal in criminal case to racial, national or religious prejudice as ground for mistrial, new trial, reversal or vacation of sentence — modern cases, 70 ALR4th 664.

23A C.J.S. Criminal Law §§ 1142 to 1419.

§ 7-11-201. Order of proceedings.

  1. After the jury has been impaneled and sworn, the trial shall proceed in the following order:
    1. The counsel for the state shall state the case of the prosecution, and may briefly state the evidence by which he expects to sustain it;
    2. The defendant or his counsel may then state his defense and may briefly state the evidence he expects to offer in support of it, or may wait until the evidence on the part of the state is closed;
    3. The state shall first produce its evidence; the defendant will then produce his evidence;
    4. The state will then be confined to rebutting evidence unless the court, for good reasons, in furtherance of justice, shall permit it to offer evidence in chief;
    5. When the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court. The instructions shall be reduced to writing;
    6. Before the argument of the case is begun, the court shall immediately, and before proceeding with other business, charge the jury. The charge shall be reduced to writing by the court, if either party requests it. No charge or instruction provided for in this section, when written or given, shall be orally qualified, modified or explained to the jury by the court. All written charges and instructions, shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case;
    7. When the evidence is concluded, and the charge given by the court, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state shall conclude the argument to the jury.

History. C.L. 1876, ch. 14, § 140; R.S. 1887, § 3300; Laws 1893, ch. 27, § 1; R.S. 1899, § 5371; C.S. 1910, § 6235; C.S. 1920, § 7532; R.S. 1931, § 33-902; C.S. 1945, § 10-1301; W.S. 1957, § 7-228; Laws 1985, ch. 147, § 2.

Cross references. —

As to continuances, see chapter 9 of title 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Court's determination to permit witnesses to testify out of order is discretionary matter with the court and should not be disturbed on appeal, unless it can be clearly shown that the trial court abused its discretion. Shaffer v. State, 640 P.2d 88, 1982 Wyo. LEXIS 297 (Wyo. 1982).

Refusal to hold witness not abuse of discretion. —

Defendant's due process rights were not violated by trial court's denial of his request to hold witness subject to subpoena where the court was attempting to expedite trial by requiring defendant to finish questioning witness during cross-examination and defendant had not specifically named witness on his witness list nor subpoenaed witness. Sutherland v. State, 944 P.2d 1157, 1997 Wyo. LEXIS 122 (Wyo. 1997).

Party resisting taking witness out of turn must demonstrateprejudice. —

The party who resists taking a witness out of turn has the burden to demonstrate that he has been prejudiced and that the trial judge has abused his discretion. Shaffer v. State, 640 P.2d 88, 1982 Wyo. LEXIS 297 (Wyo. 1982).

Rebuttal permitted. —

See Mortimore v. State, 24 Wyo. 452, 161 P. 766, 1916 Wyo. LEXIS 47 (Wyo. 1916).

Testimony offered during rebuttal which might have been admissible during the prosecution's case in chief, which is accepted as part of the case in chief, and to which the defendant is allowed surrebuttal, is not an abuse of discretion. Chapman v. State, 638 P.2d 1280, 1982 Wyo. LEXIS 284 (Wyo. 1982).

Surrebuttal evidence properly excluded. —

While it is true that new facts brought out on rebuttal may properly be met by surrebuttal evidence, that rule does not permit surrebuttal merely to supply evidence which could have been given in chief or to cumulate additional evidence or to fortify evidence already given, or to supplement such evidence because it has been impeached upon rebuttal. Janski v. State, 538 P.2d 271, 1975 Wyo. LEXIS 152 (Wyo. 1975).

Where facts in rebuttal were no part of the state's case but only designed to meet defendant's defense, and where neither of the state's rebuttal witnesses were new witnesses but had been called by the defendant himself during his case and could have then been impeached by the surrebuttal witnesses proposed during defendant's case and as a matter of fact were called by defendant to lay the groundwork for that purpose, it was discretionary with the court as to whether to allow surrebuttal. Janski v. State, 538 P.2d 271, 1975 Wyo. LEXIS 152 (Wyo. 1975).

Refusal of the court, in a prosecution for homicide, to permit defendant to explain certain statements alleged to have been made by him, introduced in evidence in rebuttal, was not an abuse of discretion. Keffer v. State, 12 Wyo. 49, 73 P. 556, 1903 Wyo. LEXIS 26 (Wyo. 1903).

Reopening case permitted. —

Permitting state, after defense had rested, to introduce evidence that was properly part of its case in chief was not abuse of discretion, where defendant was not denied right to meet evidence by reopening case, in view of subsection (a)(iv) of this section. Strand v. State, 36 Wyo. 78, 252 P. 1030, 1927 Wyo. LEXIS 11 (Wyo. 1927).

Federal and state instruction procedure distinguished. —

In the federal system the court may give such charge to the jury as it sees fit, together with such comment, explanation, modification or change as it may desire. Under such a procedure, it is understandable why objection must be made following the giving of the charge. But under the state procedure the parties know beforehand exactly what instructions will be given, and in what language, as well as which of the requested instructions will be refused. Being so apprised, the parties are in a position to make objections to the court's rulings before the instructions are given the jury, setting forth with particularity their reasons, and the rulings of the court then made become final with no exceptions being necessary. Shoemaker v. State, 444 P.2d 309, 1968 Wyo. LEXIS 186 (Wyo. 1968).

Effect of Rule 51, W.R.C.P. —

Subsection (vi) of this section requires the court to charge the jury in writing if either party requests it, and when so written the court may not orally qualify, modify or in any manner explain the same to the jury. Rule 51, W.R.C.P., requires the instruction to be in writing and signed by the judge. Such rule does not otherwise change, supersede or modify the provisions of this section. Shoemaker v. State, 444 P.2d 309, 1968 Wyo. LEXIS 186 (Wyo. 1968). See Rule 30 W.R. Cr. P.

Correct instruction must be presented. —

A party desiring an instruction on any point of law must present to the court a correct instruction either orally or in writing, and not merely request court to instruct the jury, so that, in absence of presentation of instruction correctly defining reasonable doubt, the court itself was not required to define it. Smith v. State, 17 Wyo. 481, 101 P. 847, 1909 Wyo. LEXIS 13 (Wyo. 1909).

And better practice is to write requested instructions. —

While, under this section, it is not necessary to reduce requested instructions to writing unless the request is made, it is the better practice to do so and the uniform practice in this state. Smith v. State, 17 Wyo. 481, 101 P. 847, 1909 Wyo. LEXIS 13 (Wyo. 1909).

Request for written charge necessary. —

It is not obligatory that the charge be in writing unless such a request is made. Curran v. State, 12 Wyo. 553, 76 P. 577, 1904 Wyo. LEXIS 13 (Wyo. 1904).

Oral instructions given contrary to statute are not reversible error if instructions are proper and do not injure accused, and this is especially true where instructions were taken down by official stenographer, or were reduced to writing immediately after they were given. State v. Carroll, 52 Wyo. 29, 69 P.2d 542, 1937 Wyo. LEXIS 39 (Wyo. 1937).

Court may refuse incorrect instructions. —

Under this section particular instructions must generally be requested and, unless correct, it is proper for the court to refuse to give them. State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 1947 Wyo. LEXIS 8 (Wyo. 1947).

Instruction on circumstantial evidence should be given withoutrequest. —

Where circumstantial evidence is wholly relied on for conviction, trial court should instruct on the law regarding such evidence, whether requested to do so or not, such a charge being fundamental to defendant's having fair trial guaranteed him by the constitution and laws. Gardner v. State, 27 Wyo. 316, 196 P. 750, 1921 Wyo. LEXIS 18 (Wyo. 1921).

Failure to give instruction must be prejudicial for reversal.—

To justify reversal of conviction for failure to give an instruction on circumstantial evidence wholly relied on for conviction, where it appears that it was otherwise a fair trial, such failure of the trial court should be found to have been prejudicial to defendant. Gardner v. State, 27 Wyo. 316, 196 P. 750, 1921 Wyo. LEXIS 18 (Wyo. 1921).

As must refusal to give instruction. —

Refusal of instruction to acquit if any of jury had reasonable doubt of defendant's guilt was not prejudicial error, in view of instructions given and evidence. State v. Flory, 40 Wyo. 184, 276 P. 458, 1929 Wyo. LEXIS 34 (Wyo. 1929).

No error where instruction not asked. —

Where no instruction defining robbery was asked, failure to give such instruction was not prejudicial. Harris v. State, 34 Wyo. 175, 242 P. 411, 1926 Wyo. LEXIS 33 (Wyo. 1926).

No error was committed by failure to instruct on circumstantial evidence, where no such instruction was asked. Brown v. State, 37 Wyo. 155, 259 P. 810, 1927 Wyo. LEXIS 71 (Wyo. 1927).

Failure to instruct on circumstantial evidence was not error, where such instructions were not requested. Cameron v. State, 38 Wyo. 140, 265 P. 25, 1928 Wyo. LEXIS 33 (Wyo. 1928).

Failure to reread instructions given at the beginning of trial.—

Where a trial court gave part of the jury instructions at the beginning of defendant's criminal trial and gave the remaining instructions after the trial but prior to the jury's deliberations, such complied with this section, and it was not plain error for the trial court to fail to reread the earlier given instructions at the close of trial. Urbigkit v. State, 2003 WY 57, 67 P.3d 1207, 2003 Wyo. LEXIS 70 (Wyo. 2003).

Extra information held not modification of instruction. —

Where in homicide case jury returned to the courtroom asking additional information, all counsel being present, concerning the meaning of life imprisonment, and whether any pardon, commutation of sentence or parole could reduce it, court's instruction on life imprisonment, and statement concerning pardons could not be considered modification of the instruction read to the jury, and did not prejudice the defendant. State v. Carroll, 52 Wyo. 29, 69 P.2d 542, 1937 Wyo. LEXIS 39 (Wyo. 1937).

Proper instruction on possibility of reduction of sentence.—

Where jury asks information as to possibility of sentence being reduced, or otherwise changed, which is answered fairly and without suggestion of what penalty should be imposed, court should advise that they should not speculate upon what might happen after verdict. State v. Carroll, 52 Wyo. 29, 69 P.2d 542, 1937 Wyo. LEXIS 39 (Wyo. 1937).

Purpose of closing arguments is for counsel to explain the significance of the evidence and how it should be viewed. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

And counsel may present logical inferences from evidence. —

In closing, prosecutors, just like any other counsel, may not only comment on the evidence before the jury but also present inferences to the jury which he argues logically follow from the evidence. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

State opens and closes argument when defendant pleads guilty.—

In a prosecution for first-degree murder, the procedure prescribed by this section governs and the state was entitled to open and close the argument, even though defendant pleads guilty. Pixley v. State, 406 P.2d 662, 1965 Wyo. LEXIS 165 (Wyo. 1965).

Applied in

Murdica v. State, 22 Wyo. 196, 137 P. 574, 1914 Wyo. LEXIS 2 (1913); Wright v. State, 466 P.2d 1014, 1970 Wyo. LEXIS 160 (Wyo. 1970); Lowseth v. State, 875 P.2d 725, 1994 Wyo. LEXIS 73 (Wyo. 1994).

Cited in

In re Contempt Order Issued Against Anderson, 765 P.2d 933, 1988 Wyo. LEXIS 177 (Wyo. 1988); McAdams v. State, 2003 WY 104, 75 P.3d 665, 2003 Wyo. LEXIS 125 (Wyo. 2003).

Law reviews. —

For case note, “The Entrapment Defense — The Determination of Predisposition. Janski v. State, 538 P.2d 271, 1975 Wyo. LEXIS 152 (Wyo. 1975),” see XI Land & Water L. Rev. 265 (1976).

Am. Jur. 2d, ALR and C.J.S. references. —

Accused's identity with one previously convicted, 11 ALR2d 870.

Interrogation or poll of jurors, during trial, as to whether they have read newspaper articles pertaining to alleged crime or the trial, 15 ALR2d 1152.

Procedure to be followed where jury requests information as to possibility of pardon or parole from sentence imposed, 35 ALR2d 769.

Exclusion of public during criminal trial, 48 ALR2d 1436.

Right to jury trial as violated by consolidated trial upon several indictments and informations, over objection of the accused, 59 ALR2d 841.

Presence of alternate juror in jury room, 84 ALR2d 1288.

Indoctrination by court of persons summoned for jury service, 89 ALR2d 197.

Additional instruction to jury, in accused's absence, after submission of felony case, 94 ALR2d 270.

Prejudicial effect, in criminal case, of communications between witnesses and jurors, 9 ALR3d 1275.

Propriety under Griffin v. California and prejudicial effect of the giving of an unrequested instruction that no inferences against accused should be drawn from his failure to testify, 18 ALR3d 1335.

Whether violation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused's failure to testify constitutes reversible or harmless error, 24 ALR3d 1093, 32 ALR4th 774.

Prejudicial effect of holding accused in contempt of court in presence of jury, 29 ALR3d 1399.

Permitting documents or tape recordings containing confessions or incriminating evidence to be taken to jury room, 37 ALR3d 238.

Propriety and prejudicial effect of placing jury in charge of officer who is a witness in the case, 38 ALR3d 1012.

Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused — modern cases, 88 ALR3d 449.

Disruptive conduct of accused in presence of jury as ground for mistrial or discharge of jury, 89 ALR3d 960.

Propriety and prejudicial effect of sending written instructions with retiring jury in criminal case, 91 ALR3d 382.

Instruction in prosecution for rape or other sexual offense as to ease of making, or difficulty of defending against, such a charge, 92 ALR3d 866.

Prosecutor's reference in opening statement to matters not provable or which he does not attempt to prove as ground for relief, 16 ALR4th 810.

Modern status of rule regarding necessity of instruction on circumstantial evidence in criminal trial — state cases, 36 ALR4th 1046.

Postretirement out-of-court communications between jurors and trial judge as grounds for new trial or reversal in criminal case, 43 ALR4th 410.

Propriety of trial court order limiting time for opening or closing argument in criminal case — state cases, 71 ALR4th 200.

Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal, 81 ALR4th 659.

Negative characterization or description of defendant, by prosecutor during summation of criminal trial, as ground for reversal, new trial or mistrial—modern cases, 88 ALR4th 8.

Propriety and prejudicial effect of counsel's negative characterization or description of witness during summation of criminal trial—modern cases, 88 ALR4th 209.

Taking and use of trial notes by jury, 36 ALR5th 255.

Right of defendant in prosecution for perjury to have the “two witnesses, or one witness and corroborating circumstances,” rule included in charge to jury — state cases, 41 ALR5th 1.

Propriety of lesser included offense charge to jury in federal criminal case — general principles, 100 ALR Fed 481.

§ 7-11-202. Presence of defendant.

Except as otherwise provided by this section, the defendant shall be present at the arraignment, at every stage of the trial, including the impaneling of the jury, and the return of the verdict and at the imposition of sentence. In prosecution for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. In prosecutions of all misdemeanor cases, the court, with the written consent of the defendant, may permit arraignment, plea, and imposition of sentence in a defendant’s absence. The defendant’s presence is not required at a reduction of sentence hearing.

History. C.L. 1876, ch. 14, § 141; R.S. 1887, § 3301; R.S. 1899, § 5372; C.S. 1910, § 6236; C.S. 1920, § 7533; R.S. 1931, § 33-903; C.S. 1945, § 10-1302; W.S. 1957, § 7-229; Laws 1985, ch. 147, § 2.

Cross references. —

As to constitutional right of accused to defend, see art. 1, § 10, Wyo. Const.

As to procedure in regard to presence of defendant, see Rule 43, W.R. Cr. P.

Harmless error.

District court violated defendant’s right to be present when it communicated ex parte with a juror and, in response to a note, instructed her on how she was to conduct herself as a juror. The error was harmless as the instruction the court gave was legally correct, one that the parties had agreed upon, and one that had already been given to the jury. Wall v. State, 2019 WY 2, 432 P.3d 516, 2019 Wyo. LEXIS 2 (Wyo. 2019).

Bench conferences. —

Defendant waived her right to be present at bench conferences involving prospective jurors, where both she and her counsel acquiesced in her absence while defense counsel represented her interests for that part of trial. Campbell v. State, 999 P.2d 649, 2000 Wyo. LEXIS 55 (Wyo. 2000).

Defendant was not prejudiced by his absence at a conference between the judge, counsel, and a juror where the defendant could not show that his presence would have caused his counsel to take different action than he did. Skinner v. State, 2001 WY 102, 33 P.3d 758, 2001 Wyo. LEXIS 124 (Wyo. 2001), cert. denied, 535 U.S. 994, 122 S. Ct. 1554, 152 L. Ed. 2d 477, 2002 U.S. LEXIS 2469 (U.S. 2002).

In a defendant's murder case, the defendant's right to be present was not violated, where (1) there was no indication that the defendant's absence from a conference on an objection was anything but voluntary, (2) the absence was for a brief period of time, (3) there was no indication that the defendant possessed any special information on the question that his counsel did not, and (4) there was no indication that the defendant's presence could have altered the judge's decision on the objection in any way. Belden v. State, 2003 WY 89, 73 P.3d 1041, 2003 Wyo. LEXIS 110 (Wyo. 2003), reh'g denied, 2003 Wyo. LEXIS 126 (Wyo. Aug. 26, 2003), cert. denied, 540 U.S. 1165, 124 S. Ct. 1179, 157 L. Ed. 2d 1212, 2004 U.S. LEXIS 898 (U.S. 2004).

Continuance hearing. —

The constitutional guarantee that an accused has the right to be present during every stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure has been embodied into this section and Wyo. R. Crim. P. 43(a) but in neither of these laws is it mandated that a defendant be present at a continuance hearing. Hauck v. State, 2001 WY 119, 36 P.3d 597, 2001 Wyo. LEXIS 145 (Wyo. 2001).

Defendant's right to a speedy trial was not violated because defendant was not substantially prejudiced by a delay; moreover, he did not object to the delay, and he was not entitled to be personally present a hearing during which a continuance was ordered. The delay due to the court's busy docket amounted to only 56 days from the original trial date to the actual trial date. Vargas v. State, 2014 WY 53, 322 P.3d 1282, 2014 Wyo. LEXIS 59 (Wyo. 2014).

Presence at sentencing. —

Because the inmate, convicted of battery against a household member, was not present at sentencing as required by Wyo. Stat. Ann. § 7-11-202 and Wyo. R. Crim. P. 43, the court remanded the case for re-sentencing; a defendant may not waive his right to be present at sentencing. Abeyta v. State, 2003 WY 136, 78 P.3d 664, 2003 Wyo. LEXIS 166 (Wyo. 2003).

Hearing to modify probation terms. —

Defendant's constitutional rights were not violated when district court denied requests to modify terms of his probation or to discharge him from probation without his presence at the hearing; defendant's motions were essentially requests for a sentence reduction, and under Wyo. Stat. Ann. § 7-11-202 and Wyo. R. Crim. P. 43(c), he was not entitled to be present at the hearing on his motions. Demillard v. State, 2008 WY 93, 190 P.3d 128, 2008 Wyo. LEXIS 97 (Wyo. 2008).

Affirmance of conviction. —

Where arraignment, trial and sentencing had already occurred, the defendant was not entitled to be present when the trial court entered the written order acknowledging the supreme court's decision affirming the underlying conviction. Smith v. Wyoming, 985 P.2d 961, 1999 Wyo. LEXIS 118 (Wyo. 1999).

Ineffective assistance not proved. —

Defendant failed to show that his defense counsel was ineffective in allowing defendant to absent himself from the peremptory challenge portion of jury selection; on the contrary, the record showed that defense counsel systematically included the defendant in the jury evaluation and selection process and the record was devoid of any suggestion of defense counsel wanting to keep defendant out of chambers. Gleason v. State, 2002 WY 161, 57 P.3d 332, 2002 Wyo. LEXIS 182 (Wyo. 2002).

Harmless error in jury instruction. —

Even though the trial court erred in submitting an “Allen-type” instruction to the jury outside the presence of defendant and his counsel, the error was harmless because the instruction did not contain prohibited new information, was not coercive, and specifically called the jury's attention to previous instructions on the presumption of innocence and the state's burden of proof. Seeley v. State, 959 P.2d 170, 1998 Wyo. LEXIS 78 (Wyo. 1998).

Harmless error in considering jury question. —

When defendant was not present while the trial court considered a question from the jury, no reversible error was committed under this section because defense counsel interposed no objection to his client's absence, and, if any error was committed, that error was harmless. Johnson v. State, 2003 WY 9, 61 P.3d 1234, 2003 Wyo. LEXIS 11 (Wyo., cert. denied, 540 U.S. 841, 124 S. Ct. 108, 157 L. Ed. 2d 74, 2003 U.S. LEXIS 5710 (U.S. 2003), reh'g denied, 2003 Wyo. LEXIS 29 (Wyo. Feb. 18, 2003).

Am. Jur. 2d, ALR and C.J.S. references. —

Exclusion or absence of defendant, pending trial of criminal case, from courtroom, or from conference between court and attorneys, during argument on question of law, 85 ALR2d 1111.

Necessity and content of instructions to jury respecting reasons for or inferences from accused's absence from state criminal trial, 31 ALR4th 676.

Failure or refusal of state court judge to have record made of bench conference with counsel in criminal proceeding, 31 ALR5th 704.

§ 7-11-203. Dismissal for unnecessary delay.

If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.

History. C.L. 1876, ch. 14, § 150; R.S. 1887, § 3311; R.S. 1899, § 5382; C.S. 1910, § 6246; C.S. 1920, § 7543; R.S. 1931, § 33-913; C.S. 1945, § 10-1312; W.S. 1957, § 7-234; W.S. 1957, § 7-11-207; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Cross references. —

As to grand jury, see chapter 5 of this title.

Section constitutes legislative declaration of “reasonabledelay.” —

This section makes effective art. 1, § 10, Wyo. Const., guaranteeing a speedy trial, and constitutes a legislative declaration of what is a “reasonable delay.” State v. Keefe, 17 Wyo. 227, 98 P. 122, 1908 Wyo. LEXIS 16 (Wyo. 1908).

But subject now covered by rule of court. —

This section was interpreted as making effective art. 1, § 10, Wyo. Const., and constituted a legislative declaration of what is a prejudicial delay. As of February 11, 1969, this statute was superseded by Rule 45, W.R. Cr. P., which rule is the same as Rule 48, Fed. R. Crim. P.Boggs v. State, 484 P.2d 711, 1971 Wyo. LEXIS 216 (Wyo. 1971) (delay in instituting proceedings not prejudicial) (decided prior to 1987 revision of this title).

Wyoming has no statute of limitations as to the commencement of criminal prosecutions. Boggs v. State, 484 P.2d 711, 1971 Wyo. LEXIS 216 (Wyo. 1971).

No prejudice from delay shown. —

The progress of a case through the judicial system from filing the information to trial was 181 days and more than half of this 181 days was attributable to the defendant, who did not vigorously assert his right to a speedy trial and, although he had the benefit of counsel, never pressed for an earlier setting. In fact, the defendant did not show in writing how a delay might prejudice his defense. Thus, he showed no prejudice caused by the delay. Roderick v. State, 858 P.2d 538, 1993 Wyo. LEXIS 138 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 145 (Wyo. Sept. 16, 1993).

Cited in

State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977, 1906 Wyo. LEXIS 28 (1906); City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892, 1916 Wyo. LEXIS 33 (1916); State v. Hall, 27 Wyo. 224, 194 P. 476, 1920 Wyo. LEXIS 34 (1921); State v. Peterson, 27 Wyo. 185, 194 P. 342, 1920 Wyo. LEXIS 33 , 13 A.L.R. 1284 (1920); State v. Butler, 40 Wyo. 404, 278 P. 563, 1929 Wyo. LEXIS 49 (1929).

Law reviews. —

For note, “The Obligation of Securing a Speedy Trial,” see 11 Wyo. L.J. 44.

Am. Jur. 2d, ALR and C.J.S. references. —

Loss of jurisdiction by delay in imposing sentence, 98 ALR3d 605.

Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information, 39 ALR4th 899.

Effect of Speedy Trial Act provision (18 USC § 3161(c)(2)) that unless defendant consents in writing to contrary, trial may not commence less than 30 days from date on which defendant first appears through counsel or expressly waives counsel or elects to proceed pro se, 71 ALR Fed 415.

§ 7-11-204. Applicability of civil procedure provisions and rules.

To the extent practicable and when not otherwise specifically provided, procedures relating to conduct of the jury, admonitions of the court and the manner of returning verdicts, shall be governed by the Wyoming Code of Civil Procedure and the Wyoming Rules of Civil Procedure.

History. C.L. 1876, ch. 14, § 153; R.S. 1887, § 3314; R.S. 1899, § 5385; C.S. 1910, § 6249; C.S. 1920, § 7546; R.S. 1931, § 33-1001; C.S. 1945, § 10-1315; W.S. 1957, § 7-237; W.S. 1977, § 7-11-210; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Cross references. —

As to conduct of trial and verdict in civil cases, see § 1-11-201 et seq.

As to procedure relating to trials, see Rules 38 through 53, W.R.C.P.

Separation of jury. —

See § 7-11-206 and notes thereto.

Application of Rule 51, W.R.C.P. —

See Shoemaker v. State, 444 P.2d 309, 1968 Wyo. LEXIS 186 (Wyo. 1968) (decided prior to adoption of Rules of Criminal Procedure).

Rule 51, W.R.C.P., is made applicable to criminal proceedings by Rule 30, W.R. Cr. P., as to instructions to juries and objections thereto. Bentley v. State, 502 P.2d 203, 1972 Wyo. LEXIS 279 (Wyo. 1972).

Applied in

State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, 1948 Wyo. LEXIS 17 (1948); Heywood v. State, 2007 WY 149, 170 P.3d 1227, 2007 Wyo. LEXIS 168 (Sept. 19, 2007).

Cited in

Nicholson v. State, 18 Wyo. 298, 106 P. 929, 1910 Wyo. LEXIS 9 (1910); Pixley v. State, 406 P.2d 662, 1965 Wyo. LEXIS 165 (Wyo. 1965); Romo v. State, 500 P.2d 678, 1972 Wyo. LEXIS 296 (Wyo. 1972).

Am. Jur. 2d, ALR and C.J.S. references. —

Separation of jury in criminal case; waiver of objection to separation, 21 ALR2d 1088.

Separation of jurors permitted to attend theater or the like during course of criminal trials as ground for mistrial, new trial or reversal, 33 ALR2d 847.

Communication between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal — post-Parker cases, 35 ALR4th 890.

§ 7-11-205. Discharge of jury before verdict without prejudice.

  1. If a jury is discharged for any of the following reasons before reaching a verdict, the discharge shall be without prejudice to the prosecution:
    1. Sickness of a juror or other accident or calamity requiring discharge of the jury;
    2. Failure of the jury to return a verdict; or
    3. Dismissal of the proceeding due to a failure of the complaint, information or indictment to properly charge the offense.

History. C.L. 1876, ch. 14, § 154; R.S. 1887, § 3315; R.S. 1899, § 5386; C.S. 1910, § 6250; C.S. 1920, § 7547; R.S. 1931, § 33-1002; C.S. 1945, § 10-1316; W.S. 1957, § 7-238; W.S. 1977, § 7-11-211; Laws 1985, ch. 147, § 2 1987, ch. 157, § 4.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Discharge of jury when no agreement. —

Where, after reasonable time for deliberation has been allowed, a verdict has not been agreed upon and there is no probability of agreement, court may properly discharge jury without defendant's consent, without prejudice to future prosecution. Hovey v. Sheffner, 16 Wyo. 254, 93 P. 305, 1908 Wyo. LEXIS 24 (Wyo. 1908).

If jury cannot agree on verdict, there is no bar to subsequent prosecution for the same offense before a different jury. Jones v. State, 580 P.2d 1150, 1978 Wyo. LEXIS 212 (Wyo. 1978).

Discharge subject to judge's sound discretion. —

Where “manifest necessity” to discharge a jury from giving any verdict is demonstrated, the public's interest in fair trials designed to end in just judgments outweighs a defendant's valued right to have his trial completed by a particular tribunal, as well as his interest in avoiding retrial for the same offense, and the sole limitation restraining a trial court in its determination that a retrial is “manifestly necessary” is that such decision is committed to the trial judge's “sound discretion.” Peterson v. State, 586 P.2d 144, 1978 Wyo. LEXIS 238 (Wyo. 1978), overruled, Crozier v. State, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986).

But societal interest in complete opportunity to convict. —

A trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial, as this accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws. Peterson v. State, 586 P.2d 144, 1978 Wyo. LEXIS 238 (Wyo. 1978), overruled, Crozier v. State, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986).

Entry of reasons for discharge upon record. —

Where the transcript of a colloquy between the trial judge and jury foreman indicates that the jury had reached a state of impasse, and it was upon that basis that the trial judge discharged them, that record entry is a substantial fulfillment of the statutory requirements of this section that the reasons for discharge of the jury be entered upon the journal. Peterson v. State, 586 P.2d 144, 1978 Wyo. LEXIS 238 (Wyo. 1978), overruled on other grounds, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986) (decided prior to 1987 revision of this title).

Cited in

Wardell v. McMillan, 844 P.2d 1052, 1992 Wyo. LEXIS 206 (Wyo. 1992).

§ 7-11-206. Separation of jury.

  1. In the trial of any criminal case to a jury, the court may, except for capital cases allow the jurors to separate during the trial and after the case is submitted to them.
  2. In the trial of any capital case to the jury, the court may, with the consent of the defendant and the district attorney, allow the jurors to separate during the trial and after the case is submitted to them.
  3. If the jurors are permitted to separate, they shall be admonished by the court that they shall not discuss the case with anyone except while deliberating in the jury room, and are not to form or express an opinion except during their deliberations in the jury room.

History. Laws 1985, ch. 147, § 1; W.S. 1977, § 7-11-212; Laws 1987, ch. 157, § 4.

Cross references. —

As to death penalty for murder, see §§ 6-2-101 through 6-2-103 .

“Capital case” is one in which death penalty may be imposed. See Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979).

Separation in capital cases rigidly enforced. —

Former statutory requirement that jury in capital case shall not separate, so as to give opportunity to communicate with members, should be rigidly enforced. State v. Radon, 45 Wyo. 383, 19 P.2d 177, 1933 Wyo. LEXIS 14 (Wyo. 1933).

It is normal and required that jurors be sequestered in capital cases, and this requirement should be rigidly enforced. Hopkinson v. State, 679 P.2d 1008, 1984 Wyo. LEXIS 273 (Wyo.), cert. denied, 469 U.S. 873, 105 S. Ct. 228, 83 L. Ed. 2d 157, 1984 U.S. LEXIS 360 (U.S. 1984).

When sequestration unnecessary. —

When publicity is not sensational nor inflammatory, there is no need to sequester the jury, particularly when the jury has been cautioned not to read the newspapers, listen to the radio or watch television during the trial and there is no indication that the court's instructions were violated. Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979).

Prejudicial separation ground for new trial. —

When defendant in capital case has shown separation of jury or opportunity for other parties, especially witnesses, to communicate with them, and it appears defendant was prejudiced or when it does not appear he was not prejudiced, new trial should be granted. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

Jury separation without prejudice does not vitiate conviction. —

In the absence of a showing of prejudice, permitting separation of a jury does not vitiate a conviction. Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979); Shaffer v. State, 640 P.2d 88, 1982 Wyo. LEXIS 297 (Wyo. 1982).

Defendant not prejudiced by separation of jury if he consents. —

Defendant in a manslaughter case based on driving of a car by the defendant while intoxicated is not prejudiced by the fact that the wrecked cars of defendant and deceased were outside the courthouse and available for inspection by the jury where the defendant at the commencement of the trial tells the judge that he does not desire the jury to be kept together. State v. Cantrell, 64 Wyo. 132, 186 P.2d 539, 1947 Wyo. LEXIS 26 (Wyo. 1947).

Juror's affidavits may show no prejudice. —

Juror's affidavits are admissible in capital case showing that no prejudice resulted from their misconduct, and if presumption of prejudice is thereby overcome, new trial should be denied. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

Where deputy sheriff commingled with jurors but juror's affidavits showed he did not discuss anything with jurors relating to case, no ground for new trial was shown. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

But affidavits not in record not considered on appeal. —

Juror's affidavits relating to alleged misconduct and to newspaper accounts of case read by them pending trial, which were not seen by district court, nor part of record on appeal and were not agreed to by state will not be considered by supreme court. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

Receipt of mail held reversible error. —

In homicide case it was reversible error to allow juror to receive mail during trial. State v. Eldredge, 45 Wyo. 488, 21 P.2d 545, 1933 Wyo. LEXIS 20 (Wyo. 1933).

Am. Jur. 2d, ALR and C.J.S. references. —

Juror's reading of newspaper account of trial in federal criminal case during its progress as ground for mistrial, new trial or reversal, 85 ALR Fed 13.

Stranger's alleged communication with juror, other than threat of violence, as prejudicial in federal criminal prosecution, 131 ALR Fed 465.

Article 3. Mental Illness or Deficiency

Defense of unconsciousness distinguished. —

The defense of unconsciousness resulting from a concussion with no permanent brain damage is an affirmative defense and is a defense separate from the defense of not guilty by reason of mental illness or deficiency. Fulcher v. State, 633 P.2d 142, 1981 Wyo. LEXIS 369 (Wyo. 1981).

Automatism instruction not required where blow to head, coupledwith loss of memory. —

A blow to the head, coupled with a claimed loss of memory, did not require the giving of an instruction on automatism, especially where the defendant to a mayhem charge claimed the biting off of the victim's nose was an accident, and where there was no evidence of a concussion and no evidence that the defendant was devoid of criminal intent. Polston v. State, 685 P.2d 1, 1984 Wyo. LEXIS 297 (Wyo. 1984).

Cited in

Carfield v. State, 649 P.2d 865, 1982 Wyo. LEXIS 373 (Wyo. 1982).

Am. Jur. 2d, ALR and C.J.S. references. —

Pyromania and the criminal law, 51 ALR4th 1243.

Probation revocation: insanity as defense, 56 ALR4th 1178.

Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal, 81 ALR4th 659.

Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement, 43 ALR5th 777.

Pathological gambling as basis of defense of insanity in federal criminal case, 76 ALR Fed 749.

§ 7-11-301. Definitions.

  1. As used in this act:
    1. “Designated examiner” means a licensed psychiatrist, or other physician with forensic training or a licensed psychologist with forensic training;
    2. “Facility” means the Wyoming state hospital or other facility designated by the court which can adequately provide for the security, examination or treatment of the accused;
    3. “Mental deficiency” means a defect attributable to intellectual disability, brain damage and cognitive disabilities;
    4. “This act” means W.S. 7-11-301 through 7-11-307 .

History. Laws 1975, ch. 191, § 1; W.S. 1957, § 7-242.1; Laws 1985, ch. 147, § 2; 1997, ch. 174, § 1; 2008, ch. 70, § 1; 2009, ch. 31, § 1.

Cross references. —

As to Wyoming state hospital, see § 25-1-201 .

The 2008 amendment substituted “intellectual disability” for “mental retardation” in (a)(iii).

Laws 2008, ch. 70, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, of the Wyo. Const. Approved March 7, 2008.

The 2009 amendment, effective July 1, 2009, substituted “cognitive” for “learning” in (a)(iii).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

“Designated examiner.” —

A licensed psychologist was competent to testify regarding the defendant's mental status since he had the required forensic training where he spent his first three and one-half years at the Wyoming State Hospital writing forensic reports, he had written letters to trial courts regarding his mental competency examinations, he had performed psychological testing for forensic psychiatrists and had served as a court-appointed examiner, he had attended four annual workshops in Utah for the purpose of qualifying or certifying forensic examiners, and he had been authorized by the State of Utah to conduct forensic examinations. Shipman v. State, 2001 WY 11, 17 P.3d 34, 2001 Wyo. LEXIS 10 (Wyo. 2001).

“Brain damage,” as contemplated in subsection (a)(iii), is some serious and irreversible condition having an impact upon the ability of a person to function. Fulcher v. State, 633 P.2d 142, 1981 Wyo. LEXIS 369 (Wyo. 1981).

“Irresistible-impulse” test not accepted in Wyoming. —

The “irresistible-impulse” test has been accepted in a number of jurisdictions as a standard to determine criminal responsibility. However, it is inconsistent on its face with the standard set forth in the Model Penal Code and in §§ 7-11-301 and 7-11-304 .Dean v. State, 668 P.2d 639, 1983 Wyo. LEXIS 354 (Wyo. 1983).

Neither is “diminished capacity” defense. —

The mental element necessary for the commission of a crime has now been established by the legislature. If the legislature had intended additional defenses, such as “diminished capacity,” it would have said so. Dean v. State, 668 P.2d 639, 1983 Wyo. LEXIS 354 (Wyo. 1983).

Applied in

Dodge v. State, 562 P.2d 303, 1977 Wyo. LEXIS 243 (Wyo. 1977).

Quoted in

Polston v. State, 685 P.2d 1, 1984 Wyo. LEXIS 297 (Wyo. 1984); Price v. State, 807 P.2d 909, 1991 Wyo. LEXIS 33 (Wyo. 1991).

Cited in

Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979); C.L.C. v. State, 2004 WY 2, 82 P.3d 1235, 2004 Wyo. LEXIS 4 (Wyo. 2004); Hauck v. State, 2007 WY 113, 162 P.3d 512, 2007 Wyo. LEXIS 121 (July 18, 2007); SWM v. State, 2013 WY 49, 2013 Wyo. LEXIS 53 (Apr 25, 2013).

Law reviews. —

For comment, “Competency to Stand Trial and the Insanity Defense in Wyoming—Some Problems,” see X Land & Water L. Rev. 229 (1975).

For article, “The Greatest Lawyer in the World (The Maturing of Janice Walker),” see XIV Land & Water L. Rev. 135 (1979).

§ 7-11-302. Trial or punishment of person lacking mental capacity.

  1. No person shall be tried, sentenced or punished for the commission of an offense while, as a result of mental illness or deficiency, he lacks the capacity, to:
    1. Comprehend his position;
    2. Understand the nature and object of the proceedings against him;
    3. Conduct his defense in a rational manner; and
    4. Cooperate with his counsel to the end that any available defense may be interposed.

History. Laws 1975, ch. 191, § 1; W.S. 1957, § 7-242.22; Laws 1985, ch. 147, § 2.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Mental incapacity deemed threshold issue. —

The determination as to whether or not the accused is unfit to proceed due to mental illness or deficiency at the time of trial is a threshold issue which must be resolved to prevent a violation of due process through conviction of a person incompetent to stand trial. Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979).

“Diminished capacity” not established as defense. —

The mental element necessary for the commission of a crime has now been established by the legislature. If the legislature had intended additional defenses, such as “diminished capacity,” it would have said so. Dean v. State, 668 P.2d 639, 1983 Wyo. LEXIS 354 (Wyo. 1983).

Refusal to grant continuance upheld. —

In a probation revocation proceeding, the district court did not abuse its discretion in refusing to grant defendant's motion for a continuance while he sought to obtain a competency evaluation pursuant to this section in connection with a misdemeanor charge in county court. Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Competency became an issue during trial. —

A defendant's convictions and sentences for attempted kidnapping in violation of Wyo. Stat. Ann. §§ 6-2-201 and 6-1-301 , aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502 , and aggravated burglary in violation of Wyo. Stat. Ann. § 6-3-301 were reversed and the case was remanded for a new trial, where the trial court failed to suspend the proceedings and to conduct a competency hearing, as required by Wyo. Stat. Ann. § 7-11-303(a), after a psychiatrist's testimony outside the presence of the jury indicated that the defendant was at the very least unable to testify on the defendant's own behalf due to mental problems, thereby raising the question whether the defendant was competent to stand trial, as required by Wyo. Stat. Ann. § 7-11-302(a).Deshazer v. State, 2003 WY 98, 74 P.3d 1240, 2003 Wyo. LEXIS 119 (Wyo. 2003).

Incompetency not found. —

Where defendant presented no argument that he was ever incompetent as defined by Wyo. Stat. Ann. § 7-11-302(a), but instead claimed that he suffered from bipolar disorder and was mentally ill and thus was incompetent to knowingly and voluntarily enter his guilty pleas, the supreme court found no abuse of discretion in denying defendant's motion to withdraw his guilty pleas. Koenig v. State, 2005 WY 135, 121 P.3d 780, 2005 Wyo. LEXIS 161 (Wyo. 2005).

Applied in

Pote v. State, 695 P.2d 617, 1985 Wyo. LEXIS 445 (Wyo. 1985).

Quoted in

Price v. State, 807 P.2d 909, 1991 Wyo. LEXIS 33 (Wyo. 1991); Gordon v. State, 2004 WY 105, 97 P.3d 64, 2004 Wyo. LEXIS 133 (2004).

Cited in

Loomer v. State, 768 P.2d 1042, 1989 Wyo. LEXIS 35 (Wyo. 1989).

Law reviews. —

For article, “The Greatest Lawyer in the World (The Maturing of Janice Walker),” see XIV Land & Water L. Rev. 135 (1979).

Am. Jur. 2d, ALR and C.J.S. references. —

Presumption of continuing insanity as applied to accused in criminal case, 27 ALR2d 121.

Right to counsel in insanity or incompetency adjudication proceedings, 87 ALR2d 950.

Inclusion or exclusion of first and last days in computing time for giving notice of incompetency proceedings which must be given a certain number of days before a known future date, 98 ALR2d 1331.

Burden and sufficiency of proof of mental irresponsibility in criminal case, 17 ALR3d 146.

Mental or emotional condition as diminishing responsibility for crime, 22 ALR3d 1228.

XYY syndrome as affecting criminal responsibility, 42 ALR3d 1414.

Amnesia as affecting capacity to commit crime or to stand trial, 46 ALR3d 544.

Drug addiction or related mental state as defense to criminal charge, 73 ALR3d 16.

Involuntary intoxication as defense to criminal charge, 73 ALR3d 195.

Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 ALR4th 884.

Modern status of test of criminal responsibility — state cases, 9 ALR4th 526.

Competency to stand trial of criminal defendant diagnosed as “mentally retarded” — modern cases, 23 ALR4th 493.

Competency to stand trial of criminal defendant diagnosed as “schizophrenic” — modern state cases, 33 ALR4th 1062.

Admissibility and prejudicial effect of evidence, in criminal prosecution, of defendant's involvement with witchcraft, satanism, or the like, 18 ALR5th 804.

Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement, 43 ALR5th 777.

Adequacy of defense counsel's representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 ALR5th 197.

Adequacy of defense counsel's representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 ALR5th 419.

Competency to stand trial of criminal defendant diagnosed as “schizophrenic” — modern federal cases, 63 ALR Fed 696.

§ 7-11-303. Examination of accused to determine fitness to proceed; reports; commitment; defenses and objections.

  1. If it appears at any stage of a criminal proceeding, by motion or upon the court’s own motion, that there is reasonable cause to believe that the accused has a mental illness or deficiency making him unfit to proceed, all further proceedings shall be suspended.
  2. The court shall order an examination of the accused by a designated examiner. The order may include, but is not limited to, an examination of the accused at the Wyoming state hospital on an inpatient or outpatient basis, at a local mental health center on an inpatient or outpatient basis, or at his place of detention. In selecting the examination site, the court may consider proximity to the court, availability of an examiner, and the necessity for security precautions. If the order provides for commitment of the accused to a designated facility, the commitment shall continue no longer than a thirty (30) day period for the study of the mental condition of the accused. The prosecuting attorney and counsel for the accused shall cooperate in providing the relevant information and materials to the designated examiner, and the court may order as necessary that relevant information be provided to the examiner.
  3. Written reports of the examination shall be filed with the clerk of court. The report shall include:
    1. Detailed findings;
    2. An opinion as to whether the accused has a mental illness or deficiency, and its probable duration;
    3. An opinion as to whether the accused, as a result of mental illness or deficiency, lacks capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed;
    4. Repealed by Laws 2009, ch. 31, § 2.
    5. A recommendation as to whether the accused should be held in a designated facility for treatment pending determination by the court of the issue of mental fitness to proceed; and
    6. A recommendation as to whether the accused, if found by the court to be mentally fit to proceed, should be detained in a designated facility pending further proceedings.
  4. The clerk of court shall deliver copies of the report to the district attorney and to the accused or his counsel. The report is not a public record or open to the public. After receiving a copy of the report, both the accused and the state may, upon written request and for good cause shown, obtain an order granting them an examination of the accused by a designated examiner of their own choosing. For each examination ordered, a report conforming to the requirements of subsection (c) of this section shall be furnished to the court and the opposing party.
  5. If the initial report contains the recommendation that the accused should be held in a designated facility pending determination of the issue of mental fitness to proceed, the court may order that the accused be committed to or held in a designated facility pending determination of mental fitness to proceed. The court may order the involuntary administration of antipsychotic medications to a person accused of a serious crime as defined in W.S. 7-6-102(a)(v) to render the accused competent to stand trial, provided the court finds:
    1. There are important governmental interests at stake including, but not limited to:
      1. Bringing the accused to trial;
      2. Timely prosecution;
      3. Assuring the accused has a fair trial.
    2. The involuntary administration of antipsychotic medications will significantly further the governmental interest and the administration of the medication is:
      1. Substantially likely to render the accused competent to stand trial; and
      2. Substantially unlikely to have side effects that will interfere significantly with the ability of the accused to assist counsel in conducting a trial defense, thereby rendering the trial unfair.
    3. That any alternative and less intrusive treatments are unlikely to achieve substantially the same results; and
    4. The administration pursuant to a prescription by a licensed psychiatrist of the antipsychotic medications is medically appropriate and is in the best medical interests of the accused in light of the accused’s medical condition.
  6. If neither the state, nor the accused or his counsel contests the opinion referred to in paragraph (c)(iii) of this section relative to fitness to proceed, the court may make a determination and finding of record on this issue on the basis of the report filed or the court may hold a hearing on its own motion. If the opinion relative to fitness to proceed is contested the court shall hold a hearing on the issue. The report or reports may be received in evidence at any hearing on the issue. The party contesting any opinion relative to fitness to proceed has the right to summon and cross-examine the persons who rendered the opinion and to offer evidence upon the issue.
  7. If the court determines that the accused is mentally fit to proceed, the court may order that the accused be held in confinement, be committed to a designated facility pending further proceedings, or be released on bail or other conditions. If the court determines that the accused lacks mental fitness to proceed, the proceedings against him shall be suspended and the court shall commit him to a designated facility to determine whether there is substantial probability that the accused will regain his fitness to proceed:
    1. The examiner shall provide a full report to the court, the prosecuting attorney and the accused or his counsel within ninety (90) days of arrival of the accused at the designated treating facility. If the examiner is unable to complete the assessment within ninety (90) days the examiner shall provide to the court and counsel a summary progress report which informs the court that additional time is necessary to complete the assessment, in which case the examiner may have up to an additional ninety (90) days to provide the full report for good cause shown, as follows:
      1. The full report shall assess:
        1. The facility’s or program’s capacity to provide appropriate treatment for the accused;
        2. The nature of treatments provided to the accused;
        3. What progress toward competency restoration has been made with respect to the factors identified by the court in its initial order;
        4. The accused’s current level of mental disorder or mental deficiency and need for treatment, if any; and
        5. The likelihood of restoration of competency and the amount of time estimated to achieve competency.
      2. Upon receipt of the full report, the court shall hold a hearing to determine the accused’s current status. The burden of proving that the accused is fit to proceed shall be on the proponent of the assertion. Following the hearing, the court shall determine by a preponderance of the evidence whether the accused is:
        1. Fit to proceed;
        2. Not fit to proceed with a substantial probability that the accused may become fit to proceed in the foreseeable future; or
        3. Not fit to proceed without a substantial probability that the accused may become fit to proceed in the foreseeable future.
      3. If the court makes a determination pursuant to subdivision (B)(I) of this paragraph, the court shall proceed with the trial or any other procedures as may be necessary to adjudicate the charges;
      4. If the court makes a determination pursuant to subdivision (B)(II) of this paragraph, the court may order that the accused remain committed to the custody of the designated facility for the purpose of treatment intended to restore the accused to competency;
      5. If the court makes a determination pursuant to subdivision (B)(III) of this paragraph, the court shall order the accused released from the custody of the designated facility unless proper civil commitment proceedings have been instituted and held as provided in title 25 of the Wyoming statutes. The continued retention, hospitalization and discharge of the accused shall be the same as for other patients.
    2. If it is determined pursuant to subdivision (i)(B)(II) of this subsection that there is substantial probability that the accused will regain his fitness to proceed, the commitment of the accused at a designated facility shall continue until the head of the facility reports to the court that in his opinion the accused is fit to proceed. If this opinion is not contested by the state, the accused or his counsel, the criminal proceeding shall be resumed. If the opinion is contested, the court shall hold a hearing as provided in subsection (f) of this section. While the accused remains at a designated facility under this subsection, the head of the facility shall issue a full report at least once every three (3) months in accordance with the requirements of subparagraph (i)(A) of this subsection on the progress the accused is making towards regaining his fitness to proceed.
  8. A finding by the court that the accused is mentally fit to proceed shall not prejudice the accused in a defense to the crime charged on the ground that at the time of the act he was afflicted with a mental illness or deficiency excluding responsibility. Nor shall the finding be introduced in evidence on that issue or otherwise brought to the notice of the jury. No statement made by the accused in the course of any examination or treatment pursuant to this section and no information received by any person in the course of the examination or treatment shall be admitted in evidence in any criminal proceeding then or thereafter pending on any issue other than that of the mental condition of the accused.
  9. Notwithstanding any provision of this section, counsel for the accused may make any and all legal objections which are susceptible of a fair determination prior to trial without the personal participation of the accused.

History. Laws 1975, ch. 191, § 1; W.S. 1957, § 7-252.3; Laws 1981, Sp. Sess., ch. 22, § 1; 1985, ch. 147, § 2; 2006, ch. 24, § 1; 2009, ch. 31, §§ 1, 2; ch. 32, § 1; 2010, ch. 13, § 1.

Cross references. —

As to bail, see chapter 10 of this title.

The 2006 amendment, effective July 1, 2006, added “If requested by the court an,” in (c)(iv).

The 2009 amendments. — The first 2009 amendment, by ch. 31, §§ 1 and 2, effective July 1, 2009, deleted “pretrial” after “reports of the” in the introductory language of (c); and repealed former (c)(iv) which read: “If requested by the court, an opinion as to whether at the time of the alleged criminal conduct the accused, as a result of mental illness or deficiency, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”

The second 2009 amendment, by ch. 32, § 1, effective July 1, 2009, rewrote (e) to provide standards for the involuntary administration of antipsychotic medications to a mentally ill person accused of a serious crime, and requiring findings.

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

The 2010 amendment, effective July 1, 2010, added the last sentence in (b); in the introductory language of (g), deleted “for such period as the court may order but not to exceed the time reasonably necessary” following “commit him to a designated facility”; substituted the present (g)(i) for former (g)(i), which read: “If it is determined that there is no substantial probability that the accused will regain his fitness to proceed, the accused shall not be retained in a designated facility unless proper civil commitment proceedings have been instituted and held as provided in title 25 of the Wyoming statutes. The continued retention, hospitalization and discharge of the accused shall be the same as for other patients. However, if the accused is discharged, the criminal proceedings shall be resumed, unless the court determines that so much time has elapsed since the commitment of the accused that it would not be appropriate to resume the criminal proceeding”; and in (g)(ii), inserted “pursuant to subdivision (i)(B)(II) of this subsection” near the beginning, and deleted “as provided in paragraph (iii) of subsection (c) of this section” at the end of the first sentence, and inserted “issue a full” and “in accordance with the requirements of subparagraph (i)(A) of this subsection” in the last sentence.

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

Conviction issued prior to request for competency evaluation.—

Defendant was properly convicted of interference with a peace officer because his conviction was issued prior to his request for a second competency evaluation; therefore, the trial court did not err in failing to suspend proceedings and order a second competency evaluation. Marshall v. State, 2016 WY 119, 385 P.3d 304, 2016 Wyo. LEXIS 132 (Wyo. 2016).

No error in failing to suspend proceedings for competency evaluation.—

Because defendant did not challenged the trial court's finding that he was competent to enter his Alford plea, any alleged error in the failure to suspend proceedings for a competency evaluation was ultimately inconsequential; defendant's motion to suspend the proceeding did not, by itself, compel the district court to suspend proceedings for a competency evaluation. Marshall v. State, 2016 WY 119, 385 P.3d 304, 2016 Wyo. LEXIS 132 (Wyo. 2016).

Because there was no new information presented that would give reasonable cause to believe that defendant had a mental illness or deficiency making him unfit to proceed, substantial evidence supported the district court's determination that further inquiry into defendant's competency was not warranted. Marshall v. State, 2016 WY 119, 385 P.3d 304, 2016 Wyo. LEXIS 132 (Wyo. 2016).

Application to probation revocation proceedings. —

Court properly ordered the involuntary administration of medication to defendant for the probation revocation hearing because the plain language of this section granted a court the authority to order involuntary administration of medication in order to restore a defendant to competency for probation revocation proceedings. DeMillard v. State, 2013 WY 99, 308 P.3d 825, 2013 Wyo. LEXIS 104 (Wyo. 2013).

Mental incapacity deemed threshold issue. —

The determination as to whether or not the accused is unfit to proceed due to mental illness or deficiency at the time of trial is a threshold issue, which must be resolved to prevent a violation of due process through conviction of a person incompetent to stand trial. Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979).

State hospital letter did not comply with the requirements of subsection (c), where it included no comment as to defendant's condition at the time of the alleged criminal conduct, referenced no conclusion in regard to cooperation with his counsel, and failed to suggest what other examination or observation might provide some realistic evidence. Engle v. State, 774 P.2d 1303, 1989 Wyo. LEXIS 138 (Wyo. 1989).

Failure to give report to defendant. —

The failure of the defendant to receive a copy of a written report as to results of examination of the defendant at the state hospital did not constitute reversible error where the defendant made no demand to see the report, did not request a continuance so as to examine report and had the benefit obtained from cross-examination of doctors who testified for the state. State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 1956 Wyo. LEXIS 29 (1956), rehearing denied, 76 Wyo. 63, 300 P.2d 567 (1956), cert. denied, 352 U.S. 981, 77 S. Ct. 384, 1 L. Ed. 2d 366, 1957 U.S. LEXIS 1443 (1957) (decided under prior law).

Furnishing of examination reports to codefendant. —

The trial court did not err in denying the defendant access to a codefendant's psychiatric evaluation. Vena v. State, 941 P.2d 33, 1997 Wyo. LEXIS 94 (Wyo. 1997), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Furnishing of examination reports to jury. —

There is no requirement in § 7-11-305 for the furnishing to a jury of a report of the result of the examinations conducted by the various experts, as to the defendant's competency, except insofar as testimony may be presented under the provisions of this section and § 7-11-304 .Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979).

Defendant may withdraw guilty plea upon documenting mental illness or deficiency defense. —

A presentation by the defendant in connection with his motion for leave to withdraw his plea of guilty, of supporting documentation for the proposition that he has developed reliable evidence sustaining the defense of mental illness or deficiency presents a “plausible reason” and a “fair and just” reason for withdrawing the plea. Schmidt v. State, 668 P.2d 656, 1983 Wyo. LEXIS 356 (Wyo. 1983).

Former provision limiting commitment of defendant to state hospital to a certain period was purely directory. State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 1956 Wyo. LEXIS 29 (Wyo. 1956).

No appointment deadline for expert witnesses. —

There is no requirement in § 7-11-305 for appointment or approval of intended expert witnesses within five days of receipt of the report required by this section. Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979).

Burden of proof on party contesting opinion. —

In a subsection (f) hearing arising from a contested opinion on competency, the burden of proof by a preponderance of the evidence rests on the party seeking to establish that the accused is competent. Loomer v. State, 768 P.2d 1042, 1989 Wyo. LEXIS 35 (Wyo. 1989), limited, Snyder v. State, 912 P.2d 1127, 1996 Wyo. LEXIS 37 (Wyo. 1996).

Placing burden of proving competency with accused was harmless error, where the trial court specifically found the evidence such that it would have held the accused competent to stand trial regardless of the allocation of the burden of proof. Loomer v. State, 768 P.2d 1042, 1989 Wyo. LEXIS 35 (Wyo. 1989), limited, Snyder v. State, 912 P.2d 1127, 1996 Wyo. LEXIS 37 (Wyo. 1996).

Standards for juvenile proceedings.

Finding that petitioner, a juvenile, was competent to proceeding to adjudication in a delinquency proceeding was improper because, although the juvenile court ordered a competency evaluation and ruled that petitioner was competent to proceed, it did not evaluate him under the correct standards set out in Wyo. Stat. Ann. §§ 7-11-302 and 7-11-303 . The psychologist offered the opinion that he appeared to be less familiar with general legal terms and concepts than the average adult defendant, but because he was 12 at the time, the juvenile should not have been compared to the average adult defendant, but to an average child of the same age. SWM v. State, 2013 WY 49, 299 P.3d 673, 2013 Wyo. LEXIS 53 (Wyo. 2013).

Additional evidence accepted at hearing. —

At the hearing conducted under § 7-11-305 , the contesting party may offer evidence in addition to that of the designated examiners. Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979).

Evidence bearing on defendant's knowledge not too remote for jury's consideration. —

Evidence which may have a bearing on the questions of whether the defendant understood the nature or quality of his act where defendant is charged with murder in the first degree and whether he knew right from wrong will not be deemed too remote for the jury's consideration. Gerard v. State, 511 P.2d 99, 1973 Wyo. LEXIS 166 (Wyo.), cert. denied, 414 U.S. 1072, 94 S. Ct. 585, 38 L. Ed. 2d 478, 1973 U.S. LEXIS 1655 (U.S. 1973).

Disposal after guilt determination may not be injected into criminal trial. —

It would be improper to inject into the trial of a criminal case the issue of defendant's disposal after his guilt or innocence has been determined. Lonquest v. State, 495 P.2d 575, 1972 Wyo. LEXIS 242 (Wyo.), cert. denied, 409 U.S. 1006, 93 S. Ct. 432, 34 L. Ed. 2d 299, 1972 U.S. LEXIS 639 (U.S. 1972).

Defendant not incompetent. —

See Pote v. State, 695 P.2d 617, 1985 Wyo. LEXIS 445 (Wyo. 1985).

Defendant underwent a mental evaluation which concluded he was competent, and he did not contest the results of the evaluation or request an additional evaluation; after the evaluation was completed, there was no new evidence suggesting defendant's capacity had diminished. Thus, the district court complied with the mental examination requirements set out in the statutes, and defendant's due process rights were not violated. Follett v. State, 2006 WY 47, 132 P.3d 1155, 2006 Wyo. LEXIS 54 (Wyo. 2006), reh'g denied, 2006 Wyo. LEXIS 56 (Wyo. May 3, 2006).

Consent to use of reports constituted waiver. —

District court's use of two psychological reports for purposes of sentencing did not violate this section; because the court clearly informed the defendant that it would consider these reports and the defendant consented to the use of the reports in sentencing, he waived objection to their consideration by the court. Ochoa v. State, 848 P.2d 1359, 1993 Wyo. LEXIS 67 (Wyo. 1993).

Defendant entitled to credit for pre-sentence confinement. —

If a defendant is maintained in custody for purposes of evaluating mental competency or treating mental illness, he is entitled to credit for that period of incarceration, and it makes no difference whether he was maintained in pre-sentence confinement for purposes of the mental examination or because he could not post bond. Lightly v. State, 739 P.2d 1232, 1987 Wyo. LEXIS 475 (Wyo. 1987).

Competency became an issue during trial. —

A defendant's convictions and sentences for attempted kidnapping in violation of Wyo. Stat. Ann. §§ 6-2-201 and 6-1-301 , aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502 , and aggravated burglary in violation of Wyo. Stat. Ann. § 6-3-301 were reversed and the case was remanded for a new trial, where the trial court failed to suspend the proceedings and conduct a competency hearing, as required by Wyo. Stat. Ann. § 7-11-303(a), after a psychiatrist's testimony outside the presence of the jury indicated that the defendant was at the very least unable to testify on the defendant's own behalf due to mental problems, thereby raising the question whether the defendant was competent to stand trial, as required by Wyo. Stat. Ann. § 7-11-302(a).Deshazer v. State, 2003 WY 98, 74 P.3d 1240, 2003 Wyo. LEXIS 119 (Wyo. 2003).

Successive competency motions. —

Because there was no new information presented that would give reasonable cause to believe that the accused had a mental illness or deficiency making him unfit to proceed, the trial court did not err when it determined further inquiry into defendant's competency was not warranted and in denying defendant's second motion to determine defendant's competency. Schaeffer v. State, 2012 WY 9, 268 P.3d 1045, 2012 Wyo. LEXIS 8 (Wyo. 2012).

Matter not closed. —

Record clearly reflected, contrary to defendant's assertion, that district court compared statements contained in the risk assessment with earlier testimony presented on competency issue and found that no new evidence was presented; defendant's argument that district court did not fulfill its obligation and ruled the matter of competency “closed” was not supported by the record. Haynes v. State, 2008 WY 75, 186 P.3d 1204, 2008 Wyo. LEXIS 77 (Wyo. 2008).

Defendant's right to speedy trial. —

Defendant's right to a speedy trial was not violated because, calculating the days from October 21, 2004, the date defendant first raised the issue of his mental illness, to June 7, 2005, the date the district court finally resolved the issue once and for all, 230 days elapsed. Of the total 337 days of delay, those 230 were excludable under Wyo. R. Crim. P. 48, thus resulting in a remainder of 107 days; that 107 being well under the 180-day limit of Rule 48. Potter v. State, 2007 WY 83, 158 P.3d 656, 2007 Wyo. LEXIS 90 (Wyo. 2007).

Applied in

State ex rel. Dougherty v. Merrill, 602 P.2d 377, 1979 Wyo. LEXIS 507 (Wyo. 1979).

Quoted in

Polston v. State, 685 P.2d 1, 1984 Wyo. LEXIS 297 (Wyo. 1984); Stone v. State, 745 P.2d 1344, 1987 Wyo. LEXIS 547 (Wyo. 1987); McGinn v. State, 928 P.2d 1157, 1996 Wyo. LEXIS 166 (Wyo. 1996); Hannon v. State, 2004 WY 8, 84 P.3d 320, 2004 Wyo. LEXIS 12 (2004).

Stated in

Smith v. State, 871 P.2d 186, 1994 Wyo. LEXIS 38 (Wyo. 1994).

Cited in

Herdt v. State, 891 P.2d 793, 1995 Wyo. LEXIS 46 (Wyo. 1995); C.L.C. v. State, 2004 WY 2, 82 P.3d 1235, 2004 Wyo. LEXIS 4 (Wyo. 2004);Osborne v. State, 2012 WY 123, 2012 Wyo. LEXIS 129 (Sept 13, 2012); McEwan v. State, 2013 WY 158, 314 P.3d 1160, 2013 Wyo. LEXIS 164 , 2013 WL 6818011 (Dec 23, 2013).

Law reviews. —

For article, “Insanity, Bifurcation and Due Process: Can Values Survive Doctrine,” see XIII Land & Water L. Rev. 515 (1978).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 ALR2d 434.

Power of court, in absence of statute, to order psychiatric examination of accused for purpose of determining mental condition at time of alleged offense, 17 ALR4th 1274.

Admissibility of results of computer analysis of defendant's mental state, 37 ALR4th 510.

Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist, 85 ALR4th 19.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 ALR5th 529.

§ 7-11-304. Responsibility for criminal conduct; plea; examination; commitment; use of statements by defendant.

  1. A person is not responsible for criminal conduct if at the time of the criminal conduct, as a result of mental illness or deficiency, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms mental illness or deficiency mean only those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality and that are not attributable primarily to self-induced intoxication as defined by W.S. 6-1-202(b).
  2. As used in this section, the terms “mental illness or deficiency” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
  3. Evidence that a person is not responsible for criminal conduct by reason of mental illness or deficiency is not admissible at the trial of the defendant unless a plea of “not guilty by reason of mental illness or deficiency” is made. A plea of “not guilty by reason of mental illness or deficiency” may be pleaded orally or in writing by the defendant or his counsel at the time of his arraignment. The court, for good cause shown, may also allow that plea to be entered at a later time. Such a plea does not deprive the defendant of other defenses.
  4. In all cases where a plea of “not guilty by reason of mental illness or deficiency” is made, the court shall order an examination of the defendant by a designated examiner. The order may include, but is not limited to, an examination of the defendant at the Wyoming state hospital on an inpatient or outpatient basis, at a local mental health center on an inpatient or outpatient basis, or at his place of detention. In selecting the examination site, the court may consider proximity to the court, availability of an examiner and the necessity for security precautions. If the order provides for commitment of the defendant to a designated facility, the commitment shall continue no longer than a forty-five (45) day period for the observation and evaluation of the mental condition of the defendant, which time may be extended by the approval of the court.
  5. If an examination of a defendant’s fitness to proceed has been ordered pursuant to W.S. 7-11-303 , an examination following a plea of “not guilty by reason of mental illness or deficiency” shall not occur, or be ordered, until the court has found the defendant is competent to proceed under W.S. 7-11-303 .
  6. A written report of the examination shall be filed with the clerk of court. The report shall include:
    1. Detailed findings, including, but not limited to, the data and reasoning that link the opinions specified in paragraphs (ii) and (iii) of this subsection;
    2. An opinion as to whether the defendant has a mental illness or deficiency;
    3. An opinion as to whether at the time of the alleged criminal conduct the defendant, as a result of mental illness or deficiency, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
  7. The clerk of court shall deliver copies of the report to the district attorney and to the defendant or his counsel. The report shall not be a public record or open to the public. If an examination provided under subsection (d) of this section was conducted, the report may be received in evidence and no new examination shall be required unless requested under this subsection. Within five (5) days after receiving a copy of the report, the defendant or the state, upon written request, may obtain an order granting an examination of the defendant by a designated examiner chosen by the requester of the examination.
  8. Except as otherwise provided in this subsection, no statement made by the defendant in the course of any examination or treatment pursuant to this section and no information received by any person in the course thereof is admissible in evidence in any criminal proceeding on any issue other than that of the mental condition of the defendant. If the defendant testifies in his own behalf, any statement made by him in the course of any examination or treatment pursuant to this section may be admitted:
    1. For impeachment purposes; or
    2. As evidence in a criminal prosecution for perjury.

History. Laws 1975, ch. 191, § 1; W.S. 1957, § 7-242.4; Laws 1981, Sp. Sess., ch. 22, § 1; 1983, ch. 179, § 1; 1985, ch. 147, § 2; 2009, ch. 31, § 1.

Cross references. —

As to perjury, see § 6-5-301 .

As to pleas, see Rule 11, W.R. Cr. P.

The 2009 amendment, effective July 1, 2009, rewrote (d) and (e) to clarify procedures for mental evaluations in criminal cases; added (f) and (g); and redesignated former (f) as (h).

Editor's note. —

Any pre-1975 annotations are taken from cases decided under prior law.

Defendant prejudiced by application of wrong versions of statutes.—

The defendant, who committed certain offenses prior to July 1, 1983, was, nevertheless, tried under this section and § 7-11-305 , relating to mental illness or deficiency, as they existed after their 1983 amendments, effective July 1, 1983. The defendant's psychiatric witness testified that the defendant could not resist his impulses at the time of the incidents in question, which was sufficient, under the pre-1983 version of subsection (a), to relieve a person of responsibility for criminal conduct. The defendant was prejudiced by the court's failing to give an instruction under pre-1983 § 7-11-305 (b), under which the state had the obligation to prove beyond a reasonable doubt that the defendant was able to “conform his conduct to the requirements of the law,” as defined in pre-1983 § 7-11-304(a), and by, instead, giving an instruction under post-1983 § 7-11-305(b), under which the burden was shifted to the defendant to prove that he could not “conform his conduct to the conduct of the law,” as now defined in subsection (a) to exclude the “irresistible impulse” test. Lewis v. State, 709 P.2d 1278, 1985 Wyo. LEXIS 619 (Wyo. 1985).

“Irresistible-impulse” test not accepted in Wyoming. —

The “irresistible-impulse” test has been accepted in a number of jurisdictions as a standard to determine criminal responsibility. However, it is inconsistent on its face with the standard set forth in the Model Penal Code and in §§ 7-11-301 and 7-11-304 .Dean v. State, 668 P.2d 639, 1983 Wyo. LEXIS 354 (Wyo. 1983).

Neither is “diminished capacity” defense. —

The mental element necessary for the commission of a crime has now been established by the legislature. If the legislature had intended additional defenses, such as “diminished capacity,” it would have said so. Dean v. State, 668 P.2d 639, 1983 Wyo. LEXIS 354 (Wyo. 1983).

Mental disorders, by themselves, insufficient. —

A showing that defendant was suffering from bipolar affective disorder, schizoaffective disorder and other maladies was insufficient to excuse him from the crime of accessory to first-degree murder, where he did not show that, because of this mental condition, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. Miller v. State, 755 P.2d 855, 1988 Wyo. LEXIS 56 (Wyo. 1988), cert. denied, 806 P.2d 1308, 1991 Wyo. LEXIS 35 (Wyo. 1991).

Defendant may withdraw guilty plea upon documenting mentalillness or deficiency defense. —

A presentation by the defendant, in connection with his motion for leave to withdraw his plea of guilty, of supporting documentation for the proposition that he has developed reliable evidence sustaining the defense of mental illness or deficiency presents a “plausible reason” and a “fair and just” reason for withdrawing the plea. Schmidt v. State, 668 P.2d 656, 1983 Wyo. LEXIS 356 (Wyo. 1983).

Defendant submits to examination by pleading insanity. —

A defendant in a criminal case is not required to plead insanity; but when he does so, by his plea, he submits himself to the examination prescribed by statute and thereby permits the results of such examination to be presented to the court. State v. Spears, 76 Wyo. 82, 300 P.2d 551, 1956 Wyo. LEXIS 32 (Wyo. 1956).

And defendant's constitutional rights not violated. —

A defendant, who enters a plea of not guilty by reason of temporary insanity and who is committed to the state hospital for an examination while out on bail, is not deprived of any constitutional rights. State v. Spears, 76 Wyo. 82, 300 P.2d 551, 1956 Wyo. LEXIS 32 (Wyo. 1956).

Defendant's constitutional rights are not violated by a statutory provision calling for the examination of the defendant at the state hospital, either on the ground of self-incrimination or on the ground of lack of due process. State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 1956 Wyo. LEXIS 29 (Wyo. 1956).

Defendant who is committed to state hospital for examination and observation as to his sanity pursuant to statute is not deprived of any rights when he is taken to a doctor in another state for the purpose of having an electroencephalogram taken, where such is not available in Wyoming. State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 1956 Wyo. LEXIS 29 (Wyo. 1956).

Defendant underwent a mental evaluation which concluded he was competent, and he did not contest the results of the evaluation or request an additional evaluation; after the evaluation was completed, there was no new evidence suggesting defendant's capacity had diminished. Thus, the district court complied with the mental examination requirements set out in the statutes, and defendant's due process rights were not violated. Follett v. State, 2006 WY 47, 132 P.3d 1155, 2006 Wyo. LEXIS 54 (Wyo. 2006), reh'g denied, 2006 Wyo. LEXIS 56 (Wyo. May 3, 2006).

Constitutional rights are violated by counsel's failure toinvestigate mental illness defense. —

In an arson case, counsel was ineffective for failing to properly investigate the petitioner's mental history for a possible insanity defense before trial where counsel was aware of a bipolar diagnosis, did not obtain medical records for review, and did not consult with a mental health professional nor obtain an opinion about the petitioner's mental state at the time of the offense. Counsel's failure to properly investigate the matter and make an insanity plea appeared to have deprived the petitioner of the only true defense available to him, and it had a reasonable likelihood of success. Keats v. State, 2005 WY 81, 115 P.3d 1110, 2005 Wyo. LEXIS 95 (Wyo. 2005).

Evidence of involuntary intoxication properly excluded. —

Trial court did not err under Wyo. Stat. Ann. § 7-11-304(a) in not allowing defendant to present evidence of involuntary intoxication as part of the defense; defendant had withdrawn a not guilty by reason of mental illness plea and was therefore legitimately prohibited from introducing evidence of involuntary intoxication for the purposes of proving that defendant lacked the mental capacity to commit the crimes. Poitra v. State, 2012 WY 58, 275 P.3d 478, 2012 Wyo. LEXIS 61 (Wyo. 2012).

Trial court did not err in declining to admit defendant's statementson the grounds that they were the product of intoxication. —

The trial court did not err in declining to admit defendant's statements on the grounds that they were involuntary due to intoxication where the evidence showed that even though the defendant exhibited symptoms consistent with methamphetamine-induced intoxication and admitted methamphetamine use that same day, he appeared to understand the questions asked of him and answered them appropriately. Gordon v. State, 2004 WY 105, 97 P.3d 64, 2004 Wyo. LEXIS 133 (Wyo. 2004).

Furnishing of examination reports to jury. —

There is no requirement in § 7-11-305 for the furnishing to a jury of a report of the result of the examinations conducted by the various experts, as to the defendant's competency, except insofar as testimony may be presented under the provisions of this section and § 7-11-303 .Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979).

Insanity instruction requires causative element. —

A defect in a proposed instruction on the defense of insanity is clear where it does not contain the necessary causative element of mental illness or mental deficiency and no construction is possible to save the omission. Schwager v. State, 589 P.2d 1303, 1979 Wyo. LEXIS 359 (Wyo. 1979).

Defendant's right to speedy trial. —

Defendant's right to a speedy trial was not violated because, calculating the days from October 21, 2004, the date defendant first raised the issue of his mental illness, to June 7, 2005, the date the district court finally resolved the issue once and for all, 230 days elapsed. Of the total 337 days of delay, those 230 were excludable under Wyo. R. Crim. P. 48, thus resulting in a remainder of 107 days; that 107 being well under the 180-day limit of Rule 48. Potter v. State, 2007 WY 83, 158 P.3d 656, 2007 Wyo. LEXIS 90 (Wyo. 2007).

Applied in

Dodge v. State, 562 P.2d 303, 1977 Wyo. LEXIS 243 (Wyo. 1977); Polston v. State, 685 P.2d 1, 1984 Wyo. LEXIS 297 (Wyo. 1984); Pote v. State, 695 P.2d 617, 1985 Wyo. LEXIS 445 (Wyo. 1985).

Quoted in

Engle v. State, 774 P.2d 1303, 1989 Wyo. LEXIS 138 (Wyo. 1989); Price v. State, 807 P.2d 909, 1991 Wyo. LEXIS 33 (Wyo. 1991); McGinn v. State, 928 P.2d 1157, 1996 Wyo. LEXIS 166 (Wyo. 1996).

Cited in

Fulcher v. State, 633 P.2d 142, 1981 Wyo. LEXIS 369 (Wyo. 1981); Sincock v. State, 2003 WY 115, 76 P.3d 323, 2003 Wyo. LEXIS 135 (Wyo. 2003); Hannon v. State, 2004 WY 8, 84 P.3d 320, 2004 Wyo. LEXIS 12 (2004); Hauck v. State, 2007 WY 113, 162 P.3d 512, 2007 Wyo. LEXIS 121 (July 18, 2007); Osborne v. State, 2012 WY 123, 2012 Wyo. LEXIS 129 (Sept 13, 2012).

Law reviews. —

For article, “Insanity, Bifurcation and Due Process: Can Values Survive Doctrine,” see XIII Land & Water L. Rev. 515 (1978).

For article, “The Greatest Lawyer in the World (The Maturing of Janice Walker),” see XIV Land & Water L. Rev. 135 (1979).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 ALR2d 434.

Admissibility of results of computer analysis of defendant's mental state, 37 ALR4th 510.

Adequacy of defense counsel's representation of criminal client — issues of incompetency, 70 ALR5th 1.

Adequacy of defense counsel's representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 ALR5th 109.

Adequacy of defense counsel's representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 ALR5th 197.

Adequacy of defense counsel's representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 ALR5th 419.

Competency to stand trial of criminal defendant diagnosed as “schizophrenic” — modern federal cases, 63 ALR Fed 696.

Construction and application of 18 USCS § 17, providing for insanity defense in federal criminal prosecutions, 118 ALR Fed 265.

§ 7-11-305. Pleas of not guilty and not guilty by reason of mental illness or deficiency; burden of proof; expert witnesses.

  1. When a defendant couples a plea of not guilty with a plea of not guilty by reason of mental illness or deficiency, proof shall be submitted before the same jury in a continuous trial on whether the defendant in fact committed the acts charged, on the remaining elements of the alleged criminal offense and on the issue of mental responsibility of the defendant. In addition to other forms of verdict submitted to the jury, the court shall submit a verdict by which the jury may find the defendant not guilty by reason of mental illness or deficiency excluding responsibility.
  2. The prosecution shall prove beyond a reasonable doubt all the elements of the offense charged. Every defendant is presumed to be mentally responsible. The defendant shall have the burden of going forward and proving by the greater weight of evidence that, as a result of mental illness or deficiency, he lacked capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
  3. Only the designated examiners who examined the defendant pursuant to W.S. 7-11-303 or 7-11-304 are competent witnesses to testify as to the defendant’s mental responsibility.
  4. In addition, the state and the defendant may summon other expert witnesses who did not examine the defendant. Such experts are not competent to testify as to the mental responsibility of the defendant; however, they may testify as to the validity of the procedures followed and the general scientific propositions stated by other witnesses.
  5. The designated examiner who examined the defendant may testify as to and explain the nature of his examinations, his diagnosis of mental illness or deficiency of the defendant, and his opinion as to the defendant’s ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. The designated examiner may be cross-examined as to his competence and the credibility of his diagnosis and his opinion.

History. Laws 1975, ch. 191, § 1; W.S. 1957, § 7-242.5; Laws 1978, ch. 3, § 1; 1983, ch. 179, § 1; 1985, ch. 147, § 2.

Cross references. —

As to opinions and expert testimony, see Rules 701 through 706, W.R.E.

Editor's note. —

Any pre-1975 annotations are taken from cases decided under prior law.

Bifurcated trial procedure unconstitutional. —

The bifurcated trial procedure for the adjudication of guilt and insanity under subsection (a) as it existed prior to the 1978 amendment was violative of a defendant's right to due process. Sanchez v. State, 567 P.2d 270, 1977 Wyo. LEXIS 309 (Wyo. 1977).

Sanchez decision to be retroactively applied. —

The decision in Sanchez v. State, 567 P.2d 270, 1977 Wyo. LEXIS 309 (Wyo. 1977).

Defendant prejudiced by application of wrong versions of statutes. —

The defendant, who committed certain offenses prior to July 1, 1983, was, nevertheless, tried under § 7-11-304 and this section, relating to mental illness or deficiency, as they existed after their 1983 amendments, effective July 1, 1983. The defendant's psychiatric witness testified that the defendant could not resist his impulses at the time of the incidents in question, which was sufficient, under pre-1983 § 7-11-304 (a), to relieve a person of responsibility for criminal conduct. The defendant was prejudiced by the court failing to give an instruction under the pre-1983 version of subsection (b), under which the state had the obligation to prove beyond a reasonable doubt that the defendant was able to “conform his conduct to the requirements of the law,” as defined in pre-1983 § 7-11-304(a), and by, instead, giving an instruction under the post-1983 version of subsection (b), under which the burden was shifted to the defendant to prove that he could not “conform his conduct to the conduct of the law,” as now defined in § 7-11-304(a) to exclude the “irresistible impulse” test. Lewis v. State, 709 P.2d 1278, 1985 Wyo. LEXIS 619 (Wyo. 1985).

Submission of mental deficiency issue to jury requires some evidence. —

In the absence of evidence submitted by a defendant in a criminal proceeding tending to establish mental illness or deficiency a district court should not, despite the language of this section, submit such an issue to the jury simply on the basis of a plea of not guilty by reason of mental illness or deficiency. Kind v. State, 595 P.2d 960, 1979 Wyo. LEXIS 425 (Wyo. 1979) (decided prior to 1983 amendment).

And mental responsibility issue not submitted by instruction on criminal carelessness. —

Where the jury was advised that it could consider the mental capacity of the defendant in considering whether there was culpable neglect or criminal carelessness, but, where this instruction did not in any way require proof of the additional element of mental responsibility by the prosecution, such an issue was not submitted. Kind v. State, 595 P.2d 960, 1979 Wyo. LEXIS 425 (Wyo. 1979) (decided prior to 1983 amendment).

Furnishing of examination report to jury. —

There is no requirement in this section for the furnishing to a jury of a report of the result of the examinations conducted by the various experts, as to the defendant's competency, except insofar as testimony may be presented under the provisions of §§ 7-11-303 and 7-11-304 .Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979).

Any examiner who examined accused is competent witness, as to the defendant's competency, and his testimony is not limited only to that proper for an expert who did not examine the accused. Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979).

Limitations of witnesses valid. —

To accept defendant's contention that this section arbitrarily limited the number of witnesses permitted to give expert testimony on the main and controlling fact of the mental responsibility of the defendant would bring into contention its propriety in the interest of a fair trial and due process and also question the inherent power of the court with reference to limitation of the number of witnesses, thus invalidating the section. Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979).

It is improper for juries to arbitrarily disregard expert testimony of psychiatric opinion. Reilly v. State, 496 P.2d 899, 1972 Wyo. LEXIS 248 (Wyo.), reh'g denied, 498 P.2d 1236, 1972 Wyo. LEXIS 261 (Wyo. 1972).

Validity of expert opinions depends on observation. —

Opinions of experts must depend for their validity upon the facts and chances for observation had by the experts for reasons upon which they are based. Reilly v. State, 496 P.2d 899, 1972 Wyo. LEXIS 248 (Wyo.), reh'g denied, 498 P.2d 1236, 1972 Wyo. LEXIS 261 (Wyo. 1972).

Testimony of lay witnesses. —

Although the testimony of lay witnesses may be competent evidence on the issue of sanity, it does not follow that, in the face of a substantial showing of insanity, the government may send the issue to the jury simply by having two policemen testify, “He looked all right to me.” Reilly v. State, 496 P.2d 899, 1972 Wyo. LEXIS 248 (Wyo.), reh'g denied, 498 P.2d 1236, 1972 Wyo. LEXIS 261 (Wyo. 1972).

Characterization of a defendant's conduct as normal must be taken as measured on the standard of people generally. The acquaintance and time of observation by lay witnesses is of much importance. Reilly v. State, 496 P.2d 899, 1972 Wyo. LEXIS 248 (Wyo.), reh'g denied, 498 P.2d 1236, 1972 Wyo. LEXIS 261 (Wyo. 1972).

Prosecutorial rebuttal by lay witness or non-examining psychiatrist may raise jury issue. —

If reasonable minds could not differ on the defendant's insanity, then that issue should not be submitted to the jury, and a directed verdict of acquittal should be entered, but a court should not grant an acquittal solely because the prosecution fails to produce an examining psychiatrist to rebut the testimony of the defendant's psychiatrists. Under some circumstances, rebuttal by a lay witness or a non-examining psychiatrist may be sufficient to make the defendant's sanity a question for the jury. State v. Zespy, 723 P.2d 564, 1986 Wyo. LEXIS 600 (Wyo. 1986) (decided prior to 1983 amendment).

Non-examining psychiatrist may attack psychiatric tests as a group. —

A non-examining psychiatrist's rebuttal testimony that there are no psychiatric tests upon which a psychiatrist can base a valid opinion about a defendant's sanity should have been permitted. State v. Zespy, 723 P.2d 564, 1986 Wyo. LEXIS 600 (Wyo. 1986).

Refusing to allow defendant to question the state medical witness as to the compensation he received from the county for testifying as to sanity of the defendant is not an abuse of the trial court's discretion. State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 1956 Wyo. LEXIS 29 (Wyo. 1956).

Standard of review.—

Standard in reviewing a defense of not guilty by reason of mental illness or defect was whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found defendant failed to prove the defense by a preponderance of the evidence because Wyoming’s statutory scheme placed the burden on the defendant to prove he or she was not mentally responsible for his or her crimes and required him or her to carry his or her burden by the greater weight of evidence. Gabbert v. State, 2018 WY 69, 420 P.3d 172, 2018 Wyo. LEXIS 72 (Wyo. 2018).

Defense not proved.—

Defendant did not meet defendant’s burden to prove a defense of not guilty by reason of mental illness or defect because (1) the only testifying expert said defendant knew defendant’s conduct was wrong and could conform that conduct to the law, and (2) other evidence showed defendant knew defendant’s acts were illegal by showing defendant knew defendant had violated parole and the police and defendant’s parole agent were looking for defendant, as defendant ran from the police and lied to the parole agent. Gabbert v. State, 2018 WY 69, 420 P.3d 172, 2018 Wyo. LEXIS 72 (Wyo. 2018).

Evidence discrediting expert not grounds for new trial. —

Where state's doctor testified that defendant was sane but that he could not remember the exact date on which he examined the defendant but that he thought it was two days before defendant's discharge on April 12, the defendant was not entitled to a new trial on the ground of newly discovered evidence that the doctor was elsewhere on April 10, such evidence having no other effect than discrediting the testimony of the witness. State v. Spears, 76 Wyo. 82, 300 P.2d 551, 1956 Wyo. LEXIS 32 (Wyo. 1956).

Ineffective assistance of counsel. —

Defendant's counsel was not ineffective under Wyo. Const. art. 1, § 10 for not raising the defense of not guilty by reason of mental illness or deficiency where nothing in the record indicated other than that defendant consented to the trial strategy of admitting to shooting victims to avoid the death penalty or to reduce culpability for the sentencing phase. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Not error to instruct jury “every defendant is presumed to be mentally responsible.” —

It was not error for the court to instruct the jury that “every defendant is presumed to be mentally responsible.” The jury could not have thought that such a presumption was conclusive, as other portions of the instruction discussed circumstances when a person is not legally responsible for his conduct, and that the defendant must prove by a greater weight of the evidence his lack of mental responsibility. Brooks v. State, 706 P.2d 664, 1985 Wyo. LEXIS 564 (Wyo. 1985).

And constitutional to require accused to prove affirmative defense of mental illness. —

Requiring the accused to prove the affirmative defense of mental illness or deficiency did not constitute a shifting of the burden of proof to the accused to disprove an essential element of the crime charged. Mental responsibility is not an element of the offense, but a deficiency thereof is an affirmative defense which relieves the accused of responsibility. Brooks v. State, 706 P.2d 664, 1985 Wyo. LEXIS 564 (Wyo. 1985).

Applied in

Dodge v. State, 562 P.2d 303, 1977 Wyo. LEXIS 243 (Wyo. 1977); Henriksen v. State, 575 P.2d 754, 1978 Wyo. LEXIS 271 (Wyo. 1978).

Quoted in

Polston v. State, 685 P.2d 1, 1984 Wyo. LEXIS 297 (Wyo. 1984); Miller v. State, 755 P.2d 855, 1988 Wyo. LEXIS 56 (Wyo. 1988); Shipman v. State, 2001 WY 11, 17 P.3d 34, 2001 Wyo. LEXIS 10 (Wyo. 2001).

Cited in

Engle v. State, 821 P.2d 1285, 1991 Wyo. LEXIS 180 (Wyo. 1991); Reiter v. State, 2001 WY 116, 36 P.3d 586, 2001 Wyo. LEXIS 142 (Wyo. 2001); Smith v. State, 2008 WY 98, 190 P.3d 522, 2008 Wyo. LEXIS 101 (Aug. 19, 2008).

Law reviews. —

For article, “Insanity, Bifurcation and Due Process: Can Values Survive Doctrine,” see XIII Land & Water L. Rev. 515 (1978).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 ALR4th 884.

Propriety of questioning expert witness regarding specific incidents or allegations of expert's unprofessional conduct or professional negligence, 11 ALR5th 1.

Adequacy of defense counsel's representation of criminal client — issues of incompetency, 70 ALR5th 1.

Adequacy of defense counsel's representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 ALR5th 109.

§ 7-11-306. Disposition of persons found not guilty by reason of mental illness or deficiency excluding responsibility.

  1. After entry of a judgment of not guilty by reason of mental illness or deficiency excluding responsibility, the court shall, on the basis of evidence given at trial or at a separate hearing, make an order as provided in subsection (b), (c) or (d) of this section.
  2. If the court finds that the person is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others and is not in need of care, supervision or treatment, the court shall order him discharged from custody.
  3. If the court finds that the person is affected by mental illness or deficiency and presents a substantial risk of danger to himself or others, but can be controlled adequately and given proper care, supervision and treatment if released on supervision, the court shall order him released subject to the supervisory orders of the court as are appropriate in the interests of justice and the welfare of the defendant. The court may appoint any person or state, county or local agency which the court considers capable of supervising the person upon release. Upon receipt of an order issued under this subsection, the person or agency appointed shall assume the supervision of the person pursuant to the direction of the court. Conditions of release in the order of the court may be modified from time to time and supervision may be terminated by order of the court. If upon a hearing the state shows by a preponderance of the evidence that the person released on supervision under this subsection can no longer be controlled adequately by supervision, the court may order the person committed to the Wyoming state hospital or other designated facility for custody, care and treatment.
  4. If the court finds that the person is affected by mental illness or deficiency and presents substantial risk of danger to himself or others and that he is not a proper subject for release or supervision, the court shall order him committed to the Wyoming state hospital or other designated facility for custody, care and treatment.
  5. Following the first ninety (90) days of commitment to the Wyoming state hospital or other designated facility under this section, if at any time the head of the facility is of the opinion that the person is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others, the head of the facility shall apply to the court which committed the person for an order of discharge. The application shall be accompanied by a report setting forth the facts supporting the opinion of the head of the facility. Copies of the application and report shall be transmitted by the clerk of the court to the district attorney. The court shall hold a hearing on this matter as soon as possible. If the state opposes the recommendation of the head of the facility, the state has the burden of proof by a preponderance of the evidence to show that the person continues to be affected by mental illness or deficiency and continues to present a substantial risk of danger to himself or others and should remain in the custody of the designated facility.
  6. Ninety (90) days after the order of commitment, any person committed to the designated facility under this section may apply to the district court of the county from which he was committed for an order of discharge upon the grounds that he is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others. The application for discharge shall be accompanied by a report of the head of the facility which shall be prepared and transmitted as provided in subsection (e) of this section. The court shall hold a hearing on this matter as soon as possible. The applicant shall prove by a preponderance of the evidence his fitness for discharge. An application for an order of discharge under this subsection filed within six (6) months of the date of a previous hearing shall be subject to summary disposition by the court.
  7. If the court, after a hearing upon any application for discharge, or application for modification or termination of release on supervision, under subsections (c) through (f) of this section, finds that the person is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others, the court shall order him discharged from custody or from supervision. If the court finds that the person is still affected by a mental illness or deficiency and presents a substantial risk of danger to himself or others, but can be controlled adequately if he is released on supervision, the court shall order him released on supervision as provided in subsection (c) of this section. If the court finds that the person has not recovered from his mental illness or deficiency and presents a substantial risk of danger to himself or others and cannot adequately be controlled if he is released on supervision, the court shall order him remanded for continued care and treatment.
  8. In any hearing under this section the court may appoint one (1) or more designated examiners to examine the person and submit reports to the court. Reports filed with the court shall include, but need not be limited to, an opinion as to the mental condition of the person and whether the person presents a substantial risk of danger to himself or others. To facilitate examination, the court may order the person placed in the temporary custody of any designated facility. If neither the district attorney nor the defendant or his counsel, if any, contests the findings of the report filed with the court, the court may make the determination on the basis of the report filed with the court. If the report is contested, the court shall hold a hearing on the issue. If the report is received in evidence at the hearing, the party who contests the report has the right to summon and to cross-examine the examiners who submitted the report and to offer evidence upon the issue. Other evidence regarding the person’s mental condition may be introduced by either party.

History. Laws 1975, ch. 191, § 1; W.S. 1957, § 7-242.6; Laws 1981, Sp. Sess., ch. 22, § 1; 1985, ch. 147, § 2; 2005, ch. 114, § 1.

The 2005 amendment, effective July 1, 2005, in (e) and (f), inserted “The court shall hold a hearing on this matter as soon as possible.”

Disposal after guilt determination may not be injected into criminal trial. —

It would be improper to inject into the trial of a criminal case the issue of defendant's disposal after his guilt or innocence has been determined. Lonquest v. State, 495 P.2d 575, 1972 Wyo. LEXIS 242 (Wyo.), cert. denied, 409 U.S. 1006, 93 S. Ct. 432, 34 L. Ed. 2d 299, 1972 U.S. LEXIS 639 (U.S. 1972).

Criminal acquittee must remain both mentally ill and dangerous. —

Subsections (f) and (g) are consistent with the United States Supreme Court's core holding in Foucha v. Louisiana, in that a Wyoming “criminal acquittee” must be released if he proves, by a preponderance of the evidence, that he is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others and is not a proper subject for release or supervision. In other words, a “criminal acquittee” cannot be detained indefinitely unless he remains both mentally ill and dangerous, not dangerous alone. Reiter v. State, 2001 WY 116, 36 P.3d 586, 2001 Wyo. LEXIS 142 (Wyo. 2001).

Criminal acquittees are dissimilar to civil acquittees for equal protection purposes. —

A criminal acquittee has placed his mental illness at issue, proved it by a preponderance of the evidence, and is deemed to have committed a criminal act. Such important differences render a criminal acquittee dissimilar to a civil committee for equal protection purposes. Reiter v. State, 2001 WY 116, 36 P.3d 586, 2001 Wyo. LEXIS 142 (Wyo. 2001).

Burden of proof for discharge. —

Requiring a criminal acquittee to rebut the inference or presumption of continuing mental illness and dangerousness by a preponderance of the evidence in a discharge proceeding under subsection (f) does not violate a criminal acquittee's state or federal due process guarantees. Reiter v. State, 2001 WY 116, 36 P.3d 586, 2001 Wyo. LEXIS 142 (Wyo. 2001).

Denial of application for discharge. —

Court affirmed an order denying an application for conditional discharge from the Wyoming State Hospital (WSH); WSH amended its application for conditional discharge because it still considered defendant to be a danger to himself or others, and defendant presented no evidence to the contrary. CLC v. State, 2004 WY 2, 82 P.3d 1235, 2004 Wyo. LEXIS 4 (Wyo. 2004).

Jurisdiction not given to court to sentence person to state hospital. —

Jurisdiction has not been given to the trial court to sentence a person to the Wyoming state hospital as part of the penalty for criminal activity. Dean v. State, 668 P.2d 639, 1983 Wyo. LEXIS 354 (Wyo. 1983).

Applied in

Polston v. State, 685 P.2d 1, 1984 Wyo. LEXIS 297 (Wyo. 1984).

Quoted in

Fulcher v. State, 633 P.2d 142, 1981 Wyo. LEXIS 369 (Wyo. 1981).

Cited in

Hayes v. State, 599 P.2d 558, 1979 Wyo. LEXIS 443 (Wyo. 1979);State v. Wyo. State Hosp. (In re RB), 2013 WY 15, 2013 Wyo. LEXIS 18 (Feb 6, 2013).

State v. Wyo. State Hosp. (In re RB), 2013 WY 15, 2013 Wyo. LEXIS 18 (Feb 6, 2013) .

Law reviews. —

For article, “The Greatest Lawyer in the World (The Maturing of Janice Walker),” see XIV Land & Water L. Rev. 135 (1979).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of conditions imposed when releasing person committed to institution as consequence of acquittal of crime on ground of insanity, 2 ALR4th 934.

§ 7-11-307. Treatment of defendant committed to state hospital.

In all cases in which the defendant is committed to the Wyoming state hospital under the provisions of this act, the defendant shall be received and treated in the same manner as all other persons committed to the institution and be subject to the same rules and regulations. Due caution shall be exercised to prevent the escape of the defendant.

History. Laws 1939, ch. 83, § 5; C.S. 1945, § 10-905; Laws 1951, ch. 87, § 4; W.S. 1957, § 7-243; Laws 1985, ch. 147, § 2.

Meaning of “this act.” —

For the definition of “this act,” referred to in the first sentence, see § 7-11-301(a)(iv).

Cited in

C.L.C. v. State, 2004 WY 2, 82 P.3d 1235, 2004 Wyo. LEXIS 4 (Wyo. 2004).

Article 4. Testimony and Witnesses

Cross references. —

As to depositions generally, see Rule 15, W.R. Cr. P.

As to taking of testimony, see Rule 26, W.R. Cr. P.

Am. Jur. 2d, ALR and C.J.S. references. —

23 Am. Jur. 2d Depositions and Discovery § 1 et seq.; 29 Am. Jur. 2d Evidence § 1 et seq.; 81 Am. Jur. 2d Witnesses § 1 et seq.

Admissibility in criminal case, on issue of defendant's guilt, of evidence that third person has attempted to influence a witness not to testify or to testify falsely, 79 ALR3d 1156.

Right of indigent criminal defendant to polygraph test at public expense, 11 ALR4th 733.

Court's witnesses (other than expert) in state criminal prosecution, 16 ALR4th 352.

Propriety and prejudicial effect of witness testifying while in prison attire, 16 ALR4th 1356.

Appealability of state criminal court order requiring witness other than accused to undergo psychiatric examination, 17 ALR4th 867.

Impeachment of defendant in criminal case by showing defendant's prearrest silence — state cases, 35 ALR4th 731.

Closed-circuit television witness examination, 61 ALR4th 1155.

Adverse presumption or inference based on failure to produce or examine codefendant or accomplice who is not on trial—modern criminal cases, 76 ALR4th 812.

Admissibility of hypnotically refreshed or enhanced testimony, 77 ALR4th 927.

Adverse presumption or inference based on party's failure to produce or examine that party's attorney—modern cases, 78 ALR4th 571.

Adverse presumption or inference based on party's failure to produce or examine witness who was occupant of vehicle involved in accident—modern cases, 78 ALR4th 616.

Adverse presumption or inference based on state's failure to produce or examine law enforcement personnel — modern cases, 81 ALR4th 872.

Adverse presumption or inference based on party's failure to produce or examine transferor, transferee, broker or other person allegedly involved in transaction at issue — modern cases, 81 ALR4th 939.

Sufficiency of evidence that witness in criminal case was hypnotized, for purposes of determining admissibility of testimony given under hypnosis or of hypnotically enhanced testimony, 16 ALR5th 841.

22A C.J.S. Criminal Law §§ 622 to 769.

§ 7-11-401. Testimony of defendant.

The defendant in all criminal cases, in all the courts in this state, may be sworn and examined as a witness, if he so elects, but the defendant shall not be required to testify in any case unless he has been lawfully granted immunity from prosecution, penalty or forfeiture. The neglect or refusal of a defendant to testify without immunity having been granted shall not create any presumption against him, nor shall any reference be made to, nor shall any comment be made upon, his neglect or refusal to testify.

History. C.L. 1876, ch. 14, §§ 128, 129; Laws 1877, p. 25, §§ 1, 2; R.S. 1887, § 3288; R.S. 1899, § 5346; C.S. 1910, § 6210; C.S. 1920, § 7507; Laws 1925, ch. 15, § 1; R.S. 1931, § 33-801; C.S. 1945, § 10-1201; W.S. 1957, § 7-244; Laws 1971, ch. 94, § 1; Laws 1985, ch. 147, § 2.

Cross references. —

As to privilege against self-incrimination, see art. 1, § 11, Wyo. Const.

Prosecutors have no authority to grant immunity. —

A prosecuting attorney (district attorney or county attorney) in Wyoming has no authority to grant immunity to a witness. Hall v. State, 851 P.2d 1262, 1993 Wyo. LEXIS 88 (Wyo. 1993).

Defendant's position as witness. —

Defendant in criminal action testifying in his own behalf occupies double position; as defendant, his character cannot be attacked by state, but as witness, he puts his credibility at issue like any other witness. State v. Velsir, 61 Wyo. 476, 159 P.2d 371, 1945 Wyo. LEXIS 21 (Wyo. 1945).

Testimony that defendant refused to answer police violatesself-incrimination privilege. —

Where the state's witnesses' testified to the effect that the defendant had refused to respond when asked if he planned to sell the marijuana, reversible error was committed, since the prosecution elicited the testimony that defendant had remained silent during custodial interrogation, not to show that its own evidence stood uncontradicted, but to create the inference that an honest answer would have established the defendant's guilt. This was impermissible and violated the defendant's privilege against self-incrimination. Jerskey v. State, 546 P.2d 173, 1976 Wyo. LEXIS 170 (Wyo. 1976).

Unless privilege has been knowingly waived. —

It is not the intent, purpose, sense or letter of the privilege against self-incrimination generally to say that the defendant's invocation of the privilege will result in a penalty being charged against his defense consisting of informing the jury that he has refused to talk with the officers during custodial interrogation. This is so unless the defendant has clearly and knowingly and with unmistakable understanding waived the privilege and has indicated that he knew that this was what he was doing and did it of his own free will. Jerskey v. State, 546 P.2d 173, 1976 Wyo. LEXIS 170 (Wyo. 1976).

The burden of proof of voluntariness and waiver is on the state. Jerskey v. State, 546 P.2d 173, 1976 Wyo. LEXIS 170 (Wyo. 1976).

When comment on failure to testify nonprejudicial. —

Comment upon the defendant's failure to testify at trial can be held to be nonprejudicial only where it can be shown beyond reasonable doubt to have been harmless and not to have contributed to a conviction. Jerskey v. State, 546 P.2d 173, 1976 Wyo. LEXIS 170 (Wyo. 1976).

Testimony by jointly indicted codefendants. —

Where persons jointly indicted are tried separately, one of them may testify against the other. McGinness v. State, 4 Wyo. 115, 1893 Wyo. LEXIS 2 (1893).

Instructions. —

Under this section it was not error to refuse to charge that defendant was not required to testify, and that jury could not presume anything against him because of such failure. Leslie v. State, 10 Wyo. 10, 65 P. 849, 1901 Wyo. LEXIS 2 (Wyo. 1901), reh'g denied, 10 Wyo. 10, 69 P. 2, 1902 Wyo. LEXIS 1 (Wyo. 1902).

In view of this section, the prosecuting attorney might inquire as to the source of an instruction, that neglect or refusal of defendant to make a statement should not create any presumption against him, since it might be anticipated that it would be alleged as error unless coming from the defendant or his counsel. State v. Bemis, 34 Wyo. 218, 242 P. 802, 1926 Wyo. LEXIS 35 (Wyo. 1926).

Denial of instruction that defendant's failure to testify created no presumption against him was not error. Kinney v. State, 36 Wyo. 466, 256 P. 1040, 1927 Wyo. LEXIS 55 (Wyo. 1927).

Applied in

State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, 1948 Wyo. LEXIS 17 (1948).

Am. Jur. 2d, ALR and C.J.S. references. —

Codefendant's counsel commenting on accused's failure to testify, 1 ALR3d 989.

Comment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused's failure to testify, 14 ALR3d 723.

Whether violation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court on accused's failure to testify constitutes reversible or harmless error, 24 ALR3d 1093, 32 ALR4th 774.

Propriety and prejudicial effect of prosecutor's argument commenting on failure of defendant's spouse to testify, 26 ALR4th 9.

Enforceability of agreement by law enforcement officials not to prosecute if accused would help in criminal investigation or would become witness against others, 32 ALR4th 990.

Propriety, under state constitutional provisions, of granting use or transactional immunity for compelling incriminating testimony—post-Kastigar cases, 29 ALR5th 1.

Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions — post-Connelly cases, 48 ALR5th 555.

Requirement that court advise accused of, and make inquiry with respect to, waiver of right to testify, 72 ALR5th 403.

Effect of defendant's immunized statements on testimony by prosecution witness—post-Kastigar cases, 122 ALR Fed 429.

§ 7-11-402. Subpoena of witnesses for indigent defendants.

  1. Upon application of a defendant and upon a satisfactory showing that the defendant is financially unable to pay the fees of a witness and that the presence of the witness is necessary to an adequate defense, the court shall order that a subpoena be issued for service on a named witness and order that all fees and costs incurred be paid as provided by subsection (b) of this section.
  2. If the court orders a subpoena to be issued under this section, the costs incurred and the fees of the witness so subpoenaed shall be paid by the public defender’s office.

History. C.L. 1876, ch. 14, § 130; Laws 1879, ch. 27, § 1; R.S. 1887, § 3289; R.S. 1899, § 5347; C.S. 1910, § 6211; C.S. 1920, § 7508; R.S. 1931, § 33-802; C.S. 1945, § 10-1202; W.S. 1957, § 7-245; Laws 1985, ch. 147, § 2; 1991, ch. 142, § 1.

Cross references. —

As to payment of fees, see § 1-14-106 .

As to witnesses demanded at one time in civil and criminal cases to be named in one writ, see § 1-14-109 .

As to procedure regarding subpoenas, see Rule 17, W.R. Cr. P.

Right to compulsory process. —

In defendant's felony murder case, defendant's right to summon witnesses in his defense was not violated because all witnesses who defendant wanted to call were summoned. Even the many witnesses for whom defendant could not provide a street/delivery address were sought and served, if possible; the district court did not abuse its discretion in any way with respect to requiring the issuance of subpoenas on defendant's behalf. Lemus v. State, 2007 WY 111, 162 P.3d 497, 2007 Wyo. LEXIS 120 (Wyo. 2007).

Law reviews. —

For case note, “Constitutional Law — An Indigent's Right to a Free Trial Transcript. Mayer v. City of Chicago, 404 U.S. 189, 30 L. Ed. 2d 372, 92 S. Ct. 410, 1971 U.S. LEXIS 298 (1971),” See VII Land & Water L. Rev. 707 (1972).

Am. Jur. 2d, ALR and C.J.S. references. —

Right to limit number of witnesses, 5 ALR3d 169, 5 ALR3d 238.

Right of indigent defendant in state criminal case to assistance of ballistics experts, 71 ALR4th 638.

§ 7-11-403. Applicability of rules and civil procedure provisions.

  1. To the extent practicable and when not otherwise specifically provided, the provisions of the Wyoming Rules of Civil Procedure, the Wyoming Rules of Evidence and the Wyoming Code of Civil Procedure shall govern in criminal cases, relative to:
    1. Compelling the attendance and testimony of witnesses;
    2. The examination of witnesses and the administering of oaths and affirmations;
    3. Proceedings for contempt; and
    4. Proceedings to enforce the remedies and protect the rights of parties.

History. C.L. 1876, ch. 14, § 132; R.S. 1887, § 3292; R.S. 1899, § 5350; C.S. 1910, § 6214; C.S. 1920, § 7511; R.S. 1931, § 33-805; C.S. 1945, § 10-1206; W.S. 1957, § 7-249; W.S. 1977, § 7-11-406 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4; 2004, ch. 130, § 1.

Cross references. —

As to evidence and witnesses generally, see chapter 12 of title 1 and Rules 601 through 615, W.R.E.

As to procedure regarding subpoenas, see Rule 17, W.R. Cr. P.

The 2004 amendment, in (a), inserted “Wyoming” preceding “Code of Civil Procedure.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

For article, “A Comprehensive Treatise on Contempt of Court in Wyoming,” see 15 Wyo. L. Rev. 1 (2015).

§ 7-11-404. Summoning of person within this state to appear as witness in another state.

  1. If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in criminal prosecutions in this state certifies under the seal of the court that there is a criminal prosecution pending in such court, that a person being within this state is a material witness in the prosecution, and that his presence will be required for a specified number of days, upon presentation of the certificate to any judge of a court of record in the county in which such person is, the judge shall fix a time and place for hearing and shall notify the witness of the time and place.
  2. If at the hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution in the other state and that the laws of the state in which the prosecution is pending and of any other state through which the witness may be required to pass by ordinary course of travel will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending at a time and place specified in the summons.
  3. A witness who is summoned to attend and testify in a criminal prosecution in another state as provided by this section, shall not be compelled to attend unless he is paid or tendered by some properly authorized person compensation including mileage for each mile traveled by the ordinary route to and from the court where the prosecution is pending and witness fees for each day that he is required to travel and attend as a witness. The mileage and witness fees shall be at the same rate paid other witnesses under the laws of the state requiring attendance. A witness who has been paid or tendered the compensation required by this subsection and who fails without good cause to attend and testify as directed in the summons, shall be punished in a manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

History. Laws 1935, ch. 120, § 1; C.S. 1945, § 10-1207; W.S. 1957, § 7-250; W.S. 1977, § 7-11-407 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Cross references. —

As to failure of witness to obey subpoena, see § 1-12-107 .

Motion to dismiss.

Because it was unclear whether the State acted in good faith in moving to dismiss, the district court was directed to conduct proceedings to determine whether the State acted in bad faith in seeking dismissal; to obtain an order from a judge in another state, the State would have had to provide a date and time certain on which the witness had to report and testify, and the shifting trial dates were a product of the complex and crowded docket but made the trial date difficult. State v. Bridger, 2014 Wyo. LEXIS 193 (Wyo. June 17, 2014).

Applied in

Caton v. State, 709 P.2d 1260, 1985 Wyo. LEXIS 621 (Wyo. 1985).

Cited in

Grable v. State, 649 P.2d 663, 1982 Wyo. LEXIS 371 (Wyo. 1982).

Am. Jur. 2d, ALR and C.J.S. references. —

Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings, 44 ALR2d 732, 7 ALR4th 836, 12 ALR4th 742, 12 ALR4th 771.

Sufficiency of evidence to support or require finding that in-state witness in criminal case is “material and necessary,” justifying issuance of summons directing attendance of witness under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 12 ALR4th 771.

§ 7-11-405. Summoning of person in another state to appear as witness in this state.

  1. If a person in any state, which by its laws has made provisions for commanding persons within its borders to attend and testify in criminal prosecutions in this state, is a material witness in a prosecution pending in a court of record in this state, a judge of the Wyoming court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.
  2. If the witness is summoned to attend and testify in the criminal prosecution in this state, he shall be paid or tendered payment for mileage for each mile traveled by the ordinary route to and from the court where the prosecution is pending and witness fees for each day that he is required to travel and attend as a witness at the same rate paid other witnesses under the laws of this state. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate of the Wyoming court.

History. Laws 1935, ch. 120, § 2; C.S. 1945, § 10-1208; W.S. 1957, § 7-251; W.S. 1977, § 7-11-408 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Cross references. —

As to witness fees, see § 1-14-102 .

Right to compulsory process. —

In defendant's felony murder case, defendant's right to summon witnesses in his defense was not violated because all witnesses who defendant wanted to call were summoned. Even the many witnesses for whom defendant could not provide a street/delivery address were sought and served, if possible; the district court did not abuse its discretion in any way with respect to requiring the issuance of subpoenas on defendant's behalf. Lemus v. State, 2007 WY 111, 162 P.3d 497, 2007 Wyo. LEXIS 120 (Wyo. 2007).

Motion to dismiss.

Because it was unclear whether the State acted in good faith in moving to dismiss, the district court was directed to conduct proceedings to determine whether the State acted in bad faith in seeking dismissal; to obtain an order from a judge in another state, the State would have had to provide a date and time certain on which the witness had to report and testify, and the shifting trial dates were a product of the complex and crowded docket but made the trial date difficult. State v. Bridger, 2014 Wyo. LEXIS 193 (Wyo. June 17, 2014).

Am. Jur. 2d, ALR and C.J.S. references. —

Sufficiency of evidence to support or require finding that out-of-state witness in criminal case is “material witness” justifying certificate to secure attendance under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 12 ALR4th 742.

§ 7-11-406. Exemption of out-of-state witness from arrest or service of process.

  1. If a person comes into this state pursuant to a summons directing him to attend and testify in a criminal prosecution in this state he shall not while in this state pursuant to the summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.
  2. If a person passes through this state while going to another state pursuant to a summons to attend and testify in a criminal prosecution in that state or while returning therefrom, he shall not while so passing through this state be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

History. Laws 1935, ch. 120, § 3; C.S. 1945, § 10-1209; W.S. 1957, § 7-252; W.S. 1977, § 7-11-409; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

§ 7-11-407. Procedures for taking depositions.

Procedures for the taking of depositions in criminal cases shall be governed by the Wyoming Rules of Criminal Procedure.

History. Laws 1895, ch. 96, § 1; R.S. 1899, § 5351; C.S. 1910, § 6215; C.S. 1920, § 7512; R.S. 1931, § 33-806; C.S. 1945, § 10-1210; W.S. 1957, § 7-253; W.S. 1977, § 7-11-410; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4; 2004, ch. 42, § 1; ch. 130, § 1.

Cross references. —

As to deposition procedure, see Rule 15, W.R. Cr. P.

The 2004 amendments. —

The first 2004 amendment, by ch. 42, § 1, deleted “and the Wyoming Rules of Criminal Procedure for County Courts” at the end of the paragraph.

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

The second 2004 amendment, by ch. 130, § 1, also deleted “and the Wyoming Rules of Criminal Procedure for County Courts” at the end of the paragraph.

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

See the conflicting legislation note below. This section has been set out incorporating changes made by both 2004 acts.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Am. Jur. 2d, ALR and C.J.S. references. —

Use, in federal criminal prosecution, of deposition of absent witness taken in foreign country, as affected by Federal Rule of Criminal Procedure 15(b) and (d) requiring presence of accused and that deposition be taken in manner provided in civil actions, 105 ALR Fed 537.

§ 7-11-408. Videotape depositions.

  1. In any case in which the defendant is charged with incest as defined in W.S. 6-4-402(a) or sexual assault as defined in W.S. 6-2-302 through 6-2-304 and 6-2-314 through 6-2-317 and a child less than twelve (12) years of age is the victim, the judge may order the taking of a videotape deposition of the child. The videotaping shall be done under the supervision of the court.
  2. Persons allowed to be present at the videotaping of the deposition are the child, the judge, prosecutor, defendant and defense counsel, a family member who was not a witness to the offense or a support person for the child and any technicians required to operate the equipment.
  3. Before ordering the deposition, the judge shall find that:
    1. The child’s testimony would be relevant and material;
    2. The best interests of the child would be served by permitting the videotape deposition;
    3. A potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial; and
    4. The defendant or his legal counsel has the opportunity to be present and to cross-examine the child at the videotape deposition.
  4. The judge may deny the defendant’s face-to-face confrontation of the child at the videotape deposition if:
    1. The defendant is alleged to have inflicted physical harm or is alleged to have threatened to inflict physical harm upon the child, and physical or psychological harm to the child is likely to occur if there is a face-to-face confrontation of the child by defendant;
    2. The defendant’s legal counsel will have reasonable opportunity to confer with his client before and at any time during the videotape deposition; and
    3. The defendant will have opportunity to view and hear the proceedings while being taken.
  5. A videotape deposition may be admitted at trial in lieu of the direct testimony of the child, if the judge finds, after hearing, that:
    1. The visual and sound qualities of the videotape are satisfactory;
    2. The videotape is not misleading;
    3. All portions of the videotape that have been ruled inadmissible have been deleted; and
    4. A potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial.
  6. Children unable to articulate what was done to them will be permitted to demonstrate the sexual act or acts committed against them with the aid of anatomically correct dolls. Such demonstrations will be under the supervision of the court and shall be videotaped to be viewed at trial, and shall be received into evidence as demonstrative evidence.
  7. Videotapes which are part of the court record are subject to a protective order to preserve the privacy of the child.
  8. If the prosecutor elects to utilize a videotaped deposition pursuant to this section and the videotape has been taken and is admissible, the child may not testify in court without the consent of the defendant.

History. Laws 1987, ch. 149, § 1; 2009, ch. 68, § 1.

Cross references. —

As to right of accused to confront witnesses, see art. 1, § 10, Wyo. Const.

The 2009 amendment, substituted “6-2-304 and 6-2-314 through 6-2-317 ” for “6-2-305” in the first sentence.

Editor's notes. —

W.S. 6-2-305 , referred to in this section, was repealed prospectively by Laws 1997, ch. 135, § 2. For present provisions, see § 6-2-304 .

Statute violated. —

Use of a video deposition of a child victim at defendant's trial for indecent liberties, as well as the seating arrangement at the deposition that obscured defendant's and victim's view of each other, violated defendant's right to confront witnesses against him as guaranteed by U.S. Const. amend. VI and the statutory requirements of Wyo. Stat. Ann. § 7-11-408 . Bowser v. State, 2009 WY 54, 205 P.3d 1018, 2009 Wyo. LEXIS 66 (Wyo. 2009).

Article 5. Verdict and Sentence

Cross references. —

As to procedure relating to verdict, sentence and judgment, see Rules 31 and 32, W.R. Cr. P.

Judge may deny or grant credit for time served in presentence custody where the presentence custody is not due to the defendant's indigency, and the sum of the time spent in presentence custody plus the sentence does not exceed the maximum allowable sentence. Jones v. State, 602 P.2d 378, 1979 Wyo. LEXIS 482 (Wyo. 1979).

Standard on appellate review of sentencing procedure. —

The sentencing judge is given wide discretion in determining the length and conditions of the term of imprisonment to be imposed upon conviction and such determination, if within the statutory limits, will not be disturbed absent a clear abuse of discretion. Jones v. State, 602 P.2d 378, 1979 Wyo. LEXIS 482 (Wyo. 1979).

Stay of execution by supreme court. —

Error of the court in a capital case in refusing to suspend execution of sentence, on defendant's application and notice of intention to appeal, was without prejudice where the execution was stayed on application to the supreme court. Keffer v. State, 12 Wyo. 49, 73 P. 556, 1903 Wyo. LEXIS 26 (Wyo. 1903).

Defendant was allowed to be released on bail pending appeal of conviction, contrary to the claim that former §§ 7-11-507 and 7-11-511 were superseded pursuant to Rule 46.2, W.R.Cr.P. Once §§ 7-11-507 and 7-11-511 were recognized as providing a substantive right to bail pending appeal, then Rule 3.1, W.R. Cr. P provided the procedure for setting bail and admitting the convicted person to bail as required by statute. State v. District Court, 715 P.2d 191, 1986 Wyo. LEXIS 501 (Wyo. 1986).

Am. Jur. 2d, ALR and C.J.S. references. —

21A Am. Jur. 2d Criminal Law §§ 791 to 975; 76 Am. Jur. 2d Trial §§ 1750 to 1927.

What constitutes former “conviction” within statute enhancing penalty of second or subsequent offense, 5 ALR2d 1080.

Necessity and sufficiency of proof of identity for purposes of statute as to enhanced punishment in case of prior conviction, 11 ALR2d 870.

Necessity of notice of application or intention to correct error in judgment entry in criminal cases, 14 ALR2d 224.

Determination of character of former crime as a felony, so as to warrant punishment of an accused as a second offender, 19 ALR2d 227.

Duty of court, upon plea of guilty or nolo contendere to offense involving several degrees, to hear evidence to determine degree, 34 ALR2d 919.

Nunc pro tunc correction or amendment of sentence, giving accused benefit of time previously served, 35 ALR2d 1283.

Sentences by different courts as concurrent, 57 ALR2d 1410.

Right to pass sentence or judgment on person convicted of conspiracy before it is certain that another of those charged will be convicted, 91 ALR2d 700.

Right of court in imposing sentence to consider other offenses committed by defendant in absence of statute in that regard, 96 ALR2d 768.

Necessity and sufficiency of interrogation of defendant as to whether he has anything to say why sentence should not be pronounced against him, and effect of failure to make inquiry, 96 ALR2d 1292.

Right of defendant in state court to bail pending appeal from conviction — modern cases, 28 ALR4th 227.

Bail: duration of surety's liability on posttrial bail bond, 32 ALR4th 575.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 ALR4th 183.

Chronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes, 7 ALR5th 263.

Use of prior military conviction to establish repeat offender status, 11 ALR5th 218.

What constitutes unusually “vulnerable” victim under sentencing guideline § 3A1.1 permitting increase in offense level, 114 ALR Fed 355.

Construction and application of § 2Q1.2 and § 2Q1.3 of United States Sentencing Guidelines (18 USCS Appx. §§ 2Q1.3 and 2Q1.3), pertaining to offenses involving hazardous or toxic substances, or other environmental pollutants, 138 ALR Fed 507.

23A C.J.S. Criminal Law §§ 1395 to 1592; 89 C.J.S. Trial §§ 818 to 841, 843, 845.

§ 7-11-501. Return of verdict; poll of jury.

In all criminal cases the verdict shall be unanimous. It shall be returned by the jury to the judge in open court. Before the verdict is accepted and recorded, the jury shall be polled at the request of any party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

History. C.L. 1876, ch. 14, § 155; R.S. 1887, § 3316; R.S. 1899, § 5387; C.S. 1910, § 6251; C.S. 1920, § 7548; R.S. 1931, § 33-1003; C.S. 1945, § 10-1401; W.S. 1957, § 7-266; Laws 1985, ch. 147, § 2.

Cross references. —

As to procedure in regard to return of verdict and poll of jury, see Rule 31(a), (d), W.R. Cr. P.

Editor's notes. —

Most of the following annotations are taken from cases decided under prior law.

Test of value of stolen property is the value at the time and place where they are taken. Buckles v. State, 622 P.2d 934, 1981 Wyo. LEXIS 279 (Wyo. 1981).

But failure to ascertain value does not void conviction; where grade of offense is not dependent on value of property taken, e.g., embezzlement. Hatheway v. State, 623 P.2d 741, 1981 Wyo. LEXIS 284 (Wyo. 1981); Buckles v. State, 622 P.2d 934, 1981 Wyo. LEXIS 279 (Wyo. 1981).

But order of restitution cannot be enforced. —

In those instances in which the statute provides that restitution may be made a part of the court's sentence, any requirement of restitution should be set aside if the value is not found in the jury's verdict. Hatheway v. State, 623 P.2d 741, 1981 Wyo. LEXIS 284 (Wyo. 1981).

When specific finding of value not required. —

Where the value of the property was not in dispute at the trial and the trial court specifically considered that element of the offense, there was no error in the failure of the trial court to specifically find the value of the property taken. Fitzgerald v. State, 599 P.2d 572, 1979 Wyo. LEXIS 444 (Wyo. 1979).

When failure to note property value not reversible error. —

In a conviction for petit larceny, there is no absence of fundamental fairness in the procedural irregularity of failing to note the value of stolen property on the verdict, where the evidence shows that without a doubt the petitioner stole gasoline, which has money value. Munoz v. Maschner, 590 P.2d 1352, 1979 Wyo. LEXIS 375 (Wyo. 1979).

But not using wrong sign and omitting “dollars.” —

Omission of dollar sign and word “dollars” in a verdict in a prosecution for larceny, and placing before the figures the sign signifying number, did not render verdict indefinite. Richey v. State, 28 Wyo. 117, 201 P. 154, 1921 Wyo. LEXIS 4 (Wyo. 1921), reh'g denied, 28 Wyo. 117, 205 P. 304, 1922 Wyo. LEXIS 19 (Wyo. 1922).

Verdict finding defendant guilty of receiving stolen property need not state value of property. State v. Le Masters, 36 Wyo. 241, 254 P. 120, 1927 Wyo. LEXIS 25 (Wyo. 1927).

Grand larceny verdict need only state stolen goods valued over$100. —

A verdict form in a conviction for grand larceny need only state that personal goods worth over $100 were stolen. Weathers v. State, 652 P.2d 970, 1982 Wyo. LEXIS 394 (Wyo. 1982).

Defendant to be informed of verdict. —

Failure of court, before pronouncing sentence of death in a capital case, to inform defendant of the verdict and ask whether he had anything to say why judgment should not be pronounced against him, was without prejudice where, on its attention being called to the omission, court recalled defendant, informed him of the verdict and propounded statutory interrogatory. Keffer v. State, 12 Wyo. 49, 73 P. 556, 1903 Wyo. LEXIS 26 (Wyo. 1903).

Cited in

Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Am. Jur. 2d, ALR and C.J.S. references. —

Voluntary absence of accused when sentence is pronounced, 6 ALR2d 997.

Absence of accused at return of verdict in felony case, 23 ALR2d 456.

Record showing presence of accused at return of verdict in felony case, 23 ALR2d 456.

Right of accused to be present at polling of jury, 49 ALR2d 619.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 ALR4th 183.

Requirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed, 75 ALR4th 91.

Criminal law: Propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after jury has been discharged, or has reached or sealed its verdict and separated, 14 ALR5th 89.

Propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after discharge or separation at conclusion of civil case, 19 ALR5th 622.

§ 7-11-502. Conviction of necessary included offense or attempt.

In any criminal case the defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.

History. C.L. 1876, ch. 14, § 157; R.S. 1887, § 3318; R.S. 1899, § 5389; C.S. 1910, § 6253; C.S. 1920, § 7550; R.S. 1931, § 33-1005; C.S. 1945, § 10-1403; W.S. 1957, § 7-268; W.S. 1977, § 7-11-503 ; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Cross references. —

As to attempt, see § 6-1-301 .

As to procedure in regard to conviction of lesser offense, see Rule 31(c), W.R. Cr. P.

When instruction on lesser offense improper. —

Where evidence shows that defendant is either guilty as charged in the indictment or information or is not guilty at all, or where there is no evidence of a minor or lesser degree of the offense, instruction as to such lesser offense is neither necessary nor proper. State v. Gonzales, 46 Wyo. 52, 23 P.2d 354, 1933 Wyo. LEXIS 30 (Wyo. 1933).

In a case involving second-degree sexual assault, a trial court did not err by denying a request for lesser-included jury instructions for third-degree sexual assault or sexual battery under the circumstances of the case due to the fact that different elements were required. Heywood v. State, 2007 WY 149, 170 P.3d 1227, 2007 Wyo. LEXIS 168 (Wyo. 2007).

Effect of general verdict. —

General verdict of “guilty as charged in the indictment” convicted defendant of the highest degree of murder, notwithstanding fact that he might have been found guilty of lower degrees under the same indictment. Cook v. Territory, 3 Wyo. 110, 4 P. 887, 1884 Wyo. LEXIS 4 (Wyo. 1884).

Verdict of manslaughter under indictment for murder. —

This section contains the only express authority for a verdict of manslaughter under an indictment for murder in the first degree. Brantley v. State, 9 Wyo. 102, 61 P. 139, 1900 Wyo. LEXIS 7 (Wyo. 1900); State v. Parmely, 65 Wyo. 215, 199 P.2d 112, 1948 Wyo. LEXIS 24 (Wyo. 1948).

Conviction of aggravated assault and battery sustained. —

See Elliott v. State, 47 Wyo. 36, 30 P.2d 791, 1931 Wyo. LEXIS 1 (Wyo. 1931).

Applied in

State v. Woodward, 69 Wyo. 262, 240 P.2d 1157, 1952 Wyo. LEXIS 5 (1952).

Law reviews. —

For comment, “The Lesser Included Offense Instruction — Problems with Its Use,” see III Land & Water L. Rev. 587 (1968).

Am. Jur. 2d, ALR and C.J.S. references. —

Lesser-related state offense instructions: modern status, 50 ALR4th 1081.

When should jury's deliberation proceed from charged offense to lesser included offense, 26 ALR5th 603.

Propriety of lesser included offense jury charge in prosecution of federal tax crime defendant, 102 ALR Fed 128.

Propriety of lesser included offense charge to jury in federal assault prosecution, 103 ALR Fed 880.

Propriety of lesser included offense charge to jury in federal prosecution for crime involving property rights, 105 ALR Fed 669.

Propriety of lesser included offense charge in federal prosecution of narcotics defendant, 106 ALR Fed 236.

§ 7-11-503. Execution of jail sentence.

When any person convicted of an offense is sentenced to imprisonment in the county jail, the court shall order the defendant into the custody of the sheriff, who shall deliver him, together with the record of conviction, to the jailor, in whose custody he shall remain in the jail of the proper county, until the term of his confinement expires, or he is pardoned or otherwise legally discharged.

History. C.L. 1876, ch. 14, § 168; R.S. 1887, § 3329; R.S. 1899, § 5198; C.S. 1910, § 6035; C.S. 1920, § 7332; R.S. 1931, § 32-108; C.S. 1945, § 10-1414; W.S. 1957, § 7-279; W.S. 1977, § 7-11-514; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Cross references. —

As to fine as part of punishment for felony, see § 6-10-102 .

As to commitment for nonpayment of fine or costs, see § 6-10-105 .

§ 7-11-504. Commitment until fine and costs paid.

If a defendant sentenced to pay a fine or costs defaults in payment, the court may order the defendant to show cause why he should not be committed to jail. If the court finds that the defendant’s default is willful or is due to a failure on defendant’s part to make a good faith effort to obtain the funds required for the payment and the court determines that the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay, the court may order him committed until the fine or costs, or a specified part thereof, is paid. The defendant shall be given a credit for each day of imprisonment at the rate provided by W.S. 6-10-105 , and may earn additional credits against his fine or costs for work performed as provided by W.S. 7-16-101 through 7-16-104 .

History. C.L. 1876, ch. 35, § 155; R.S. 1887, § 1063; R.S. 1899, § 5195; C.S. 1910, § 6033; C.S. 1920, § 7330; R.S. 1931, § 32-109; C.S. 1945, § 10-1415; W.S. 1957, § 7-280; W.S. 1977, § 7-11-515; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4; 2011, ch. 129, § 101.

Cross references. —

As to compensation to prisoners, see § 7-16-203 .

As to imprisonment for debt, see art. 1, § 5, Wyo. Const.

As to working prisoners convicted for violation of municipal ordinances, see § 5-6-211 .

As to commitment for refusal to pay fine or costs, see § 6-10-105 .

The 2011 amendment, effective July 1, 2011, inserted “and the court determines that the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.”

Application to indigent unconstitutional. —

This section and §§ 5-6-211 , 6-10-105 and 7-16-128 (now repealed) are unconstitutional as applied to an indigent person who lacks the means to pay a fine; however, imprisonment is not precluded as an enforcement method when alternative means are unsuccessful despite the defendant's reasonable efforts to satisfy the fines by those means. Whiteplume v. City of Riverton, Civ. No. C81-068K (D. Wyo. 1981).

Defendant convicted of contempt may be committed until fine is paid. Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 1901 Wyo. LEXIS 23 (Wyo. 1901).

Commitment until fine paid not indeterminate sentence. —

Sentence for contempt, that offender be imprisoned for 6 months and pay fine of $500.00, ordering offender into custody of sheriff and to stand committed until fine is paid and sentence served, is not indeterminate, since statute fixes rate at which such sentence as to fine is to be executed by imprisonment. Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 1901 Wyo. LEXIS 23 (Wyo. 1901).

Commitment for nonpayment where both fine and imprisonmentimposed. —

A defendant upon whom both a jail sentence and a fine are imposed may be committed for the nonpayment of the fine. Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 1901 Wyo. LEXIS 23 (Wyo. 1901).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Indigency of offender as affecting validity of imprisonment as alternative to payment of fine, 31 ALR3d 926.

§ 7-11-505. Payment of costs of prosecution.

Payment of the costs of prosecution may be added to and made a part of the sentence in any felony or misdemeanor case if the court determines that the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.

History. C.L. 1876, ch. 15, § 1; R.S. 1887, § 1061; R.S. 1899, § 5193; C.S. 1910, § 6031; C.S. 1920, § 7328; R.S. 1931, § 32-106; C.S. 1945, § 10-1416; W.S. 1957, § 7-281; W.S. 1977, § 7-11-516; Laws 1985, ch. 147, § 2; 1987, ch 126, § 1; ch. 157, § 4; 1991, ch. 155, § 1; ch. 167, § 2.

Cross references. —

As to fine for felony generally, see § 6-10-102 .

As to penalties for misdemeanors generally, see § 6-10-103 .

Institutional costs not authorized. —

Statutes such as this one, imposing liability for prosecution costs, are constitutional as long as they are not construed to authorize assessment of institutional costs. King v. State, 780 P.2d 943, 1989 Wyo. LEXIS 202 (Wyo. 1989); Seaton v. State, 811 P.2d 276, 1991 Wyo. LEXIS 79 (Wyo. 1991).

Ex post facto assessment of costs unconstitutional. —

Because the assessment of costs against a defendant convicted prior to the effective date of this section would be a substantive detriment, such costs could not be assessed without violating the constitutional ex post facto prohibition. Loomer v. State, 768 P.2d 1042, 1989 Wyo. LEXIS 35 (Wyo. 1989), limited, Snyder v. State, 912 P.2d 1127, 1996 Wyo. LEXIS 37 (Wyo. 1996).

Jury and bailiff expenses may not be taxed as costs of prosecution against the convicted defendant. The right to trial by jury in criminal prosecutions must be kept inviolate. Johnson v. State, 532 P.2d 598, 1975 Wyo. LEXIS 134 (Wyo. 1975).

The phrase “costs of prosecution” does not include the mileage and per diem paid to all jurors on the jury panel or on the trial jury, nor does it include the amounts paid for the services of the court bailiffs, and the taxation of such items against defendants in a criminal prosecution is erroneous. Arnold v. State, 76 Wyo. 445, 306 P.2d 368, 1957 Wyo. LEXIS 6 (Wyo. 1957).

But court has discretion in assessing costs of witness feesand transportation. —

The trial judge did not abuse his discretion in assessing costs of witness fees and witness transportation, which are authorized expenses of prosecution. The drunken driver and other convicted persons must share some of the expenses of establishing guilt, as the trial judge in his sense of fairness sees it. Johnson v. State, 532 P.2d 598, 1975 Wyo. LEXIS 134 (Wyo. 1975).

Trial court did not abuse its discretion in ordering defendant to pay for witnesses' actual travel costs and for their meals and lodging pursuant to this section. Bruckner v. State, 972 P.2d 141, 1999 Wyo. LEXIS 15 (Wyo. 1999).

Trial court erred in manner in which it imposed costs of prosecution as part of the defendant's sentence, where the prosecution offered no evidence to establish the costs of prosecution and, when the costs appeared in the written judgment and sentence five days after the sentencing hearing, they appeared as a lump sum with no identification or itemization of specific costs. Juarez v. State, 791 P.2d 287, 1990 Wyo. LEXIS 47 (Wyo. 1990).

Assessment of witness fees was inappropriate. —

Trial court erred in ordering defendant to pay witness fees and costs as part of a sentence for the misdemeanor offense of interference with a peace officer because the gravamen of the interference with a peace officer crime was supported principally by the police officer who was the subject of defendant's resistance. Harris v. State, 2011 WY 70, 250 P.3d 163, 2011 Wyo. LEXIS 73 (Wyo. 2011).

Inappropriate for defendant to pay costs. —

See Van Riper v. State, 882 P.2d 230, 1994 Wyo. LEXIS 108 (Wyo. 1994).

Quoted in

Burke v. State, 746 P.2d 852, 1987 Wyo. LEXIS 550 (Wyo. 1987); Davis v. State, 859 P.2d 89, 1993 Wyo. LEXIS 144 (Wyo. 1993).

Cited in

Kaess v. State, 748 P.2d 698, 1987 Wyo. LEXIS 553 (Wyo. 1987).

§ 7-11-506. Trial transcript for indigent prisoner upon appeal.

Any person sentenced to imprisonment in a state penal institution, who appeals to the supreme court, may file, in the court in which that person was convicted, a petition requesting that the person be furnished with a stenographic transcript of the proceedings at that person’s trial. The petition shall be verified by the petitioner and shall state facts showing that at the time of conviction and at the time of filing the petition that person was without financial means to pay for the transcript. If the judge who imposed sentence, or any other judge of the court, finds that the defendant is without financial means with which to obtain the transcript of the proceedings at trial, the judge shall order the reporter to transcribe an original and copy of the reporter’s notes. The original of the transcript shall be filed with the clerk and the copy shall be delivered to the defendant without charge. The reporter’s fees for preparation of the transcript shall be the same as those prescribed in W.S. 5-3-410 , and shall be paid by the county in which the conviction is had.

History. Laws 1961, ch. 65, § 1; W.S. 1957, § 282.1; W.S. 1977, § 7-11-518; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4; 1992, ch. 25, § 3.

Cross references. —

As to Wyoming State penitentiary, see § 25-1-201 .

Section is inapplicable to post-conviction relief proceedings. Escobedo v. State, 601 P.2d 1028, 1979 Wyo. LEXIS 499 (Wyo. 1979).

Am. Jur. 2d, ALR and C.J.S. references. —

Determination of indigency of accused entitling him to transcript for purposes of appeal, 66 ALR3d 954.

§ 7-11-507. Advisement of loss of firearms rights upon conviction.

  1. No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:
    1. Of the collateral consequences that may arise from that conviction pursuant to the provisions of 18 U.S.C. §§ 921(a)(33), 922(g)(1), (9) and 924(a)(2); and
    2. That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.

History. Laws 2009, ch. 19, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Effective dates. —

Laws 2009, ch. 19, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 24, 2009.

Sufficient advisements. —

Review of illegal sentence. —

Failure to advise. —

Construction. —

Sufficient advisements. —

In a no contest plea, defendant waived his right to appeal his claim that the district court did not properly advise him that his future employment opportunities could be affected by loss of the privilege to possess firearms because his plea waiver did not include any objection to the sufficiency of the firearms advisements; defendant repeatedly stated that he had read and understood the terms of the plea agreement, which included the firearm consequences of his plea; and there were no assertions that the district court relied on race or any other improper factor, that defendant received ineffective assistance of counsel in the negotiation of the plea agreement, or that his sentence exceeded the statutory maximum. Henry v. State, 2015 WY 156, 362 P.3d 785, 2015 Wyo. LEXIS 173 (Wyo. 2015).

In a no contest plea, district court's firearms advisement was sufficient because, although the district court did not advise defendant word for word from the statute and the advisement was a bit confusing because it referred to the employment consequences of his convictions before telling him of the possibility of losing the firearm privilege, prior to the change of plea hearing, defendant had been advised of the firearms consequences of his convictions in the plea agreement, which he stated he had read and understood; and common sense would have told him that the employment consequences referred to by the district court at the change of plea hearing could be associated with his loss of firearms privileges. Henry v. State, 2015 WY 156, 362 P.3d 785, 2015 Wyo. LEXIS 173 (Wyo. 2015).

Review of illegal sentence. —

Appellate court could not review defendant's claim that the judgment and sentence entered after he pleaded guilty were illegal under this section due to the fact that he was not advised that his guilty pleas could result in the disqualification of his right to possess firearms pursuant to federal law because he raised it for the first time on appeal; moreover, even if the claim had been raised before the district court, it would have been barred by res judicata because the claim could have been raised on direct appeal and in defendant's petition for post-conviction relief. Lunden v. State, 2013 WY 35, 297 P.3d 121, 2013 Wyo. LEXIS 39 (Wyo. 2013).

Failure to advise. —

Trial court erred in entering a judgment of conviction for third-degree sexual abuse of a minor upon defendant's guilty plea without advising defendant in open court that the felony conviction could result in the loss of the right to possess firearms and ammunition and to engage in a profession or occupation requiring the carrying or possession of a firearm. Starrett v. State, 2012 WY 133, 286 P.3d 1033, 2012 Wyo. LEXIS 139 (Wyo. 2012).

District court erred in failing to advise defendant of the potential loss of his firearms rights because this section does not create an advisement exception when a defendant may already be disqualified from owning or possessing firearms due to prior felony convictions. Balderson v. State, 2013 WY 107, 309 P.3d 809, 2013 Wyo. LEXIS 112 (Wyo. 2013).

Construction. —

Word “shall” in the statute intimates an absence of discretion. Starrett v. State, 2012 WY 133, 286 P.3d 1033, 2012 Wyo. LEXIS 139 (Wyo. 2012).

Quoted in

Russell v. State, 2013 WY 137, 312 P.3d 76, 2013 Wyo. LEXIS 143 (Oct 31, 2013).

Chapter 12 Appeal, Exceptions and New Trial

Law reviews. —

For case note, “Criminal Procedure — The State's Right to Appeal in Criminal Cases. State v. Heiner, 683 P.2d 629, 1984 Wyo. LEXIS 284 (Wyo. 1984)”, see XX Land & Water L. Rev. 723 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of indigent defendant in criminal case to prosecute appeals in forma pauperis, 55 ALR2d 1072.

Appeal by state of order granting new trial in criminal case, 95 ALR3d 596.

Consequences of prosecution's failure to file timely brief in appeal by accused, 27 ALR4th 213.

Abatement of state criminal case by accused's death pending appeal of conviction — modern cases, 80 ALR4th 189.

Article 1. Appeal and Bill of Exceptions

Law reviews. —

For article, “Supreme Court Jurisdiction and the Wyoming Constitution: Justice v. Judicial Restraint,” see XX Land & Water L. Rev. 159 (1985).

For article, “The Relationship of Double Jeopardy to Prosecution Appeals,” see 73 Notre Dame L. Rev. 1 (1997).

Am. Jur. 2d, ALR and C.J.S. references. —

4 Am. Jur. 2d Appeal and Error § 1 et seq.

24 C.J.S. Criminal Law §§ 1660 to 1723.

§ 7-12-101. Manner of appeal.

A defendant may appeal his conviction in any criminal case in the manner provided by the Wyoming Rules of Appellate Procedure.

History. C.L. 1876, ch. 14, § 145; R.S. 1887, § 3306; Laws 1890, ch. 73, § 138; R.S. 1899, § 5377; C.S. 1910, § 6241; C.S. 1920, § 7538; R.S. 1931, § 33-908; C.S. 1945, § 10-1307; W.S. 1957, § 7-287; Laws 1985, ch. 147, § 2; 2010, ch. 69, § 207.

The 2010 amendment, effective July 1, 2010, deleted “and the Wyoming Rules of Appellate Procedure for Courts of Limited Jurisdiction” at the end.

Cited in

State v. Newman, 2004 WY 41, 88 P.3d 445, 2004 Wyo. LEXIS 48 (2004).

Cross references. —

The Wyoming Rules of Appellate Procedure for Courts of Limited Jurisdiction have been superseded by the Wyoming Rules of Appellate Procedure. For Wyoming Rules of Appellate Procedure, see the Wyoming Court Rules Annotated.

Am. Jur. 2d, ALR and C.J.S. references. —

Effect of escape by, or fugitive status of, state criminal defendant on availability of appeal or other post-verdict or post-conviction relief — State cases, 105 ALR5th 529.

§ 7-12-102. Right of district attorney to take exceptions; certification; rules.

The district attorney may take exceptions to any opinion or decision of the court made during the prosecution of a criminal case. Before being filed in the supreme court, the bill of exceptions shall be presented to the trial court which shall certify whether the contents of the bill are correct. If certified, the trial court shall sign the bill containing the exceptions and affix the seal of the court and the bill shall be made part of the record. The bill of exceptions shall be governed by rules as shall be promulgated by the Wyoming supreme court.

History. C.L. 1876, ch. 14, § 146; R.S. 1887, § 3307; R.S. 1899, § 5378; C.S. 1910, § 6242; C.S. 1920, § 7539; R.S. 1931, § 33-909; C.S. 1945, § 10-1308; W.S. 1957, § 7-288; Laws 1981, Sp. Sess., ch. 22, § 1; 1985, ch. 147, § 2.

Cross references. —

As to procedure for making exceptions and objections, see Rules 30 and 47, W.R. Cr. P.

Prosecuting attorney may take exceptions. —

Under Wyoming statutes prosecuting attorney may take exceptions to any opinion or decision of the court, during prosecution of the cause, which he may think erroneous. Territory v. Nelson, 2 Wyo. 346, 1880 Wyo. LEXIS 13 (Wyo. 1880).

But proper bill of exceptions necessary for review. —

Where a ruling was sought to be reviewed by the state on a bill of exceptions, but bill was defective, ruling could not be reviewed without a proper bill of exceptions. State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977, 1906 Wyo. LEXIS 28 (Wyo. 1906).

Statutes must be complied with. —

It is only upon compliance with provisions of this section and §§ 7-12-103 and 7-12-104 that supreme court obtains jurisdiction to review any ruling of the district court adverse to the state in criminal prosecutions. State v. Ginther, 53 Wyo. 17, 77 P.2d 803, 1938 Wyo. LEXIS 4 (Wyo. 1938).

A bill of exceptions is only way by which state may challenge and have reviewed any adverse ruling of the district court in criminal prosecutions. State v. Heberling, 553 P.2d 1043, 1976 Wyo. LEXIS 211 (Wyo. 1976).

A bill of exceptions is the exclusive means for the prosecution to seek review of an adverse ruling made during a trial. State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981).

Irregularity in date of bill. —

The fact that a bill of exceptions is not dated back to a date during the trial or filed nunc pro tunc as of a date during the trial is at most an irregularity. State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981).

Direct appeal by state dismissed. —

Even if the requirement of adherence to procedural steps outlined in these provisions were relaxed, where the state did not purport to act under the provisions of these sections but brought a direct appeal and insisted that an order of the trial court dismissing the defendant should be reversed and the cause remanded, the appeal was dismissed. State v. Benales, 365 P.2d 811, 1961 Wyo. LEXIS 128 (Wyo. 1961).

Prosecuting attorney may not appeal. —

The legislature has not authorized the state to appeal in a criminal case, and a cross-appeal is in effect the same as an appeal. Crozier v. State, 882 P.2d 1230, 1994 Wyo. LEXIS 126 (Wyo. 1994), limited, State v. Newman, 2004 WY 41, 88 P.3d 445, 2004 Wyo. LEXIS 48 (Wyo. 2004).

Unsealed bill of exceptions prepared under this section wasfatally defective. —

State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977, 1906 Wyo. LEXIS 28 (Wyo. 1906).

All evidence must be in bill to weigh its sufficiency. —

To determine upon prosecuting attorney's exceptions in criminal case whether there was error in directing verdict of not guilty, where ground of exception was that evidence was sufficient to convict, it is necessary to examine, and for bill of exceptions to contain, all evidence given upon trial. State v. Snearly, 18 Wyo. 341, 107 P. 389, 1910 Wyo. LEXIS 11 (Wyo. 1910).

Evidence presumed to authorize instruction. —

Upon exceptions of prosecuting attorney to refusal of his requested instructions, where evidence is not in record, but court instructed on its own motion upon question involved, it may be assumed that there was evidence authorizing instruction upon the point. State v. Pressler, 16 Wyo. 214, 92 P. 806, 1907 Wyo. LEXIS 46 (Wyo. 1907).

Applied in

Middleton v. State, 34 Wyo. 102, 241 P. 715, 1925 Wyo. LEXIS 62 (1925); Koppala v. State, 15 Wyo. 398, 89 P. 576, 1907 Wyo. LEXIS 22 (1907); Seng v. State, 20 Wyo. 222, 122 P. 631, 1913 Wyo. LEXIS 49 (1912); State v. Snearly, 18 Wyo. 341, 107 P. 389, 1910 Wyo. LEXIS 11 (1910); Boulter v. State, 6 Wyo. 66, 42 P. 606, 1895 Wyo. LEXIS 5 (1895); White v. State, 23 Wyo. 130, 147 P. 171, 1915 Wyo. LEXIS 12 (1915); Morgan v. State, 26 Wyo. 212, 181 P. 598, 1919 Wyo. LEXIS 13 (1919); Bird v. State, 34 Wyo. 112, 241 P. 701, 1925 Wyo. LEXIS 56 (1925); Claussen v. State, 21 Wyo. 505, 133 P. 1055, 1913 Wyo. LEXIS 28 (1913); Ross v. State, 16 Wyo. 285, 93 P. 299, 1908 Wyo. LEXIS 22 (1908); Vines v. State, 19 Wyo. 255, 116 P. 1013, 1911 Wyo. LEXIS 19 (1911); State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977, 1906 Wyo. LEXIS 28 (1906); Richardson v. State, 15 Wyo. 465, 89 P. 1027, 1907 Wyo. LEXIS 29 (1907); Hyde v. State, 22 Wyo. 271, 138 P. 550, 1914 Wyo. LEXIS 9 (1914); Delmont v. State, 15 Wyo. 271, 88 P. 623, 1907 Wyo. LEXIS 7 (1907); Patrick v. State, 17 Wyo. 260, 98 P. 588, 1908 Wyo. LEXIS 17 (1908); State v. Gallegos, 384 P.2d 967, 1963 Wyo. LEXIS 108 (Wyo. 1963); State v. Clark, 392 P.2d 539, 1964 Wyo. LEXIS 103 (Wyo. 1964); State v. Reisch, 491 P.2d 1254, 1971 Wyo. LEXIS 274 (Wyo. 1971); Moss v. State, 492 P.2d 1329, 1972 Wyo. LEXIS 220 (Wyo. 1972); City of Laramie v. Mengel, 671 P.2d 340, 1983 Wyo. LEXIS 383 (Wyo. 1983); Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Dec. 22, 2011).

Quoted in

State v. Steele, 620 P.2d 1026, 1980 Wyo. LEXIS 329 (Wyo. 1980); Billis v. State, 800 P.2d 401, 1990 Wyo. LEXIS 119 (Wyo. 1990).

Stated in

State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982); State v. Carter, 714 P.2d 1217, 1986 Wyo. LEXIS 487 (Wyo. 1986).

Cited in

State v. Thompson, 15 Wyo. 136, 87 P. 433, 1906 Wyo. LEXIS 10 (1906); State v. Weeden, 17 Wyo. 418, 100 P. 114, 1909 Wyo. LEXIS 9 (1909); State v. Peterson, 27 Wyo. 185, 194 P. 342, 1920 Wyo. LEXIS 33 , 13 A.L.R. 1284 (1920); State v. Hall, 27 Wyo. 224, 194 P. 476, 1920 Wyo. LEXIS 34 (1921); State v. Butler, 40 Wyo. 404, 278 P. 563, 1929 Wyo. LEXIS 49 (1929); State v. Rideout, 450 P.2d 452, 1969 Wyo. LEXIS 116 (Wyo. 1969); State v. Moss, 471 P.2d 333, 1970 Wyo. LEXIS 178 (Wyo. 1970); In re Jones, 500 P.2d 690, 1972 Wyo. LEXIS 298 (Wyo. 1972); State v. Stern, 526 P.2d 344, 1974 Wyo. LEXIS 231 (Wyo. 1974); State v. Chastain, 594 P.2d 458, 1979 Wyo. LEXIS 416 (Wyo. 1979); Parkhurst v. Shillinger, 128 F.3d 1366, 1997 U.S. App. LEXIS 29095 (10th Cir. 1997); State v. Newman, 2004 WY 41, 88 P.3d 445, 2004 Wyo. LEXIS 48 (2004).

Law reviews. —

For article, “Supreme Court Jurisdiction and the Wyoming Constitution: Justice v. Judicial Restraint,” see XX Land & Water L. Rev. 159 (1985).

§ 7-12-103. Filing of bill by attorney general in supreme court.

Following certification of a bill of exceptions by the trial court as provided by W.S. 7-12-102 , the attorney general may apply to the supreme court for permission to file the bill for review and decision upon the points presented. If the supreme court allows the bill to be filed, the judge who presided at the trial in which the bill was taken shall appoint a competent attorney to argue the case against the state and shall fix a reasonable fee for his service to be paid out of the treasury of the county in which the bill was taken.

History. C.L. 1876, ch. 14, § 147; R.S. 1887, § 3308; R.S. 1899, § 5379; C.S. 1910, § 6243; C.S. 1920, § 7540; R.S. 1931, § 33-910; C.S. 1945, § 10-1309; W.S. 1957, § 7-289; Laws 1981, Sp. Sess., ch. 22, § 1; 1985, ch. 147, § 2.

Statutes provide only method of review for state. —

The state is afforded no method of review of adverse ruling in criminal case, except through statutes providing for specialized procedure on exceptions by prosecuting attorney. State v. Ginther, 53 Wyo. 17, 77 P.2d 803, 1938 Wyo. LEXIS 4 (Wyo. 1938).

A bill of exceptions is the only way by which the state may challenge and have reviewed any adverse ruling of the district court in criminal prosecutions. State v. Heberling, 553 P.2d 1043, 1976 Wyo. LEXIS 211 (Wyo. 1976).

And do not apply to violation of ordinance. —

These provisions apply only to the trial of criminal cases wherein accused is charged with an offense against the laws of the state and not to a prosecution in a municipal court for the violation of an ordinance. City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892, 1916 Wyo. LEXIS 33 (Wyo. 1916).

Applied in

Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Dec. 22, 2011).

Stated in

State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982); State v. Carter, 714 P.2d 1217, 1986 Wyo. LEXIS 487 (Wyo. 1986).

Cited in

State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977, 1906 Wyo. LEXIS 28 (1906); State v. Thompson, 15 Wyo. 136, 87 P. 433, 1906 Wyo. LEXIS 10 (1906); State v. Peterson, 27 Wyo. 185, 194 P. 342, 1920 Wyo. LEXIS 33 , 13 A.L.R. 1284 (1920); State v. Hall, 27 Wyo. 224, 194 P. 476, 1920 Wyo. LEXIS 34 (1921); State v. Butler, 40 Wyo. 404, 278 P. 563, 1929 Wyo. LEXIS 49 (1929); State v. Chastain, 594 P.2d 458, 1979 Wyo. LEXIS 416 (Wyo. 1979); State v. Keffer, 860 P.2d 1118, 1993 Wyo. LEXIS 154 (Wyo. 1993); State v. Newman, 2004 WY 41, 88 P.3d 445, 2004 Wyo. LEXIS 48 (2004).

Law reviews. —

For article, “Supreme Court Jurisdiction and the Wyoming Constitution: Justice v. Judicial Restraint,” see XX Land & Water L. Rev. 159 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 ALR2d 482.

§ 7-12-104. Decision of supreme court upon bill.

  1. If the bill of exceptions is allowed to be filed, the supreme court shall render a decision on each point presented.
  2. The decision of the supreme court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered, or which may afterwards arise in the state, but shall not reverse nor in any manner affect the judgment of the court in the case in which the bill of exceptions was taken.

History. C.L. 1876, ch. 14, § 149; R.S. 1887, § 3310; R.S. 1899, § 5381; C.S. 1910, § 6245; C.S. 1920, § 7542; R.S. 1931, § 33-912; C.S. 1945, § 10-1311; W.S. 1957, § 7-291; W.S. 1977, § 7-12-105; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4.

Evidence presumed to authorize instruction. —

Upon exceptions of prosecuting attorney to refusal of his requested instructions, where evidence is not in record but court instructed on its own motion upon question involved, it may be assumed that there was evidence authorizing instruction upon the point. State v. Pressler, 16 Wyo. 214, 92 P. 806, 1907 Wyo. LEXIS 46 (Wyo. 1907).

Applied in

State v. Benales, 365 P.2d 811, 1961 Wyo. LEXIS 128 (Wyo. 1961); Moss v. State, 492 P.2d 1329, 1972 Wyo. LEXIS 220 (Wyo. 1972); State v. Steele, 620 P.2d 1026, 1980 Wyo. LEXIS 329 (Wyo. 1980); State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981); Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Dec. 22, 2011).

Quoted in

State v. Heberling, 553 P.2d 1043, 1976 Wyo. LEXIS 211 (Wyo. 1976); Crozier v. State, 882 P.2d 1230, 1994 Wyo. LEXIS 126 (Wyo. 1994).

Cited in

State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977, 1906 Wyo. LEXIS 28 (1906); City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892, 1916 Wyo. LEXIS 33 (1916); State v. Peterson, 27 Wyo. 185, 194 P. 342, 1920 Wyo. LEXIS 33 , 13 A.L.R. 1284 (1920); State v. Hall, 27 Wyo. 224, 194 P. 476, 1920 Wyo. LEXIS 34 (1921); State v. Butler, 40 Wyo. 404, 278 P. 563, 1929 Wyo. LEXIS 49 (1929); State v. Ginther, 53 Wyo. 17, 77 P.2d 803, 1938 Wyo. LEXIS 4 (1938); State v. Rideout, 450 P.2d 452, 1969 Wyo. LEXIS 116 (Wyo. 1969); State v. Moss, 471 P.2d 333, 1970 Wyo. LEXIS 178 (Wyo. 1970); State v. Chastain, 594 P.2d 458, 1979 Wyo. LEXIS 416 (Wyo. 1979); State v. Stahl, 838 P.2d 1193, 1992 Wyo. LEXIS 147 (Wyo. 1992); State v. Keffer, 860 P.2d 1118, 1993 Wyo. LEXIS 154 (Wyo. 1993); State v. Newman, 2004 WY 41, 88 P.3d 445, 2004 Wyo. LEXIS 48 (2004).

Law reviews. —

For article, “Supreme Court Jurisdiction and the Wyoming Constitution: Justice v. Judicial Restraint,” see XX Land & Water L. Rev. 159 (1985).

For case note, “Criminal Procedure — The State's Right to Appeal in Criminal Cases. State v. Heiner, 683 P.2d 629, 1984 Wyo. LEXIS 284 (Wyo. 1984),” see XX Land & Water L. Rev. 723 (1985).

Article 2. Proceedings Upon Reversal

Am. Jur. 2d, ALR and C.J.S. references. —

24 C.J.S. Criminal Law §§ 1420 to 1457, 1610 to 1637, 1660 to 1723.

§ 7-12-201. Disposition of defendant.

  1. If the judgment of conviction of any defendant committed to a state penal institution is reversed on appeal, the clerk of the supreme court shall forward to the department of corrections and to the administrator of the institution a certified copy of the court’s mandate directing the defendant’s discharge or a new trial.
  2. Upon receipt of the mandate the director of the department of corrections shall direct the administrator either to discharge the defendant or return the defendant to the county jail of the county in which the defendant was convicted to be held in the custody of the sheriff pending a new trial.

History. C.L. 1876, ch. 14, § 192; R.S. 1887, § 3358; R.S. 1899, § 5426; Laws 1901, ch. 63, § 5; C.S. 1910, § 6297; C.S. 1920, § 7593; R.S. 1931, § 33-1205; C.S. 1945, § 10-2005; W.S. 1957, § 7-296; W.S. 1977, § 7-12-205; Laws 1985, ch. 147, § 2; 1987, ch. 157, § 4; 1992, ch. 25, § 3.

Cross references. —

As to Wyoming State penitentiary, and Wyoming women's center, see § 25-1-201 .

Article 3. New Trial

§ 7-12-301. [Repealed.]

Repealed by Laws 1988, ch. 46, § 2.

Cross references. —

As to new trial, see Rule 33, W.R. Cr. P.

Editor's notes. —

This section, which derived from C.L. 1876, ch. 14, § 181, related to the grounds and motions for a new trial.

§ 7-12-302. Short title.

This act shall be known and may be cited as the “Post-Conviction DNA Testing Act.”

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-303. New trial; motion for post-conviction testing of DNA; motion contents; sufficiency of allegations, consent to DNA sample; definitions.

  1. As used in this act:
    1. “DNA” means deoxyribonucleic acid;
    2. “Movant” means the person filing a motion under subsection (c) of this section;
    3. “This act” means W.S. 7-12-302 through 7-12-315 .
  2. Notwithstanding any law or rule of procedure that bars a motion for a new trial as untimely, a convicted person may use the results of a DNA test ordered pursuant to this act as the grounds for filing a motion for a new trial.
  3. A person convicted of a felony offense may, preliminary to the filing of a motion for a new trial, file a motion for post-conviction DNA testing in the district court that entered the judgment of conviction against him if the movant asserts under oath and the motion includes a good faith, particularized factual basis containing the following information:
    1. Why DNA evidence is material to:
      1. The identity of the perpetrator of, or accomplice to, the crime;
      2. A sentence enhancement; or
      3. An aggravating factor alleged in a capital case.
    2. That evidence is still in existence and is in a condition that allows DNA testing to be conducted;
    3. That the chain of custody is sufficient to establish that the evidence has not been substituted, contaminated or altered in any material aspect that would prevent reliable DNA testing;
    4. That the specific evidence to be tested can be identified;
    5. That the type of DNA testing to be conducted is specified;
    6. That the DNA testing employs a scientific method sufficiently reliable and relevant to be admissible under the Wyoming Rules of Evidence;
    7. That a theory of defense can be presented, not inconsistent with theories previously asserted at trial, that the requested DNA testing would support;
    8. That the evidence was not previously subjected to DNA testing, or if the evidence was previously tested one (1) of the following would apply:
      1. The result of the testing was inconclusive;
      2. The evidence was not subjected to the testing that is now requested, and the new testing may resolve an issue not resolved by the prior testing; or
      3. The requested DNA test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice.
    9. That the evidence that is the subject of the request for testing has the potential to produce new, noncumulative evidence that will establish the movant’s actual innocence.
  4. The court may not order DNA testing in cases in which the trial or a plea of guilty or nolo contendere occurred after January 1, 2000 and the person did not request DNA testing or present DNA evidence for strategic or tactical reasons or as a result of a lack of due diligence, unless the failure to exercise due diligence is found to be a result of ineffective assistance of counsel. A person convicted before January 1, 2000 shall not be required to make a showing of due diligence under this subsection.

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-304. Service of process; response by the state; preservation of evidence.

  1. Notice of the motion filed under W.S. 7-12-303(c) shall be served upon the district attorney in the county in which the conviction occurred and, if applicable, the governmental agency or laboratory holding the evidence sought to be tested.
  2. The district attorney who is served shall within sixty (60) days after receipt of service of a copy of the motion, or within any additional period of time the court allows, answer or otherwise respond to the motion requesting DNA testing.
  3. The district attorney who is served may support the motion requesting DNA testing or oppose the motion with a statement of reasons and may recommend to the court, if any DNA testing is ordered, that a particular type of testing should be conducted, or object to the proposed testing laboratory, or make such other objections, recommendations or requests as will preserve the integrity of the evidence, including, but not limited to, requests for independent testing by the state or procedures in the event that the proposed testing will deplete the DNA sample.
  4. If a motion is filed pursuant to W.S. 7-12-303(c), and the motion asserts the evidence is in the custody of the state or its agents, the court shall order the state to preserve during the pendency of the proceeding all material and relevant evidence in the state’s possession or control that could be subjected to DNA testing and analysis. The state shall prepare an inventory of the evidence and shall submit a copy of the inventory to the movant and to the court. If the state determines that the evidence is no longer available, the state shall notify the court and the movant of the loss or destruction of the evidence and explain its loss or destruction. The state shall provide copies of chain of custody documentation or other documents explaining the loss or destruction of the evidence. After a motion is filed under W.S. 7-12-303(c), prosecutors in the case, law enforcement officers and crime laboratory personnel shall cooperate in preserving material and relevant evidence and in determining the sufficiency of the chain of custody of the evidence which may be subject to DNA testing.

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-305. Review by the court; hearing on motion, findings; order.

  1. If the court determines that a motion is filed in compliance with the requirements of W.S. 7-12-303(c) and the state has had opportunity to respond to the motion, the court shall set a hearing for not more than ninety (90) days after the date the motion was filed. If the court finds that the motion does not comply with the requirements of W.S. 7-12-303(c), the court may deny the motion without hearing.
  2. The hearing under subsection (a) of this section shall be heard by the judge who conducted the trial that resulted in the movant’s conviction unless the judge is unavailable.
  3. The movant and the state may present evidence by sworn and notarized affidavits or by testimony; provided, however, any affidavit shall be served on the opposing party at least fifteen (15) days prior to the hearing.
  4. The movant shall be required to present a prima facie case showing that the evidence supports findings consistent with the facts asserted under W.S. 7-12-303(c) and DNA testing of the specified evidence would, assuming exculpatory results, establish:
    1. The actual innocence of the movant of the offense for which the movant was convicted; or
    2. In a capital case:
      1. The movant’s actual innocence of the charged or uncharged conduct constituting an aggravating circumstance; or
      2. A mitigating circumstance as a result of the DNA testing.
  5. If the court finds that the movant has presented a prima facie case showing that the evidence supports findings consistent with W.S. 7-12-303(c) and the evidence would establish actual innocence, the court may order testing, subject to W.S. 7-12-306 .

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-306. Designation of testing laboratory.

  1. If the court orders DNA testing pursuant to W.S. 7-12-305(e), the DNA test shall be performed by the Wyoming state crime laboratory unless the movant establishes that the state crime laboratory has a conflict of interest or does not have the capability to perform the necessary testing.
  2. If the court orders that the DNA testing under W.S. 7-12-305(e) shall be conducted by a laboratory other than the state crime laboratory, the court shall require that the testing be performed:
    1. Under reasonable conditions designed to protect the state’s interests in the integrity of the evidence;
    2. By a laboratory that:
      1. Meets standards that at minimum comply with the standards of the DNA advisory board established pursuant to 42 U.S.C. 14131; and
      2. Is accredited by the American society of crime laboratory directors accreditation board.

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-307. Discovery.

  1. If the DNA evidence being tested under this act has been previously subjected to DNA analysis by either the state or defense prior to the hearing conducted under W.S. 7-12-305 , the court may order the state or defense to provide each party and the court with access to the laboratory reports prepared in connection with the DNA analysis, as well as the underlying data and laboratory notes. If DNA or other analysis was previously conducted by either the state or defense without the knowledge of the other party, all information relating to the testing shall be disclosed by the motion filed under W.S. 7-12-303(c) or any response thereto.
  2. The results of any DNA testing ordered under W.S. 7-12-305(e) shall be fully disclosed to the movant, the district attorney, the attorney general and the court. If requested by any party, the court shall order production of the underlying laboratory data and notes or chain of custody documents.

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-308. Right to counsel.

A convicted person is entitled to counsel during a proceeding under this act. Upon request of the person, the court shall appoint counsel for the convicted person if the court determines that the person is needy and the person wishes to submit a motion under W.S. 7-12-303(c). Counsel shall be appointed as provided in W.S. 7-6-104(c)(vii).

History. Laws 2008, ch. 92, § 1; 2018, ch. 108, § 1.

The 2018 amendment, effective July 1, 2018, substituted “W.S. 7-6-104(c)(vii)” for “W.S. 7-6-104(c)(viii)” at the end.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

Miscellaneous

In a 28 U.S.C.S. § 2254 case in which a pro se state inmate asserted that he was eligible for equitable tolling, the Martinez decision, which applied Arizona law, was distinguishable. Unlike Arizona, Wyoming did not prohibit a defendant from bringing an ineffective assistance claim on direct appeal. 2013 U.S. App. LEXIS 9749.

§ 7-12-309 Costs of testing.

  1. The person filing a motion under W.S. 7-12-303(c) shall bear the cost of the DNA testing unless:
    1. The person is serving a sentence of imprisonment;
    2. The person is needy; and
    3. The DNA test supports the person’s motion.
  2. In the case of a person meeting the criteria specified in paragraphs (a)(i) through (iii) of this section, the costs of testing shall be paid by the state.

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-310. Order following testing.

  1. If the results of the DNA analysis are inconclusive or show that the movant is the source of the evidence, the court shall deny any motion for a new trial based upon the DNA evidence and shall provide the results to the board of parole.
  2. If the results of the DNA analysis are consistent with assertions contained in the movant’s motion, the court shall set the matter for hearing on the motion for a new trial.
  3. Upon the stipulation of both parties or a motion for dismissal of the original charges against the movant by the state in lieu of a retrial, the court shall:
    1. Vacate the movant’s conviction consistent with the evidence demonstrating the movant’s actual innocence;
    2. Issue an order of actual innocence and exoneration; and
    3. Issue an order of expungement.
  4. In the event a retrial is pursued and conducted and the movant is acquitted at the retrial, the court shall:
    1. Issue an order of actual innocence and exoneration; and
    2. Issue an order of expungement.

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-311. Victim notification.

Following any motion filed under this act, the district attorney shall provide notice to the victim that the motion has been filed, the time and place for any hearing that may be held as a result of the motion, and the disposition of the motion. For purposes of this section, “victim” means as defined in W.S. 1-40-202(a)(ii).

History. Laws 2008, ch. 92, § 1.

§ 7-12-312. Rights not waived; refiling of uncharged offenses.

  1. Notwithstanding any other provision of law, the right to file a motion under W.S. 7-12-303(c) shall not be waived. The prohibition against waiver of the right provided under this section applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendere.
  2. If a movant is granted a new trial under this act, any offense that was dismissed or not charged pursuant to a plea agreement that resulted in the conviction that has been set aside as a result of this act may be refiled by the state.

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-313. Appeal.

  1. An order granting or denying a motion for DNA testing filed under W.S. 7-12-303(c) shall not be appealable, but may be subject to review only under a writ of review filed by the movant, the district attorney or the attorney general. The petition for a writ of review may be filed no later than twenty (20) days after the court’s order granting or denying the motion for DNA testing.
  2. Any party to the action may appeal to the Wyoming supreme court any order granting or denying a motion for a new trial under W.S. 7-12-310(b).

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-314. Subsequent motions.

The court shall not be required to entertain a second or subsequent motion under W.S. 7-12-303(c) on behalf of the same movant, except where there is clear and compelling evidence that the evidence sought to be tested was wrongfully withheld from the movant by the state or its agents.

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

§ 7-12-315. Consensual testing.

Nothing in this act shall be interpreted to prohibit a convicted person and the state from consenting to and conducting post-conviction DNA testing without filing a motion under W.S. 7-12-303(c). Notwithstanding any other provision of law governing post-conviction relief, if DNA test results are obtained under testing conducted upon consent of the parties and the results are favorable to the convicted person, the convicted person may file, and the court shall adjudicate, a motion for a new trial based on the DNA test results.

History. Laws 2008, ch. 92, § 1.

Effective dates. —

Laws 2008, ch. 92, § 3, makes the act effective July 1, 2008.

Article 4. Post-Conviction Determination of Factual Innocence

Effective date. —

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8 Wyo. Const. Approved March 12, 2018.

§ 7-12-401. Short title.

This act shall be known and may be cited as the “Post-Conviction Determination of Factual Innocence Act.”

History. Laws 2018, ch. 77, § 1.

Efective date. —

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

§ 7-12-402. Definitions.

  1. As used in this act:
    1. “Bona fide issue of factual innocence” means that the newly discovered evidence presented by the petitioner, if credible, would clearly establish the petitioner’s factual innocence;
    2. “Factual innocence” or “factually innocent” means a person:
      1. Did not engage in the conduct for which he was convicted;
      2. Did not engage in conduct constituting a lesser included or inchoate offense of the crime for which he was convicted; and
      3. Did not commit any other crime arising out of or reasonably connected to the facts supporting the indictment or information upon which he was convicted.
    3. “Forensic science” is the application of scientific or technical practices to the recognition, collection, analysis and interpretation of evidence for criminal and civil law or regulatory issues;
    4. “Newly discovered evidence” means evidence that was not available to the petitioner at trial or during the resolution by the trial court of any motion to withdraw a guilty plea or motion for new trial and which is relevant to the determination of the issue of factual innocence, including:
      1. Evidence that was discovered prior to or in the course of any appeal or post-conviction proceedings that served in whole or in part as the basis to vacate or reverse the petitioner’s conviction;
      2. Evidence that supports the claims within a petition for post-conviction relief under W.S. 7-14-101 through 7-14-108 that is pending at the time of the court’s determination of factual innocence under this act; or
      3. Relevant forensic scientific evidence that was not available at the time of trial or during the resolution by the trial court of any motion to withdraw a guilty plea or motion for new trial, or that undermines forensic evidence presented at trial. Forensic scientific evidence is to be considered as “undermined” if new research or information exists that repudiates:
        1. The foundational validity of the challenged evidence or testimony. “Foundational validity” means the reliability of the method to be repeatable, reproducible and accurate in a scientific setting; or
        2. The applied validity of the method or technique. “Applied validity” means the reliability of the method or technique in practice.
    5. “This act” means W.S. 7-12-401 through 7-12-407 .

History. Laws 2018, ch. 77, § 1.

Efective date. —

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

§ 7-12-403. Petition for exoneration based on factual innocence; conduct of proceedings.

  1. A person who has been convicted of a felony offense may petition the district court in the county in which the person was convicted for a hearing to establish that the person is factually innocent of the crime or crimes of which the person was convicted.
  2. The petition shall contain an assertion of factual innocence under oath by the petitioner and shall aver, with supporting affidavits or other credible documents, that:
    1. Newly discovered evidence exists that, if credible, establishes a bona fide issue of factual innocence;
    2. The specific evidence identified by the petitioner establishes innocence and is material to the case and the determination of factual innocence;
    3. The material evidence identified by the petitioner is not merely cumulative of evidence that was known, is not reliant solely upon recantation of testimony by a witness against the petitioner and is not merely impeachment evidence;
    4. When viewed with all other evidence in the case, whether admitted during trial or not, the newly discovered evidence demonstrates that the petitioner is factually innocent; and
    5. Newly discovered evidence claimed in the petition is distinguishable from any claims made in prior petitions.
  3. The court shall review the petition in accordance with the procedures in W.S. 7-12-404 , and make a finding whether the petition has satisfied the requirements of subsection (b) of this section. If the court finds the petition does not meet all the requirements of subsection (b) of this section, it shall dismiss the petition without prejudice and send notice of the dismissal to the petitioner, the district attorney, and the attorney general.
  4. The petition shall also contain an averment that:
    1. Neither the petitioner nor the petitioner’s counsel knew of the evidence at the time of trial or sentencing or in time to include the evidence in any previously filed post-trial motion or post-conviction petition, and the evidence could not have been discovered by the petitioner or the petitioner’s counsel through the exercise of reasonable diligence; or
    2. A court has found ineffective assistance of counsel for failing to exercise reasonable diligence in uncovering the evidence.
  5. Upon entry of a finding that the petition is sufficient under subsection (b) of this section, the court shall then review the petition to determine if subsection (d) of this section has been satisfied. If the court finds that the requirements of subsection (d) of this section have not been satisfied, it may dismiss the petition without prejudice and give notice to the petitioner, the district attorney and the attorney general of the dismissal, or the court may waive the requirements of subsection (d) if the court finds the petition should proceed to hearing and that there is other evidence that could have been discovered through the exercise of reasonable diligence by the petitioner or the petitioner’s counsel at trial, and the other evidence:
    1. Was not discovered by the petitioner or the petitioner’s counsel;
    2. Is material upon the issue of factual innocence; and
    3. Has never been presented to a court.
  6. A person who has already obtained post-conviction relief that vacated or reversed the person’s conviction or sentence may also file a petition under this act in the same manner and form as described above, if no retrial or appeal regarding this offense is pending.
  7. If some or all of the newly discovered evidence alleged in a petition filed under this act is biological evidence subject to DNA testing, the petitioner shall seek DNA testing pursuant to W.S. 7-19-401 through 7-19-406 . Separate petitions may be filed simultaneously in the same court.
  8. Except as provided in this act, and unless otherwise inconsistent with the provisions of this act, the petition and all subsequent proceedings shall be governed by the Wyoming Rules of Civil Procedure and the Wyoming Rules of Evidence and shall include the underlying criminal case number.
  9. Once a petition is filed under this section, attorneys for the state, law enforcement officers and crime laboratory personnel shall preserve the evidence that is the subject of the petition and shall preserve information to determine the sufficiency of the chain of custody of the evidence.

History. Laws 2018, ch. 77, § 1.

Efective date. —

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

Dismissal of petition.—

Although the Wyoming Rules of Civil Procedure generally apply to petitions under the Factual Innocence Act, a district court is not required on its initial review of a petition to accept its allegations as true. The district court properly dismissed appellant’s factual innocence petition on its initial review for failing to cite newly discovered evidence that would clearly establish appellant’s factual innocence. Sullivan v. State, 2019 WY 71, 444 P.3d 1257, 2019 Wyo. LEXIS 72 (Wyo. 2019), cert. denied, 140 S. Ct. 974, 206 L. Ed. 2d 130, 2020 U.S. LEXIS 646 (U.S. 2020).

§ 7-12-404. Service of process; response by state; review by the court.

  1. A person filing a petition under this act shall serve notice and a copy of the petition upon the office of the district attorney where the conviction was obtained and upon the Wyoming attorney general.
  2. The assigned district judge shall conduct an initial review of the petition. If it is apparent to the court that the petitioner is merely relitigating facts, issues or evidence presented in previous proceedings or presenting issues that appear frivolous or speculative on their face, the court shall dismiss the petition, state the basis for the dismissal and serve notice of dismissal upon the petitioner, the district attorney and the attorney general. If, upon completion of the initial review, the court does not dismiss the petition, it shall order the district attorney to file a response to the petition.
  3. The district attorney shall, within one hundred twenty (120) days after receipt of the court’s order requiring a response, or within any additional period of time the court allows, answer or otherwise respond to the petition and serve the same upon the petitioner and the attorney general.
  4. After the time for response by the district attorney has passed, the court shall order a hearing if it finds the petition meets the requirements of W.S. 7-12-403 and finds there is a bona fide and compelling issue of factual innocence regarding the charges of which the petitioner was convicted. No bona fide and compelling issue of factual innocence exists if the petitioner is merely relitigating facts, issues or evidence presented in a previous proceeding or if the petitioner is unable to identify with sufficient specificity the nature and reliability of the newly discovered evidence that establishes the petitioner’s factual innocence.
  5. Within thirty (30) days after the date the district attorney responds to the petition, the petitioner may reply. Within thirty (30) days after the time for petitioner to reply has passed, the court shall consider the petition and any response and enter an order either denying the petition or granting a hearing on the petition. The court may not grant a hearing during the period in which criminal proceedings in the matter are pending before any trial or appellate court, unless stipulated to by the parties.
  6. If the court grants a hearing, both the hearing and the final order following the hearing shall occur and be entered within one hundred fifty (150) days after the last day for the petitioner to reply to the district attorney’s response to the petition, unless for good cause the court determines additional time is required.
  7. If the court sets a hearing on the petition and evidence is in the custody of the state or its agents, upon request of the petitioner, the court shall order the state to preserve all material and relevant evidence in the state’s possession or control during the pendency of the proceeding.
  8. Upon motion, the court may order forensic testing of any available evidence.
  9. If the court orders forensic testing under subsection (h) of this section, the testing shall be performed by the Wyoming state crime laboratory unless the movant establishes that the state crime laboratory has a conflict of interest or does not have the capability to perform the necessary testing.
  10. If the court orders that forensic testing under subsection (h) of this section shall be conducted by a laboratory other than the Wyoming state crime laboratory, the court shall require that the testing be performed by a laboratory that is accredited by the American society of crime laboratory directors accreditation board, ANSI–ASQ national accreditation board or a successor accrediting body.
  11. The movant shall bear the cost of forensic testing ordered under subsection (h) of this section unless the court determines the movant is needy and the forensic testing supports the movant’s petition for exoneration, in which case the court shall order the state to bear the cost of the forensic testing.
  12. If the parties stipulate the evidence establishes the petitioner is factually innocent, the court may find the petitioner is factually innocent without holding a hearing. If the state will not stipulate the evidence establishes the petitioner is factually innocent, no determination of factual innocence may be made by the court without first holding a hearing.
  13. Upon stipulation of the parties or the state’s motion for dismissal of the original charges against the petitioner, the court shall vacate the petitioner’s conviction, issue an order of factual innocence and exoneration and order expungement of the records of the original conviction.
  14. If, after a hearing, the court determines that the petitioner has proven his factual innocence by clear and convincing evidence, the court shall issue an order of factual innocence and exoneration and shall order expungement of the records of the original conviction.

History. Laws 2018, ch. 77, § 1.

Effective date. —

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

Appellate jurisdiction lacking.—

Dismissal of petition.—

Appellate jurisdiction lacking.—

Appellate jurisdiction was lacking over petitioner’s appeal of an order dismissing his Factual Innocence Act petition where the district court had performed an initial review under Wyo. Stat. Ann. § 7-12-404(b) and determined the petition was statutorily noncompliant before dismissing it without prejudice, and such a dismissal was not a final appealable order under Wyo. R. App. P. 1.05. Woods v. State, 2020 WY 118, 471 P.3d 997, 2020 Wyo. LEXIS 132 (Wyo. 2020).

Dismissal of petition.—

District court properly dismissed appellant’s factual innocence petition on its initial review for failing to cite newly discovered evidence that would clearly establish appellant’s factual innocence. Dismissal was also warranted by this section’s requirement that a petition be dismissed if it presents issues that appear speculative. Sullivan v. State, 2019 WY 71, 444 P.3d 1257, 2019 Wyo. LEXIS 72 (Wyo. 2019), cert. denied, 140 S. Ct. 974, 206 L. Ed. 2d 130, 2020 U.S. LEXIS 646 (U.S. 2020).

§ 7-12-405. Appointment of counsel.

The court may appoint counsel for a petitioner upon a determination that the petition is not subject to summary dismissal and the petitioner is needy. Counsel shall be appointed as provided in W.S. 7-6-104(c)(vii).

History. Laws 2018, ch. 77, § 1.

Efective date. —

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

§ 7-12-406. Victim notification.

Following any petition filed under W.S. 7-12-403 , the district attorney shall make reasonable efforts to provide notice to the victim that the petition has been filed, the time and place for any hearing that may be held as a result of the petition and the disposition of the petition. For purposes of this section, “victim” means as defined in W.S. 1-40-202(a)(ii).

History. Laws 2018, ch. 77, § 1.

Efective date. —

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

§ 7-12-407. Appeal.

An order granting or denying a petition under this act is appealable by either party.

History. Laws 2018, ch. 77, § 1.

Efective date. —

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

Chapter 13 Sentence and Imprisonment

Cross references. —

As to conduct of jails, see art. 1, § 16, Wyo. Const.

As to establishment of penal institutions, see art. 7, § 18, Wyo. Const.

As to sentencing under Criminal Code, see chapter 10 of title 6.

As to state penal institutions, see chapters 1 through 4 of title 25.

As to procedure relating to sentence and judgment, see Rule 54 et seq., W.R. Cr. P.

Am. Jur. 2d, ALR and C.J.S. references. —

United States Parole Commission Guidelines for federal prisoners, 61 ALR Fed 135.

Article 1. In General

Am. Jur. 2d, ALR and C.J.S. references. —

21A Am. Jur. 2d Criminal Law §§ 939 to 975; 60 Am. Jur. 2d Penal and Correctional Institutions § 1 et seq.

Right to credit for time spent in custody prior to trial or sentence, 77 ALR3d 182.

Computation of incarceration time under work-release or “hardship” sentences, 28 ALR4th 1265.

Fourth amendment as protecting prison visitor against unreasonable searches and seizures, 69 ALR Fed 856.

24 C.J.S. Criminal Law §§ 1989, 2000; 43 C.J.S. Infants §§ 31 to 91, 196 to 214.

§ 7-13-101. Sentencing of minors to boys' school upon first conviction of felony; term; parole.

  1. Upon his first conviction of a felony, any male offender under the age of eighteen (18) years may be sentenced to imprisonment in the Wyoming boys’ school.
  2. In imposing a sentence under this section the court shall not fix a definite or minimum term of confinement in the boys’ school but shall fix a maximum term which shall not exceed the maximum term provided for the statute violated.
  3. The department of family services may at any time grant to a person sentenced under this section a parole from the boys’ school even though the person has not served a fixed minimum sentence.

History. Laws 1909, ch. 90, § 1; C.S. 1910, § 540; C.S. 1920, § 613; Laws 1931, ch. 73, § 10; R.S. 1931, § 80-301; Laws 1941, ch. 5, § 1; C.S. 1945, § 11-405; Laws 1947, ch. 15, § 1; W.S. 1957, § 7-302; Laws 1971, ch. 92, § 11; 1985, ch. 181, § 1; 1987, ch. 77, § 1; ch. 157, § 3; 1991, ch. 161, § 3; 1993, ch. 1, § 1.

Cross references. —

As to Wyoming boys' school, see § 25-1-201 .

As to applicability of the DNA identification record system, see §§ 7-19-401 et seq.

Court's discretion not taken away. —

The discretion conferred upon courts by this section was not taken away by the establishing of the industrial institute (now the Wyoming boys' school). Hukoveh v. Alston, 25 Wyo. 122, 165 P. 988, 1917 Wyo. LEXIS 12 (Wyo. 1917).

Boys' school may be limited to first offenders. —

Legislature may provide that first offenders only shall be confined to industrial institute (now the Wyoming boys' school). Uram v. Roach, 47 Wyo. 335, 37 P.2d 793, 1934 Wyo. LEXIS 27 (Wyo. 1934).

Cited in

Apodaca v. State, 571 P.2d 603, 1977 Wyo. LEXIS 299 (Wyo. 1977); Ryan v. State, 988 P.2d 46, 1999 Wyo. LEXIS 153 (Wyo. 1999).

Law reviews. —

For comment, “The Institutional Transfer Statute: Three Challenges to the Imprisonment of Juvenile Offenders,” see XVII Land & Water L. Rev. 643 (1982).

Am. Jur. 2d, ALR and C.J.S. references. —

Application of rule of Dorszynski v. United States requiring that sentencing court make express finding of “no benefit” from treatment under Youth Corrections Act (18 USC §§ 5005 et seq.) (Repealed), 54 ALR Fed 382.

§ 7-13-102. [Repealed.]

Repealed by Laws 1992, ch. 25, § 4.

Editor's notes. —

This section, which derived from Laws 1909, ch. 90, § 6, related to the transfer of minors from the penitentiary to the boys' school.

§ 7-13-103. Notice of sentence; transportation to institution; maintenance of prisoner in county jail.

  1. If a person is sentenced to the custody of the department of corrections to serve a term of imprisonment in a state penal institution, the sheriff shall notify the department of corrections and the warden of the Wyoming medium correctional institution or the Wyoming women’s center.
  2. Except as provided in subsection (c) of this section, the director of the department of corrections shall arrange for the transportation of the person to a state penal institution, at state expense, within ten (10) days after notification by the sheriff that the judgment and sentence has been signed by the judge. The court shall notify the sheriff immediately upon signing of the sentence by the judge. Except as provided in subsection (c) of this section, prior to being transported to the institution the prisoner shall be maintained in the county jail at the expense of the county.
  3. Upon agreement of the sheriff and the director of the department of corrections, the prisoner may be maintained at the county jail at an agreed per diem rate to be paid by the department for an additional period of not more than thirty (30) days after expiration of the ten (10) days provided by subsection (b) of this section. The department shall pay for any medical treatment of the prisoner, other than for conditions demanding immediate medical attention which can be treated at the county jail and other than medical treatment for which the county is liable under W.S. 18-6-303(c)(i), which is provided after the judgment and sentence is signed by the judge. Except for emergency medical treatment, no treatment which is the responsibility of the department under this subsection shall be provided without the prior approval of the department.
  4. The sheriff shall furnish the department of corrections and the warden of the Wyoming state penitentiary or the Wyoming women’s center with a copy of the judgment and sentence imposed.

History. Laws 1882, ch. 76, § 9; R.S. 1887, § 1785; R.S. 1899, § 667; C.S. 1910, § 519; C.S. 1920, § 579; Laws 1921, ch. 61, § 1; 1923, ch. 45, § 1; 1931, ch. 73, § 6; R.S. 1931, § 108-801; Laws 1939, ch. 7, § 1; C.S. 1945, § 19-901; W.S. 1957, § 7-304; Laws 1987, ch. 138, § 1; ch. 157, § 3; 1992, ch. 25, § 3; 1995, ch. 122, § 2; 2001, ch. 153, § 1; 2013, ch. 10, § 1.

The 2013 amendment, substituted “medium correctional institution” for state penitentiary” in (a); and in (b), added “notification by the sheriff that”, added the second sentence, and made a stylistic change.

Laws 2013, ch 10 § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 11, 2013.

Auditing and payment of accounts for prisoner maintenance. —

Mandamus will issue to compel auditor to audit and treasurer either to pay account for proper maintenance of convicted criminals under statute providing for same, or to certify that there are no funds wherewith to pay, despite statute that no moneys shall be paid out of treasury unless especially appropriated by legislature. Donnellan v. Nicholls, 1 Wyo. 61, 1872 Wyo. LEXIS 14 (Wyo. 1872).

Am. Jur. 2d, ALR and C.J.S. references. —

Mandamus, under 28 USC § 1361, to obtain change in prison condition or release of federal prisoner, 114 ALR Fed 225.

§ 7-13-104. Record of prisoners.

The department of corrections shall keep a complete record of the background and current status of all prisoners sentenced and confined in any state penal institution. The administrator of the institution where a prisoner is incarcerated, the division of criminal investigation, and the clerk of court and sheriff of the county from which the prisoner is committed shall, at the request of the department or the board of parole, furnish any information in their possession relating to the prisoner or the offense committed.

History. Laws 1882, ch. 76, § 10; R.S. 1887, § 1786; R.S. 1899, § 668; C.S. 1910, § 520; C.S. 1920, § 580; Laws 1931, ch. 73, § 7; R.S. 1931, § 108-803; C.S. 1945, § 19-903; W.S. 1957, § 7-306; Laws 1971, ch. 92, § 13; W.S. 1977, § 7-13-105 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Cross references. —

As to division of criminal investigation, see § 9-1-611 .

§ 7-13-105. Certificate of restoration of rights; procedure for restoration in general; procedure for restoration of voting rights for nonviolent felonies; filing requirements.

  1. Upon receipt of a written application, the governor may issue to a person convicted of a felony under the laws of a state or the United States a certificate which restores the rights lost pursuant to W.S. 6-10-106 when:
    1. His term of sentence expires; or
    2. He satisfactorily completes a probation period.
  2. The department of corrections shall issue a certificate of restoration of voting rights as provided in this subsection and subsection (c) of this section. Upon issuance of a certificate, voting rights lost pursuant to W.S. 6-10-106 shall be deemed restored. The department of corrections shall automatically issue a person convicted of a nonviolent felony or nonviolent felonies arising out of the same occurrence or related course of events a certificate of restoration of voting rights if:
    1. The person  has not been convicted of any other felony other than convictions  arising out of the same occurrence or related course of events for  which restoration of rights is certified; and
    2. The person  has completed all of his sentence, including probation or parole.
    3. Repealed by Laws 2017, ch. 189, §  2.
  3. The department of corrections shall issue a certificate of restoration of voting rights to eligible persons as follows:
    1. For persons convicted within Wyoming of a nonviolent felony or nonviolent felonies arising out of the same occurrence or related course of events who completed their sentence before January 1, 2010, the department shall require receipt of a written request on a form prescribed by the department and issue each eligible person a certificate of restoration of voting rights following a determination that the person has completed his sentence, including probation and parole. The department shall not require an application for restoration before issuing a certificate to eligible persons who complete their sentence on and after January 1, 2010;
    2. For persons  convicted outside of Wyoming or under federal law of a nonviolent  felony or nonviolent felonies arising out of the same occurrence or  related course of events, the department shall issue each eligible person  a certificate of restoration of voting rights upon receipt of a written  request on a form prescribed by the department and following a determination  that the person has completed his sentence, including probation and  parole.
  4. The department of correction’s determination that a person is ineligible for a certificate of restoration of voting rights is a final action of the agency subject to judicial review. The clerk of the district court and the division of criminal investigation shall cooperate with the department of corrections in providing information necessary for determining a person’s eligibility to receive a certificate of restoration of voting rights. The department of corrections shall notify the secretary of state when any person’s voting rights have been restored. If the person was convicted in Wyoming, the department of corrections shall submit the certificate of restoration of voting rights to the clerk of the district court in which the person was convicted and the clerk shall file the certificate in the criminal case in which the conviction was entered.
  5. As used in this section:
    1. “Same occurrence or related course of events” means the same transaction or occurrence or a series of events closely related in time or location;
    2. Violent felony” means as defined by W.S. 6-1-104(a)(xii), including offenses committed in another jurisdiction which if committed in this state would constitute a violent felony under W.S. 6-1-104(a)(xii). Nonviolent felony” includes all felony offenses not otherwise defined as violent felonies.

History. Laws 1907, ch. 18, § 4; C.S. 1910, § 525; C.S. 1920, § 585; R.S. 1931, § 108-810; C.S. 1945, § 19-1004; W.S. 1957, § 7-311; W.S. 1977, § 7-13-107 ; Laws 1981, ch. 161, § 1; 1987, ch. 157, § 3; 2003, ch. 132, § 1; 2015, ch. 163, § 1; 2017, ch. 189, §§ 1, 2; 2018, ch. 108, § 1.

The 2015 amendment, effective January 1, 2016, rewrote the intro of (b); in (b)(i), substituted “person” for “applicant”, not” for “never”, inserted “or related course of events” and substituted “certified” for “sought”; in (b)(ii), substituted “The person has completed all of his” for “All of the applicant's terms of” and “including probation or parole” for “are expired, or in the case of probation, the applicant has completed all probation periods”; rewrote (c) and added (c)(i) and (ii); added (d); redesignated former (d) as present (e), added (e)(i), in (e)(ii), deleted “As used in this section,”.

The 2017 amendments. — , The first 2017 amendment, by ch. 189, § 1, effective July 1, 2017, in the last sentence of the introductory language of (b), added “automatically” following “corrections shall”; rewrote (c)(i); at the end of (c)(ii), substituted “issue each eligible person a certificate of restoration of voting rights upon receipt of a written request on a form prescribed by the department and following a determination that the person has completed his sentence, including probation and parole” for “application for restoration before issuing a certificate to an eligible person;”; and at the beginning of (d), substituted “department of correction's determination that a person is ineligible for” for “department's denial of”, and added “of correction” in the last sentence.

The second 2017 amendment, by ch. 189, § 2, effective July 1, 2017, deleted former ()(iii), which read: “It has been at least five (5) years since the expiration of all of the applicant's terms of sentence, or in the case of probation, the completion of all probation periods.”

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

The 2018 amendment, effective July 1, 2018, in (b)(i), added “and” at the end; in (b)(ii), deleted “and” at the end; and, in (c)(ii), deleted “require an” following “department shall.”.

Wyoming Administrative Procedure Act. —

See § 16-3-101(a), (b)(xi).

Editor’s Note. —

Laws 2015, ch. 163, § 3 states as follows: “This act shall not affect the validity of voting rights restored prior to the effective date of this act.”

Laws 2015, ch. 163, § 5(b) states as follows: “Except as provided by subsection (a) of this section, this act is effective January 1, 2016.”

Constitutionality of Wyo. Stat. Ann. § 6-10-106 . —

Wyo. Stat. Ann. § 7-13-105 provides a mechanism for convicted felons to re-qualify as electors after the prison term has ended or after probation. Woodruff v. Wyoming, 49 Fed. Appx. 199, 2002 U.S. App. LEXIS 21060 (10th Cir. Wyo. 2002).

Applied in

Mills v. Campbell County Canvassing Bd., 707 P.2d 747, 1985 Wyo. LEXIS 588 (Wyo. 1985).

Quoted in

Blake v. Rupe, 651 P.2d 1096, 1982 Wyo. LEXIS 383 (Wyo. 1982).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 7-13-106. Transfer of citizen or national of foreign country.

The governor may act on behalf of the state to consent to the transfer of a citizen or national of a foreign country pursuant to a treaty between the United States and the foreign country of which the person is a citizen or national.

History. Laws 1981, ch. 22, § 1; W.S. 1977, § 7-13-108 ; Laws 1987, ch. 157, § 3.

§ 7-13-107. Split sentence of incarceration in county jail followed by probation; civil liability of county officers and employees.

  1. Following a defendant’s conviction of, or his plea of guilty to any felony, other than a felony punishable by death or life imprisonment, the court may impose any sentence of imprisonment authorized by law and except as provided in subsection (g) of this section, may in addition provide:
    1. That the defendant be confined in the county jail for a period of not more than one (1) year; and
    2. That the execution of the remainder of the sentence be suspended and the defendant placed on probation.
  2. In placing the defendant on probation under subsection (a) of this section, the court may also:
    1. Impose any fine provided by the statute violated;
    2. Apply the provisions of W.S. 7-13-501 through 7-13-503 .
  3. Except as provided in subsection (a) of this section, the court may impose a split sentence of incarceration followed by probation in any felony case including those in which the statute violated specifically provides for a sentence of imprisonment in the state penitentiary.
  4. The court may impose a split sentence as provided by this section at the time a defendant is originally sentenced or at any hearing at which the court modifies or revokes a defendant’s probation and at which the defendant is personally present.
  5. The cost of housing convicted felons in the county jail shall be paid by the department of corrections by contract arrangement with the county sheriff. Costs shall include shelter, food, clothing, and necessary medical, dental and hospital care. Subject to legislative appropriation, the department of corrections may contract with county sheriffs to house felons sentenced under this section in county jail.
  6. If any civil action is brought against any sheriff, his under sheriff, deputy, agent or employee, by reason of acts committed or allegedly committed in the performance of necessary duties in connection with the housing and care of the convicted felons, the state shall indemnify and hold harmless the officers, agents or employees from all civil liability incurred or adjudged except punitive damage awards. Upon request, the state shall provide legal counsel at state expense to assist in the defense of any action referred to in this subsection.
  7. No person convicted of a felony may be sentenced to the county jail under this section unless:
    1. The judge, after consultation with the sheriff, determines that adequate facilities are available and that the jail is not overcrowded; and
    2. Funding exists to pay the cost of placement, in that:
      1. The legislature has specifically appropriated funds to pay for such placements and unencumbered appropriated funds are available for the proposed placement; or
      2. The county agrees to pay the costs of placement if sufficient funds are not available from state appropriations.
  8. A defendant sentenced under this section is not eligible for parole and is not subject to good time allowances authorized under W.S. 7-13-420 . The sentencing court shall continue to have jurisdiction over the defendant during the entire time he is confined in county jail and thereafter while the defendant is serving his term of probation.
  9. If consecutive terms of confinement in the county jail are ordered pursuant to this section they shall not exceed a period of one (1) year.

History. Laws 1984, ch. 57, § 1; W.S. 1977, § 7-13-109 ; Rev. W.S. 1977, § 7-13-110; Laws 1986, ch. 63, § 1; 1987, ch. 157, § 3; ch. 205, § 1; 1989, ch. 91, § 1; 1990, ch. 16, § 1; 1992, ch. 25, § 3.

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

“Classical split sentence.” —

In a classical split sentence, the district court imposes an established sentence that includes incarceration in the county jail for a period of not more than one year with probation to follow the confinement for the balance of the established sentence. Kidd v. State, 937 P.2d 1334, 1997 Wyo. LEXIS 69 (Wyo. 1997), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

When the original sentence is a classical split sentence, the district court is limited to resentencing the defendant after his probation has been revoked to serve a period of confinement that is equal to or less than the time remaining on his original probation. Kidd v. State, 937 P.2d 1334, 1997 Wyo. LEXIS 69 (Wyo. 1997), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

A sentence that required defendant to complete four years of supervised probation and, as a condition of the probation, to serve a 90-day term in the county jail, was a “classical split sentence”; the sentence did not indicate that the trial court intended to retain the right to completely resentence defendant in the event the probation was revoked. Kidd v. State, 937 P.2d 1334, 1997 Wyo. LEXIS 69 (Wyo. 1997), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

“Probationary split sentence.” —

A probationary split sentence consists of incarceration in the county jail for a period of not more than one year followed by a stated period of probation with sentencing being postponed subject to entry in the event that probation is revoked. Kidd v. State, 937 P.2d 1334, 1997 Wyo. LEXIS 69 (Wyo. 1997), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

When the sentence is a probationary split sentence, the sentencing judge may resentence the defendant after his probation has been revoked to serve any term that could have originally been imposed for the commission of the crime. Kidd v. State, 937 P.2d 1334, 1997 Wyo. LEXIS 69 (Wyo. 1997), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

When defendant pled guilty to one felony count of interference with a peace officer, he was sentenced to prison for a period of not less than three years nor more than six years; defendant's sentence was suspended pursuant to the split sentencing provision of this section, and he was ordered to serve 180 days in the county jail followed by four years of probation. After defendant admitted five violations of his probationary conditions, probation was revoked and the district court did not abuse its discretion in reimposing sentence. Castillo v. State, 2012 WY 3, 268 P.3d 245, 2012 Wyo. LEXIS 3 (Wyo. 2012).

The differences in character between the two types of split sentences define the residual sentencing discretion retained by the district court upon revocation; in the case of the classical split sentence, only the period remaining upon revocation can be enforced by confinement but the probationary split sentence permits the sentencing judge to resentence to any sentence which might have originally been imposed. Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

Probation violations determined under Rules of Criminal Procedure. —

If a defendant is given a “split sentence” (incarceration followed by probation) pursuant to this section, probation violations will likewise be determined under the sentencing court's continued jurisdiction during the period of probation pursuant to the Wyoming Criminal Rules of Procedure. Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

Distinction between classical split and probationary split sentences abrogated. —

Prior to utilizing split sentencing, the sentencing court must impose a minimum and maximum term sentence. The holdings of Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992), overruled on other grounds, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002), and Kidd v. State, 937 P.2d 1334, 1997 Wyo. LEXIS 69 (Wyo. 1997), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

Double jeopardy prevents imposition of sentence longer than original sentence. —

Jeopardy attaches at the time a defendant sentenced under this section begins to serve his confinement term and the underlying constitutional principle of double jeopardy prevents imposition of a longer sentence than was originally imposed. Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

Split sentence properly rejected. —

District court's rationale for rejecting the plea agreement (a split sentencing agreement which would have allowed for incarceration in the county jail and then supervised probation) was very similar to its later rationale for incarcerating defendant. In both instances, the district court stated that, under the totality of the circumstances (high blood alcohol content, driving on the wrong side of the road, other near accidents, and a prior drunk driving offense), probation would have sent the wrong message to the public. Cohee v. State, 2005 WY 50, 110 P.3d 267, 2005 Wyo. LEXIS 56 (Wyo. 2005).

Illegal sentence. —

Because this section does not authorize the imposition of probation and detention at the same time, which are incompatible and mutually exclusive as indicated in Wyo. Stat. Ann. §§ 6-5-201(a)(ii), 7-13-401(a)(x) as construed together, a sentence that deemed defendant both on probation and in detention during release from jail for alcohol treatment was illegal. Endris v. State, 2010 WY 73, 233 P.3d 578, 2010 Wyo. LEXIS 76 (Wyo. 2010).

Applied in

Paugh v. State, 9 P.3d 973, 2000 Wyo. LEXIS 173 (Wyo. 2000).

Cited in

Smith v. State, 902 P.2d 1271, 1995 Wyo. LEXIS 161 (Wyo. 1995); Pearl v. State, 996 P.2d 688, 2000 Wyo. LEXIS 25 (Wyo. 2000).

§ 7-13-108. Sentence to custody of department of corrections.

  1. Unless otherwise specifically provided by statute, any person convicted of a felony and sentenced to a term of imprisonment shall be sentenced to the custody and control of the department of corrections to be incarcerated in a state penal institution or other facility under contract or agreement with the department pursuant to W.S. 25-1-105(e), as directed by the department.
  2. Any contract entered into under W.S. 25-1-105(e) shall be approved as to form and content by the Wyoming attorney general.

History. Laws 1992, ch. 25, § 2; 1996, ch. 1, § 314; 1996, ch. 32, § 1; 1998, ch. 30, § 315; ch. 60, § 1.

§ 7-13-109. Payment of jail costs by inmate.

  1. In addition to any other punishment prescribed by law, the sentencing court may require a person sentenced to confinement in county jail, for any offense, to pay the jail facility the costs of room and board for each day of incarceration, both before and after conviction. The costs for room and board for each day of incarceration shall be an amount equal to the actual cost of the services as determined by the county sheriff. The cost of the services shall be paid to all jail facilities where the inmate may have been held before and after conviction. The costs shall not be assessed if:
    1. The court finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay; or
    2. In the judgment of the court, the costs would impose a manifest hardship on the inmate, or the property of the inmate is needed for the maintenance and support of the inmate’s family.
  2. An order to pay room and board costs under this section shall be included as a special order in the judgment of conviction. To satisfy the order, the clerk of the sentencing court, upon request of the sheriff or prosecuting attorney, may issue execution against any assets of the defendant including wages subject to attachment, in the same manner as in a civil action.
  3. Willful failure or refusal to pay costs ordered under this section is punishable as contempt of court.
  4. Any costs paid by a person under this section shall be deposited in the county general fund to help defray the costs the jail facility incurred in providing room and board to the person.

History. Laws 1996, ch. 3, § 1.

Applicability. —

Presentence confinement costs assessment, under Wyo. Stat. Ann. § 7-13-109(a), had to be vacated because the statute only applied to those sentenced to jail, and defendant was sentenced to prison. Pfeil v. State, 2014 WY 137, 336 P.3d 1206, 2014 Wyo. LEXIS 159 (Wyo. 2014).

This section does not permit imposition of costs for confinement in Wyoming state penitentiary. Lee v. State, 2 P.3d 517, 2000 Wyo. LEXIS 68 (Wyo. 2000), dismissed, 2007 WY 81, 157 P.3d 947, 2007 Wyo. LEXIS 87 (Wyo. 2007).

Article 2. Indeterminate Sentence

Am. Jur. 2d, ALR and C.J.S. references. —

21A Am. Jur. 2d Criminal Law § 830; 59 Am. Jur. 2d Pardon and Parole §§ 74, 76 to 80, 82, 83, 85 to 90, 92 to 96, 100, 101, 103 to 114, 118, 119, 121, 122, 124 to 126, 128 to 157.

§ 7-13-201. Maximum and minimum term.

Except where a term of life is required by law, or as otherwise provided by W.S. 7-13-101 , when a person is sentenced for the commission of a felony, the court imposing the sentence shall not fix a definite term of imprisonment but shall establish a maximum and minimum term within the limits authorized for the statute violated. The maximum term shall not be greater than the maximum provided by law for the statute violated, and the minimum term shall not be less than the minimum provided by law for the statute violated, nor greater than ninety percent (90%) of the maximum term imposed.

History. Laws 1909, ch. 84, § 1; C.S. 1910, § 530; C.S. 1920, § 603; R.S. 1931, § 33-1301; C.S. 1945, § 10-1801; W.S. 1957, § 7-313; Laws 1987, ch. 157, § 3.

Cross references. —

As to minimum term of imprisonment in penitentiary, see § 6-10-107 .

Legal sentence. —

Defendant's current sentence was not illegal; the minimum term of defendant's sentence did not exceed 90% of the maximum term, so the sentence complied with this section. Patterson v. State, 2013 WY 153, 314 P.3d 759, 2013 Wyo. LEXIS 159 (Wyo. 2013).

Sentencing is not scientific procedure but rather one on which there is a great divergence of opinion as to proper terms of incarceration. Teton v. State, 482 P.2d 123, 1971 Wyo. LEXIS 204 (Wyo. 1971).

Wyoming's system of indeterminate sentencing necessitates granting of broad discretion to trial judge, who must choose from the sentencing alternatives and the range of permissible penalties. Daniel v. State, 644 P.2d 172, 1982 Wyo. LEXIS 327 (Wyo. 1982).

Judge to give consideration to all circumstances in imposing sentence. —

In the imposition of a criminal sentence, the judge in exercising his judicial discretion should give consideration to all circumstances, aggravating as well as mitigating. Daniel v. State, 644 P.2d 172, 1982 Wyo. LEXIS 327 (Wyo. 1982).

And should explain reasoning. —

Trial judges should explain their reasons for denying probation and indicate the factors they considered in imposing sentence. Daniel v. State, 644 P.2d 172, 1982 Wyo. LEXIS 327 (Wyo. 1982).

Reasonableness of sentence. —

In assessing the reasonableness of a criminal sentence, consideration is given to the crime and its circumstances and the character of the criminal. Smith v. State, 922 P.2d 846, 1996 Wyo. LEXIS 114 (Wyo. 1996).

Illegal sentence. —

Appellant's sentence of 20-22 years for accessory to second degree murder was illegal, because it violated the requirement of this section that the minimum sentence be no more than 90% of the maximum sentence. Patterson v. State, 2012 WY 90, 279 P.3d 535, 2012 Wyo. LEXIS 95 (Wyo. 2012).

Appellate review. —

When the imposition of a criminal sentence by a trial court is within the limits set by the legislature, the sentence will not be overturned, absent a clear abuse of discretion. Smith v. State, 922 P.2d 846, 1996 Wyo. LEXIS 114 (Wyo. 1996).

There is no statutorily required period of time between minimum and maximum sentences; nothing, therefore, would preclude the imposition of a sentence providing for only one day between the minimum and maximum sentences. Duffy v. State, 730 P.2d 754, 1986 Wyo. LEXIS 655 (Wyo. 1986) (decided prior to 1987 revision of this title).

Double credit for presentence time served unauthorized. —

The trial court's doubling of presentence time served and applying the double credit against the maximum term of sentence was unjustified as well as unauthorized and constituted an abuse of discretion. Jones v. State, 771 P.2d 368, 1989 Wyo. LEXIS 87 (Wyo. 1989).

Minimum term not required. —

Former Section 6-63(A) provided that a person who had been convicted of first-degree rape could be sentenced to life in prison and because the district court determined that a life sentence was appropriate, it was not bound to set a minimum term under former Section 7-313 (Section 7-13-201 ). Dolence v. State, 921 P.2d 1103, 1996 Wyo. LEXIS 117 (Wyo. 1996).

The district court is not required to establish a minimum term where a life sentence is imposed but is not required by statute. Ryan v. State, 988 P.2d 46, 1999 Wyo. LEXIS 153 (Wyo. 1999).

Sentence not an abuse of discretion. —

A criminal sentence imposing a term of not less than 18 years nor more than 20 for aggravated vehicular homicide was not an abuse of discretion given the particular set of facts. Smith v. State, 922 P.2d 846, 1996 Wyo. LEXIS 114 (Wyo. 1996).

Motion for correction of sentence. —

Courts properly denied defendants' motions for correction of their sentences because defendants were sentenced in accordance with Wyoming's indeterminate sentencing statute and their individual sentences fell within the statutory maximums set out for their crimes. Consequently, there was no obvious violation of the constitutional principles discussed in Apprendi and Blakely. Gould v. State, 2006 WY 157, 2006 Wyo. LEXIS 176 (Dec. 19, 2006).

Applied in

Williams v. State, 692 P.2d 233, 1984 Wyo. LEXIS 352 (Wyo. 1984); Brown v. State, 736 P.2d 1110, 1987 Wyo. LEXIS 447 (Wyo. 1987); DeSpain v. State, 865 P.2d 584, 1993 Wyo. LEXIS 185 (Wyo. 1993); Garcia v. State, 908 P.2d 413, 1995 Wyo. LEXIS 223 (Wyo. 1995); Jackson v. State, 2009 WY 82, 209 P.3d 897, 2009 Wyo. LEXIS 91 (June 19, 2009); Hathaway v. State, 2017 WY 92, 399 P.3d 625, 2017 Wyo. LEXIS 91 (Wyo. 2017).

Quoted in

Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

Stated in

Kennedy v. State, 595 P.2d 577, 1979 Wyo. LEXIS 413 (Wyo. 1979); Sorenson v. State, 604 P.2d 1031, 1979 Wyo. LEXIS 504 (Wyo. 1979); Allman v. State, 677 P.2d 832, 1984 Wyo. LEXIS 264 (Wyo. 1984).

Cited in

Uram v. Roach, 47 Wyo. 335, 37 P.2d 793, 1934 Wyo. LEXIS 27 , 95 A.L.R. 1448 (1934); Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992); Duffy v. State, 837 P.2d 1047, 1992 Wyo. LEXIS 100 (Wyo. 1992); Cardenas v. State, 925 P.2d 239, 1996 Wyo. LEXIS 151 (Wyo. 1996); Dodge v. State, 951 P.2d 383, 1997 Wyo. LEXIS 172 (Wyo. 1997); Dolence v. State, 2005 WY 27, 107 P.3d 176, 2005 Wyo. LEXIS 28 (2005); Cothren v. State, 2013 WY 125, 310 P.3d 908, 2013 Wyo. LEXIS 130 , 2013 WL 5570284 (Oct 10, 2013); Nicodemus v. Lampert, 2014 WY 135, 2014 Wyo. LEXIS 150 (Oct. 30, 2014).

Law reviews. —

For article, “The Operation of Wyoming Statutes on Probation and Parole,” see 7 Wyo. L.J. 104.

For article, “Disparity and the Sentencing Process in Wyoming District Courts: Recommendations for Change,” see XI Land & Water L. Rev. 525 (1976).

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Right to credit on state sentence for time served under sentence of court of separate jurisdiction where state court fails to specify in that regard, 90 ALR3d 408.

Defendant's right to credit for time spent in halfway house, rehabilitation center, or other restrictive environment as condition of probation, 24 ALR4th 789.

Power of state court, during same term, to increase severity of lawful sentence — modern status, 26 ALR4th 905.

United States Parole Commission Guidelines for federal prisoners, 61 ALR Fed 135.

Article 3. Probation and Suspension of Sentence

Applied in

Reese v. State, 866 P.2d 82, 1993 Wyo. LEXIS 194 (Wyo. 1993).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of probation condition exposing defendant to public shame or ridicule, 65 ALR5th 187.

Propriety, in criminal case, of federal district court order restricting defendant's right to re-enter or stay in United States, 94 ALR Fed 619.

24 C.J.S. Criminal Law §§ 1549 to 1568; 67A C.J.S. Pardons §§ 39 to 83.

§ 7-13-301. Placing person found guilty, but not convicted, on probation.

  1. If a person  who has not previously been convicted of any felony is charged with  or is found guilty of or pleads guilty or no contest to any misdemeanor  except any second or subsequent violation of W.S. 31-5-233 or any similar provision of law, or any second or subsequent violation  of W.S. 6-2-510(a) or 6-2-511(a) or  any similar provision of law, or any felony except murder, sexual  assault in the first or second degree, aggravated assault and battery  or arson in the first or second degree, the court may, with the consent  of the defendant and the state and without entering a judgment of  guilt or conviction, defer further proceedings and place the person  on probation for a term not to exceed thirty-six  (36) months upon terms and conditions set by the court.  The terms of probation shall include that he:
    1. Report to the court not less than twice in each year at times and places fixed in the order;
    2. Conduct himself in a law-abiding manner;
    3. Not leave the state without the consent of the court;
    4. Conform his conduct to any other terms of probation the court finds proper; and
    5. Pay restitution to each victim in accordance with W.S. 7-9-101 and 7-9-103 through 7-9-115 .
  2. If the court  finds the person has fulfilled the terms of probation and that his  rehabilitation has been attained to the satisfaction of the court,  the court may at the end of thirty-six (36)  months, or at any time after the expiration of one (1)  year from the date of the original probation, discharge the person  and dismiss the proceedings against him.
  3. If the defendant violates a term or condition of probation at any time before final discharge, the court may:
    1. Enter an adjudication of guilt and conviction and proceed to impose sentence upon the defendant if he previously pled guilty to or was found guilty of the original charge for which probation was granted under this section; or
    2. Order that the trial of the original charge proceed if the defendant has not previously pled or been found guilty.
  4. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for any purpose.
  5. There shall be only one (1) discharge and dismissal under this section or under any similar section of the probationary statutes of any other jurisdiction.
  6. This section shall not apply to any person holding any class of commercial driver’s license pursuant to W.S. 31-7-304(a)(i), nor to the driver of any commercial motor vehicle as defined by W.S. 31-7-102(a)(viii), who is charged with any offense specified in W.S. 31-7-305 .

History. Laws 1909, ch. 87, § 1; C.S. 1910, § 537; C.S. 1920, § 610; Laws 1931, ch. 73, § 9; R.S. 1931, § 33-1501; C.S. 1945, § 10-1803; W.S. 1957, § 7-315; Laws 1977, ch. 70, § 2; W.S. 1977, § 7-13-203; Laws 1987, ch. 157, § 3; 1991, ch. 77, § 1; 2000, ch. 11, § 1; 2011, ch. 31, § 1; 2013, ch. 32, § 1; 2014, ch. 13, § 2; 2019, ch. 101, § 1.

The 2011 amendment, effective July 1, 2011, added (f).

The 2013 amendment, effective July 1, 2013, substituted “7-9-115” for “7-9-112” in (a)(v).

The 2019 amendment, effective July 1, 2019, in the introductory language in (a) and in (b), substituted "thirty-six (36) months" for "five (5) years."

Cross references. —

As to presentence investigation, see Rule 32(a), W.R. Cr. P.

Section was constitutionally enacted, in compliance with Wyo. Const., art. 3, §§ 20 and 24. Billis v. State, 800 P.2d 401, 1990 Wyo. LEXIS 119 (Wyo. 1990), reh'g denied, 1990 Wyo. LEXIS 133 (Wyo. Nov. 9, 1990); Mollman v. State, 800 P.2d 466, 1990 Wyo. LEXIS 113 (Wyo. 1990); Hudson v. State, 800 P.2d 471, 1990 Wyo. LEXIS 172 (Wyo. 1990); Heggen v. State, 800 P.2d 475, 1990 Wyo. LEXIS 111 (Wyo. 1990); Cambio v. State, 800 P.2d 482, 1990 Wyo. LEXIS 114 (Wyo. 1990).

This section should not be invoked in any instance in which more than one charge is being resolved. Barnes v. State, 951 P.2d 386, 1998 Wyo. LEXIS 2 (Wyo. 1998).

Executive, not judicial, department has power to decide whether to defer prosecution under this section. The exercise of that prosecutorial discretion is not subject to judicial review as long as any unjustifiable or suspect factors such as race, religion, or other arbitrary or discriminatory classification are not involved. Thus, the requirement that the state consent to the court's deferral of further proceedings and placement of defendants on probation without entry of a judgment of conviction does not infringe on the judicial department's sentencing power in violation of the principle of separation of powers explicitly stated in Wyo. Const., art. 2, § 1. Billis v. State, 800 P.2d 401, 1990 Wyo. LEXIS 119 (Wyo. 1990), reh'g denied, 1990 Wyo. LEXIS 133 (Wyo. Nov. 9, 1990); Mollman v. State, 800 P.2d 466, 1990 Wyo. LEXIS 113 (Wyo. 1990); Hudson v. State, 800 P.2d 471, 1990 Wyo. LEXIS 172 (Wyo. 1990); Heggen v. State, 800 P.2d 475, 1990 Wyo. LEXIS 111 (Wyo. 1990); Cambio v. State, 800 P.2d 482, 1990 Wyo. LEXIS 114 (Wyo. 1990); Gezzi v. State, 800 P.2d 485, 1990 Wyo. LEXIS 110 (Wyo. 1990); Kruzich v. State, 800 P.2d 489, 1990 Wyo. LEXIS 112 (Wyo. 1990).

Prosecutor's refusal to consent to first-offender treatment did not violate due process, where the presentence investigation report stated that the defendant had previously sold drugs but that he felt it did not amount to much, and that the state felt the pending criminal matter was not an isolated incident in view of that admission. Billis v. State, 800 P.2d 401, 1990 Wyo. LEXIS 119 (Wyo. 1990), reh'g denied, 1990 Wyo. LEXIS 133 (Wyo. Nov. 9, 1990).

Prosecutor's refusal to consent to deferred sentence did not amount to vindictive prosecution since it levied no additional charges against defendant and defendant was only subject to legislatively proscribed penalty which accompanied offense for which he was charged. Swanson v. State, 981 P.2d 475, 1999 Wyo. LEXIS 85 (Wyo. 1999).

Section is probably superseded by § 7-13-302 . Sorenson v. State, 604 P.2d 1031, 1979 Wyo. LEXIS 504 (Wyo. 1979) (decided prior to 1987 revision of this title).

Section was intended by legislature as permissible alternative to § 7-13-302 in limited circumstances, and it does not conflict with, and was not repealed by § 7-13-302 .King v. State, 720 P.2d 465, 1986 Wyo. LEXIS 566 (Wyo. 1986).

Section 7-13-302 is more restrictive than this section, since that section does not itself specify the conditions of any probationary freedom. Peterson v. State, 586 P.2d 144, 1978 Wyo. LEXIS 238 (Wyo. 1978), overruled, Crozier v. State, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986).

Adjudication as to each offense is essential. —

An adjudication of guilt and conviction under the statute and an adjudication as to each offense is essential to the power of the court to impose sentence. Dickson v. State, 903 P.2d 1019, 1995 Wyo. LEXIS 184 (Wyo. 1995).

Section not applicable to multi-count case. —

This section does not readily adapt to its application in a multi-count case. The legislative intent seems clear to the effect it can only be used once. Dickson v. State, 903 P.2d 1019, 1995 Wyo. LEXIS 184 (Wyo. 1995).

This section should not be invoked in any instance in which more than one charge is being resolved. Dickson v. State, 903 P.2d 1019, 1995 Wyo. LEXIS 184 (Wyo. 1995).

Discretion of court. —

The term “may” in subsection (a) connotes permissive authority and does not structure a mandatory requirement; therefore, the sentencing court has discretion with respect to invoking this section even if the defendant is eligible for its benefits and the state consents to its application. Rawson v. State, 900 P.2d 1136, 1995 Wyo. LEXIS 130 (Wyo. 1995).

The sentencing court has discretion with respect to invoking the statute even if the defendant is eligible for its benefits. Rawson v. State, 900 P.2d 1136, 1995 Wyo. LEXIS 130 (Wyo. 1995).

Trial court did not abuse its discretion and did not violate defendant's right to equal protection of the laws by declining to grant defendant first-offender status under this section; trial court properly denied such status in order to punish defendant for the premeditated night-time burglary and to deter other students. Kelley v. State, 2009 WY 3, 199 P.3d 521, 2009 Wyo. LEXIS 3 (Wyo. 2009).

Burden on defendant to show eligibility. —

This section is not available as an option when a charge against the defendant has been resolved under a similar statute or the defendant has been convicted of a felony, and the defendant must assume the burden of satisfying the sentencing court that the defendant is eligible for consideration under this section. Rawson v. State, 900 P.2d 1136, 1995 Wyo. LEXIS 130 (Wyo. 1995).

Imposition of sentence. —

The deferred prosecution procedure provided for in this section entails more than revoking the defendant's probation; the judge must also impose a sentence for the underlying crime. Nelson v. State, 934 P.2d 1238, 1997 Wyo. LEXIS 55 (Wyo. 1997).

Entitlement to appointed counsel. —

Although Rule 44(a)(2), W.R.Cr.P., limits the circumstances under which the court is required to appoint counsel in a probation revocation proceeding, a defendant is constitutionally entitled to court-appointed counsel in the specific circumstance when the proceeding includes sentencing. Nelson v. State, 934 P.2d 1238, 1997 Wyo. LEXIS 55 (Wyo. 1997).

Judge may refuse probation to drunk drivers. —

The fact that a sentencing judge may perceive individuals who drink to excess, then drive and take a life, in a harsh judicial light is not such an unreasonable approach as to demonstrate an abuse of discretion in refusing to consider probation. Whitfield v. State, 781 P.2d 913, 1989 Wyo. LEXIS 215 (Wyo. 1989).

Probation given consideration despite court's comments on “mandate” regarding drunk drivers who kill. —

Despite the trial court's comments on the “legislative mandate” regarding drunk drivers who kill, the facts surrounding the sentencing for aggravated homicide by vehicle reflected that probation was given appropriate consideration and, therefore, there was no error in sentencing the defendant to confinement. Volz v. State, 707 P.2d 179, 1985 Wyo. LEXIS 581 (Wyo. 1985).

Section does not allow incarceration as condition of delayed sentence. Laing v. State, 746 P.2d 1247, 1987 Wyo. LEXIS 554 (Wyo. 1987).

Court exceeded authority when it entered order extending probation beyond original five-year period. The court's discretion to continue probation is limited by this section to the period of five years. This period begins from the date of the “original parole” when the order is first entered which delays the passing of the sentence. King v. State, 720 P.2d 465, 1986 Wyo. LEXIS 566 (Wyo. 1986).

Ten year probation illegal. —

Where the trial court was unclear as to whether its sentencing order placing the defendant on probation was decided under former § 7-13-203 (now § 7-13-301 ) or former § 7-13-301 (now § 7-13-302 ), yet the order took language verbatim from former § 7-13-203 and was consistent with the section by not entering and then suspending a sentence of incarceration, probation was considered granted under former § 7-13-203 and not former § 7-13-301. The court, therefore, erred and entered an illegal sentence when it sentenced the defendant to ten years probation, as the maximum period for probation allowable under former § 7-13-203 is five years. Kahlsdorf v. State, 823 P.2d 1184, 1991 Wyo. LEXIS 202 (Wyo. 1991).

Restitution. —

Even in the absence of a statute on point, the general authority of the court to impose reasonable probation and parole conditions includes the authority to require restitution. Dickson v. State, 903 P.2d 1019, 1995 Wyo. LEXIS 184 (Wyo. 1995).

In Wyoming, once the state has established the failure of a probationer to pay restitution as ordered by the court, the probationer must establish any defense to revocation based on his alleged inability to pay. Dickson v. State, 903 P.2d 1019, 1995 Wyo. LEXIS 184 (Wyo. 1995).

In Wyoming, once the state has established the failure of a probationer to pay restitution as ordered by the court, the probationer must establish any defense to revocation based on his alleged inability to pay. Dickson v. State, 903 P.2d 1019, 1995 Wyo. LEXIS 184 (Wyo. 1995).

Court had no jurisdiction to grant annulment of conviction after sentence was imposed. Ward v. State, 735 P.2d 707, 1987 Wyo. LEXIS 424 (Wyo. 1987).

Revocation of probation need not be completed within period of probation. —

The court may revoke probation at any time before the final discharge of the probationer, as long as revocation proceedings are initiated within the probation period. Kahlsdorf v. State, 823 P.2d 1184, 1991 Wyo. LEXIS 202 (Wyo. 1991) (decided under facts existing under prior law).

Second sentence of probation where first probation validly revoked. —

It does not violate the probation provisions when a defendant, having served time on probation under former § 7-13-203 (now § 7-13-301 ), has her probation validly revoked and then receives a second sentence of probation under former § 7-13-301 (now § 7-13-302 ) which equals the maximum sentence for her crime. Kahlsdorf v. State, 823 P.2d 1184, 1991 Wyo. LEXIS 202 (Wyo. 1991).

Tolling of probation. —

One cannot benefit from his refusal to appear before the district court after being ordered so to do, and where defendant was aware of the proceedings instituted to revoke his probation, yet he chose to rely upon his claim of dialogue with officers of the sheriff's department in Texas, rather than consulting with the Wyoming court, the probation was tolled from the time the Petition for Order to Show Cause Why Probation Should Not Be Revoked was filed. Dickson v. State, 903 P.2d 1019, 1995 Wyo. LEXIS 184 (Wyo. 1995).

Revocation for willful violation. —

Where the evidence showed that defendant failed to inform a probation officer of police contact during a domestic dispute, there was sufficient evidence to support a district court's decision to revoke probation; the district court was entitled to disbelieve defendant's assertion that the domestic proceeding was civil in nature and the argument that the failure to report was not willful but based on defendant's limited ability to speak English. Sami v. State, 2004 WY 23, 85 P.3d 1014, 2004 Wyo. LEXIS 29 (Wyo. 2004).

Reinstatement of disbarred attorney. —

Attorney was reinstated to the practice of law after being disbarred following a criminal conviction for felony forgery, for which the attorney was granted first offender status, under Wyo. Stat. Ann. § 7-13-301 , because (1) the attorney had been allowed to seek reinstatement in two years, (2) the attorney complied with all terms of probation, (3) the underlying criminal case was dismissed, (4) the attorney was current on license fees and compliant with continuing legal education requirements, and (5) bar counsel stipulated the attorney had the character and fitness to practice law in Wyoming, and that the attorney's resumption of practice would not be detrimental to the administration of justice and the public interest. Bd. of Prof'l Responsibility v. Barnes, 2015 WY 45, 346 P.3d 907, 2015 Wyo. LEXIS 49 (Wyo. 2015).

Applied in

Hicklin v. State, 535 P.2d 743, 1975 Wyo. LEXIS 142 , 79 A.L.R.3d 1050 (Wyo. 1975); Weldon v. State, 800 P.2d 513, 1990 Wyo. LEXIS 132 (Wyo. 1990); Christensen v. State, 854 P.2d 675, 1993 Wyo. LEXIS 104 (Wyo. 1993); Meerscheidt v. State, 931 P.2d 220, 1997 Wyo. LEXIS 7 (Wyo. 1997); Jackson v. State, 2012 WY 56, 273 P.3d 1105, 2012 Wyo. LEXIS 59 (Apr. 11, 2012).

Quoted in

Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992); GGV v. JLR, 2002 WY 19, 39 P.3d 1066, 2002 Wyo. LEXIS 18 (Wyo. 2002); Anderson v. State, 2002 WY 46, 43 P.3d 108, 2002 Wyo. LEXIS 50 (Wyo. 2002); King v. Wyo. Dep't of Transp., 2007 WY 109, 161 P.3d 1086, 2007 Wyo. LEXIS 116 (July 12, 2007); Berger v. State, 2017 WY 90, 399 P.3d 621, 2017 Wyo. LEXIS 88 (Wyo. 2017).

Cited in

Reay v. State, 800 P.2d 499, 1990 Wyo. LEXIS 129 (Wyo. 1990); Wetherelt v. State, 864 P.2d 449, 1993 Wyo. LEXIS 176 (Wyo. 1993); Eustice v. State, 871 P.2d 682, 1994 Wyo. LEXIS 42 (Wyo. 1994); Jibben v. State, 901 P.2d 1099, 1995 Wyo. LEXIS 138 (Wyo. 1995); Garton v. State, 910 P.2d 1348, 1996 Wyo. LEXIS 16 (Wyo. 1996); Doney v. State, 2002 WY 182, 59 P.3d 730, 2002 Wyo. LEXIS 219 (Wyo. 2002); Wilkins v. State, 2005 WY 2, 104 P.3d 85, 2005 Wyo. LEXIS 4 (2005); Robison v. State, 2011 WY 4, 246 P.3d 259, 2011 Wyo. LEXIS 7 (Jan. 19, 2011); Vaughn v. State, 2017 WY 29, 391 P.3d 1086, 2017 Wyo. LEXIS 28 (Wyo. 2017); Greer v. Greer, 2017 WY 35, 391 P.3d 1127, 2017 Wyo. LEXIS 35 (Wyo. 2017).

Am. Jur. 2d, ALR and C.J.S. references. —

Acquittal in criminal proceeding as precluding revocation of parole on same charge, 76 ALR3d 578.

Propriety of conditioning probation on defendant's serving part of probationary period in jail or prison, 6 ALR4th 446.

Propriety of conditioning probation on defendant's submission to drug testing, 87 ALR4th 929.

Supreme court's views on mandatory testing for drugs or alcohol, 145 ALR Fed 335.

§ 7-13-302. Placing person convicted on probation; suspension of imposition or execution of sentence; imposition of fine; maximum length of probation term.

  1. After conviction, plea of no contest or plea of guilty for any offense, except crimes punishable by death or life imprisonment, and following entry of the judgment of conviction, the court may:
    1. Suspend the imposition or execution of sentence and place the defendant on supervised or unsupervised probation; or
    2. Impose a fine applicable to the offense and place the defendant on supervised or unsupervised probation.
  2. Unless otherwise authorized by law, no term of probation imposed shall exceed the maximum term of imprisonment allowed by law. Any term of probation imposed under this section for a felony offense shall in no case exceed thirty-six (36) months, except that the judge may impose a term of probation that is not greater than the maximum term of imprisonment authorized by law for the offense for good cause shown upon the record and after considering public safety, rehabilitation, deterrence and any other goals of sentencing.

History. Laws 1939, ch. 91, § 1; C.S. 1945, § 10-1901; W.S. 1957, § 7-318; Laws 1969, ch. 178, § 1; W.S. 1977, § 7-13-301 ; Laws 1987, ch. 157, § 3; 2019, ch. 101, § 1; ch. 37, § 1.

Cross references. —

As to suspension of sentence upon conviction of driving under the influence, see § 31-5-233 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

The 2019 amendments. — The first 2019 amendment by ch. 37, § 1, inserted "plea of no contest" following "After conviction" in (a), inserted "on supervised or unsupervised" preceding "probation" in (a)(i) and (a)(ii).

Laws 2019, ch. 37, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8 of the Wyo. Const. Approved February 15, 2019.

The second 2019 amendment by ch. 101, § 1, effective July 1, 2019, added (b).

Requirements for revocation of probation.—

Lower court had the authority to revoke defendant’s probation because the probation violation occurred during the probationary period in that, following defendant’s no contest plea, the court suspended the execution of defendant’s sentence in one case and placed defendant on supervised probation. Then, after defendant violated the conditions of the probationary sentence imposed in another case, the court commenced probation revocation proceedings against defendant during the period in which the execution of that sentence was suspended. Sena v. State, 2019 WY 111, 451 P.3d 1143, 2019 Wyo. LEXIS 113 (Wyo. 2019).

Defendant was not deprived of right to speedy sentence, where he was placed on probation without any determination of a sentence of confinement and, approximately two years later, a prison term was specified upon the revocation of his probation. The fact that the court continued to manage a lawfully imposed sentence did not equate to an unreasonable delay in sentencing. Davila v. State, 815 P.2d 848, 1991 Wyo. LEXIS 127 (Wyo. 1991).

Section 7-13-301 is probably superseded by this section. Sorenson v. State, 604 P.2d 1031, 1979 Wyo. LEXIS 504 (Wyo. 1979) (decided prior to 1987 revision of this title).

Section 7-13-301 was intended by legislature as permissible alternative to this section in limited circumstances, and it does not conflict with, and was not repealed by this section. King v. State, 720 P.2d 465, 1986 Wyo. LEXIS 566 (Wyo. 1986).

This section is more restrictive than § 7-13-301 , since it does not itself specify the conditions of any probationary freedom. Peterson v. State, 586 P.2d 144, 1978 Wyo. LEXIS 238 (Wyo. 1978), overruled, Crozier v. State, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986).

Probation considered granted under former § 7-13-203 (now § 7-13-301 ). —

Where the trial court was unclear as to whether its sentencing order placing the defendant on probation was decided under former § 7-13-203 (now § 7-13-301 ) or former § 7-13-301 (now § 7-13-302 ), yet the order took language verbatim from former § 7-13-203 and was consistent with the section by not entering and then suspending a sentence of incarceration, probation was considered granted under former § 7-13-203 and not former § 7-13-301. The court, therefore, erred and entered an illegal sentence when it sentenced the defendant to ten years probation, as the maximum period for probation allowable under former § 7-13-203 is five years. Kahlsdorf v. State, 823 P.2d 1184, 1991 Wyo. LEXIS 202 (Wyo. 1991).

Court has no inherent right to grant probation. The authority over sentencing comes from the legislature. Hicklin v. State, 535 P.2d 743, 1975 Wyo. LEXIS 142 (Wyo. 1975).

Section is proper exercise of inherent legislative power to prohibit suspension of sentence in a given case. Evans v. State, 655 P.2d 1214, 1982 Wyo. LEXIS 417 (Wyo. 1982).

Imposition and revocation of probation lie in sound discretion of district court. Jones v. State, 602 P.2d 378, 1979 Wyo. LEXIS 482 (Wyo. 1979); Buck v. State, 603 P.2d 878, 1979 Wyo. LEXIS 494 (Wyo. 1979).

It is error for sentencing judge to fail to consider probation, except for crimes punishable by death or life imprisonment. Jones v. State, 602 P.2d 378, 1979 Wyo. LEXIS 482 (Wyo. 1979).

Circumstances of case determine probation decision. —

The probation decision should not turn upon generalizations about types of offenses, but should be rooted in the facts and circumstances of each case. Sanchez v. State, 592 P.2d 1130, 1979 Wyo. LEXIS 386 (Wyo. 1979).

Guidelines for consideration of probation. —

Cases from other jurisdictions, the American Bar Association (A.B.A.) Standards for Criminal Justice and Probation and Wharton's Criminal Procedure, Vol. IV, § 613 et seq. (1976) should be given proper consideration where probation is considered as an alternative to incarceration. Sanchez v. State, 592 P.2d 1130, 1979 Wyo. LEXIS 386 (Wyo. 1979).

Upon resentencing appellant for accessory to second degree murder, the district court was directed to consider his eligibility for probation because he was subject to a minimum twenty-year sentence — a sentence less than a term of life imprisonment for purposes of this section. Patterson v. State, 2012 WY 90, 279 P.3d 535, 2012 Wyo. LEXIS 95 (Wyo. 2012).

Court must choose between probation and statutory range of sentence. —

A court may not assess punishment below a mandated minimum term. However, this section permits a trial court to suspend a sentence entirely and place a defendant on probation for all crimes other than those punishable by life imprisonment or death. In other words, the court cannot impose a hybrid sentence of probation and incarceration which results in a prison term below the statutory minimum, but instead must choose between probation and the statutory range of sentence provided in the applicable statute. Cook v. State, 710 P.2d 824, 1985 Wyo. LEXIS 616 (Wyo. 1985).

Court does not have power to impose parole, other post-incarceration conditions, in sentence. Sorenson v. State, 604 P.2d 1031, 1979 Wyo. LEXIS 504 (Wyo. 1979).

In cases in which sentences are subject to the authority of the board of parole, the trial court is without authority to impose a sentence within the statutory minimum and maximum and then suspend execution of a portion of that sentence. Williams v. State, 692 P.2d 233, 1984 Wyo. LEXIS 352 (Wyo. 1984).

When defendant is to be sentenced for several counts, the court may not utilize this section in the same way that it might on sentencing for a single count. If the trial court wants to adopt a sentencing mix of imprisonment and probation, it must select a term of imprisonment and then suspend the execution of that sentence, placing the defendant on probation following any term of imprisonment. Yates v. State, 792 P.2d 187, 1990 Wyo. LEXIS 41 (Wyo. 1990).

Where sentence is imposed on several counts, the court may not use the sentencing option outlined in this section in the same way it might on a single count. Specifically, that is not possible where a penitentiary sentence is involved, because the statute contemplates that the term of probation will begin to run immediately upon imposition of sentence. Jones v. State, 811 P.2d 284, 1991 Wyo. LEXIS 80 (Wyo. 1991).

When defendant is to be sentenced for several counts. —

A sentence for multiple counts is proper where a specified term of imprisonment (three to nine years) would be imposed upon revocation of the term of probation, because there is no danger that punishment would increase as a result of acts underlying the revocation of parole or that vagaries of memory would interfere with the imposition of a proper sentence. Reagan v. State, 14 P.3d 925, 2000 Wyo. LEXIS 232 (Wyo. 2000).

Limitation of section. —

The phrase, “except crimes punishable by death or life imprisonment,” in the first sentence of this section, does not include offenses which have as a minimum sentence a term less than life and as a maximum life imprisonment. Peterson v. State, 586 P.2d 144, 1978 Wyo. LEXIS 238 (Wyo. 1978), overruled, Crozier v. State, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986).

Under § 6-10-201 , life sentence for fourth felony is mandatory, and it is improper for the trial judge to consider probation. Schuler v. State, 668 P.2d 1333, 1983 Wyo. LEXIS 359 (Wyo. 1983).

Alcoholism proper ground for denial of probation. —

A judge soundly exercises his discretion when he concludes that a defendant, because of an uncured drinking problem, is in danger of further injuring the public if released and denies probation. Jones v. State, 602 P.2d 378, 1979 Wyo. LEXIS 482 (Wyo. 1979).

Legal to exclude probation for defendant who disappeared from jurisdiction prior to sentencing. —

Where defendant missed his scheduled sentencing date for a felony offense by inopportune disappearance from the jurisdiction and two and one-half years later he was arrested and returned, there is no legal error in a sentence of confinement which excludes probation. Weber v. State, 726 P.2d 94, 1986 Wyo. LEXIS 618 (Wyo. 1986).

No right to refuse probation. —

A defendant had no right under this section, either before or after the 1987 revision of this title, to refuse a sentence of probation. Yates v. State, 792 P.2d 187, 1990 Wyo. LEXIS 41 (Wyo. 1990).

Requirements for revocation of probation. —

All that is essential in a revocation of probation hearing is the court's conscientious judgment, after hearing the facts, that a violation has occurred. This judgment should not be an arbitrary action and should include a consideration of the reasons underlying the original imposition of conditions, the violation of these and the reasons leading to such violation. Buck v. State, 603 P.2d 878, 1979 Wyo. LEXIS 494 (Wyo. 1979).

Recordation of reasons for probation revocation not required. —

There is no statutory or court rule or judicial requirement for the trial judge to enter into the record the reasons for his determination to revoke the probation. Buck v. State, 603 P.2d 878, 1979 Wyo. LEXIS 494 (Wyo. 1979).

Second sentence of probation where first probation validly revoked. —

It does not violate the probation provisions when a defendant, having served time on probation under former § 7-13-203 (now § 7-13-301 ), has her probation validly revoked and then receives a second sentence of probation under former § 7-13-301 (now § 7-13-302 ) which equals the maximum sentence for her crime. Kahlsdorf v. State, 823 P.2d 1184, 1991 Wyo. LEXIS 202 (Wyo. 1991).

Consecutive sentences. —

After the district court reimposed a suspended sentence of four to six years related to a failure to register as a sex offender charge, it then imposed, based upon a separate and subsequent charge of escape, a three to seven year sentence but suspended execution of the sentence in favor of probation, which was permitted under this section; it was legal for the district court to order the probationary sentence for the escape charge to be served consecutively after completion of the reimposed sentence related to the sex offender registration violation. Askin v. State, 2013 WY 162, 314 P.3d 1182, 2013 Wyo. LEXIS 167 (Wyo. 2013).

Defendant not presumed unable to pay fine. —

Although a public defender was appointed to represent the defendant at trial because of his allegedly impecunious circumstance, the defendant was premature in his contention that the monetary penalties imposed by the court as part of his sentence were tantamount to imprisonment for failure to pay a fine. Out of an abundance of caution, trial courts usually appoint the public defender to represent an accused if he requests such representation, even if his plea of indigency is suspect. If the defendant did not pay the fine, he would have had the opportunity to show the trial court that he made a good faith effort but was unable to discharge this obligation. Hamburg v. State, 820 P.2d 523, 1991 Wyo. LEXIS 166 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 189 (Wyo. Dec. 4, 1991).

Applied in

Billis v. State, 800 P.2d 401, 1990 Wyo. LEXIS 119 (Wyo. 1990); Weldon v. State, 800 P.2d 513, 1990 Wyo. LEXIS 132 (Wyo. 1990).

Quoted in

Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992).

Cited in

Eustice v. State, 871 P.2d 682, 1994 Wyo. LEXIS 42 (Wyo. 1994).

Law reviews. —

For note dealing with procedure for probation both before and after trial, see 7 Wyo. L.J. 104.

For article, “Disparity and the Sentencing Process in Wyoming District Courts: Recommendations for Change,” see XI Land & Water L. Rev. 525 (1976).

For article, “The Greatest Lawyer in the World (The Maturing of Janice Walker),” see XIV Land & Water L. Rev. 135 (1979).

For comment, “The Institutional Transfer Statute: Three Challenges to the Imprisonment of Juvenile Offenders,” see XVII Land & Water L. Rev. 643 (1982).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety and effect of court's indicating to jury that court would suspend sentence, 8 ALR2d 1001.

Suspension of sentence or judgment against one convicted of conspiracy until after disposition of cases against coconspirators, 91 ALR2d 700.

Propriety of conditioning probation or suspended sentence on defendant's refraining from political activity, protest or the like, 45 ALR3d 1022.

State court's power to place defendant on probation without imposition of sentence, 56 ALR3d 932.

What constitutes “good behavior” within judicial order expressly conditioning suspension of sentence thereon, 58 ALR3d 1156.

Inherent power of court to suspend for indefinite period execution of sentence in whole or in part, 73 ALR3d 474.

Ability to pay as necessary consideration in conditioning probation or suspended sentence upon reparation or restitution, 73 ALR3d 1240.

Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim, 79 ALR3d 976.

Validity of requirement that, as condition of probation, indigent defendant reimburse defense costs, 79 ALR3d 1025.

Propriety of conditioning probation upon defendant's posting of bond guaranteeing compliance with terms of probation, 79 ALR3d 1068.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 79 ALR3d 1083.

Propriety of conditioning probation on defendant's serving part of probationary period in jail or prison, 6 ALR4th 446.

Sentencing: permissibility of sentence to a fine only, under statutory provision for imprisonment or imprisonment and fine, 35 ALR4th 192.

Propriety, under 18 USC § 3651 (Repealed), of district court's requiring contribution of money or services to charity or to community service as condition of suspending sentence and granting probation, 66 ALR Fed 825.

§ 7-13-303. Investigation preceding probation or suspension of sentence.

  1. When directed by the court, the district attorney, a probation and parole agent as defined in W.S. 7-13-401 or, in the case of a minor, a counselor as defined by W.S. 5-3-501(a)(ii) or the department of family services shall investigate and report to the court in writing:
    1. The circumstances of the offense;
    2. The criminal record, social history and present conditions of the defendant;
    3. If practicable, the findings of a physical and mental examination of the defendant;
    4. If practicable, statements from the victim;
    5. A summary of the impact of the offense on the victim;
    6. The results of a validated risk and need assessment.
  2. Unless the court directs otherwise, no defendant charged with a felony or misdemeanor shall be placed on probation, placed in an intensive supervision program established under W.S. 7-13-1102 or released under suspension of sentence until the report of the investigation under this section is presented to and considered by the court. If the defendant is sentenced to the custody of the department of corrections to serve a term of incarceration in a state penal institution, a copy of the report of the investigation if completed shall be sent to the department of corrections at the time of sentencing. The clerk of court shall forward copies of the report, if completed, to the department of corrections, together with copies of all orders entered by the court.
  3. The court may, in its discretion, dispense with the investigation and preparation of a report required by this section or may limit the scope of the investigation and report to circumstances and conditions the court deems relevant to its sentencing determination.

History. Laws 1939, ch. 91, § 2; C.S. 1945, § 10-1902; W.S. 1957, § 7-319; Laws 1969, ch. 61, § 1; W.S. 1977, § 7-13-302 ; Laws 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 135, § 1; ch. 157, § 3; 1991, ch. 161, § 3; 1992, ch. 25, § 3; 2011, ch. 30, § 1; 2019, ch. 116, § 2; ch. 167, § 1.

Cross references. —

As to state probation and parole officer, see § 7-13-405(b).

As to presentence investigation, see Rule 32(a), W.R. Cr. P.

The 2011 amendment, effective July 1, 2011, in the introductory language of (a), substituted “a probation and parole agent as defined in W.S. 7-13-401 ” for “the state probation and parole officer.”

The 2019 amendment, effective July 1, 2019, added (a)(vi) and made related changes; and in (b), substituted "on probation, placed in an intensive supervision program established under W.S. 7-13-1102 or released" for "on probation or released."

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Sentencing recommendation not required. —

The legislature, in authorizing a presentence report, did not require a sentencing recommendation as a part of the Code of Criminal Procedure. Mehring v. State, 860 P.2d 1101, 1993 Wyo. LEXIS 151 (Wyo. 1993).

Sentencing proper. —

District court did not abuse its discretion in denying defendant's motion to strike portions of the PSI report where, under Wyo. Stat. Ann. § 7-13-303 and Wyo. R. Crim. P. 32, the district court considered a variety of information and sources in imposing sentence, and did not rely on the agent's comments in imposing sentence. Noller v. State, 2010 WY 30, 226 P.3d 867, 2010 Wyo. LEXIS 33 (Wyo. 2010).

Under Wyo. Stat. Ann. § 7-13-303 and Wyo. R. Crim. P. 32(a)(2), the district court did not abuse its discretion when it denied defendant's motion to strike from the PSI report the sentencing recommendations of the probation and parole agent; the PSI writer could make sentencing recommendations and such recommendations were appropriate. Scott v. State, 2011 WY 56, 248 P.3d 1162, 2011 Wyo. LEXIS 59 (Wyo. 2011).

Failure to attach written record. —

The failure to attach a written record of the trial court's disposition of disputed information to the presentence report requires only a limited remand; this ministerial duty may be corrected by either attaching the relevant pages from the sentencing hearing or by appending the trial court's written findings regarding the disputed information to the presentence report. Upon completion of this task, the presentence report and attachments are to be forwarded to the Department of Corrections in compliance with this section. Mehring v. State, 860 P.2d 1101, 1993 Wyo. LEXIS 151 (Wyo. 1993).

Resentencing not required by ex parte communication. —

A judge's impropriety in reading an ex parte communication from a deputy county sheriff just prior to the sentencing hearing did not automatically require reversal and remand for resentencing by another judge, where the court stated on the record that the letter was quashed and that he would not consider it in sentencing. Coletti v. State, 769 P.2d 361, 1989 Wyo. LEXIS 43 (Wyo. 1989).

Cited in

Hackett v. State, 2010 WY 90, 233 P.3d 988, 2010 Wyo. LEXIS 93 (June 29, 2010).

Am. Jur. 2d, ALR and C.J.S. references. —

Defendant's right to disclosure of presentence reports, 40 ALR3d 681.

§ 7-13-304. Imposition or modification of conditions; performance of work by defendant.

  1. The court may impose, and at any time modify, any condition of probation or suspension of sentence. The court may not impose new custodial restrictions on liberty unless in response to a compliance violation, a new violation of law or absconding from supervision and only after providing notice and a hearing if required under W.S. 7-13-1803 .
  2. As a condition of any probation, the court, subject to W.S. 7-16-101 through 7-16-104 , may order the defendant to perform work for a period not exceeding the maximum probation period.
  3. As a condition of probation or suspension of sentence, the court may require a defendant who is a minor to successfully complete a juvenile service program offered under the Community Juvenile Services Act.
  4. As a condition of probation or suspension of sentence, the court may require a defendant to complete successfully a court supervised treatment program qualified under W.S. 7-13-1601 through 7-13-1615 , a 24/7 sobriety program under W.S. 7-13-1701 through 7-13-1710 , or both.
  5. As a condition of probation or suspension of sentence for a person convicted of an offense under W.S. 6-4-304 , the court may require a defendant to complete successfully a sex offender treatment program.

History. Laws 1939, ch. 91, § 3; C.S. 1945, § 10-1903; W.S. 1957, § 7-320; W.S. 1977, § 7-13-303 ; Laws 1984, ch. 68, § 1; 1987, ch. 157, § 3; 1997, ch. 181, § 2; 2009, ch. 145, § 2; 2013, ch. 20, § 1; 2014, ch. 47, § 2; 2019, ch. 49, § 2; ch. 116, § 2; 2021, ch. 141, § 1.

The 2009 amendment, effective July 1, 2009, added (d).

The 2013 amendment, effective July 1, 2013, deleted “by a community juvenile services board” following “program offered” in (c).

The 2014 amendment, effective July 1, 2014, added “a 24/7 sobriety program under W.S. 7-13-1701 through 7-13-1711 , or both” at the end of (d).

The 2019 amendments. — The first 2019 amendment by ch. 49, § 2, effective July 1, 2019, in (d), substituted "W.S. 7-13-1701 through 7-13-1710 " for "W.S. 7-13-1701 through 7-13-1711 " near the end.

The second 2019 amendment, by ch. 116, § 2, effective July 1, 2019, in (a) added the second sentence.

The 2021 amendment added (e).

Laws 2021, ch. 141, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 7, 2021.

Subsection (a) superseded by criminal rules. —

The language of subsection (a), relating to imposition or modification of sentence conditions, seems to be in sufficient conflict with Rule 32, W.R. Cr. P., that this provision should be considered as having been superseded. Chapman v. State, 728 P.2d 631, 1986 Wyo. LEXIS 662 (Wyo. 1986).

Court cannot assess prosecution costs. —

Because the legislature, in enacting § 6-10-104 , specifically deleted the language permitting assessment of costs of prosecution, the trial judge exceeded his authority by assessing costs of prosecution as a condition of probation. Burke v. State, 746 P.2d 852, 1987 Wyo. LEXIS 550 (Wyo. 1987).

Right to presence at hearing. —

Defendant's constitutional rights were not violated when district court denied his requests to modify terms of his probation or to discharge him from probation without his presence at the hearing; Wyo. Stat. Ann. § 7-13-304(a) and Wyo. R. Crim. P. 39(b) did not mandate that district court hold a hearing on defendant's motions for modification of his probation, and consequently was not entitled to be present at the gratuitous hearing that was held. Demillard v. State, 2008 WY 93, 190 P.3d 128, 2008 Wyo. LEXIS 97 (Wyo. 2008).

Surrender of driver's license. —

A trial court did not abuse its discretion when it ordered a convicted felon to surrender his driver's license as a condition of probation. Meerscheidt v. State, 931 P.2d 220, 1997 Wyo. LEXIS 7 (Wyo. 1997).

Condition of probation. —

While the record contained no indication that the district court ordered preparation of the required restitution plan, that failure did not affect the validity of the challenged probation conditions. Anderson v. State, 2018 WY 6, 408 P.3d 1148, 2018 Wyo. LEXIS 6 (Wyo. 2018).

It would be nonsensical to allow the sentencing court full discretion to set restitution terms as part of a restitution plan, but declare that exercise of discretion invalid if the court orders the same terms as separate probation conditions, and there is nothing that requires such a result; a district court has authority to impose restitution-related probation conditions in a restitution plan or separately, and the district court did not abuse its discretion or exceed its authority in imposing such conditions in this case. Anderson v. State, 2018 WY 6, 408 P.3d 1148, 2018 Wyo. LEXIS 6 (Wyo. 2018).

Defendant failed to take responsibility for her own financial circumstances, used her disabled brother’s resources to pay for items such as cell phone and cable television services, and did not recognize the wrong she had committed, and thus the district court did not abuse its discretion in imposing the probation condition that restricted her from purchasing cable television or cell phone services; the restriction was related to her crime. Anderson v. State, 2018 WY 6, 408 P.3d 1148, 2018 Wyo. LEXIS 6 (Wyo. 2018).

Neither the State nor defendant claimed the liquidation condition, which directed liquidation of defendant’s recreational assets, did not meet the reasonable relation requirement; there was no error in the district court’s imposition of this condition. Anderson v. State, 2018 WY 6, 408 P.3d 1148, 2018 Wyo. LEXIS 6 (Wyo. 2018).

Where a defendant entered Alford guilty pleas to violating Wyo. Stat. Ann. §§ 6-2-502 , 6-4-103 , 6-1-303 , and 6-2-302 , the district court did not abuse its discretion by imposing as a condition of his probation following his term of incarceration that he have no contact with his minor children. A no contact condition was reasonably related to the violent sexual crimes for which he was convicted and for which he was charged, and the provision did not impermissibly encroach on his fundamental right as a parent to raise his children. Perkins v. State, 2014 WY 11, 317 P.3d 584, 2014 Wyo. LEXIS 12 (Wyo. 2014).

Applied in

Sanderson v. State, 649 P.2d 677, 1982 Wyo. LEXIS 372 (Wyo. 1982).

Cited in

Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992).

Law reviews. —

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of conditioning probation on defendant's remaining childless or having no additional children during probationary period, 94 ALR3d 1218.

Propriety of requirement, as condition of probation, that defendant refrain from use of intoxicants, 19 ALR4th 1251.

Validity of condition of probation, supervised release, or parole restricting computer use or internet access, 4 A.L.R.6th 1.

§ 7-13-305. Determination, continuance or extension; revocation proceedings.

  1. The period of probation or suspension of sentence under W.S. 7-13-302 shall be determined by the court and may be reduced, continued or extended. Any term of probation including any continuations or extensions shall not exceed the maximum term of probation authorized under W.S. 7-13-302 (b), except that the judge may impose a term of probation that is not greater than the maximum term of imprisonment authorized by law for the offense for good cause shown upon the record and after considering public safety, rehabilitation, deterrence and any other goals of sentencing. In determining the period of probation or a modification of an existing probation, the court may consider, but is not limited to the following factors:
    1. Whether the defendant has stable employment;
    2. Whether the defendant has positive community support;
    3. Whether the defendant has positive familial support;
    4. Whether the defendant has reasonably attended to spousal or parental responsibilities and whether the terms of probation assist or hinder the defendant in discharging those responsibilities;
    5. Whether the defendant has made progress in affirmatively addressing any alcohol or substance abuse issues. For the purposes of this paragraph, relapse alone does not prevent the court from determining the defendant has made progress in addressing his alcohol or substance use issues;
    6. The nature and seriousness of the underlying crime;
    7. The risk posed by the defendant to the community;
    8. The risk of reoffense as determined by a validated risk assessment tool utilized by the department of corrections.
  2. Upon the satisfactory fulfillment of the  conditions of suspension of sentence or probation under W.S. 7-13-302 the court shall enter an order discharging the defendant.
  3. For a violation of a condition of probation  occurring during the probationary period, revocation proceedings may  be commenced at any time during the period of suspension of sentence  or probation under W.S. 7-13-302 , or within thirty (30) days thereafter, in which case  the court may issue a warrant and cause the defendant to be arrested.  If after hearing the court determines that the defendant violated  any of the terms of probation or suspension of sentence, the court  may proceed to deal with the case as if no suspension of sentence  or probation had been ordered.
  4. The time for commencing revocation proceedings  shall be automatically extended for any period of time in which the  probationer is incarcerated outside this state during the probationary  period for the conviction of an offense which is a violation of the  conditions of probation, unless the probationer has made a valid request  for final disposition under the interstate agreement on detainers, W.S. 7-15-101 through 7-15-105 .

History. Laws 1939, ch. 91, § 4; C.S. 1945, § 10-1904; W.S. 1957, § 7-321; W.S. 1977, § 7-13-304 ; Laws 1987, ch. 157, § 3; 2019, ch. 37, § 1; ch. 101, § 1.

Agreement on detainers. —

See § 7-15-102 and notes thereto.

The 2019 amendments. —

The first 2019 amendment by ch. 37, § 1, inserted "reduced" preceding "continued or extended," added the last sentence in (a), and added (a)(i) through (a)(viii).

Laws 2019, ch. 37, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8 of the Wyo. Const. Approved February 15, 2019.

The second 2019 amendment, by ch. 101, § 2, effective July 1, 2019, in (a) added the second sentence.

Applicability. —

Laws 2019, ch. 101, § 2 effective July 1, 2019, states the following: “The provisions of this act shall apply to all persons who are sentenced or placed on probation pursuant to W.S. 7-13-301 , 7-13-302 and 35-7-1037 on or after the effective date of this act.”

Initiation of revocation proceedings during probationary period.—

Lower court had the authority to revoke defendant’s probation because the probation violation occurred during the probationary period in that, following defendant’s no contest plea, the court suspended the execution of defendant’s sentence in one case and placed defendant on supervised probation. Then, after defendant violated the conditions of the probationary sentence imposed in another case, the court commenced probation revocation proceedings against defendant during the period in which the execution of that sentence was suspended. Sena v. State, 2019 WY 111, 451 P.3d 1143, 2019 Wyo. LEXIS 113 (Wyo. 2019).

Defendant was not deprived of right to speedy sentence, where he was placed on probation without any determination of a sentence of confinement and, approximately two years later, a prison term was specified upon the revocation of his probation. The fact that the court continued to manage a lawfully imposed sentence did not equate to an unreasonable delay in sentencing. Davila v. State, 815 P.2d 848, 1991 Wyo. LEXIS 127 (Wyo. 1991).

“Probation” defined. —

“Probation” means a sentence not involving confinement which imposes conditions and retains authority in the sentencing court to modify the conditions of the sentence or to resentence the offender if he violates the conditions. Smith v. State, 598 P.2d 1389, 1979 Wyo. LEXIS 449 (Wyo. 1979).

Sentencing judge has continuing, personal jurisdiction over probationer and inherent power to revoke or grant probation. Smith v. State, 598 P.2d 1389, 1979 Wyo. LEXIS 449 (Wyo. 1979).

Court is not given unlimited authority as to length of probation. Hicklin v. State, 535 P.2d 743, 1975 Wyo. LEXIS 142 (Wyo. 1975).

Duration cannot exceed maximum term of imprisonment authorized. —

Probation is constructive confinement, and the restraints of probation cannot exceed a period in excess of the maximum term of imprisonment authorized by the statute violated. Hicklin v. State, 535 P.2d 743, 1975 Wyo. LEXIS 142 (Wyo. 1975).

Although defendant's maximum term of imprisonment for two convictions under former § 14-3-105 (now repealed) (the statute prohibiting immoral or indecent acts) was 10 years, his original sentence was imprisonment for not less than 18 months nor more than 60 months. However, defendant was placed on probation for a period of eight years, but five months after the original sentencing hearing had been held, the district court revoked defendant's probation and reinstated his original sentence. Because neither appellant's period of probation nor his term of incarceration exceeded the maximum term of imprisonment, his sentence was legal. Leyba v. State, 882 P.2d 863, 1994 Wyo. LEXIS 118 (Wyo. 1994).

And maximum fine limits amount of bond. —

To permit the trial court to require a bond of $50,000.00 as a condition of probation where defendant was convicted of violating former § 6-4-506(b), as to assault with a dangerous weapon, would enlarge the punitive power of the court far beyond that contemplated by the laws of this state, since the largest bond for performance of the conditions of probation in such a case would be $1,000.00, less the amount of any fine assessed. Hicklin v. State, 535 P.2d 743, 1975 Wyo. LEXIS 142 (Wyo. 1975).

Initiation of revocation proceedings during probationary period. —

While this section obviously does not require that revocation proceedings be completed within the probationary period, it does require that such proceedings be initiated during the period. Lackey v. State, 731 P.2d 565, 1987 Wyo. LEXIS 386 (Wyo. 1987).

Under subsection (d) of this section, the term of probation is tolled during the period of incarceration unless the conditions articulated in the statute are met and, in such an instance, the time of incarceration must be added to the period of probation before any discharge by operation of law can occur. Jibben v. State, 901 P.2d 1099, 1995 Wyo. LEXIS 138 (Wyo. 1995).

Brunsvold v. State, 864 P.2d 34, 1993 Wyo. LEXIS 178 (Wyo. 1993).

Failure to pay restitution. —

Trial court properly found a willful failure to pay restitution where the evidence showed that defendant, an able-bodied man, failed to look for other employment after his family business folded, failed to borrow money, or seek a modification of his probation terms. Therefore, there was no due process violation when his probation was revoked. Ramsdell v. State, 2006 WY 159, 149 P.3d 459, 2006 Wyo. LEXIS 182 (Wyo. 2006).

Failure to comply with probation requirement. —

District court erred in revoking probation on the ground that probationer failed to admit any sexual misconduct to a therapist because the probationary condition at issue simply required probationer to submit to a sex offender evaluation, not specifically to admit misconduct. Neidlinger v. State, 2007 WY 204, 173 P.3d 376, 2007 Wyo. LEXIS 214 (Wyo. 2007).

Discharge by operation of law. —

A discharge by operation of law does not occur until 30 days after the expiration of the term of probation under subsection (c) of this section. Jibben v. State, 901 P.2d 1099, 1995 Wyo. LEXIS 138 (Wyo. 1995).

Under subsection (d) of this section, the term of probation is tolled during the period of incarceration unless the conditions articulated in the statute are met and, in such an instance, the time of incarceration must be added to the period of probation before any discharge by operation of law can occur. Jibben v. State, 901 P.2d 1099, 1995 Wyo. LEXIS 138 (Wyo. 1995).

Reasonable time standard governs. —

As to the completion of the revocation proceedings, a reasonable time standard governs. Jibben v. State, 901 P.2d 1099, 1995 Wyo. LEXIS 138 (Wyo. 1995).

Reimposition of sentence. —

After defendant admitted five violations of his probationary conditions, the district court did not abuse its discretion under this section by reimposing sentence upon revocation of defendant's probation for felony interference with a peace officer. The district court exercised its conscientious judgment by considering the history of the case, the probation violations, and defendant's request to be returned to supervised probation. Castillo v. State, 2012 WY 3, 268 P.3d 245, 2012 Wyo. LEXIS 3 (Wyo. 2012).

Sentencing judge may preside at probation revocation hearing. —

A probationer is not entitled to peremptorily disqualify the sentencing district court judge from presiding at a probation revocation hearing. Smith v. State, 598 P.2d 1389, 1979 Wyo. LEXIS 449 (Wyo. 1979).

Quoted in

Schepp v. Fremont County, 900 F.2d 1448, 1990 U.S. App. LEXIS 4606 (10th Cir. 1990); Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992).

Cited in

King v. State, 720 P.2d 465, 1986 Wyo. LEXIS 566 (Wyo. 1986).

Law reviews. —

For comment, “The Institutional Transfer Statute: Three Challenges to the Imprisonment of Juvenile Offenders,” see XVII Land & Water L. Rev. 643 (1982).

For article, "Unpaid Restitution: An Underenforced Right of Victimsand Suggestions to Improve the Collection of Restitution in Wyoming”, see 12 Wyo. L. Rev. 367 (2012).

Am. Jur. 2d, ALR and C.J.S. references. —

Right to notice and hearing before revocation of suspension of sentence, 29 ALR2d 1074, 44 ALR3d 306.

Propriety of conditioning probation on defendant's remaining childless or having no additional children during probationary period, 94 ALR3d 1218.

Propriety of conditioning probation on defendant's serving part of probationary period in jail or prison, 6 ALR4th 446.

Power of court to revoke probation for acts committed after imposition of sentence but prior to commencement of probation term, 22 ALR4th 755.

Propriety of increased sentence following revocation of probation, 23 ALR4th 883.

Power of state court, during same term, to increase severity of lawful sentence — modern status, 26 ALR4th 905.

Probation revocation: insanity as defense, 56 ALR4th 1178.

§ 7-13-306. Payment of fine in installments.

When imposing a fine and also placing the defendant on probation, the district judge may permit the fine to be paid in installments over a reasonable period of time.

History. Laws 1939, ch. 91, § 5; C.S. 1945, § 10-1905; W.S. 1957, § 7-322; W.S. 1977, § 7-13-305 ; Laws 1987, ch. 157, § 3.

Applied in

Hamburg v. State, 820 P.2d 523, 1991 Wyo. LEXIS 166 (Wyo. 1991).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and application of state statute requiring inmate to reimburse government for expense of incarceration, 13 ALR5th 872.

§ 7-13-307. Expungement of criminal record.

Nothing in W.S. 7-13-301 through 7-13-306 shall be construed to authorize the court to expunge the record of a person charged with or convicted of a criminal offense.

History. Laws 1939, ch. 91, § 6; C.S. 1945, § 10-1906; W.S. 1957, § 7-323; W.S. 1977, § 7-13-306 ; Laws 1987, ch. 157, § 3.

Severability. —

Laws 1939, ch. 91, § 8, provides: “The legislature hereby declares that it would have passed this act and each and every section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any 1 or more other sections, subsections, sentences, clauses or phrases thereof may be declared unconstitutional.”

Repealing clauses. —

Laws 1939, ch. 91, § 7, repealed all laws and parts of laws in conflict therewith.

Article 4. Probation and Parole Generally

Cross references. —

As to probation and suspension of sentence, see article 3 of this chapter.

As to juvenile probation see title 14, chapter 6, article 3.

Am. Jur. 2d, ALR and C.J.S. references. —

Right to notice and hearing before revocation of probation or parole, 29 ALR2d 1074, 44 ALR3d 306.

Withdrawal, forfeiture, modification or denial of good time allowance, 95 ALR2d 1265.

Right to assistance of counsel at proceedings to revoke probation, 44 ALR3d 306.

Propriety of conditioning probation on defendant's refraining from political activity, protest or the like, 45 ALR3d 1022.

Propriety of requirement, as condition of probation, that defendant refrain from use of intoxicants, 19 ALR4th 1251.

Propriety of conditioning probation on defendant's not entering specified geographical area, 28 ALR4th 725.

Right of convicted defendant to refuse probation, 28 ALR4th 736.

Propriety of probation condition exposing defendant to public shame or ridicule, 65 ALR5th 187.

United States Parole Commission Guidelines for federal prisoners, 61 ALR Fed 135.

Propriety, in criminal case, of federal district court order restricting defendant's right to re-enter or stay in United States, 94 ALR Fed 619.

67A C.J.S. Pardons § 1 et seq.

§ 7-13-401. Definitions; creation of board; officers; compensation; hearing panels; meetings.

  1. As used in W.S. 7-13-401 through 7-13-424 :
    1. “Board” means the state  board of parole;
    2. “Conditional release” means  any form of release by an institution or by a court, other than parole  or probation, which is subject to conditions imposed by the institution  or court, but excludes release on bail;
    3. “Conditional releasee” means  an individual granted conditional release by an institution or court;
    4. “Department” means the department  of corrections;
    5. “Director” means the director  of the department of corrections;
    6. “Institution” includes the  Wyoming state penitentiary, state penitentiary farms and camps, Wyoming  women’s center, Wyoming state hospital and any other state penal institution  including a correctional facility operated by a private entity pursuant  to W.S. 7-22-102 ;
    7. “Parole” means permission  to leave the confines of the institution in which a person is confined  under specified conditions, but does not operate as a discharge of  the person;
    8. “Parolee” means a prisoner  or an inmate of an institution who has been granted parole;
    9. “Peace officer” means as  defined by W.S. 7-2-101 ;
    10. “Probation” means a sentence  not involving confinement which imposes conditions and retains authority  in the sentencing court to modify the conditions of the sentence or  to resentence the offender if he violates the conditions;
    11. “Probationer” means a defendant  granted probation by the sentencing court;
    12. “Executive director” means  the executive director of the board;
    13. “Field services administrator”  means the administrator for the department of corrections division  of field services;
    14. “Probation and parole agent”  means an employee of the department of corrections, division of field  services, who supervises a parolee or probationer;
    15. “Compliance violation” means a violation of a condition of probation, parole or conditional release but shall not include:
      1. An arrest for a new misdemeanor or felony offense; or
      2. Absconding from supervision, which includes the defendant, probationer or parolee deliberately making his whereabouts unknown to his probation and parole agent, the department or court or failing to report for the purpose of avoiding supervision, where reasonable efforts by the probation and parole agent to locate the defendant, probationer or parolee have been unsuccessful.
  2. There is created the state board of parole which consists of seven (7) members appointed by the governor with the advice and consent of the senate, in accordance with W.S. 28-12-101 through 28-12-103 . Not more than seventy-five percent (75%) of the members shall be of the same political party. Members of the board shall be appointed for six (6) year terms. The governor may remove any board member as provided in W.S. 9-1-202 .
  3. Annually at the first meeting of the board,  the members shall elect from their number a chairman and vice-chairman.  Any vacancy caused by death, resignation or disqualification of a  member of the board shall be filled by the governor for the remainder  of the unexpired term of the member. Any vacancy occurring between  sessions of the legislature may be filled by the governor in accordance  with W.S. 28-12-101(b).
  4. When engaged in the performance of their  duties, members of the board shall receive salary in the amount paid  to members of the Wyoming legislature and travel expenses and per  diem in the same manner and amount as employees of the state.
  5. The board shall meet at least quarterly  to conduct the business specified in subsection (f) of this section.  Except as otherwise provided by subsection (f) of this section, four  (4) members constitute a quorum. All matters shall be decided by a  majority vote of those in attendance. The board may meet as often  as necessary for the administration and conduct of its other business.
  6. Three (3) or more members of the board may constitute a hearing panel empowered to review applications for parole, grant paroles or revoke paroles. Fewer than three (3) members of the board, as may be provided by rule of the board, may withdraw or revoke good time, restore or reinstate good time, make recommendations to the governor to grant commutations of sentences and review inmate matters, other than the grant or denial of parole, brought before the board. A decision by a majority of the members of a panel under this subsection is the decision of the board.
  7. The board may employ an executive director  who shall serve at the pleasure of the board as provided by appropriation  of the legislature. The executive director and other staff members  shall perform duties as may be assigned by the board.

History. Laws 1947, ch. 20, § 1; W.S. 1957, §§ 7-324, 9-194.3 to 9-194.6; Laws 1971, ch. 92, §§ 3 to 7; W.S. 1977, §§ 7-13-401 , 9-3-803 to 9-3-806; Laws 1979, ch. 17, § 2; 1981, ch. 114, § 1; 1982, ch. 62, § 1; 1986, ch. 65, § 1; 1987, ch. 157, § 3; ch. 175, § 1; 1988, ch. 83, § 1; 1991, ch. 161, § 3; ch. 252, § 2; 1992, ch. 25, § 3; 2001, ch. 15, § 1; 2003, ch. 127, §§ 1, 3; ch. 132, § 1; 2008, ch. 100, § 2; 2011, ch. 30, § 1; 2015, ch. 163, § 1; 2016, ch. 119, § 1; 2019, ch. 116, § 2.

Cross references. —

As to meal, lodging and traveling expenses of state officers and employees, see § 9-3-102 .

As to meetings of governmental agencies generally, see § 16-4-401 et seq.

As to penitentiary farms, see § 25-2-102 .

The 2008 amendment, effective July 1, 2008, substituted “7-13-424” for “7-13-421” in the introductory language of (a).

The 2011 amendment, effective July 1, 2011, in (a)(ii), inserted “but excludes release on bail” at the end; and added (a)(xiii) and (a)(xiv).

The 2015 amendment, effective January 1, 2016, in (f), deleted “make initial determinations of eligibility and restore voting rights pursuant to W.S. 7-13-105(b) and (c)” preceding “make recommendations.”

The 2016 amendment, effective July 1, 2016, substituted “seventy-five percent (75%) of the” for “four (4)” in the second sentence of (b).

The 2019 amendment, effective July 1, 2019, added (a)(xv).

Applicability of act. —

Laws 1991, ch. 252, § 3, provides: “The powers and authority set forth in this act shall be in addition to such other powers and authority as may presently exist under the laws of the state of Wyoming relating to correctional facilities or jails, and the requirements set forth in this act (including in particular, requirements relating to the obtaining of necessary consents and approvals) shall be deemed to apply only to actions taken or to be taken under authority of this act and shall not apply to any such other powers or authority as may presently exist under the laws of the state of Wyoming.”

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Appropriations. —

Laws 2003, ch. 127, § 2, provides: “(a) There is appropriated two hundred forty-six thousand nine hundred thirteen dollars ($246,913.00) from the general fund to the board of parole for the fiscal year beginning July 1, 2003, to implement the purposes of this act. In addition, the board of parole is authorized an additional two (2) full-time positions to implement this act. Of this appropriation, fifty-five thousand two hundred fifty-seven dollars ($55,257.00) is considered to be onetime appropriations and shall not be included within the board of parole's standard budget request for the 2005-2006 biennium.

“(b) Expenditures of amounts appropriated under subsection (a) of this section for leasing office space shall not be expended unless space is not available within state office buildings.”

Authority to revoke probation.—

Lower court had the authority to revoke defendant’s probation because the probation violation occurred during the probationary period in that, following defendant’s no contest plea, the court suspended the execution of defendant’s sentence in one case and placed defendant on supervised probation. Then, after defendant violated the conditions of the probationary sentence imposed in another case, the court commenced probation revocation proceedings against defendant during the period in which the execution of that sentence was suspended. Sena v. State, 2019 WY 111, 451 P.3d 1143, 2019 Wyo. LEXIS 113 (Wyo. 2019).

Violation of probation condition must be willful. —

In order to revoke probation for the violation of a condition of probation not involving the payment of money, the violation must be willful, or, if not willful, must presently threaten the safety of society. Kupec v. State, 835 P.2d 359, 1992 Wyo. LEXIS 101 (Wyo. 1992).

Law reviews. —

For comment, “The Institutional Transfer Statute: Three Challenges to the Imprisonment of Juvenile Offenders,” see XVII Land & Water L. Rev. 643 (1982).

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, "Early Release From Prison in Wyoming: An Overviewof Parole in Wyoming and Elsewhere and an Examination of Currentand Future Trends”,see 11 Wyo. L. Rev. 99 (2011).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of telephone testimony or hearings in prison proceedings, 9 ALR5th 451.

§ 7-13-402. General powers and duties of board; eligibility for parole; immunity.

  1. The board may grant a parole to any person imprisoned in any institution under sentence, except a sentence of life imprisonment without parole or a life sentence, ordered by any district court of this state, provided the person has served the minimum term pronounced by the trial court less good time, if any, granted under rules promulgated pursuant to W.S. 7-13-420 . The board may also grant parole to a person serving a sentence for an offense committed before the person reached the age of eighteen (18) years of age as provided in W.S. 6-10-301(c).
  2. A prisoner is not eligible for parole on a sentence if, while serving that sentence, he has:
    1. Made an assault with a deadly weapon upon any officer, employee or inmate of any institution; or
    2. Escaped, attempted to escape or assisted others to escape from any institution.
  3. In granting a parole the board shall fix terms and conditions it deems proper to govern the conduct of the parolee while the parole is in effect. The terms and conditions may be special in each case or they may be prescribed by general rules and regulations of the board, or both.
  4. No person granted a parole shall be released from an institution until he has signed an agreement that he will comply with the terms and conditions under which he has been released and abide by the laws of the state. In addition, no person shall be granted a parole until the board makes a reasonable effort to notify victims who have registered to receive notification pursuant to W.S. 1-40-204(d) of the hearing and provides a reasonable opportunity for the victims to provide written comments to the board relative to the parole.
  5. The board may adopt reasonable rules and regulations necessary to carry out the functions assigned to the board by W.S. 7-13-401 through 7-13-424 including rules relating to:
    1. The conduct of proceedings, meetings, hearings and interviews;
    2. The general conditions under which parole may be granted and revoked;
    3. Parole applications and procedures, including the selection of hearing panels as provided by W.S. 7-13-401 (f);
    4. Repealed by Laws 1992, ch. 25, § 4.
    5. Procedures to allow victims opportunity to comment on parole applications; and
    6. Notification to victims of the pending release of prisoners.
  6. The promulgation of substantive rules by the board, the conduct of its hearings and its final decisions are specifically exempt from all provisions of the Wyoming Administrative Procedure Act including the provisions for judicial review under W.S. 16-3-114 and 16-3-115 . The board’s rules and regulations shall be filed in the office of the secretary of state.
  7. Notwithstanding W.S. 1-39-101 through 1-39-119 , the board and its members are immune from any liability, either as a board or individually, for any actions, inactions or omissions by the board or any member thereof, pursuant to W.S. 7-13-401 through 7-13-424 .
  8. Repealed by Laws 2015, ch. 163, §  2.
  9. The board may order the arrest and return to the custody of the department of any parolee who has absconded from supervision, been charged with or convicted of a crime while on parole or committed an alleged violation of parole for which probable cause has been established through a hearing, or waiver thereof, pursuant to W.S. 7-13-408 . The written order of the board shall be sufficient warrant for any peace officer to return a parolee to custody. All peace officers shall execute any order of the board issued under this subsection. A parolee taken into custody under the order of the board is not subject to release on bail.

History. Laws 1947, ch. 20, § 2; 1953, ch. 78, § 1; W.S. 1957, § 7-325; Laws 1971, ch. 92, § 10; 1980, ch. 40, § 2; 1984, ch. 12, § 2; ch. 49, §§ 2, 3; 1986, ch. 65, § 1; 1987, ch. 135, § 1; ch. 157, § 3; 1988, ch. 83, § 1; 1992, ch. 25, §§ 3, 4; 1993, ch. 43, § 1; 1996, ch. 73, § 2; 2003, ch. 132, § 1; 2008, ch. 100, § 2; 2011, ch. 30, § 1; 2013, ch. 18, § 1; 2015, ch. 163, §§ 1, 2.

The 2008 amendment, effective July 1, 2008, substituted “7-13-424” for “7-13-421” in the introductory language of (e) and in (g).

The 2011 amendment, effective July 1, 2011, in the introductory language of (b), substituted “on a sentence if, while serving that sentence” for “if”; in (d), substituted “who have registered to receive notification pursuant to W.S. 1-40-204(d) of the hearing” for “of the parole,” inserted “the” preceding “victims,” and deleted the former last sentence which read: “The agreement shall be retained in the records of the department”; and added (j).

The 2013 amendment, effective July 1, 2013, added the last sentence in (a).

The 2015 amendment, in (f), deleted the second sentence which read “This exception shall not apply to the provisions authorizing a contested case hearing under W.S. 7-13-105(c).”

Laws 2015, ch. 163, § 1, makes the act effective January 1, 2016.

Editor's notes. —

Laws 1984, ch. 49, § 4, states that all rules and regulations adopted by the state board of parole relating to “good time,” before the creation of § 7-13-420 and amendment of § 7-13-402 by Laws 1984, ch. 49, shall continue in effect until revised or amended.

There is no subsection (i) in this section as it appears in the printed acts.

Wyoming Administrative Procedure Act. —

See § 16-3-101(a), (b)(xi).

Legislative intent. —

Laws 2003, ch. 132, § 2, provides: “The intent of this act is to provide an opportunity to restore voting rights lost by persons convicted of felonies other than violent felonies regardless of when the conviction occurred. Nothing in this act shall be construed to affect the governor's powers under W.S. 7-13-105 to restore any rights lost pursuant to W.S. 6-10-106 .”

Authority of parole board. —

Although the aggregate sentences imposed on defendant for crimes committed as a juvenile did not deprive the parole board of its statutory authority to consider parole of a juvenile after 25 years, the sentence exceeded the limits imposed by Miller v. Alabama and Bear Cloud v. State. Sam v. State, 2017 WY 98, 401 P.3d 834, 2017 Wyo. LEXIS 99 (Wyo. 2017), cert. denied, 138 S. Ct. 1988, 201 L. Ed. 2d 248, 2018 U.S. LEXIS 3049 (U.S. 2018).

Eligibility for parole on serving minimum sentence. —

Any person imprisoned in any institution under sentence ordered by any Wyoming district court, except in the situation of a life sentence, is eligible for parole upon serving the minimum term pronounced by that court. Montez v. State, 573 P.2d 34, 1977 Wyo. LEXIS 306 (Wyo. 1977).

Second sentence reduced minimum sentence. —

A second sentence imposed, “not less than three years nor more than seven years,” was, in effect, a reduction from that imposed from the bench previously, “not less than five years nor more than seven, with three years suspended from top time,” since defendant is now eligible for parole in three years rather than four, the minimum term having been reduced. Montez v. State, 573 P.2d 34, 1977 Wyo. LEXIS 306 (Wyo. 1977).

Life without parole sentences for juveniles. —

Defendant's life without parole sentence for a murder committed when defendant was a juvenile was, as a matter of law, without the necessity of a Wyo. R. Crim. P. 35 motion, converted to life with the possibility of parole in 25 years because (1) Wyo. Stat. Ann. §§ 6-10-301(c) and 7-13-402(a) were amended to state a qualifying juvenile serving life was eligible for parole after 25 years, and (2) the amendments applied retroactively to defendant. State v. Mares, 2014 WY 126, 335 P.3d 487, 2014 Wyo. LEXIS 143 (Wyo. 2014).

Instructions about availability of clemency or parole. —

With respect to the future dangerousness considerations of sentencing, it is not unconstitutional for a court to tell the jury about the possibility of executive clemency or parole, but the jury should be clearly informed about a defendant's statutory ineligibility for parole. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Trial court erred in granting presentence confinement credit against life sentence when it had imposed a life sentence for murder and two five-to-ten-year sentences, each to be served concurrently, for drug conspiracy and aggravated assault and battery convictions, but consecutive to the life sentence. The defendant was entitled to credit upon that sentence which would be a benefit to him if he should ever reach a circumstance where the credit could be utilized for his release from confinement; that is, the credit should have been applied to the five-to-ten-year sentences and not against time which he could have served under the life sentence or any commuted term to which it could have been reduced. Weldon v. State, 800 P.2d 513, 1990 Wyo. LEXIS 132 (Wyo. 1990).

Review not precluded. —

This section's silence on judicial review is not an indication of legislative intent to preclude review. Pisano v. Shillinger, 835 P.2d 1136, 1992 Wyo. LEXIS 96 (Wyo. 1992).

No review based on conduct of hearings. —

The Wyoming Board of Parole's right to adopt its own procedures simply means that, barring any constitutional limitations, a parolee cannot seek judicial review of the board's decision upon grounds relating to the conduct of the board's hearings; however, the fact that the conduct of the hearing is not subject to review does not mean that the decision itself is not subject to review. Pisano v. Shillinger, 835 P.2d 1136, 1992 Wyo. LEXIS 96 (Wyo. 1992).

Foreclosure of judicial review. —

The obvious purpose of subsection (f) is to completely foreclose judicial review of the proceedings and decisions of the Wyoming board of parole under the Wyoming Administrative Procedure Act, including the limited review authorized in Pisano v. Shillinger, 835 P.2d 1136, 1992 Wyo. LEXIS 96 (Wyo. 1992).Hamill v. Ferguson, 937 F. Supp. 1517, 1996 U.S. Dist. LEXIS 17115 (D. Wyo. 1996).

Applied in

Dorman v. State, 665 P.2d 511, 1983 Wyo. LEXIS 340 (Wyo. 1983); Price v. State, 716 P.2d 324, 1986 Wyo. LEXIS 508 (Wyo. 1986).

Quoted in

Sorenson v. State, 604 P.2d 1031, 1979 Wyo. LEXIS 504 (Wyo. 1979); Duffy v. State, 789 P.2d 821, 1990 Wyo. LEXIS 34 (Wyo. 1990); Pena v. State, 792 P.2d 1352, 1990 Wyo. LEXIS 57 (Wyo. 1990).

Cited in

Hamby v. State, 559 P.2d 1388, 1977 Wyo. LEXIS 230 (Wyo. 1977); Kennedy v. State, 595 P.2d 577, 1979 Wyo. LEXIS 413 (Wyo. 1979); Duffy v. State, 730 P.2d 754, 1986 Wyo. LEXIS 655 (Wyo. 1986); Jones v. State, 771 P.2d 368, 1989 Wyo. LEXIS 87 (Wyo. 1989); Billis v. State, 800 P.2d 401, 1990 Wyo. LEXIS 119 (Wyo. 1990); Brenning v. State, 870 P.2d 349, 1994 Wyo. LEXIS 28 (Wyo. 1994); Mares v. State, 939 P.2d 724, 1997 Wyo. LEXIS 82 (Wyo. 1997); Cothren v. State, 2013 WY 125, 310 P.3d 908, 2013 Wyo. LEXIS 130 , 2013 WL 5570284 (Oct 10, 2013).

Stated in

Nicodemus v. Lampert, 2014 WY 135, 2014 Wyo. LEXIS 150 (Oct. 30, 2014).

Law reviews. —

For comment, “The Institutional Transfer Statute: Three Challenges to the Imprisonment of Juvenile Offenders,” see XVII Land & Water L. Rev. 643 (1982).

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

The propriety of conditioning parole on defendant's not entering specified geographical area, 54 ALR5th 743.

Sufficiency, under 18 USC § 4206(b) or (c), of statement by United States parole commission of reasons for denying parole, 58 ALR Fed 147.

Information considered by United States parole commission in making determinations relating to release on parole under § 2 of Parole Commission and Reorganization Act (18 USC §§ 4201 et seq.), 58 ALR Fed 911.

§ 7-13-403. Custody of parolee; return upon violation.

  1. A parolee is in the legal custody and under the control of the board and may be returned to the custody of the department for violation of a condition of his parole.
  2. Unless otherwise ordered by the board or when the parole violator is ordered to complete a sanction under W.S. 7-13-1801 through 7-13-1803 , a parole violator shall be returned to the custody of the department to serve the remainder of the original sentence.
  3. The board shall consider imposing a sanction under W.S. 7-13-1801 through 7-13-1803 before ordering a parole violator to be returned to the custody of the department to serve the remainder of the original sentence.

History. Laws 1947, ch. 20, § 3; W.S. 1957, § 7-326; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3; 2019, ch. 116, § 2.

The 2019 amendment, effective July 1, 2019, in (b), substituted "by the board or when the parole violator is ordered to complete a sanction under W.S. 7-13-1801 through 7-13-1803 " for "by the board"; and added (c).

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Cited in

Hamill v. Ferguson, 937 F. Supp. 1517, 1996 U.S. Dist. LEXIS 17115 (D. Wyo. 1996).

Law reviews. —

For comment, “The Institutional Transfer Statute: Three Challenges to the Imprisonment of Juvenile Offenders,” see XVII Land & Water L. Rev. 643 (1982).

§ 7-13-404. Computing remainder of sentence for parole violator.

In computing the remainder of the sentence to be served by a parole violator, credit shall be awarded toward his original sentence for any portion of the time that the person has not violated a condition of parole between his release on parole and his return to the institution unless the board directs otherwise.

History. Laws 1947, ch. 20, § 4; W.S. 1957, § 7-327; Laws 1987, ch. 157, § 3; 2019, ch. 116, § 2.

The 2019 amendment, effective July 1, 2019, substituted "credit shall be awarded toward" for "no credit shall be given against" and "time that the person has not violated a condition of parole between" for "time between."

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Constitutional due process rights of parole violator were not denied where the parole board, pursuant to this section, denied the defendant credit for the time between his release on parole and his return to prison for parole revocation when computing the remainder of the sentence to be served. Heffernan v. State, 824 P.2d 1271, 1992 Wyo. LEXIS 19 (Wyo. 1992).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of defendant sentenced after revocation of probation to credit for jail time served as condition of probation, 99 ALR3d 781.

§ 7-13-405. Field services administrator; hiring of agents.

  1. The department has general supervisory authority over state parolees and over probationers for whom the sentencing court requests supervision under W.S. 7-13-410 .
  2. The director shall appoint a field services administrator. The department shall:
    1. Keep records of all persons placed on parole or probation under the supervision of the department;
    2. Cooperate with probation and parole officers of other states in the supervision of parolees and probationers from other states; and
    3. Consult and cooperate with the courts and institutions of the state to develop plans and procedures to administer the probation and parole laws of the state.
    4. Repealed by Laws 1992, ch. 25, § 4.
  3. The field services administrator, with the approval of the director, shall coordinate the hiring of probation and parole agents.
  4. and (e) Repealed by Laws 1992, ch. 25, § 4.
  5. Subject to legislative appropriation, the department may, by negotiation without competitive bid or by competitive bidding, contract with any governmental or nongovernmental entity to provide services, other than direct supervision and enforcement, required to carry out the provisions of this article.

History. Laws 1947, ch. 20, § 5; 1949, ch. 70, § 1; 1951, ch. 56, § 1; 1953, ch. 139, § 28; 1957, ch. 157, § 6; W.S. 1957, § 7-328; Laws 1961, ch. 148, § 6; 1965, ch. 115, § 5; 1967, ch. 181, § 29; 1969, ch. 168, § 32; 1971, ch. 92, § 8; ch. 190, § 17; 1987, ch. 157, § 3; ch. 175, § 1; 1991, ch. 29, § 3; 1992, ch. 25, §§ 3, 4; 2003, ch. 10, § 1; 2011, ch. 30, § 1.

The 2011 amendment, effective July 1, 2011, in (a), substituted “W.S. 7-13-410 ” for “W.S. 7-13-410 (b)”; in the introductory language of (b) and in (c), subsituted “field services administrator” for “state probation and parole officer”; and substituted “coordinate the hiring of” for “appoint” in (c).

§ 7-13-406. Offices.

Offices for probation and parole agents shall be maintained throughout the state as determined by the department.

History. Laws 1947, ch. 20, § 6; W.S. 1957, § 7-329; Laws 1971, ch. 92, § 9; 1987, ch. 157, § 3; 1992, ch. 25, § 3.

§ 7-13-407. Duties of probation and parole agents.

  1. Under direction and supervision of the director, probation and parole agents shall:
    1. Except as  otherwise directed by the director, devote full time to the performance  of their duties in carrying out the provisions of W.S. 7-9-104 , 7-9-107 , 7-13-303 , 7-13-401 through 7-13-424 , 7-13-1101 through 7-13-1105 , 7-13-1601 through 7-13-1615 , 7-13-1801 through 7-13-1803 and 35-7-1043 ;
    2. Investigate all cases referred by any court, the department or the board, and report to the court, department or board in writing;
    3. Furnish to each person released on probation, parole or conditional release under his supervision a written statement of the conditions of the probation, parole or conditional release and instruct him regarding the conditions;
    4. Supervise the conduct of each person on probation if requested by the court granting probation, and of each person on parole or conditional release through personal visits, reports and other appropriate means, and report in writing as often as required by the court, department or board;
    5. Use all practicable  and suitable methods, not inconsistent with the conditions imposed  by the court, department or board and  including the use of incentives and sanctions under W.S. 7-13-1801 through 7-13-1803 , to aid and encourage persons on probation, parole or conditional  release to bring about improvement in their conditions and conduct;
    6. Perform other duties as directed by the director.

History. Laws 1947, ch. 20, § 8; W.S. 1957, § 7-331; Laws 1975, ch. 35, § 2; W.S. 1977, § 7-13-408 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3; 2008, ch. 100, § 2; 2011, ch. 30, § 1; 2019, ch. 116, § 2; ch. 37, § 1.

Cross references. —

As to presentence investigations and reports, see Rule 32(a), W.R. Cr. P.

The 2008 amendment, effective July 1, 2008, substituted “7-13-424” for “7-13-421” in (a)(i).

The 2011 amendment, effective July 1, 2011, in (a)(i), inserted “7-9-104, 7-9-107 , 7-13-303 ” and “7-13-1101 through 7-13-1107 , 7-13-1601 through 7-13-1615 and 35-7-1043 .”

The 2019 amendments. — The first 2019 amendment, by ch. 37, § 1, inserted “if requested by the court granting probation, and of each person on” following “each person on probation” in (a)(iv).

Laws 2019, ch. 37, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8 of the Wyo. Const. Approved February 15, 2019.

The second 2019 amendment, by ch. 116, § 2, effective July 1, 2019, in (a)(i), substituted “7-13-1101 through 7-13-1105 , 7-13-1601 through 7-13-1615 , 7-13-1801 through 7-13-1803 and 35-7-1043 ” for “7-13-1101 through 7-13-1107 , 7-13-1601 through 7-13-1615 and 35-7-1043 ,” and in (a)(v), added “and including the use of incentives and sanctions under W.S. 7-13-1801 through 7-13-1803 ” following “or board.”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Due process. —

Where a copy of the petition for revocation was not served upon defendant or his counsel prior to or during the probation revocation hearing, the failure to provide written notice to defendant was a defect affecting a substantial right and, under the circumstances, was prejudicial to his cause. Shaw v. State, 998 P.2d 965, 2000 Wyo. LEXIS 51 (Wyo. 2000).

Report did not improperly contain confidential information. —

Presentence investigation report under the Addicted Offender Accountability Act, Wyo. Stat. Ann. § 7-13-1301 et seq., did not improperly contain confidential information because the information contained the in the evaluator's report to the probation and parole officer, which related directly to defendant's propensity for violence, was meant to be related to the district court as it was indispensable in deciding whether treatment options should be considered as part of any sentence. Janpol v. State, 2008 WY 21, 178 P.3d 396, 2008 Wyo. LEXIS 22 (Wyo. 2008).

Quoted in

Anderson v. State, 2002 WY 46, 43 P.3d 108, 2002 Wyo. LEXIS 50 (Wyo. 2002).

Stated in

Hurst v. State, 698 P.2d 1130, 1985 Wyo. LEXIS 468 (Wyo. 1985).

Cited in

Moehr v. State, 13 P.3d 1114, 2000 Wyo. LEXIS 224 (Wyo. 2000);

Bitz v. State, 2003 WY 140, 78 P.3d 257, 2003 Wyo. LEXIS 170 (Wyo. 2003).

Am. Jur. 2d, ALR and C.J.S. references. —

Probation officer's liability for negligent supervision of probationer, 44 ALR4th 638.

§ 7-13-408. Probation, parole and conditional release administrative jail or adult community correction program sanction and revocation hearing procedures.

  1. The probation and parole agent shall notify the department and the board or the appropriate court if it is determined consideration should be given to retaking or reincarcerating a person under the supervision of the department who has violated a condition of his probation, parole or other conditional release and is subject to revocation of supervision. Prior to notification, a hearing shall be held in accordance with this section within a reasonable time, unless a hearing is waived by the probationer, parolee or conditional releasee. In the case of a parolee for whom the violation is based on a new felony conviction, a preliminary hearing is not required under this section. In the case of a probationer, the hearing is only required when the probationer has been reincarcerated and a legal warrant has not been obtained within ten (10) days. As soon as practicable, following termination of any hearing, the appropriate officer or agent shall report to the department and the court or board, furnish a copy of the hearing record, report on the prior use of incentives and sanctions under W.S. 7-13-1801 through 7-13-1803 for the probationer, parolee or conditional releasee and make recommendations regarding the disposition to be made of the probationer, parolee or conditional releasee. Compliance violations not leading to retaking or reincarceration shall be sanctioned under W.S. 7-13-1801 and 7-13-1802 . Pending any proceeding pursuant to this section, the appropriate agent may take custody of and detain the probationer, parolee or conditional releasee involved for a reasonable period of time prior to the hearing. If it appears to the hearing officer or agent that retaking or reincarceration is likely to follow, the agent may take custody of and detain the probationer, parolee or conditional releasee for a reasonable period after the hearing or waiver as may be necessary to arrange for the retaking or reincarceration.
  2. Any hearing pursuant to this section or W.S. 7-13-1803 may be before the field services administrator, his designated hearing officer or any other person authorized pursuant to the laws of this state to hear cases of alleged probation, parole or conditional release violations, except that no hearing officer shall be the person making the allegation of violation. In cases of alleged parole violations by persons who were paroled by the board, hearings pursuant to this section shall be before the executive director of the board or his designated hearing officer.
  3. With respect to any hearing pursuant to this section, the probationer, parolee or conditional releasee:
    1. Shall have reasonable notice in writing of the nature and content of the allegations to be made including notice that the purpose of the hearing is to determine whether there is probable cause to believe that he has committed a violation that may lead to a revocation of probation, parole or conditional release;
    2. Shall be permitted to consult with any persons whose assistance he reasonably desires, prior to the hearing;
    3. Shall have the right to confront and examine any person who has made allegations against him, unless the hearing officer determines that the confrontation would present a substantial present or subsequent danger of harm to the person;
    4. May admit, deny or explain the violation alleged and may present proof, including affidavits and other evidence, in support of his contentions.
  4. A record of the proceedings under this section shall be made and preserved either by stenographic means or through the use of a recording machine.
  5. Repealed by Laws 2019, ch. 116, §  3.

History. Laws 1975, ch. 35, § 1; W.S. 1957, § 7-331.1; W.S. 1977, § 7-13-409 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3; 2005, ch. 55, § 1; 2008, ch. 14, § 1; 2011, ch. 30, § 1; 2018, ch. 75, § 1; 2019, ch. 116, § 2; ch. 116, §§ 2, 3.

Cross references. —

As to state probation and parole officer, see § 7-13-405(b).

As to procedure in regard to revocation of probation, see Rule 39(a), W.R.Cr.P.

The 2005 amendment added the last sentence in (b).

Laws 2005, ch. 55, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 18, 2005.

The 2008 amendment, effective July 1, 2008, added (e).

The 2011 amendment, effective July 1, 2011, in (a), deleted “state” preceding “probation” near the beginning, substituted “agent” for “officer,” and inserted the present third and fourth sentences; and in (b) substituted “field services administrator” for “state probation and parole officer.”

The 2018 amendment, in (e), added “or as an alternative to revocation of the probation of any probationer who has violated a condition of his probation” and inserted “and probationers” following “Parolees” in the second sentence.

Laws 2018, ch. 75, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

The 2019 amendments. — The first 2019 amendment, by ch. 116 § 2, effective July 1, 2019, in (a), added "and is subject to revocation of supervision" following "conditional release" in the first sentence, added "report on the prior use of incentives and sanctions under W.S. 7-13-1801 through 7-13-1803 for the probationer, parolee or conditional releasee" following "hearing record" in the fifth sentence, and added the sixth sentence; and in (b), added "or W.S. 7-13-1803 " following "this section" in the first sentence.

The second 2019 amendment, by ch. 116 § 3, repealed (e), which read: "The department may establish by rule and regulation a system of imposing the administrative sanctions specified in W.S. 7-13-1107(b) as an alternative to revocation of the parole of any parolee who has violated a condition of his parole or as an alternative to revocation of the probation of any probationer who has violated a condition of his probation. Parolees and probationers committed to the county jail or a residential community correctional program pursuant to this subsection shall be housed in accordance with W.S. 7-13-1107(c) or 7-18-115(b)."

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Section held not mandatory. —

See Knobel v. State, 576 P.2d 941, 1978 Wyo. LEXIS 278 (Wyo. 1978).

And failure to hold preliminary hearing not denial of due process. —

One is not denied due process where there is a failure to hold a separate preliminary or probable-cause hearing prior to the final probation revocation hearing. Knobel v. State, 576 P.2d 941, 1978 Wyo. LEXIS 278 (Wyo. 1978).

Applicability of section. —

This section applies to cases wherein the probation or parole agent seeks to have the probationer retaken or reincarcerated for violation of the terms of his probation or conditional release, and has no application unless such proceedings are instituted by the department. It is in no manner applicable to a proceeding instituted by the county attorney's office. Knobel v. State, 576 P.2d 941, 1978 Wyo. LEXIS 278 (Wyo. 1978).

This section can be applicable only where the department initiates and conducts the final revocation proceeding. Weisser v. State, 600 P.2d 1320, 1979 Wyo. LEXIS 469 (Wyo. 1979).

The protections articulated in this section are intended to apply in administrative revocation proceedings but, by decisions of the supreme court, they have been extended, with the exception of the separate preliminary hearing requirement, to proceedings in which the court acts on a petition for revocation filed by a county attorney or the board of probation and parole. Swackhammer v. State, 808 P.2d 219, 1991 Wyo. LEXIS 48 (Wyo. 1991).

Rule 39 supersedes this section. —

The present text of the probation revocation rule, W.R.Cr.P. 39, is definitely structured to intentionally require initial involvement of the county or district attorney for the practice of law function intrinsically involved in judicial probation termination proceedings; therefore, this section for judicial revocation proceedings in probation cases and its process of notice or arrest based on the issuance of a bench warrant is superseded by W.R.Cr.P. 39. Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992), overruled in part, Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

Applied in

Mason v. State, 631 P.2d 1051, 1981 Wyo. LEXIS 363 (Wyo. 1981).

Cited in

Hewitt v. State, 835 P.2d 348, 1992 Wyo. LEXIS 99 (Wyo. 1992); Cooney v. White, 845 P.2d 353, 1992 Wyo. LEXIS 205 (Wyo. 1992).

Law reviews. —

For comment, “The Institutional Transfer Statute: Three Challenges to the Imprisonment of Juvenile Offenders,” see XVII Land & Water L. Rev. 643 (1982).

Am. Jur. 2d, ALR and C.J.S. references. —

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure, 77 ALR3d 636.

Admissibility, in state probation revocation proceedings, of incriminating statement obtained in violation of Miranda rule, 77 ALR3d 669.

Admissibility of hearsay evidence in probation revocation hearings, 11 ALR4th 999.

Power of court, after expiration of probation term, to revoke or modify probation for violations committed during the probation term, 13 ALR4th 1240.

Power of court to revoke probation for acts committed after imposition of sentence but prior to commencement of probation term, 22 ALR4th 755.

Revocation of probation based on defendant's misrepresentation or concealment of information from trial court, 36 ALR4th 1182.

Probation revocation: insanity as defense, 56 ALR4th 1178.

Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges, 2 ALR5th 262.

Who may institute proceedings to revoke probation, 21 ALR5th 275.

Sufficiency of hearsay evidence in probation revocation hearings. 21 A.L.R.6th 771.

§ 7-13-409. Disclosure of information and data.

All information and data obtained in the discharge of official duties by probation and parole agents is privileged information and shall not be disclosed directly or indirectly to anyone other than to the judge, the department or to others entitled to receive reports unless and until otherwise ordered by the judge, board or department.

History. Laws 1975, ch. 35, § 1; W.S. 1957, § 7-331.2; W.S. 1977, § 7-13-410 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

No error in denying defendant access to data. —

Since a criminal defendant has no right to examine the files and records of the department in connection with a sentencing hearing, but is only entitled to a disclosure of all of the material contained in the presentence report and any other information that is known to the trial court with respect to sentencing, the court committed no error in denying the defendant access to the records of any prior probation supervision or notes taken by any probation and parole agent to prepare the presentence report. Alexander v. State, 823 P.2d 1198, 1992 Wyo. LEXIS 5 (Wyo. 1992).

Report did not improperly contain confidential information. —

Presentence investigation report under the Addicted Offender Accountability Act, Wyo. Stat. Ann. § 7-13-1301 et seq., did not improperly contain confidential information because the information contained the in the evaluator's report to the probation and parole officer, which related directly to defendant's propensity for violence, was meant to be related to the district court as it was indispensable in deciding whether treatment options should be considered as part of any sentence. Janpol v. State, 2008 WY 21, 178 P.3d 396, 2008 Wyo. LEXIS 22 (Wyo. 2008).

Privilege not to be revoked. —

Defendant could not circumvent the statutory privilege of this section by demanding that the information be given to him pursuant to Rule 16, W.R.Cr.P. Roach v. State, 901 P.2d 1135, 1995 Wyo. LEXIS 159 (Wyo. 1995).

Cited in

Montoya v. State, 971 P.2d 134, 1998 Wyo. LEXIS 185 (Wyo. 1998).

Quoted in

Williams v. Tharp, 2017 WY 8, 388 P.3d 513, 2017 Wyo. LEXIS 8 (Wyo. 2017).

Am. Jur. 2d, ALR and C.J.S. references. —

Availability of discovery at probation revocation hearings, 52 ALR5th 559.

§ 7-13-410. Notice of probation order; request for probation supervision or report.

  1. The clerk of the court granting probation to a person convicted of a crime shall send a certified copy of the order to the department of corrections or, in the case of a juvenile, to the department of family services.
  2. At the time of granting probation or at any later time, the court may request the department to provide supervision of the probationer. The probation and parole agents will not be required to supervise or report on a person granted probation unless requested to do so by the court granting probation. The court shall not request supervised probation for a misdemeanor offense unless the court makes findings showing a particular need for supervision of the offender.

History. Laws 1947, ch. 20, § 9; W.S. 1957, § 7-333; W.S. 1977, § 7-13-411 ; Laws 1987, ch. 157, § 3; 1991, ch. 161, § 3; 2011, ch. 30, § 1; 2014, ch. 5, § 1.

Cross references. —

As to state probation and parole officer, see § 7-13-405(b).

The 2011 amendment, effective July 1, 2011, in (a), substituted “department of corrections” for “state probation and parole officer” and “juvenile” for “minor.”

The 2014 amendment, effective July 1, 2014, added the last sentence in (b).

§ 7-13-411. Apprehension of violators.

  1. A probation and parole agent may, in the performance of his duties:
    1. and (ii) Repealed by Laws 2011, ch. 30, § 2.
    2. Request a peace officer to arrest without warrant any probationer or parolee if the probation and parole agent has probable cause to believe the person has violated the conditions of his probation or parole. A person arrested under this paragraph may be detained for a reasonable period of time until a legal warrant is obtained or pending further proceedings under W.S. 7-13-408 .
  2. A peace officer may arrest without warrant an alleged probation or parole violator after receiving a written statement from a probation and parole agent setting forth that the probationer or parolee has, in the judgment of the probation and parole agent, violated the conditions of his probation or parole. A peace officer may also arrest without warrant an alleged probation or parole violator at any time the peace officer has probable cause to believe the probationer or parolee has violated the conditions of his probation or parole. A person arrested under this subsection may be detained for a reasonable period of time until a legal warrant is obtained or pending further proceedings under W.S. 7-13-408 .
  3. A peace officer may take into custody and hold a person granted parole or on probation from another state when requested to do so by the probation and parole agent or the proper authorities from the other state.
  4. A parole or probation violator apprehended shall be accepted and held in the county jail at the request of the probation and parole agent.
  5. Any expense incurred in holding a parolee in county jail at the request of a probation and parole agent or pending proceedings under W.S. 7-13-408 , including costs of shelter, food, clothing, and necessary medical, dental and hospital care and any expense for transporting the parolee shall be paid by the department unless there are local charges pending. The per diem cost of holding parolees under this section shall be agreed upon by the sheriff and the department, but shall not exceed the amount established by the department based on funds appropriated to the department for housing of offenders.

History. Laws 1947, ch. 20, § 10; W.S. 1957, § 7-334; W.S. 1977, § 7-13-412 ; Laws 1987, ch. 157, § 3; 1991, ch. 161, § 3; 1992, ch. 25, § 3; 1995, ch. 122, § 2; 2011, ch. 30, §§ 1, 2; 2014, ch. 1, § 1; 2015, ch. 85, § 1.

Cross references. —

As to arrests without warrant by peace officers, see § 7-2-103 .

As to state probation and parole officer, see § 7-13-405(b).

The 2011 amendment, effective July 1, 2011, repealed former (a)(i) and (a)(ii) which read: “(i) Exercise the powers of arrest provided by W.S. 7-2-102 and 7-2-103(a); (ii) Take into custody any parolee at the request of the board, the state probation and parole officer or the department of family services in the case of a minor and detain the person for a reasonable period of time pending further proceedings under W.S. 7-13-408 ”; in (a)(iii), inserted “probation and parole,” and substituted “conditions” for “terms” in the first sentence; in (c), deleted “or probation and parole agent” following “A peace officer,” and inserted “probation and parole agent or the”; in (d), deleted “by a probation and parole agent” following “violator apprehended,” and inserted “probation and parole”; and in (e), substituted “but” for “and” in the last sentence, and “amount established by the department based on funds appropriated to the department for housing of offenders” for “per diem cost of housing an inmate at the Wyoming state penitentiary,” and made stylistic changes.

The 2014 amendment, effective July 1, 2014, inserted “Request a peace officer to a” in (a)(iii).

The 2015 amendment, effective July 1, 2015, inserted the present second sentence.

§ 7-13-412. [Repealed.]

Repealed by Laws 2009, ch. 2, § 1.

Cross references. —

As to provision relating to contents of warrant of extradition of parolees, see § 7-3-205 .

Editor's notes. —

This section, which derived from Laws 1947, ch. 20, § 13, related to applicability of the interstate compact.

Laws 2009, ch. 2, § 1 makes the act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved February 17, 2009.

§ 7-13-413. [Repealed.]

Repealed by Laws 2009, ch. 2, § 1.

Cross references. —

As to provision relating to contents of warrant of extradition of parolees, see § 7-3-205 .§ 7-13-405(b).

Editor's notes. —

This section, which derived from Laws 1939, ch. 34, § 1, related to interstate compact for supervision of parolees and probationers.

Laws 2009, ch. 2, § 1 makes the act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved February 17, 2009.

§ 7-13-414. [Repealed.]

Repealed by Laws 2009, ch. 2, § 1.

Cross references. —

As to provision relating to contents of warrant of extradition of parolees, see § 7-3-205 .§ 7-13-405(b).

Editor's notes. —

This section, which derived from Laws 1975, ch. 34, § 1, related to notification under interstate compact of retaking or reincarceration.

Laws 2009, ch. 2, § 1 makes the act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved February 17, 2009.

§ 7-13-415. [Repealed.]

Repealed by Laws 2009, ch. 2, § 1.

Cross references. —

As to provision relating to contents of warrant of extradition of parolees, see § 7-3-205 .§ 7-13-405(b).

Editor's notes. —

This section, which derived from Laws 1975, ch. 34, § 1, related to hearing officer under interstate compact.

Laws 2009, ch. 2, § 1 makes the act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved February 17, 2009.

§ 7-13-416. [Repealed.]

Repealed by Laws 2009, ch. 2, § 1.

Cross references. —

As to provision relating to contents of warrant of extradition of parolees, see § 7-3-205 .§ 7-13-405(b).

Editor's notes. —

This section, which derived from Laws 1975, ch. 34, § 1, related to hearing in another state under the interstate compact.

Laws 2009, ch. 2, § 1 makes the act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved February 17, 2009.

§ 7-13-417. [Repealed.]

Repealed by Laws 2009, ch. 2, § 1.

Cross references. —

As to provision relating to contents of warrant of extradition of parolees, see § 7-3-205 .§ 7-13-405(b).

Editor's notes. —

This section, which derived from Laws 1975, ch. 34, § 1, related to hearing in another state under the interstate compact.

Laws 2009, ch. 2, § 1 makes the act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved February 17, 2009.

§ 7-13-418. Selection, training and powers of local volunteer; compensation.

  1. In order to further the objectives of W.S. 7-13-401 through 7-13-424 , the field services administrator may select, organize and train local volunteer citizens who, acting under his supervision, may:
    1. Advise and assist probation and parole agents with special reference to vocational and technical education services for probationers and parolees;
    2. Maintain liaison with all appropriate municipal, county, state and federal agencies whose services aid in the reintegration of offenders into society;
    3. Assist in programs relating to the social, moral and psychological needs of persons released under probation and parole supervision;
    4. Not receive compensation from the state. At the discretion of the field services administrator, however, volunteers may be reimbursed for necessary and actual expenses incurred in performing the duties described in this section.

History. Laws 1973, ch. 149, § 1; W.S. 1957, § 7-338.1; W.S. 1977, § 7-13-417 ; Laws 1987, ch. 157, § 3; 2008, ch. 100, § 2; 2011, ch. 30, § 1.

Cross references. —

As to state probation and parole officer, see § 7-13-405(b).

The 2008 amendment, effective July 1, 2008, substituted “7-13-424” for “7-13-421” in the introductory language of (a).

The 2011 amendment, effective July 1, 2011, in the introductory language of (a) and in (a)(iv), substituted “field services administrator” for “state probation and parole officer.”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-13-419. Limitations on powers of volunteers.

Volunteers do not have power of arrest nor the right to execute criminal process.

History. Laws 1973, ch. 149, § 1; W.S. 1957, § 7-338.2; W.S. 1977, § 7-13-418 ; Laws 1987, ch. 157, § 3.

Cross references. —

As to arrest generally, see chapter 8 of this title.

§ 7-13-420. Good time allowances.

  1. The governor, after consultation with the board and the department, shall adopt rules and regulations to establish a system of good time and special good time allowances for inmates of and parolees from any state penal institution, any institution which houses Wyoming inmates pursuant to W.S. 7-3-401 or any correctional facility operated pursuant to a contract with the state under W.S. 7-22-102 or inmates or parolees transferred to a community correctional facility pursuant to W.S. 7-18-109 or 7-18-115 . The rules may provide either for good time to be deducted from the maximum sentence or for good time to be deducted from the minimum sentence imposed by the sentencing court, or both, and may provide for the removal of previously earned good time allowances and the withholding of future good time allowances.
  2. The rules and regulations adopted by the governor as provided by this section shall be filed in the office of the secretary of state but shall at all times be considered rules relating to the internal management of state penal institutions and not affecting private rights of inmates. The granting, refusal to grant, withholding or restoration of good time or special good time allowances to inmates shall be a matter of grace and not that of right of inmates.
  3. The court may adjust the period of a probationer’s supervised probation on the recommendation of the probation and parole agent, which shall be based on the probationer’s positive progression towards the goals of the case plan as well as the overall compliance with the conditions imposed by the court.
  4. The rules established under subsection (a) of this section shall:
    1. Provide that good time may be awarded for time the sentencing court awards as jail credit in the judgment and sentence if the inmate or parolee would have otherwise received good time credit if the inmate or parolee had served that time in an institution eligible under subsection (a) of this section;
    2. Provide that good time may be awarded for any time an inmate or parolee spends in custody from the date of sentencing until admission to an institution eligible under subsection (a) of this section;
    3. Require the department to consult with the county sheriff to determine whether good time should be awarded to an inmate or parolee before awarding good time for jail credit under this subsection.

History. Laws 1984, ch. 49, § 1; W.S. 1977, § 7-13-423 ; Laws 1987, ch. 157, § 3; 1991, ch. 252, § 2; 1992, ch. 25, § 3; 2008, ch. 14, § 1; 2011, ch. 30, § 1; 2020, ch. 28, § 1.

Cross references. —

As to early parole for “good time,” see § 7-13-402 .

The 2008 amendment, effective July 1, 2008, in (a), inserted “and parolees from,” inserted “or parolees,” added “or 7-18-115 ” at the end of the first sentence, and added “and may provide for the removal of previously earned good time allowances and the withholding of future good time allowances” at the end.

The 2011 amendment, effective July 1, 2011, added (c).

The 2020 amendment, effective July 1, 2020, added (d).

Applicability of act. — Laws 1991, ch. 252, § 3, provides: “The powers and authority set forth in this act shall be in addition to such other powers and authority as may presently exist under the laws of the state of Wyoming relating to correctional facilities or jails, and the requirements set forth in this act (including in particular, requirements relating to the obtaining of necessary consents and approvals) shall be deemed to apply only to actions taken or to be taken under authority of this act and shall not apply to any such other powers or authority as may presently exist under the laws of the state of Wyoming.”

Applicability. — Laws 2020, ch. 28, § 2, provides: “(a) The provisions of this act shall apply only to:

“(i) Sentences of record that are active on the effective date of this act for all persons who are:

“(A) Sentenced for any crime and are awaiting transfer to a facility listed in W.S. 7-13-420(a);

“(B) Serving a sentence; or

“(C) On parole.

“(ii) Sentences of record for which a person is received by the department on or after the effective date of this act.”

Quoted in

Duffy v. State, 789 P.2d 821, 1990 Wyo. LEXIS 34 (Wyo. 1990); Jenkins v. State, 2002 WY 107, 49 P.3d 1028, 2002 Wyo. LEXIS 113 (Wyo. 2002).

Cited in

Duffy v. State, 730 P.2d 754, 1986 Wyo. LEXIS 655 (Wyo. 1986); Trusky v. State, 7 P.3d 5, 2000 Wyo. LEXIS 130 (Wyo. 2000).

§ 7-13-421. Restitution as condition of parole.

  1. Repealed by Laws 2011, ch. 30, § 2.
  2. The board shall provide for restitution in the amount determined by the court pursuant to W.S. 7-9-103 unless the board finds the parolee is not reasonably capable of making the payments, in which case the board may modify the amount of restitution to be paid, taking into account the factors enumerated in W.S. 7-9-106 .
    1. through (iv) Repealed by Laws 2011, ch. 30, § 2.
  3. If the parolee fails to pay the restitution as provided by this section the board may:
    1. Modify the amount of the restitution;
    2. Repealed by Laws 2011, ch. 30, § 2.
    3. Revoke the parole.
  4. The board may waive the payment of some or all of the restitution as a condition of parole if it finds the payment of some or all of the restitution will work an undue hardship on the parolee or his family. Victims who have requested to receive notification pursuant to W.S. 1-40-204(f) of information authorized to be released pursuant to W.S. 1-40-204(d) shall be given notice and an opportunity to be heard prior to the board making a decision to waive some or all of the restitution under this subsection.
  5. Nothing in this section shall limit or impair the rights of victims to sue and recover damages from the parolee in a civil action. However, any restitution payment by the parolee to a victim shall be set off against any judgment in favor of the victim in a civil action arising out of the same facts or event.
  6. The fact that restitution was required or made under this section shall not be admissible as evidence in a civil action unless offered by the parolee.
  7. In the event a victim is not satisfied with the restitution plan required or modified by the board, the victim’s exclusive remedies are a civil action against the parolee or execution on the restitution order pursuant to W.S. 7-9-103(d).
  8. The board may require payment of the following obligations as conditions of parole if it finds the parolee is reasonably capable of making the payments, taking into account the factors enumerated in W.S. 7-9-106(a)(iii):
    1. Support of dependents of the parolee;
    2. Court ordered fines, reimbursement for the services of the public defender or court appointed counsel, the surcharge imposed under W.S. 1-40-119 and the surcharge imposed under W.S. 7-13-1616 ;
    3. Costs or partial costs of evaluations, treatment, services, programs or assistance the parolee is receiving;
    4. Cost or partial costs of supervision of the parolee imposed under W.S. 7-13-1102(a)(iii).

History. Laws 1984, ch. 27, § 1; W.S. 1977, §§ 7-13-423 ; Rev. W.S. 1977, § 7-13-424 ; Laws 1987, ch. 157, § 3; 2007, ch. 71, § 1; 2011, ch. 30, §§ 1, 2; 2012, ch. 98, § 1; 2016, ch. 71, § 2.

Cross references. —

As to wrongful death action, see chapter 38 of title 1.

The 2007 amendment, effective July 1, 2007, added the last sentence in (b) and (b)(i) through (iv).

The 2011 amendment, effective July 1, 2011, repealed former (a), pertaining to definitions of criminal activity, pecuniary damage, restitution, and victim; repealed former (b)(i) through (b)(iv), pertaining to obligations as conditions of parole; repealed former (c)(ii), which read: “Extend the parole period to accommodate the parolee's ability to pay restitution; or”; in (d), substituted “Victims who have requested to receive notification pursuant to W.S. 1-40-204(f) of information authorized to be released pursuant to W.S. 1-40-204(d)” for “If the victim can be located through the exercise of reasonable diligence, he”; substituted “parolee” for “defendant” in throughout (e) and (f); in (g), substituted “required” for “approved,” and substituted “exclusive remedies are a civil action against the parolee or execution on the restitution order pursuant to W.S. 7-9-103(d)” for “sole and exclusive remedy is a civil action”; and added (h).

The 2012 amendment, in (b), deleted “The board may require payment of the following obligations as conditions of parole if it finds the parolee is reasonably capable of making the payments, taking into account the factors enumerated in W.S. 7-9-106(a)(iii)” at the end.

Laws 2012, ch. 98 § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 15, 2012.

The 2016 amendment, effective July 1, 2016, deleted “and” following “counsel” and inserted “and the surcharge imposed under W.S. 7-13-1616 ” in (h)(ii).

Absent statutory authority, sentencing court has no power to order restitution. —

Bishop v. State, 687 P.2d 242, 1984 Wyo. LEXIS 310 (Wyo. 1984), cert. denied, 469 U.S. 1219, 105 S. Ct. 1203, 84 L. Ed. 2d 345, 1985 U.S. LEXIS 998 (U.S. 1985).

Statutes giving court power to order restitution. —

The correct reading of §§ 7-9-102 and -103 and § 7-13-421(b), collectively, is that these statutes specifically authorize a sentencing court to impose restitution ordered a condition of parole unless the Board of Parole intervenes. Helmlinger v. State, 855 P.2d 363, 1993 Wyo. LEXIS 115 (Wyo. 1993).

Parole board authority reviewed upon adverse decision. —

The defendant argued that subsection (c)(ii) of this section violated the separation of powers requirement in his case because that statute might have permitted the parole board to perform both legislative and judicial functions by allowing the board to extend the period of his possible parole in the event he failed to make restitution, because the board had not yet exercised its statutory authority; however, the issue raised was not ripe for review. The defendant could seek review when he could demonstrate that the board had made some adverse decision. Brenning v. State, 870 P.2d 349, 1994 Wyo. LEXIS 28 (Wyo. 1994).

Cited in

Keller v. State, 771 P.2d 379, 1989 Wyo. LEXIS 94 (Wyo. 1989).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 7-13-422. Short title.

This act may be cited as “The Interstate Compact for Adult Offender Supervision.”

History. Laws 2001, ch. 71, § 1.

Editor's notes. —

Laws 2001, ch. 71, § 2, made the act effective the later of July 1, 2001, or upon enactment of the Interstate Compact for Adult Offender Supervision into law by the thirty-fifth jurisdiction. The compact was entered into by a 35th state on June 19, 2002.

§ 7-13-423. Compact provisions generally.

The interstate compact for the supervision of adult offenders as contained herein is hereby enacted into law and entered into on behalf of this state with any and all other states legally joining therein in a form substantially as follows.

History. Laws 2001, ch. 71, § 1.

Article I Purpose

  1. The compacting states to this interstate compact recognize that each state is responsible for the supervision of adult offenders in the community who are authorized pursuant to the bylaws and rules of this compact to travel across state lines both to and from each compacting state in such a manner as to track the location of offenders, transfer supervision authority in an orderly and efficient manner, and when necessary return offenders to the originating jurisdictions. The compacting states also recognize that congress, by enacting the Crime Control Act, 4 U.S.C. § 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. It is the purpose of this compact and the interstate commission created hereunder, through means of joint and cooperative action among the compacting states: to provide the framework for the promotion of public safety and protect the rights of victims through the control and regulation of the interstate movement of offenders in the community; to provide for the effective tracking, supervision and rehabilitation of these offenders by the sending and receiving states; and to equitably distribute the costs, benefits and obligations of the compact among the compacting states. In addition, this compact will: create an interstate commission which will establish uniform procedures to manage the movement between states of adults placed under community supervision and released to the community under the jurisdiction of courts, paroling authorities, corrections or other criminal justice agencies which will promulgate rules to achieve the purpose of this compact; ensure an opportunity for input and timely notice to victims and to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; establish a system of uniform data collection, access to information on active cases, subject to state laws, by authorized criminal justice officials and regular reporting of compact activities to heads of state councils, state executive, judicial and legislative branches and criminal justice administrators; monitor compliance with rules governing interstate movement of offenders and initiate interventions to address and correct noncompliance; and coordinate training and education regarding regulations of interstate movement of offenders for officials involved in such activity.
  2. The compacting states recognize that there is no “right” of any offender to live in another state and that duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any offender under supervision subject to the provisions of state laws, this compact and bylaws and rules promulgated hereunder. It is the policy of the compacting states that the activities conducted by the interstate commission created herein are the formation of public policies and are therefore public business.

Article II Definitions

  1. As used in this compact, unless the context clearly requires a different construction:
    1. “Adult” means both individuals legally classified as adults and juveniles treated as adults by court order, statute or operation of law;
    2. “By-laws” mean those by-laws established by the interstate commission for its governance or for directing or controlling the interstate commission's actions or conduct;
    3. “Compact administrator” means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of offenders subject to the terms of this compact, the rules adopted by the interstate commission and policies adopted by the state council under this compact;
    4. “Compacting state” means any state which has enacted the enabling legislation for this compact;
    5. “Commissioner” means the voting representative of each compacting state appointed pursuant to Article III of this compact;
    6. “Interstate commission” means the interstate commission for adult offender supervision established by this compact;
    7. “Member” means the commissioner of a compacting state or designee, who shall be a person officially connected with the commissioner;
    8. “Noncompacting state” means any state which has not enacted the enabling legislation for this compact;
    9. “Offender” means an adult placed under, or subject to, supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections or other criminal justice agencies;
    10. “Person” means any individual, corporation, business enterprise or other legal entity, either public or private;
    11. “Rules” means acts of the interstate commission, duly promulgated pursuant to Article VIII of this compact, substantially affecting interested parties in addition to the interstate commission, which shall have the force and effect of law in the compacting states;
    12. “State” means a state of the United States, the District of Columbia and any other territorial possessions of the United States; and
    13. “State council” means the resident members of the state council for interstate adult offender supervision created by each state under Article III of this compact.

Article III The Compact Commission

  1. The compacting states hereby create the “interstate commission for adult offender supervision.” The interstate commission shall be a body corporate and joint agency of the compacting states. The interstate commission shall have all the responsibilities, powers and duties set forth herein, including the power to sue and be sued and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
  2. The interstate commission shall consist of commissioners selected and appointed by resident members of a state council for interstate adult offender supervision for each state.
  3. In addition to the commissioners who are the voting representatives of each state, the interstate commission shall include individuals who are not commissioners but who are members of interested organizations; such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general and crime victims. All noncommissioner members of the interstate commission shall be ex-officio (nonvoting) members. The interstate commission may provide in its by-laws for such additional, ex-officio, nonvoting members as it deems necessary.
  4. Each compacting state represented at any meeting of the interstate commission is entitled to one (1) vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the by-laws of the interstate commission. The interstate commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of twenty-seven (27) or more compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
  5. The interstate commission shall establish an executive committee which shall include commission officers, members and others as shall be determined by the by-laws. The executive committee shall have the power to act on behalf of the interstate commission during periods when the interstate commission is not in session, with the exception of rulemaking and amendment to the compact. The executive committee oversees the day-to-day activities managed by the executive director and interstate commission staff; administers enforcement and compliance with the provisions of the compact, its by-laws and as directed by the interstate commission and performs other duties as directed by the interstate commission or set forth in the by-laws.

Article IV The State Council

Each member state shall create a state council for interstate adult offender supervision which shall be responsible for the appointment of the commissioner who shall serve on the interstate commission from that state. Each state council shall appoint as its commissioner the compact administrator from that state to serve on the interstate commission in such capacity under or pursuant to applicable law of the member state. While each member state may determine the membership of its own state council, its membership shall consist of one (1) member of the legislature appointed on an alternating basis by the president of the senate and speaker of the house, with the president appointing the first member. The judicial planning and administrative council shall appoint one (1) member. There shall be one (1) representative of victims groups and two (2) members from the executive branch appointed by the governor. The appointments shall be made for two (2) year terms beginning on the enactment of the interstate compact for adult offender supervision into law by the thirty-fifth jurisdiction or July 1, 2001, whichever date occurs later. The department of corrections shall provide support for the council and expenses as provided for in W.S. 9-3-102 and 9-3-103 . Each compacting state retains the right to determine the qualifications of the compact administrator who shall be appointed by the governor. In addition to appointment of its commissioner to the national interstate commission, each state council shall exercise oversight and advocacy concerning its participation in interstate commission activities and other duties as may be determined by each member state, including but not limited to, development of policy concerning operations and procedures of the compact within that state.

Article V Powers and Duties of the Interstate Commission

  1. The interstate commission shall have the following powers:
    1. To adopt a seal and suitable by-laws governing the management and operation of the interstate commission;
    2. To promulgate rules which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact;
    3. To oversee, supervise and coordinate the interstate movement of offenders subject to the terms of this compact and any by-laws adopted and rules promulgated by the compact commission;
    4. To enforce compliance with compact provisions, interstate commission rules and by-laws, using all necessary and proper means, including but not limited to, the use of judicial process;
    5. To establish and maintain offices;
    6. To purchase and maintain insurance and bonds;
    7. To borrow, accept or contract for services of personnel, including but not limited to, members and their staffs;
    8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Article III which shall have the power to act on behalf of the interstate commission in carrying out its powers and duties hereunder;
    9. To elect or appoint such officers, attorneys, employees, agents or consultants and to fix their compensation, define their duties and determine their qualifications; and to establish the interstate commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation and qualifications of personnel;
    10. To accept any and all donations and grants of money, equipment, supplies, materials and services and to receive, utilize and dispose of same;
    11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal or mixed;
    12. To sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed;
    13. To establish a budget and make expenditures and levy dues as provided in Article X of this compact;
    14. To sue and be sued;
    15. To provide for dispute resolution among compacting states;
    16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact;
    17. To report annually to the legislatures, governors, judiciary and state councils of the compacting states concerning the activities of the interstate commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the interstate commission;
    18. To coordinate education, training and public awareness regarding the interstate movement of offenders for officials involved in such activity; and
    19. To establish uniform standards for the reporting, collecting and exchanging of data.

Article VI Organization and Operation of the Interstate Commission

  1. Section A. By-laws. The interstate commission shall, by a majority of the members, within twelve (12) months of the first interstate commission meeting, adopt by-laws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to: establishing the fiscal year of the interstate commission; establishing an executive committee, such other committees as may be necessary and providing reasonable standards and procedures:
    1. For the establishment of committees;
    2. Governing any general or specific delegation of any authority or function of the interstate commission;
    3. Providing reasonable procedures for calling and conducting meetings of the interstate commission and ensuring reasonable notice of each such meeting; establishing the titles and responsibilities of the officers of the interstate commission; providing reasonable standards and procedures for the establishment of the personnel policies and programs of the interstate commission. Notwithstanding any civil service or other similar laws of any compacting state, the by-laws shall exclusively govern the personnel policies and programs of the interstate commission;
    4. Providing a mechanism for winding up the operations of the interstate commission and the equitable return of any surplus funds that may exist upon the termination of the compact after the payment and reserving of all of its debts and obligations;
    5. Providing transition rules for “start up” administration of the compact; and
    6. Establishing standards and procedures for compliance and technical assistance in carrying out the compact.
  2. Section B. Officers and staff:
    1. The interstate commission shall, by a majority of the members, elect from among its members a chairperson and a vice chairperson, each of whom shall have such authorities and duties as may be specified in the by-laws. The chairperson or, in his or her absence or disability, the vice chairperson, shall preside at all meetings of the interstate commission. The officers so elected shall serve without compensation or remuneration from the interstate commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the interstate commission;
    2. The interstate commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the interstate commission may deem appropriate. The executive director shall serve as secretary to the interstate commission, and hire and supervise such other staff as may be authorized by the interstate commission, but shall not be a member.
  3. Section C. Corporate records of the interstate commission. The interstate commission shall maintain its corporate books and records in accordance with the by-laws.
  4. Section D. Qualified immunity, defense and indemnification:
    1. The members, officers, executive director and employees of the interstate commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities; provided, that nothing in this paragraph shall be construed to protect any such person from suit and liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of any such person. The interstate commission shall defend the commissioner of a compacting state, or his representatives or employees or the interstate commission's representatives or employees, in any civil action seeking to impose liability, arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities; provided, that the actual or alleged act, error or omission did not result from intentional wrongdoing on the part of such person;
    2. The interstate commission shall indemnify and hold the commissioner of a compacting state, the appointed designee or employees or the interstate commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities, provided, that the actual or alleged act, error or omission did not result from gross negligence or intentional wrongdoing on the part of such person.

Article VII Activities of the Interstate Commission

  1. The interstate commission shall meet and take such actions as are consistent with the provisions of this compact.
  2. Except as otherwise provided in this compact and unless a greater percentage is required by the by-laws, in order to constitute an act of the interstate commission, such act shall have been taken at a meeting of the interstate commission and shall have received an affirmative vote of a majority of the members present.
  3. Each member of the interstate commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the interstate commission. A member shall vote in person on behalf of the state and shall not delegate a vote to another member state. However, a state council shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the member state at a specified meeting. The by-laws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone or other means of telecommunication or electronic communication shall be subject to the same quorum requirements of meetings where members are present in person.
  4. The interstate commission shall meet at least once during each calendar year. The chairperson of the interstate commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings.
  5. The interstate commission's by-laws shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. In promulgating such rules, the interstate commission may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.
  6. Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The interstate commission shall promulgate rules consistent with the principles contained in the “Government in Sunshine Act”, 5 U.S.C. § 552(b), as may be amended. The interstate commission and any of its committees may close a meeting to the public where it determines by two-thirds (2/3) vote that an open meeting would be likely to:
    1. Relate solely to the interstate commission's internal personnel practices and procedures;
    2. Disclose matters specifically exempted from disclosure by statute;
    3. Disclose trade secrets or commercial or financial information which is privileged or confidential;
    4. Involve accusing any person of a crime or formally censuring any person;
    5. Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
    6. Disclose investigatory records compiled for law enforcement purposes;
    7. Disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the interstate commission with respect to a regulated entity for the purpose of regulation or supervision of such entity;
    8. Disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity; or
    9. Specifically relate to the interstate commission's issuance of a subpoena or its participation in a civil action or proceeding.
  7. For every meeting closed pursuant to this provision, the interstate commission's chief legal officer shall publicly certify that, in his opinion, the meeting may be closed to the public and shall reference each relevant exemptive provision. The interstate commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
  8. The interstate commission shall collect standardized data concerning the interstate movement of offenders as directed through its by-laws and rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements.

Article VIII Rulemaking Functions of the Interstate Commission

  1. The interstate commission shall promulgate rules in order to effectively and efficiently achieve the purposes of the compact including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states;
  2. Rulemaking shall occur pursuant to the criteria set forth in this article and the by-laws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the federal Administrative Procedure Act, 5 U.S.C.S. § 551 et seq., and the Federal Advisory Committee Act, 5 U.S.C.S. app. 2, § 1 et seq., as may be amended (hereinafter “APA”). All rules and amendments shall become binding as of the date specified in each rule or amendment.
  3. If a majority of the legislatures of the compacting states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state.
  4. When promulgating a rule, the interstate commission shall:
    1. Publish the proposed rule stating with particularity the text of the rule which is proposed and the reason for the proposed rule:
      1. Allow persons to submit written data, facts, opinions and arguments, which information shall be publicly available;
      2. Provide an opportunity for an informal hearing; and
      3. Promulgate a final rule and its effective date, if appropriate, based on the rulemaking record.
  5. Not later than sixty (60) days after a rule is promulgated, any interested person may file a petition in the United States district court for the District of Columbia or in the federal district court where the interstate commission's principal office is located for judicial review of such rule. If the court finds that the interstate commission's action is not supported by substantial evidence, (as defined in the APA), in the rulemaking record, the court shall hold the rule unlawful and set it aside.
  6. Subjects to be addressed within twelve (12) months after the first meeting must at a minimum include:
    1. Notice to victims and opportunity to be heard;
    2. Offender registration and compliance;
    3. Violations/returns;
    4. Transfer procedures and forms;
    5. Eligibility for transfer;
    6. Collection of restitution and fees from offenders;
    7. Data collection and reporting;
    8. The level of supervision to be provided by the receiving state;
    9. Transition rules governing the operation of the compact and the interstate commission during all or part of the period between the effective date of the compact and the date on which the last eligible state adopts the compact; and
    10. Mediation, arbitration and dispute resolution.
  7. The existing rules governing the operation of the previous compact superceded by this act shall be null and void twelve (12) months after the first meeting of the interstate commission created hereunder.
  8. Upon determination by the interstate commission that an emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the rule.

Article IX Oversight, Enforcement and Dispute Resolution by the Interstate Commission

  1. Section A. Oversight:
    1. The interstate commission shall oversee the interstate movement of adult offenders in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states;
    2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the interstate commission, the interstate commission shall be entitled to receive all service of process in any such proceeding and shall have standing to intervene in the proceeding for all purposes.
  2. Section B. Dispute resolution:
    1. The compacting states shall report to the interstate commission on issues or activities of concern to them and cooperate with and support the interstate commission in the discharge of its duties and responsibilities;
    2. The interstate commission shall attempt to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and noncompacting states;
    3. The interstate commission shall enact a by-law or promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
  3. Section C. Enforcement.

    The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact using any or all means set forth in Article XII, section B, of this compact.

Article X Finance

  1. The interstate commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities.
  2. The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the interstate commission and its staff which must be in a total amount sufficient to cover the interstate commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, taking into consideration the population of the state and the volume of interstate movement of offenders in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment.
  3. The interstate commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
  4. The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its by-laws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the interstate commission.

Article XI Compacting States, Effective Date and Amendment

  1. Any state, as defined in article II of this compact, is eligible to become a compacting state. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five (35) of the states. The initial effective date shall be the later of July 1, 2001, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter it shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state. The governors of nonmember states or their designees will be invited to participate in interstate commission activities on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.
  2. Amendments to the compact may be proposed by the interstate commission for enactment by the compacting states. No amendment shall become effective and binding upon the interstate commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

Article XII Withdrawal, Default, Termination and Judicial Enforcement

  1. Section A. Withdrawal:
    1. Once effective, the compact shall continue in force and remain binding upon each and every compacting state; provided, that a compacting state may withdraw from the compact (“withdrawing state”) by enacting a statute specifically repealing the statute which enacted the compact into law;
    2. The effective date of withdrawal is the effective date of the repeal;
    3. The withdrawing state shall immediately notify the chairperson of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The interstate commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty (60) days of its receipt thereof;
    4. The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal;
    5. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission.
  2. Section B. Default:
    1. If the interstate commission determines that any compacting state has at any time defaulted (“defaulting state”) in the performance of any of its obligations or responsibilities under this compact, the by-laws or any duly promulgated rules, the interstate commission may impose any or all of the following penalties:
      1. Fines, fees and costs in such amounts as are deemed to be reasonable as fixed by the interstate commission;
      2. Remedial training and technical assistance as directed by the interstate commission; suspension and termination of membership in the compact. Suspension shall be imposed only after all other reasonable means of securing compliance under the by-laws and rules have been exhausted. Immediate notice of suspension shall be given by the interstate commission to the governor, the chief justice or chief judicial officer of the state, the majority and minority leaders of the defaulting state's legislature and the state council.
    2. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, interstate commission by-laws or duly promulgated rules. The interstate commission shall immediately notify the defaulting state in writing of the penalty imposed by the interstate commission on the defaulting state pending a cure of the default. The interstate commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the interstate commission, in addition to any other penalties imposed herein, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of suspension. Within sixty (60) days of the effective date of termination of a defaulting state, the interstate commission shall notify the governor, the chief justice or chief judicial officer, the majority and minority leaders of the defaulting state's legislature and the state council of such termination;
    3. The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination;
    4. The interstate commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon between the interstate commission and the defaulting state. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the interstate commission pursuant to the rules.
  3. Section C. Judicial enforcement. The interstate commission may, by majority vote of the members, initiate legal action in the United States district court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its offices to enforce compliance with the provisions of the compact, its duly promulgated rules and by-laws, against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorneys fees.
  4. Section D. Dissolution of compact:
    1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one (1) compacting state;
    2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, the business and affairs of the interstate commission shall be wound up and any surplus funds shall be distributed in accordance with the by-laws.

Article XIII Severability and Construction

  1. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
  2. The provisions of this compact shall be liberally constructed to effectuate its purposes.

Article XIV Binding Effect of Compact and Other Laws

  1. Section A. Other laws:
    1. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact;
    2. All compacting states' laws conflicting with this compact are superseded to the extent of the conflict.
  2. Section B. Binding effect of the compact:
    1. All lawful actions of the interstate commission, including all rules and by-laws promulgated by the interstate commission, are binding upon the compacting states;
    2. All agreements between the interstate commission and the compacting states are binding in accordance with their terms;
    3. Upon the request of a party to a conflict over meaning or interpretation of interstate commission actions and upon a majority vote of the compacting states, the interstate commission may issue advisory opinions regarding such meaning or interpretation;
    4. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by such provision upon the interstate commission shall be ineffective and the obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective. Editor's notes. — There is no subsection (b) in Articles II and V and in no paragraph (d)(ii) in Article VIII of this section as it appears in the printed acts. Equal Protection. — Inmate's equal protection rights under the Fourteenth Amendment and Wyo. Const. art. I, §§ 2, 34 were not violated when he was denied certain good time credit because the inmate was not similarly situated with other Wyoming prisoners where he had been transferred under the Interstate Agreement on Detainers, Wyo. Stat. Ann. § 7-15-101 et seq., to face charges, and then transferred back to Colorado; the inmate was not processed in Wyoming after his conviction. Even if the inmate had been similarly situated, there was still no violation because there was a rational basis for the differing treatment since the credit was a behavioral incentive for Wyoming inmates. Merchant v. State Dep't of Corr., 2007 WY 159, 168 P.3d 856, 2007 Wyo. LEXIS 171 (Wyo. 2007).

§ 7-13-424. Medical parole; conditions.

  1. Notwithstanding any other provision of law restricting the grant of parole, except for inmates sentenced to death or life imprisonment without parole, the board may grant a medical parole to any inmate meeting the conditions specified in this section. The board shall consider a medical parole upon receipt of written certification by a licensed treating physician that, within a reasonable degree of certainty, one (1) of the following circumstances exist:
    1. The inmate has a serious incapacitating medical need which requires treatment that cannot reasonably be provided while confined in a state correctional facility;
    2. The inmate is incapacitated by age to the extent that deteriorating physical or mental health substantially diminishes the ability of the inmate to provide self-care within the environment of a correctional facility;
    3. The inmate is permanently physically incapacitated as the result of an irreversible injury, disease or illness which makes significant physical activity impossible, renders the inmate dependent on permanent medical intervention for survival or confines the inmate to a bed, wheelchair or other assistive device where his mobility is significantly limited; or
    4. The inmate suffers from a terminal illness caused by injury or disease which is predicted to result in death within twelve (12) months of the application for parole.
  2. The board may only grant a medical parole if it first determines:
    1. That, based on a review of all available information, one (1) or more of the conditions specified in subsection (a) of this section exists;
    2. That the inmate is not likely to abscond or violate the law if released;
    3. That living arrangements are in place in the community and sufficient resources are available to meet the inmate’s living and medical needs and expenses; and
    4. That the inmate does not have a medical condition that would endanger public health, safety or welfare if the inmate were released, or that the inmate’s proposed living arrangements would protect the public health, safety or welfare from any threat of harm the inmate’s medical condition may pose.
  3. Upon the board’s request, an independent medical evaluation by a licensed physician shall be conducted, provided to the board and paid for by the department.
  4. The board shall provide the prosecuting attorney and the sentencing court with prior notice of, and the opportunity to provide input regarding, a medical parole hearing for an inmate who is otherwise ineligible for parole.
  5. The board shall impose terms and conditions of parole as it deems necessary, including but not limited to requiring periodic medical progress reports at intervals of not more than six (6) months, in granting a medical parole. A medical parole may be revoked if the parolee violates a condition of parole or if the medical condition which was the basis for the grant of parole no longer exists or has been ameliorated to the extent that the justification for medical parole no longer exists.

History. Laws 2008, ch. 100, § 1.

Effective dates. —

Laws 2008, ch. 100, § 3, makes the act effective July 1, 2008.

Article 5. Continuation of Employment During Probation

Am. Jur. 2d, ALR and C.J.S. references. —

Power of court to impose sentence providing for intermittent incarceration, 39 ALR2d 985.

United States Parole Commission Guidelines for federal prisoners, 61 ALR Fed 135.

§ 7-13-501. Power of court to allow; confinement when not working.

As a condition of probation in any misdemeanor case, or as a condition of probation granted under W.S. 7-13-107(b)(ii), the sentencing court may allow an employed defendant to continue to work at his employment and provide that when the defendant is not employed, and between the hours or periods of his employment, he shall be confined in the county jail. As a condition of special treatment under this section, the court shall require the defendant to pay a reasonable amount for room and board as determined by the sheriff.

History. Laws 1957, ch. 135, § 2; W.S. 1957, § 7-342; W.S. 1977, § 7-13-502 ; Laws 1987, ch. 157, § 3; 1989, ch. 91, § 1; 1995, ch. 122, § 2.

§ 7-13-502. [Repealed.]

Repealed by Laws 1995, ch. 122, § 3.

Editor's notes. —

This section, which derived from Laws 1957, ch. 135, § 3, related to the collection and disposition of earnings.

§ 7-13-503. Work arrangement in another county.

The court may by order authorize the sheriff of the county in which probation is granted to arrange with another sheriff for the defendant granted probation under W.S. 7-13-501 to work at his employment in the other county, and to be confined in the county jail of the other county between the hours or periods when he is not working at his employment.

History. Laws 1957, ch. 135, § 6; W.S. 1957, § 7-346; W.S. 1977, § 7-13-506; Laws 1987, ch. 157, § 3.

Cross references. —

As to county sheriffs, see § 18-3-601 et seq.

§ 7-13-504. Persons committed for contempt of court.

A person committed to the county jail for contempt of court may be granted probation to continue his employment as provided by W.S. 7-13-501 .

History. Laws 1957, ch. 135, § 7; W.S. 1957, § 7-347; W.S. 1977, § 7-13-507; Laws 1987, ch. 157, § 3.

Article 6. Persons Convicted of Certain Sex Crimes

§§ 7-13-601 through 7-13-614. [Repealed.]

Repealed by Laws 1987, ch. 41, § 1.

Editor's notes. —

These sections derived from Laws 1951, ch. 25, §§ 1 through 14.

Article 7. Furlough Programs

§ 7-13-701. Definitions; establishment of programs.

  1. As used in this section:
    1. “Department” means the state department of corrections;
    2. “Compassionate leave” means a temporary release to visit a member of the inmate’s immediate family who is in danger of death, or to attend the funeral services or other last rites of a member of the inmate’s immediate family;
    3. “Immediate family member” means a spouse, child, parent, brother or sister.
  2. The department may adopt reasonable rules and regulations which will provide for a reentry furlough program for inmates of any state penal institution. The reentry furlough program shall be designed for inmates who are about to be released on parole or final discharge from imprisonment to aid in their reintegration as productive members of society. The program may provide for escorted or unescorted temporary leaves of absence from the institution for purposes of:
    1. Securing community living arrangements;
    2. Job interviews with prospective employers;
    3. Learning or relearning necessary living skills; and
    4. Other purposes, consistent with the public interest, necessary for the inmate’s successful reintegration into society.
  3. The department may adopt reasonable rules and regulations which will establish a furlough program to provide for escorted or unescorted temporary leaves of absence from any state penal institution for purposes of:
    1. Maintaining the prisoner’s relationship with immediate family members; and
    2. Providing for compassionate leaves.

History. Laws 1984, ch. 12, § 1; W.S. 1977, § 7-13-728; Laws 1986, ch. 65, § 1; 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Alcohol Treatment Center. —

Execution of appellant's sentence was, in essence, conditionally stayed pending appellant's admission to the alcohol treatment center, and he was granted a furlough for that purpose under this section of the statute; however, because appellant willfully refused to conform his behavior to the expectations of the treatment program, he was transferred to the Wyoming Department of Corrections - a condition that was made clear to him at the time of his sentence. While the supreme court did not approve of the departure from the many sentencing alternatives that were available to the district court, appellant's sentence was not illegal under this section of the rule. Center v. State, 2011 WY 73, 252 P.3d 963, 2010 Wyo. LEXIS 180 (Wyo. 2010).

Cited in

Morrison v. State, 2012 WY 41, 272 P.3d 321, 2012 Wyo. LEXIS 44 (Mar. 20, 2012).

§ 7-13-702. Escape.

An inmate is deemed guilty of escape from official detention and shall be punished as provided by W.S. 6-5-206(a)(i) if, without proper authorization, he fails to remain within the extended limits of his confinement, the location he has been furloughed to, or fails or neglects to return within the time prescribed or when ordered to do so to the institution from which he received a furlough pursuant to W.S. 7-13-701 .

History. Laws 1989, ch. 16, § 1.

Article 8. Pardons and Reprieves

Cross references. —

As to pardoning power of governor, see art. 4, § 5, Wyo. Const.

Am. Jur. 2d, ALR and C.J.S. references. —

59 Am. Jur. 2d Pardon and Parole § 1 et seq.

Pardon as restoring eligibility to public office, 58 ALR3d 1191.

67A C.J.S. Pardons §§ 32, 33.

§ 7-13-801. Application for reprieve; conditions; acceptance and filing.

  1. An application for a reprieve shall be made to the governor and shall contain:
    1. The name of the person seeking the reprieve;
    2. The offense for which he was convicted;
    3. The date and place of the conviction;
    4. The sentence imposed;
    5. The sentence served;
    6. Any subsequent arrests, criminal charges, convictions or sentences; and
    7. Any other pertinent information the governor may request.
  2. The governor’s warrant granting a reprieve shall list any conditions upon which the reprieve is granted. The person accepting the reprieve shall agree in writing to any conditions contained in the warrant.
  3. The warrant of reprieve with the acceptance signed by the person granted the reprieve shall be filed with the clerk of the sentencing court as a part of the record in the case.

History. C.L. 1876, ch. 14, § 202; R.S. 1887, § 3364; R.S. 1899, § 5455; C.S. 1910, § 555; C.S. 1920, § 645; R.S. 1931, § 80-201; C.S. 1945, § 11-201; W.S. 1957, § 7-379; Laws 1987, ch. 157, § 3.

Cross references. —

As to suspension or respite of death sentence, see § 7-13-910 .

Trial court erred in granting presentence confinement credit against life sentence when it had imposed a life sentence for murder and two five-to-ten-year sentences, each to be served concurrently, for drug conspiracy and aggravated assault and battery convictions, but consecutive to the life sentence. The defendant was entitled to credit upon that sentence which would be a benefit to him if he should ever reach a circumstance where the credit could be utilized for his release from confinement; that is, the credit should have been applied to the five-to-ten-year sentences and not against time which he could have served under the life sentence or any commuted term to which it could have been reduced. Weldon v. State, 800 P.2d 513, 1990 Wyo. LEXIS 132 (Wyo. 1990).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

§ 7-13-802. Confinement of reprieved persons.

The governor may require as a condition of the reprieve that the person reprieved be confined in a state penal institution during the period of the reprieve.

History. C.L. 1876, ch. 14, § 203; R.S. 1887, § 3365; R.S. 1899, § 5456; C.S. 1910, § 556; C.S. 1920, § 646; R.S. 1931, § 80-202; C.S. 1945, § 11-202; W.S. 1957, § 7-380; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Cross references. —

As to Wyoming state penitentiary and Wyoming women's center, see § 25-1-201 .

§ 7-13-803. Manner of applying for pardon.

Application for the pardon of any person convicted of a felony shall be made in the manner and under the restrictions prescribed in W.S. 7-13-803 through 7-13-806 .

History. C.L. 1876, ch. 14, § 205; R.S. 1887, § 3367; R.S. 1899, § 5458; C.S. 1910, § 558; C.S. 1920, § 648; R.S. 1931, § 80-204; C.S. 1945, § 11-204; W.S. 1957, § 7-382; W.S. 1977, § 7-13-804 ; Laws 1981, ch. 161, § 1; 1987, ch. 157, § 3.

Provisions deemed directory. —

This section and §§ 7-13-804 through 7-13-806 , regulating the manner of making application for pardon, are merely directory to the applicants, and do not limit discretion of the governor to grant pardons to cases where application is made as herein provided; nor is their effect enlarged by art. 4, § 5, Wyo. Const., providing that governor pardons, but legislature may by law regulate the manner of application. In re Moore, 4 Wyo. 98, 31 P. 980, 1893 Wyo. LEXIS 3 (Wyo. 1893).

Am. Jur. 2d, ALR and C.J.S. references. —

Right to notice and hearing before revocation of parole or conditional pardon, 29 ALR2d 1074, 44 ALR3d 306.

Effect of pardon for prior conviction as precluding its consideration under statute imposing higher penalty for subsequent offense, 31 ALR2d 1186.

Offenses and convictions covered by pardon, 35 ALR2d 1261.

Coverage of pardon as affected by pardoning power of official issuing pardon, 35 ALR2d 1261.

Pardon as preventing or nullifying removal of officer, 70 ALR2d 268.

Pardon as restoring license or eligibility for public office, 58 ALR3d 1191.

State restoration of federal felon's civil rights as nullification of conviction under 18 USC § 921(a)(20) which defines conviction for purposes of penalizing possession of weapon by convicted felon pursuant to 18 USC § 922(g)(1), 117 ALR Fed 247.

§ 7-13-804. Contents of application for pardon; notice to district attorney.

  1. A person convicted of a felony may apply to the governor for a pardon. The application shall contain:
    1. The name of the person seeking the pardon;
    2. The offense for which he was convicted;
    3. The date and place of the conviction;
    4. The sentence imposed;
    5. The sentence served;
    6. Any subsequent arrests, criminal charges, convictions or sentences; and
    7. Any pertinent information the governor may request such as parole and community correctional program records.
  2. The governor shall give notice of the application to the district attorney of the county in which the applicant was indicted or informed against at least three (3) weeks before the application is considered by the governor.

History. C.L. 1876, ch. 14, § 206; R.S. 1887, § 3368; R.S. 1899, § 5459; C.S. 1910, § 559; C.S. 1920, § 649; R.S. 1931, § 80-205; C.S. 1945, § 11-205; W.S. 1957, § 7-383; W.S. 1977, § 7-13-805 ; Laws 1981, ch. 161, § 1; 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 157, § 3; 2014, ch. 117, § 1.

The 2014 amendment, effective July 1, 2014, in (a)(vii), substituted “community correctional program” for “work release.”

Cited in

In re Moore, 4 Wyo. 98, 31 P. 980, 1893 Wyo. LEXIS 3 (1893).

§ 7-13-805. Statement of district attorney following notice of pardon application.

Within ten (10) days after receiving the notice required by W.S. 7-13-804(b), the district attorney for the county in which the applicant was indicted or informed against shall forward to the governor a statement setting forth the time of the trial and conviction, the date and term of the sentence, the crime of which the person was convicted and any circumstances in aggravation or extenuation which appeared in the trial and sentencing of the person.

History. C.L. 1876, ch. 14, § 207; R.S. 1887, § 3369; R.S. 1899, § 5460; C.S. 1910, § 560; C.S. 1920, § 650; R.S. 1931, § 80-206; C.S. 1945, § 11-206; W.S. 1957, § 7-384; W.S. 1977, § 7-13-806 ; Laws 1981, ch. 161, § 1; 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 157, § 3.

Cited in

In re Moore, 4 Wyo. 98, 31 P. 980, 1893 Wyo. LEXIS 3 (1893).

§ 7-13-806. Certification that applicant for pardon in danger of death.

When a physician certifies to the governor that the applicant for pardon is in imminent danger of death and the department of corrections recommends to the governor that the person be pardoned, the requirements of W.S. 7-13-803 through 7-13-805 do not apply.

History. C.L. 1876, ch. 14, § 208; R.S. 1887, § 3370; R.S. 1899, § 5461; C.S. 1910, § 561; C.S. 1920, § 651; R.S. 1931, § 80-207; C.S. 1945, § 11-207; W.S. 1957, § 7-385; W.S. 1977, § 7-13-807 ; Laws 1981, ch. 161, § 1; 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Cited in

In re Moore, 4 Wyo. 98, 31 P. 980, 1893 Wyo. LEXIS 3 (1893).

§ 7-13-807. Commutation of death sentences.

Pursuant to article 3, section 53 of the Wyoming constitution, a death sentence may be commuted to a sentence of life imprisonment without parole but that sentence shall not be subject to further commutation.

History. Laws 2001, ch. 96, § 1.

Cross references. —

As to the penalty and sentencing for murder in the first degree, see § 6-2-101 et seq.

Am. Jur. 2d, ALR and C.J.S. references. —

Revocation of order commuting state criminal sentence, 88 ALR5th 463.

Article 9. Execution of Death Sentence

Cited in

Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo. 1983).

Am. Jur. 2d, ALR and C.J.S. references. —

21A Am. Jur. 2d Criminal Law §§ 939 to 975.

24 C.J.S. Criminal Law §§ 1529 to 1609.

§ 7-13-901. Notice that convict lacks requisite mental capacity.

  1. As used in W.S. 7-13-901 through 7-13-903 :
    1. “Court” means the district court which has sentenced a convict to punishment of death;
    2. “Designated examiner” means a licensed psychiatrist or the combination of a licensed physician and a licensed psychologist who act in concert;
    3. “Facility” means the Wyoming state hospital or other facility designated by the court which can adequately provide for the security, examination or treatment of the convict;
    4. “Custodian” means the sheriff, warden, or head of any facility in which the convict is being held pending execution of the death sentence;
    5. “Requisite mental capacity” means the ability to understand the nature of the death penalty and the reasons it was imposed.
  2. If it appears to any custodian or other interested person that any convict sentenced to the punishment of death does not have the requisite mental capacity, the custodian or interested person shall immediately give notice in writing to the court.
  3. Notice to the court under subsection (b) of this section shall be detailed and accompanied by all psychiatric or psychological reports or evaluations made of the convict since the imposition of the death sentence.

History. C.L. 1876, ch. 14, § 176; R.S. 1887, § 3340; R.S. 1899, § 5408; C.S. 1910, § 6266; C.S. 1920, § 7563; R.S. 1931, § 33-1018; C.S. 1945, § 10-1701; W.S. 1957, § 7-388; Laws 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 109, § 1; ch. 157, § 3.

Cross references. —

As to Wyoming state hospital, see § 25-1-201 .

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and operation of Federal Death Penalty Act, 18 U.S.C.A. §§ 3591 et seq., 195 ALR Fed 1.

§ 7-13-902. Examination of convict to determine mental capacity; hearing; finding of court.

  1. If the court finds from the notice in W.S. 7-13-901(b) that there is reasonable cause to believe that the convict does not have the requisite mental capacity, the court shall stay the execution and order an examination of the convict by a designated examiner. The order may direct examination at the place of confinement or at any other designated facility.
  2. If the order provides for examination at a designated facility, commitment to that facility for the study of the mental condition of the convict shall continue no longer than a thirty (30) day period.
  3. Upon completion of the examination of the convict the designated examiner shall provide a report in writing to the court of his:
    1. Detailed findings; and
    2. Opinion as to whether the convict has the requisite mental capacity and, if the convict does not have the requisite mental capacity, the probable duration of that incapacity.
  4. The clerk of court shall deliver copies of the report to the attorney general and the district attorney and to the convict or his counsel. Within five (5) days after receiving the copy of the report, the convict, his counsel or the state may upon written request obtain an order granting them an examination of the convict by a designated examiner of their own choosing. If such an examination is ordered, a report conforming to the requirements of subsection (c) of this section shall be furnished to the court and to the opposing party.
  5. If the state, the convict or his counsel does not contest the opinion referred to in subsection (c) of this section, the court may make a determination and finding of record on the basis of the report filed or may hold a hearing on its own motion. If the opinion is contested, the court shall conduct a hearing at which the report or reports may be received in evidence. The parties may summon and cross-examine the persons who provided the report or rendered opinions contained therein and offer evidence upon the issue of the convict’s requisite mental capacity.
  6. If the court finds by clear and convincing evidence that the convict does not have the requisite mental capacity, the judge shall suspend the execution of the convict until a time when it is found that the convict has the requisite mental capacity.
  7. Upon the court finding that the convict does not have the requisite mental capacity, the court shall issue notice thereof to the convict, the governor, the attorney general and the district attorney.
  8. Unless the convict is represented by counsel, the court shall appoint an attorney to represent him.
  9. During the hearing, the convict shall have an opportunity to be heard either personally or through his counsel. Counsel for the convict may introduce any relevant evidence bearing upon the convict’s requisite mental capacity.
  10. If the court finds that the convict has the requisite mental capacity, the court shall issue an order detailing its findings and conclusions and appointing a time for the convict’s execution.

History. C.L. 1876, ch. 14, § 177; R.S. 1887, § 3341; R.S. 1899, § 5409; C.S. 1910, § 6267; C.S. 1920, § 7564; R.S. 1931, § 33-1019; C.S. 1945, § 10-1702; W.S. 1957, § 7-389; Laws 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 109, § 1; ch. 157, § 3.

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of carrying out death sentences against mentally ill individuals, 111 ALR5th 491.

§ 7-13-903. Suspension of execution of convict lacking requisite mental capacity; periodic reexaminations; subsequent proceedings.

  1. If the court finds that the convict does not have the requisite mental capacity, the judge shall suspend the execution of the convict. Thereafter a designated examiner shall reexamine the convict at least every twelve (12) months at the direction of the court. After two (2) annual examinations the court may suspend reexamination of the convict.
  2. When the designated examiner determines after examination required by this section that the conditions justifying the suspension of the execution of the death sentence no longer exist, he shall immediately report his determination to the court. The court shall commence a new hearing according to W.S. 7-13-902 .

History. C.L. 1876, ch. 14, § 178; R.S. 1887, § 3342; R.S. 1899, § 5410; C.S. 1910, § 6268; C.S. 1920, § 7565; R.S. 1931, § 33-1020; C.S. 1945, § 10-1703; W.S. 1957, § 7-390; Laws 1987, ch. 109, § 1; ch. 157, § 3.

Stated in

Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo. 1985).

§ 7-13-904. Method of execution.

  1. When sentence of death is imposed by the court in any criminal case, the punishment of death shall be executed by the administration of a continuous intravenous injection of a lethal quantity of an ultra-short-acting barbiturate, alone or in combination with a chemical paralytic agent and potassium chloride, or other equally effective substance or substances sufficient to cause death, until death is pronounced by a licensed physician according to accepted standards of medical practice. The sentence of death shall be executed within the time prescribed by law, unless, for cause shown, the court or governor extends the time. Administration of the injection does not constitute the practice of medicine.
  2. If the execution of the sentence of death as provided in subsection (a) of this section is held unconstitutional, the sentence of death shall be executed by the administration of lethal gas within the time prescribed by law unless for cause shown, the court or the governor extends the time.

History. Laws 1935, ch. 22, § 1; C.S. 1945, § 10-1704; W.S. 1957, § 7-391; Laws 1984, ch. 54, § 1; 1987, ch. 157, § 3; 2007, ch. 24, § 1; 2012, ch. 21, § 1.

Cross references. —

As to cruel and unusual punishment, see art. 1, § 14, Wyo. Const.

As to practice of medicine, see chapter 26 of title 33.

The 2007 amendment, inserted “and potassium chloride or other equally effective substances sufficient to cause death” in (a).

Laws 2007, ch. 24, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 15, 2007.

The 2012 amendment, effective July 1, 2012, in (a), added “alone or” after “barbiturate”, and “substance or” after “effective.”

Execution by lethal injection does not constitute cruel and unusual punishment. —

Hopkinson v. State, 798 P.2d 1186, 1990 Wyo. LEXIS 171 (Wyo. 1990).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and operation of Federal Death Penalty Act, 18 U.S.C.A. §§ 3591 et seq., 195 ALR Fed 1.

Substantive challenges to propriety of execution by lethal injection in state capital proceedings. 21 A.L.R.6th 1.

§ 7-13-905. Place and time; supervision.

  1. A sentence of death shall be executed within the confines of a state penal institution designated by the director of the department of corrections, before the hour of sunrise on the day specified in the warrant which shall not be less than thirty (30) days after the date of the judgment.
  2. The execution shall be carried out under the supervision and direction of the director of the department of corrections.

History. Laws 1905, ch. 11, § 1; C.S. 1910, § 6269; C.S. 1920, § 7566; R.S. 1931, § 33-1021; C.S. 1945, § 10-1707; W.S. 1957, § 7-394; W.S. 1977, § 7-13-907 ; Laws 1984, ch. 54, § 1; 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Supreme court was authorized to set a new date for execution following the affirmance on appeal from an order denying a sentence reduction and an order denying a stay of execution, without foreclosing the court from remanding to the district court to fix a new execution date if it would become appropriate in the future. Such action was taken in the light of an order staying execution until disposition of the defendant's petition before the United States supreme court and the right of the state supreme court to make such further orders as may then appear to be necessary and appropriate. Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo.), cert. denied, 474 U.S. 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564, 1985 U.S. LEXIS 4837 (U.S. 1985).

District court's fixing of new date for execution following stay was not “sentence” within Rule 36, W.R.Cr.P. (correction of sentence) or this section. Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo.), cert. denied, 474 U.S. 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564, 1985 U.S. LEXIS 4837 (U.S. 1985).

District court's warrant of execution was defective because it did not set a specific date for execution of the death sentence; thus, the warrant had to be quashed and vacated. Eaton v. State, 2008 WY 133, 196 P.3d 773, 2008 Wyo. LEXIS 140 (Wyo. 2008).

§ 7-13-906. Issuance and delivery of warrant.

Whenever a person is sentenced to death, the judge passing sentence shall issue a warrant, signed by the judge and attested by the clerk under the seal of the court, reciting the conviction and sentence and fixing a date of execution. The warrant shall be directed to the director of the department of corrections and shall be delivered by the sheriff at the time the prisoner is delivered to the state penal institution designated by the director.

History. Laws 1905, ch. 11, § 2; C.S. 1910, § 6270; C.S. 1920, § 7567; R.S. 1931, § 33-1022; C.S. 1945, § 10-1708; W.S. 1957, § 7-395; W.S. 1977, § 7-13-908 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

District court's warrant of execution was defective because it did not set a specific date for execution of the death sentence; thus, the warrant had to be quashed and vacated. Eaton v. State, 2008 WY 133, 196 P.3d 773, 2008 Wyo. LEXIS 140 (Wyo. 2008).

Quoted in

Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo. 1985).

§ 7-13-907. Confinement pending execution; visitors.

  1. The administrator of the state penal institution shall keep a person sentenced to death in solitary confinement until execution of the death penalty, except the following persons shall be allowed reasonable access to the prisoner:
    1. The prisoner’s physician and lawyers;
    2. Relatives and spiritual advisers of the prisoner; and
    3. Persons involved in examining a prisoner believed to be pregnant or mentally unfit to proceed with the execution of the sentence.

History. Laws 1905, ch. 11, § 4; C.S. 1910, § 6272; C.S. 1920, § 7569; R.S. 1931, § 33-1024; C.S. 1945, § 10-1710; W.S. 1957, § 7-397; W.S. 1977, § 7-13-910 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Am. Jur. 2d, ALR and C.J.S. references. —

Sex discrimination in treatment of jail or prison inmates, 12 ALR4th 1219.

§ 7-13-908. Witnesses.

  1. Only the following witnesses may be present at the execution:
    1. The director of the department of corrections and any persons deemed necessary to assist him in conducting the execution;
    2. Two (2) physicians, including the prison physician;
    3. The spiritual advisers of the prisoner;
    4. The penitentiary chaplain;
    5. The sheriff of the county in which the prisoner was convicted; and
    6. Not more than ten (10) relatives or friends requested by the prisoner.

History. Laws 1905, ch. 11, § 6; C.S. 1910, § 6274; C.S. 1920, § 7571; R.S. 1931, § 33-1026; C.S. 1945, § 10-1711; W.S. 1957, § 7-398; W.S. 1977, § 7-13-911 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of rules and regulations concerning viewing of execution of death penalty, 107 ALR5th 291.

§ 7-13-909. Setting of new execution date following unexecuted sentence.

If for any reason a sentence of death has not been executed and remains in force, the court in which sentence was pronounced, on application of the district attorney, shall, if no legal reason exists for not proceeding with the execution of the sentence, enter an order setting a new date for the execution of the sentence, which shall not be less than thirty (30) days from the date of the order. The court may order the prisoner to be brought before it or, if the prisoner is at large, issue a warrant for the prisoner’s arrest. The court shall also issue a new warrant directed to the director of the department of corrections to carry out the execution of the sentence as provided by W.S. 7-13-906 .

History. Laws 1905, ch. 11, § 7; C.S. 1910, § 6275; C.S. 1920, § 7572; R.S. 1931, § 33-1027; C.S. 1945, § 10-1712; W.S. 1957, § 7-399; W.S. 1977, § 7-13-912 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Cross references. —

As to escape by prisoners, see §§ 6-5-206 and 6-5-207 .

District court's warrant of execution was defective because it did not set a specific date for execution of the death sentence; thus, the warrant had to be quashed and vacated. Eaton v. State, 2008 WY 133, 196 P.3d 773, 2008 Wyo. LEXIS 140 (Wyo. 2008).

§ 7-13-910. Suspension until specified day or temporary reprieve; return of warrant.

  1. If execution of sentence is suspended until a specified day or if a temporary reprieve is granted until a specified day, the fact of the suspension or reprieve shall be noted on the warrant. On the arrival of the specified day the director of the department of corrections shall proceed with the execution without the necessity for the issuance of a new warrant.
  2. In all cases, the director of the department of corrections shall make a return upon the warrant to the court which sentenced the prisoner.

History. Laws 1905, ch. 11, § 9; C.S. 1910, § 6277; C.S. 1920, § 7574; R.S. 1931, § 33-1029; C.S. 1945, § 10-1714; W.S. 1957, § 7-401; W.S. 1977, § 7-13-914 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Supreme court was authorized to set a new date for execution following the affirmance on appeal from an order denying a sentence reduction and an order denying a stay of execution, without foreclosing the court from remanding to the district court to fix a new execution date if it would become appropriate in the future. Such action was taken in the light of an order staying execution until disposition of the defendant's petition before the United States supreme court and the right of the state supreme court to make such further orders as may then appear to be necessary and appropriate. Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo.), cert. denied, 474 U.S. 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564, 1985 U.S. LEXIS 4837 (U.S. 1985).

District court's warrant of execution was defective because it did not set a specific date for execution of the death sentence; thus, the warrant had to be quashed and vacated. Eaton v. State, 2008 WY 133, 196 P.3d 773, 2008 Wyo. LEXIS 140 (Wyo. 2008).

§ 7-13-911. Suspension to permit review; confinement; return to county for retrial.

  1. A prisoner sentenced to death whose sentence is suspended pending an appeal shall be confined in a state penal institution designated by the director of the department of corrections during the period of suspension.
  2. If the prisoner is granted a new trial he shall be returned to the jail of the county in which he was originally convicted.

History. Laws 1905, ch. 11, § 10; C.S. 1910, § 6278; C.S. 1920, § 7575; R.S. 1931, § 33-1030; C.S. 1945, § 10-1715; W.S. 1957, § 7-402; W.S. 1977, § 7-13-915 ; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Cross references. —

As to stay of execution pending appeal, see Rule 5.01, W.R.A.P.

Supreme court was authorized to set a new date for execution following the affirmance on appeal from an order denying a sentence reduction and an order denying a stay of execution, without foreclosing the court from remanding to the district court to fix a new execution date if it would become appropriate in the future. Such action was taken in the light of an order staying execution until disposition of the defendant's petition before the United States supreme court and the right of the state supreme court to make such further orders as may then appear to be necessary and appropriate. Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo.), cert. denied, 474 U.S. 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564, 1985 U.S. LEXIS 4837 (U.S. 1985).

§ 7-13-912. Inquiry concerning pregnancy of female prisoner.

  1. If there is good reason to believe that a female sentenced to death is pregnant, the director of the department of corrections shall immediately give written notice to the court in which the judgment of death was rendered and to the district attorney. The execution of the death sentence shall be suspended pending further order of the court.
  2. Upon receiving notice as provided in subsection (a) of this section, the court shall appoint a jury of three (3) physicians to inquire into the supposed pregnancy and to make a written report of their findings to the court.

History. Laws 1905, ch. 11, § 11; C.S. 1910, § 6279; C.S. 1920, § 7576; R.S. 1931, § 33-1031; C.S. 1945, § 10-1716; W.S. 1957, § 7-403; W.S. 1977, § 7-13-916 ; Laws 1981, Sp. Sess., ch. 22, § 1; 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Am. Jur. 2d, ALR and C.J.S. references. —

Sex discrimination in treatment of jail or prison inmates, 12 ALR4th 1219.

§ 7-13-913. Determination of court as to pregnancy; suspension of sentence.

  1. If the court determines the female is not pregnant, the director of the department of corrections shall execute the death sentence.
  2. If the court determines the female is pregnant, the court shall order the execution of the sentence suspended until it is determined that the female is no longer pregnant at which time the court shall issue a warrant appointing a new date for the execution of the sentence.

History. Laws 1905, ch. 11, § 13; C.S. 1910, § 6281; C.S. 1920, § 7578; R.S. 1931, § 33-1033; C.S. 1945, § 10-1718; W.S. 1957, § 7-405; W.S. 1977, § 7-13-918; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Stated in

Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo. 1985).

§ 7-13-914. Transportation to penal institution.

A prisoner sentenced to death shall be transported to the state penal institution designated by the director of the department of corrections at state expense.

History. Laws 1905, ch. 11, § 14; C.S. 1910, § 6282; C.S. 1920, § 7579; R.S. 1931, § 33-1034; C.S. 1945, § 10-1719; W.S. 1957, § 7-406; W.S. 1977, § 7-13-919; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

§ 7-13-915. Disposition of body.

The body of any prisoner who has been executed shall be decently buried at the expense of the state, unless the body is claimed by any relative or friend in which case the body may be delivered to the relative or friend for the purpose of burial.

History. Laws 1905, ch. 11, § 16; C.S. 1910, § 6284; C.S. 1920, § 7581; R.S. 1931, § 33-1036; C.S. 1945, § 10-1721; W.S. 1957, § 7-408; W.S. 1977, § 7-13-921; Laws 1987, ch. 157, § 3.

Prospective operation. —

Laws 1905, ch. 11, § 17, made the application of the act prospective only.

§ 7-13-916. Identity of person aiding execution; confidentiality.

The identities of all persons who participate in the execution of a death sentence as a member of the execution team or by supplying or manufacturing the equipment and substances used for the execution are confidential. Disclosure of the identities made confidential by this section may not be authorized or ordered. Records containing information made confidential by this section shall be redacted to exclude all confidential information and nothing in this section shall be used to limit or deny access to otherwise public information.

History. Laws 2015, ch. 17, § 1.

Effective date. —

Laws 2015, ch. 17, § 1 makes the act effective February 25, 2015.

Article 10. Youthful Offender Program

§ 7-13-1001. Definitions.

  1. As used in this article:
    1. “Department” means the department of corrections;
    2. “Peer specialists” means long-term inmates who have completed certified training and been selected and assigned by the department to provide positive guided peer support to offenders involved in the program under the direction of program staff, provided that peer specialists shall not have direct supervision over other inmates;
    3. “Reduction of sentence” includes changing a sentence of incarceration to a grant of probation.

History. Laws 1988, ch. 68, § 1; 1991, ch. 161, § 3; 1992, ch. 25, § 3; 2021, ch. 5, § 1.

The 2021 amendment, effective July 1, 2021, added (a)(ii); and redesignated former (a)(ii) as (a)(iii).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Sentencing court discretion —

Discretion given to the sentencing court, whether under the Youthful Offender Act, Wyo. Stat. Ann. § 7-13-1001 et seq., or under Wyo. R. Crim. P. 35(b), is the same. The Supreme Court of Wyoming will affirm a district court's decision on whether to grant a sentence reduction so long as there is a rational basis, supported by substantial evidence, from which the district court could reasonably draw its conclusion. Mendoza v. State, 2016 WY 31, 368 P.3d 886, 2016 Wyo. LEXIS 35 (Wyo. 2016).

Completion of the boot camp program is an accomplishment that may weigh in favor of sentence reduction. However, that accomplishment is only one of any number of factors which may properly be considered by a district court in its discretion to determine whether to grant or deny a motion for sentence reduction under the Youthful Offender Act, Wyo. Stat. Ann. § 7-13-1001 et seq., or pursuant to Wyo. R. Crim. P. 35(b). Mendoza v. State, 2016 WY 31, 368 P.3d 886, 2016 Wyo. LEXIS 35 (Wyo. 2016).

Considering the nature of the underlying crimes and denying defendant's request for probation after he had successfully completed boot camp was not an abuse of discretion given the gravity of the crimes. Mendoza v. State, 2016 WY 31, 368 P.3d 886, 2016 Wyo. LEXIS 35 (Wyo. 2016).

§ 7-13-1002. Sentence reduction for youthful offenders.

  1. The sentencing court may reduce the sentence of any convicted felon who:
    1. Is recommended by the sentencing court for placement in the youthful offender transition program;
    2. Is certified by the department as having successfully completed the youthful offender transition program under W.S. 7-13-1003 ; and
    3. Makes application to the court for a reduction in sentence within one (1) year after the individual began serving a sentence of incarceration at a state penal institution.

History. Laws 1988, ch. 68, § 1; 1991, ch. 161, § 3; 1992, ch. 25, § 3; 2021, ch. 5, § 1.

The 2021 amendment, effective July 1, 2021, added (a)(i); redesignated former (a)(i) as (a)(ii), and added "transition" preceding "program"; redesignated former (a)(ii) as (a)(iii), and added "for a reduction in sentence" following "the court."

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Cited in

Mendoza v. State, 2016 WY 31, 368 P.3d 886, 2016 Wyo. LEXIS 35 (Wyo. 2016).

§ 7-13-1003. Establishment of program; eligibility; rulemaking authority.

  1. The department shall adopt reasonable rules and regulations to establish a youthful offender transition program for inmates incarcerated in a state penal institution.
  2. In addition to any other eligibility requirements adopted by the department, an inmate is eligible for placement in the youthful offender transition program only if he:
    1. Is serving a sentence of imprisonment at a state penal institution for any offense other than a felony punishable by death or life imprisonment;
    2. Has not attained the age of thirty (30) years;
    3. Has not previously served a term of incarceration at any state or federal adult penal institution;
    4. Is able to participate in the structured programming, education, work and physical fitness activities required of program participants in compliance with the Americans with Disabilities Act.
  3. The program created by the department shall include:
    1. Separation of program participants from the general inmate population except inmates assigned to work in the program as peer specialists;
    2. Emphases upon structured programming, education, work and physical activity compliant with the Americans with Disabilities Act as a major element of the program.
  4. Participation by an inmate in the youthful offender transition program is a matter of grace and not of right. Approval of an inmate’s participation in the program may be revoked by the department at any time if the inmate fails to comply with program requirements. The inmate shall not have any right to appeal the denial of his participation in the program.

History. Laws 1988, ch. 68, § 1; 1992, ch. 25, § 3; 2021, ch. 5, § 1.

The 2021 amendment, effective July 1, 2021, added "transition" preceding "program" in (a); added "transition" preceding "program" in (b); substituted "thirty (30) " for "twenty-five (25)" in (b)(ii); added (b)(iv); added "except inmates assigned to work in the program as peer specialists" at the end of (c)(i); rewrote (c)(ii), which read, "Emphasis upon work and physical activity as a major element of the program"; and added "transition" preceding "program" in the first sentence of (d).

Physical impairment disqualified from program participation. —

Although defendant had entered a plea agreement which recommended him for the Wyoming Youthful Offender Program, his inability to participate in the program due to a physical impairment did not violate the doctrines of equal protection and separation of powers and did not entitle the district court to correct his sentence. The defendant's plea was not induced by false promises and the error alleged did not fall within the narrow definition of illegal sentences; therefore, the warden's refusal to accept him in the program because of his physical injury was rationally related to a legitimate governmental interest and was supportable. Ellett v. State, 883 P.2d 940, 1994 Wyo. LEXIS 120 (Wyo. 1994).

Cited in

Mendoza v. State, 2016 WY 31, 2016 Wyo. LEXIS 35 (Mar. 9, 2016).

Article 11. Intensive Supervision Program

§ 7-13-1101. Definitions.

  1. As used in this article:
    1. “Department” means the department of corrections;
    2. “Intensive supervision program” means a program established under W.S. 7-13-1102 which allows participants to live or work in the community under close supervision methods.
    3. “Validated risk-need assessment” means an actuarial assessment tool that assesses the dynamic and static factors that drive criminal behavior. The validated risk-need assessment shall determine a person’s risk to reoffend and the needs of a person that, when addressed, would reduce the risk to reoffend.

History. Laws 1995, ch. 103, § 1; 2019, ch. 116, § 2.

The 2019 amendment, effective July 1, 2019, added (a)(iii).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Stated in

Umbach v. State, 2002 WY 42, 42 P.3d 1006, 2002 Wyo. LEXIS 44 (Wyo. 2002).

Cited in

Cohee v. State, 2005 WY 50, 110 P.3d 267, 2005 Wyo. LEXIS 56 (2005); Butler v. State, 2014 WY 115, 2014 Wyo. LEXIS 131 (Sept. 16, 2014).

§ 7-13-1102. Authority to establish programs; rulemaking authority.

  1. The department is authorized to adopt reasonable rules and regulations to establish an intensive supervision program for probationers and parolees.
  2. An intensive supervision program established under this article may require:
    1. Electronic monitoring, regimented daily schedules or itineraries, house arrest, telephone contact, drug testing, curfew checks or other supervision methods which facilitate contact with supervisory personnel;
    2. Community service work, family, educational or vocational counseling, cognitive-behavioral programming to address criminal thinking, treatment for substance abuse, mental health treatment and monitoring of restitution orders and fines previously imposed on the participant. For purposes of this paragraph, cognitive-behavioral programming means as defined in W.S. 7-13-1801(c)(i); and
    3. Imposition of supervision fees to be paid by participants.
  3. Subject to legislative appropriation, the department may, by negotiation without competitive bid or by competitive bidding, contract with any governmental or nongovernmental entity to provide services required to carry out the provisions of this article.
  4. The department shall have general supervisory authority over all probationers and parolees participating in a program under this article.

History. Laws 1995, ch. 103, § 1; 2019, ch. 116, § 2.

The 2019 amendment, effective July 1, 2019, in (b)(ii), added "cognitive-behavioral programming to address criminal thinking" following "vocational counseling," and added the second sentence.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Cited in

Butler v. State, 2014 WY 115, 2014 Wyo. LEXIS 131 (Sept. 16, 2014).

Quoted in

Umbach v. State, 2002 WY 42, 42 P.3d 1006, 2002 Wyo. LEXIS 44 (Wyo. 2002).

Stated in

Moehr v. State, 13 P.3d 1114, 2000 Wyo. LEXIS 224 (Wyo. 2000).

§ 7-13-1103. Program participation not a matter of right.

  1. Participation in a program authorized by this article is a matter of grace and not of right.
  2. No person shall be allowed to participate in a program authorized by this article unless the person agrees in writing to abide by all the rules and regulations of the department relating to the operation of the program and agrees to submit to the incentives and sanctions which may be imposed under W.S. 7-13-1801 through 7-13-1803 .

History. Laws 1995, ch. 103, § 1; 2019, ch. 116, § 2.

The 2019 amendment, effective July 1, 2019, in (b), substituted "the incentives and sanctions" for "administrative sanctions" and "W.S. 7-13-1801 through 7-13-1803 " for "W.S. 7-13-1107 ."

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Application. —

If the State decides that a probationer who has violated a program rule should be subjected to administrative sanctions, then it shall not also seek probation revocation for that violation. Umbach v. State, 2002 WY 42, 42 P.3d 1006, 2002 Wyo. LEXIS 44 (Wyo. 2002).

Stated in

Moehr v. State, 13 P.3d 1114, 2000 Wyo. LEXIS 224 (Wyo. 2000).

§ 7-13-1104. Program participation as a condition of parole.

  1. Except as provided in subsection (b) of this section, the state board of parole may, as a condition of parole, require a parolee who is assessed through a validated risk-need assessment as a high risk for reoffending or violating a condition of parole to participate in a program established under this article, provided:
    1. Space and funding is available for the parolee’s participation in the program; and
    2. The department determines the person has a reasonable likelihood of successfully participating in the program.
  2. Placement of a parolee in a program established under W.S. 7-13-1102 as a sanction under W.S. 7-13-1801 through 7-13-1803 or following a modification or revocation of parole shall not require the parolee to be assessed through a validated risk-need assessment as a high risk for reoffending or violating a condition of parole.

History. Laws 1995, ch. 103, § 1; 2019, ch. 116, § 2; 2020, ch. 18, § 1.

The 2019 amendment, effective July 1, 2019, in (a), added "who is assessed through a validated risk-need assessment as a high risk for reoffending or violating a condition of parole" following "parolee."

The 2020 amendment, in (a), added “Except as provided in subsection (b) of this section,”; and added (b).

Laws 2020, ch. 18, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2020.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

§ 7-13-1105. Placement of probationer in program by sentencing court.

  1. A sentencing court may, as a condition of probation, order that a defendant who has entered a plea of guilty or nolo contendere to or has been convicted of a felony, or any offense defined by subsection (c) of this section, participate in a program established under this article, provided:
    1. Space is available in the program;
    2. The probationer agrees to participate in the program;
    3. The department determines the person has a reasonable likelihood of successfully participating in the program; and
    4. The legislature has specifically appropriated funds or other unencumbered funds are available to pay for the probationer’s participation in the program.
  2. When a presentence report is required by the court, the department shall be responsible for including in the presentence report to the sentencing judge any recommendations for the utilization of a program created under this article.
  3. Subject to the conditions specified in paragraphs (a)(i) through (iv) of this section, participation in a program established under this article may be ordered for a defendant who has entered a plea of guilty or nolo contendere to or has been convicted of a violation of W.S. 6-2-510 or 6-2-511 or a violation of W.S. 6-4-404 , or 6-2-504(a) or (b) if the defendant and the victim are household members as defined by W.S. 35-21-102(a)(iv).
  4. Except as provided in subsection (e) of this section, a defendant shall not be placed in a program established under W.S. 7-13-1102 unless the defendant receives a validated risk-need assessment and scores as a high risk for reoffending or for violating conditions of probation except that a defendant may be placed in a program established under W.S. 7-13-1102 for good cause shown upon the record.
  5. Placement of a probationer in a program established under W.S. 7-13-1102 as a sanction under W.S. 7-13-1801 through 7-13-1803 or following a revocation of probation shall not require the probationer to be assessed through a validated risk-need assessment as a high risk for reoffending or violating a condition of probation.

History. Laws 1995, ch. 103, § 1; 2001, ch. 89, § 1; 2014, ch. 13, § 2; 2019, ch. 116, § 2; ch. 167, § 1; 2020, ch. 18, § 1.

The 2014 amendment, efective July 1, 2014, in (c), substituted “paragraphs” for “subsection”, inserted “6-2-510 or 6-2-511 or a violation of W.S.”, and deleted “or a violation of W.S. 6-2-501(a), (b), (e) or (f)(i).”

The 2019 amendments. —

The first 2019 amendment, by ch. 116, § 2, effective July 1, 2019, added (d).

The second 2019 amendment, by ch. 167, § 1, effective July 1, 2019, added “When a presentence report is required by the court” at the beginning of (b).

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Stated in

Moehr v. State, 13 P.3d 1114, 2000 Wyo. LEXIS 224 (Wyo. 2000).

The 2020 amendment , in (d), added “Except as provided in subsection (e) of this section, a”; and added (e).

Laws 2020, ch. 18, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2020.

§ 7-13-1106. Program participation as an alternative to probation or parole revocation. [Repealed]

History. Laws 1995, ch. 103, § 1; Repealed by Laws 2019, ch. 116, § 3.

§ 7-13-1107. Administrative rewards and sanctions for program violations.

  1. through (d) Repealed by Laws 2019, ch. 116, §  3.
  2. Probationers and parolees who violate the rules and restrictions of an intensive supervision program established under this article shall be sanctioned in accordance with W.S. 7-13-1801 through 7-13-1803 or may be subject to revocation proceedings.

History. Laws 1995, ch. 103, § 1; 1999, ch. 174, § 1; 2011, ch. 30, § 1; 2018, ch. 75, § 1; 2019, ch. 116, §§ 2, 3.

Cross references. —

As to placement of an offender in a residential community correctional program for a rules violation, see § 7-18-108 .

As to assignment of a parolee to a residential community correctional program for a rules violation, see § 7-18-115 .

The 2011 amendment, effective July 1, 2011, in (c), substituted “amount established by the department based on funds appropriated for housing of offenders” for “daily cost of keeping an inmate at the Wyoming state penitentiary.”

The 2018 amendment, in (a), inserted “rewards for positive behavior and” and added “or the conditions of probation or parole” at the end; and added (b)(iii)(C), (D), and (E).

Laws 2018, ch. 75, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

The 2019 amendments. —

The first 2019 amendment by ch. 116, § 2, effective July 1, 2019, added (e).

The second 2019 amendment, by ch. 116 § 3, effective July 1, 2019, repealed (a) through (d), which authorized administrative sanctions for program violations.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Effect on probation revocation. —

When an intensive supervision program participant violates the program rules and regulations, the State is required to choose between subjecting that participant to administrative sanctions under the statute or revoking the participant's probation; if the State decides that a probationer who has violated a program rule should be subjected to administrative sanctions, then it must not also seek probation revocation for that violation. Butler v. State, 2014 WY 115, 334 P.3d 147, 2014 Wyo. LEXIS 131 (Wyo. 2014).

This section did not permit the State to both revoke defendant's probation and subject him to administrative sanctions. The district court erred when it granted the State's petition to revoke probation because the violations contained in the petition had already been subject to administrative sanctions. Butler v. State, 2014 WY 115, 334 P.3d 147, 2014 Wyo. LEXIS 131 (Wyo. 2014).

In the context of an intensive supervision program, if the State decides that a probationer who has violated a program rule should be subjected to administrative sanctions, then it shall not also seek probation revocation for that violation. The State may, however, forgo administrative sanctions and file a petition for probation revocation with the sentencing court. Umbach v. State, 2002 WY 42, 42 P.3d 1006, 2002 Wyo. LEXIS 44 (Wyo. 2002).

Because the State did not impose administrative sanctions for defendant's violations of the conditions of the intensive supervision program, and, instead, sought probation revocation, defendant had not already been administratively sanctioned for the violations the district court relied on in revoking his probation. Allaback v. State, 2014 WY 27, 318 P.3d 827, 2014 Wyo. LEXIS 28 (Wyo. 2014).

Article 12. Teen Court Program

§ 7-13-1201. Short title.

This act shall be known and may be cited as the “Wyoming Teen Court Program”.

History. Laws 1996, ch. 58, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-13-1202(a)(v).

§ 7-13-1202. Definitions.

  1. As used in this act:
    1. “Minor offense” means any crime punishable as a misdemeanor or the violation of any municipal ordinance, provided the maximum penalty authorized by law for the offense does not exceed imprisonment for more than six (6) months and a fine of not more than seven hundred fifty dollars ($750.00);
    2. “Supervising court” means the municipal court or circuit court by whose order a teen court program is established pursuant to rules and regulations promulgated by the Wyoming supreme court;
    3. “Teen” for the purposes of this act means a person who has attained the age of thirteen (13) years of age and is under the age of majority;
    4. “Teen court” or “teen court program” means an alternative sentencing procedure under which regular court proceedings involving a teen charged with a minor offense may be deferred and subsequently dismissed on condition that the defendant participate fully in the teen court program and appear before a jury of teen peers for sentencing and that the defendant successfully complete the terms and conditions of the sentence imposed. This sentencing is in addition to the provisions of W.S. 7-13-301 and 35-7-1037 ;
    5. “This act” means W.S. 7-13-1201 through 7-13-1205 .

History. Laws 1996, ch. 58, § 1; 2000, ch. 24, § 4; 2004, ch. 42, § 1.

The 2004 amendment, in (a)(ii), deleted “justice of the peace” following “means the municipal court.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-13-1203. Authority to establish teen court program.

  1. The Wyoming supreme court shall adopt rules and regulations governing teen court by July 1, 1996.
  2. In addition to any other power authorized, a municipal court judge, with the approval and consent of the governing body of the municipality, or any circuit court judge, with the approval and consent of the board of county commissioners, may by order establish a teen court program and training standards for participation in accordance with this act to provide a disposition alternative for teens charged with minor offenses.
  3. In any case involving the commission of a minor offense by a teen defendant, the supervising court may, without entering a judgment of guilt or conviction, defer further proceedings and order the defendant to participate in a teen court program, provided:
    1. The teen defendant, with the consent of, or in the presence of, the defendant’s parents or legal guardian, enters a plea of guilty in open court to the offense charged;
    2. The restitution amount, if any, owed to any victim has been determined by the supervising court;
    3. The defendant requests on the record to participate in the teen court program and agrees that deferral of further proceedings in the action filed in the supervising court is conditioned upon the defendant’s successful completion of the teen court program; and
    4. The court determines that the defendant will benefit from participation in the teen court program.
  4. If the supervising court determines that the teen defendant has successfully completed the teen court program, the supervising court may discharge the defendant and dismiss the proceedings against him.
  5. If the defendant fails to successfully complete the prescribed teen court program, the supervising court shall enter an adjudication of guilt and conviction and proceed to impose sentence upon the defendant for the offense originally charged.
  6. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for any purpose. If the original offense charged was a traffic offense, the supreme court shall, on behalf of the circuit court and within thirty (30) days after the discharge and dismissal is entered, submit to the department of transportation an abstract of the court record compiled under W.S. 7-19-107(k). If the original offense was a traffic offense charged in municipal court, the municipal court shall, within thirty (30) days after the discharge and dismissal is entered, submit to the department of transportation an abstract of the court record compiled under W.S. 7-19-107(k). The department shall maintain abstracts received under this subsection as provided by W.S. 31-5-1214(f).

History. Laws 1996, ch. 58, § 1; 2000, ch. 24, § 4; 2004, ch. 42, § 1; 2020, ch. 4, § 1.

Cross references. —

As to jurisdiction for sale of tobacco product, to a minor, see § 14-3-306 .

The 2004 amendment, in (b), deleted “justice of the peace or” following “municipality, or any.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

The 2020 amendment, effective July 1, 2020, in (f), added “supreme” preceding “court,” added “on behalf of the circuit court and” preceding “within thirty (30) days,” added “court” preceding “record,” and substituted “compiled under W.S. 7-19-107(k). If the original offense was a traffic offense charged in municipal court, the municipal court shall, within thirty (30) days after the discharge and dismissal is entered, submit to the department of transportation an abstract of the court record compiled under W.S. 7-19-107(k).” for “of the court evidencing the defendant's successful completion of the teen court program” following “court record.”

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-13-1202(a)(v).

§ 7-13-1204. Program criteria.

  1. A teen court program may be established under this act in accordance with the following criteria:
    1. The judge of the teen court shall be the judge of the supervising court or an attorney admitted to practice in this state appointed by the supervising court to serve in a voluntary capacity and shall serve at the pleasure of the supervising court;
    2. Procedures in teen court shall be established by order of the supervising court in conformance with the provisions of this act and shall be subject to any uniform procedures for teen courts as may be prescribed by the Wyoming supreme court;
    3. The supervising court may authorize the use of its courtroom and other facilities by the teen court program during times when the courtroom and facilities are not required for the normal operations of the supervising court;
    4. The teen defendant, as a condition of participation in the teen court program, may be required to pay a nonrefundable fee not to exceed ten dollars ($10.00). Fees collected under this paragraph by a municipal court shall be credited to the treasury of the municipality. Fees collected under this paragraph by a circuit court shall be credited to the treasury of the county;
    5. The teen court program may involve teens serving as voluntary teen court members in various capacities including, but not limited to jurors, prosecutor-advocates, defender-advocates, bailiffs, clerks and supervisory duties;
    6. Every teen defendant appearing in teen court shall be accompanied by a parent or guardian;
    7. The teen court jury shall impose restitution, if any, in the amount established by the supervising court;
    8. The supervisory court, in accordance with the rules and regulations promulgated by the Wyoming supreme court, shall establish a range of sentencing alternatives for any case referred to teen court. Sentencing alternatives shall include, but not be limited to:
      1. Community service as authorized by the supervising court;
      2. Mandatory participation in law related education classes, appropriate counseling, treatment or other education programs;
      3. Require the teen defendant to participate as a juror or other teen court member in proceedings involving teen defendants;
      4. Fines, not to exceed the statutory amount.
    9. The teen court jury shall not have the power to impose a term of imprisonment.

History. Laws 1996, ch. 58, § 1; 2000, ch. 24, § 4; 2004, ch. 42, § 1.

The 2004 amendment, in (a)(iv), deleted “justice of the peace or” following “this paragraph by a.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-13-1202(a)(v).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-13-1205. Juvenile courts authorized to establish teen court program.

  1. Notwithstanding any other provision of the Juvenile Justice Act, W.S. 14-6-201 through 14-6-252 , a juvenile court may establish and offer a teen court program substantially complying with the provisions of this act as an alternative to any disposition authorized by W.S. 14-6-229(d), provided:
    1. Participation  in the teen court program shall be limited to teens charged under  the Juvenile Justice Act with having committed a minor  offense and who have been adjudicated delinquent;
    2. The juvenile and all parties to the proceeding, including any guardian ad litem appointed in the juvenile court proceeding to represent the best interests of the juvenile, consent to the juvenile’s participation in the teen court program;
    3. The juvenile  and the juvenile’s parents or guardian waive any rights to  confidentiality otherwise available under the Juvenile Justice Act; and
    4. The juvenile court finds that participation in the teen court program would be in the best interest of the juvenile.

History. Laws 1996, ch. 58, § 1; 2006, ch. 114, § 1; 2019, ch. 186, § 1.

Cross references. —

As to sanctions for juvenile offenders, see § 14-6-247 .

The 2006 amendment substituted “Justice” for “Court” and substituted “14-6-252” for “14-6-244” in the introductory language of (a).”

Laws 2006, ch. 114, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 24, 2006.

The 2019 amendment, effective July 1, 2019, in (a)(ii) and (a)(iii), substituted "Juvenile Justice Act" for "Juvenile Court Act."

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-13-1202(a)(v).

Editor's notes. —

The Juvenile Court Act is now known as the Juvenile Justice Act.

There is no subsection (b) in this section as it appears in the printed acts.

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “[A]ny other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Article 13. Addicted Offender Accountability

§ 7-13-1301. Definitions.

  1. As used in W.S. 7-13-1301 through 7-13-1304 :
    1. “Adequate treatment alternative” is a community program certified under rules adopted by the department of health for purposes of providing substance abuse and other related services to criminal offenders. The program shall provide the level of services required of the offender being referred, be certified by the department of health to treat the criminal justice population and shall include protections, including psychological testing and frequent chemical drug testing that can be reasonably relied upon to protect the public safety and to hold the offender accountable;
    2. “Community facility or program” means a community based or community-oriented facility or program which is operated either by a unit of local government or by a nongovernmental agency which provides substance abuse treatment and other necessary programs, services and monitoring to aid offenders in obtaining and holding regular employment, in enrolling in and maintaining academic courses or participating in vocational training programs, in utilizing the resources of the community in meeting their personal and family needs and in participating in other specialized treatment programs existing within the state. These services may be provided directly or through referrals to other programs;
    3. “Convicted” means an unvacated determination of guilt by any court having legal jurisdiction of the offense and from which no appeal is pending and includes pleas of guilty and nolo contendere. For purposes of W.S. 7-13-1302 only, “convicted” shall include dispositions pursuant to W.S. 7-13-301 , 7-13-302(a), 35-7-1037 or deferred prosecutions when ordered. Otherwise, for purposes of this act, “convicted” shall not include dispositions pursuant to W.S. 7-13-301 , 7-13-302(a), 35-7-1037 or deferred prosecutions;
    4. “Qualified offender” means a person convicted of a felony whom the court finds has a need for alcohol or other drug treatment. The payment amount required of the offender for treatment shall be based on the ability of the offender to pay as established on a sliding fee scale pursuant to rules and regulations adopted by the department of health and may, at the discretion of the court, be paid through delayed or installment payments. In determining an offender’s ability to pay the court may consider present circumstances as well as reasonable future potential;
    5. “Substance abuse assessment” means an evaluation conducted by a qualified person using practices and procedures approved by the department of health to determine whether a person has a need for alcohol or other drug treatment and the level of treatment services required to treat that person;
    6. “Violent felony” means murder, manslaughter, kidnapping, sexual assault in the first or second degree, robbery, aggravated assault, strangulation of a household member, aircraft hijacking, arson in the first or second degree, aggravated burglary, a violation of W.S. 6-2-314(a)(i) or 6-2-315(a)(ii) or a third, or subsequent, domestic battery under W.S. 6-2-511(a) and (b)(iii);
    7. “This act” means W.S. 7-13-1301 through 7-13-1304 .
  2. For purposes of this act “incarceration” or “incarcerated” shall not include periods of confinement allowed under the provisions of W.S. 7-13-1102 or 7-13-1801 through 7-13-1803 .

History. Laws 2002, Sp. Sess., ch. 81, § 1; 2018, ch. 88, § 1; 2019, ch. 116, § 2.

The 2018 amendment, effective July 1, 2018, in (a)(vi), inserted “strangulation of a household member” and added “a violation of W.S. 6-2-314(a)(i) or 6-2-315(a)(ii) or a third, or subsequent, domestic battery under W.S. 6-2-511(a) and (b)(iii).”

The 2019 amendment, effective July 1, 2019, in (b), substituted "or 7-13-1801 through 7-13-1803 " for "or 7-13-1107(b)."

Cross references. —

For provisions of the Substance Abuse Control Plan see § 9-2-2701 et seq.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Qualified offender. —

Wyoming Legislature intended that a substance abuse assessment occur prior to sentencing; therefore, in a case where defendant pled guilty to driving while under the influence and a controlled substance offense, his argument that he had not been convicted since the case was on appeal was rejected. Defendant's criminal record and the substance abuse assessment supported the district court's finding that defendant was a qualified offender and in need of treatment. Marshall v. State, 2014 WY 168, 340 P.3d 283, 2014 Wyo. LEXIS 191 (Wyo. 2014).

Confidential information. —

Presentence investigation report under the Addicted Offender Accountability Act, Wyo. Stat. Ann. § 7-13-1301 et seq., did not improperly contain confidential information because the information contained the in the evaluator's report to the probation and parole officer, which related directly to defendant's propensity for violence, was meant to be related to the district court as it was indispensable in deciding whether treatment options should be considered as part of any sentence. Janpol v. State, 2008 WY 21, 178 P.3d 396, 2008 Wyo. LEXIS 22 (Wyo. 2008).

§ 7-13-1302. Substance abuse assessment required.

All persons convicted of a third misdemeanor under W.S. 31-5-233(e) or a felony shall receive a substance abuse assessment. The substance abuse assessment shall be part of a presentence report if prepared. The cost of the substance abuse assessment shall be assessed to and paid by the offender. A person who has undergone a substance abuse assessment pursuant to W.S. 31-5-233(e) may receive a second assessment under this section if the court finds that enough time has passed to make the first assessment inaccurate.

History. Laws 2002, Sp. Sess., ch. 81, § 1; 2003, ch. 47, § 1; 2019, ch. 167, § 1.

The 2019 amendment, effective July 1, 2019, deleted "as a part of a presentence report" from the first sentence, and added the second sentence.

Applicability. —

Laws 2019, ch. 167 § 2, provides: "The provisions of this act shall apply to all persons convicted of a crime on or after the effective date of this act."

Sentence Not Illegal.—

District court properly denied defendant's motions to correct an illegal sentence because there was no increase in punishment and no violation of his double jeopardy protections; all of the fees imposed upon defendant's conviction were mandated by statute, and thus, it was unnecessary for the district court to attach the fees to the stalking charge in the initial sentence. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Amended Sentence.—

District court had the authority on remand to amend defendant's sentence because the amended sentence was consistent with the district court's original sentence and merely reconfirmed that the statutorily-mandated fees remained part of defendant sentence; the statutory assessments were imposed because defendant had been convicted of a crime, and on remand, he still was convicted of a crime. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Imposition of Fees.—

Statutes indicate that the fees are imposed as a result of being convicted in a criminal case, not as part of the sentence for any particular crime; the statutes envision that sentencing courts impose the mandated fees separately as part of the overall sentence, rather than as part of the sentence for an individual charge. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Prior to sentencing. —

Wyoming Legislature intended that a substance abuse assessment occur prior to sentencing; therefore, in a case where defendant pled guilty to driving while under the influence and a controlled substance offense, his argument that he had not been convicted since the case was on appeal was rejected. Defendant's criminal record and the substance abuse assessment supported the district court's finding that defendant was a qualified offender and in need of treatment. Marshall v. State, 2014 WY 168, 340 P.3d 283, 2014 Wyo. LEXIS 191 (Wyo. 2014).

Report did not improperly contain confidential information. —

Presentence investigation report under the Addicted Offender Accountability Act, Wyo. Stat. Ann. § 7-13-1301 et seq., did not improperly contain confidential information because the information contained the in the evaluator's report to the probation and parole officer, which related directly to defendant's propensity for violence, was meant to be related to the district court as it was indispensable in deciding whether treatment options should be considered as part of any sentence. Janpol v. State, 2008 WY 21, 178 P.3d 396, 2008 Wyo. LEXIS 22 (Wyo. 2008).

Temporary provisions. —

Laws 2005, ch. 135, § 1, as amended by Laws 2005, ch. 230 § 5, appropriates $50,000 from the general fund to the department of health to conduct a methamphetamine initiative planning study. The department is to (1) review the scope of the methamphetamine problem as it exists in the state; (2) examine efforts currently being used in the state and elsewhere to address the problems associated with methamphetamine use, its prevention, correction and treatment including efforts by the department of health, the state's education system, law enforcement, the courts, social service agencies, local governments and the department of corrections and probation and parole; (3) determine the number of persons being treated for methamphetamine use, or needing treatment for methamphetamine use and the number of existing treatment beds available and potential treatment beds in health care and detention facilities in the state to provide the treatment for those persons in need of residential care; (4) determine the current capacity and potential needs for intensive and other types of out-patient treatment throughout the state by geographic regions; (5) examine the existing capacity and procedures for conducting and completing substance abuse evaluations ordered for methamphetamine use, abuse or distribution under § 7-13-1032 [§ 7-13-1302 ], including the number of qualified evaluators available and conducting evaluations in the state, the costs associated with the evaluations and any recommendations to improve the capacity, quality, efficiency and effectiveness of the evaluation process, as necessary. The department of health may contract with an independent entity to perform the study and report back to the department with the results of the study. After review of the contractor's report to the department, the department is to submit its findings and recommendations to the governor's substance abuse and violent crime advisory board, the joint appropriations interim committee, the joint labor, health and social services interim committee, the joint judiciary interim committee and any select committee studying mental health and substance abuse services no later than October 15, 2005. The chairmen of these legislative committees are to coordinate efforts to review the problems and solutions identified by the department of health prior to the 2006 budget session of the legislature.

Laws 2005, ch. 135, § 2, makes the act is effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 25, 2005.

Laws 2005, ch. 230, § 13, makes the act is effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 10, 2005.

§ 7-13-1303. Suspended sentence for qualified offenders.

  1. Except as provided in subsection (c) of this section, notwithstanding any other provision of law, qualified offenders may be placed on probation under W.S. 7-13-301 , receive a suspended sentence under W.S. 7-13-302(a) or placed on probation under W.S. 35-7-1037 . The sentence or probation order shall set forth the terms of a treatment program based upon the substance abuse assessment and any other terms and conditions as the court may deem appropriate under the circumstances, and require the offender to satisfactorily complete the treatment program. The court shall include in the sentence or probation order any provisions necessary to reasonably protect the health of the offender.
  2. The treatment provider shall be required to report to the court, the prosecuting attorney, probation officer and counsel representing the offender not less than once per month on the offender’s progress in meeting the requirements of the sentence and the program.
  3. A qualified offender or person sentenced under this act may be incarcerated if the court concludes on the basis of the evidence that:
    1. No adequate treatment alternative exists;
    2. Under the facts of the case, the interests of justice require a period of incarceration; provided however, under the circumstances, a portion of the sentence may be suspended under the conditions set forth in subsection (a) of this section;
    3. The offender refuses to agree to participate in the court ordered treatment program or fails to satisfactorily complete the court ordered treatment program; or
    4. The offender commits a felony, sells or otherwise delivers controlled substances while in a program pursuant to this section, or engages in other behavior that poses an unreasonable risk to public safety while in the program. Notwithstanding any other provision of law, in the absence of the commission of these acts, those programs and sanctions set forth in W.S. 7-13-1102 and 7-13-1801 through 7-13-1803 may be used at the discretion of the probation officer or court to address other violations of the sentencing or probation order.
  4. In the event probation is revoked, the court may impose one (1) or more of the sanctions set forth in W.S. 7-13-1102 or 7-13-1801 through 7-13-1803 unless the court, in its sole discretion, finds that another disposition, including imprisonment, is necessary under the facts of the case.

History. Laws 2002, Sp. Sess., ch. 81, § 1; 2019, ch. 116, § 2.

The 2019 amendment, effective July 1, 2019, in (c)(iv) and in (d), substituted "7-13-1801 through 7-13-1803 " for "7-13-1107(b)."

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-13-1301(a)(vii).

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Discretion of Courts. —

Trial court did not err when it ordered a sentence of imprisonment where Wyo. Stat. Ann. § 7-13-1303(a) did not limit the discretion of the trial courts to make sentencing decisions and stated that qualified offenders “may” be placed on probation; it was not a requirement. Duke v. State, 2009 WY 74, 209 P.3d 563, 2009 Wyo. LEXIS 76 (Wyo. 2009).

Sentence Proper. —

Written judgment and a sentence were properly imposed because defendant received a substance abuse assessment, in compliance with Wyo. Stat. Ann. § 7-13-1302 . The record reflected that the assessment was included with the presentence investigation report, and that the district court considered the assessment in determining defendant's sentence. Greene v. State, 2009 WY 99, 214 P.3d 222, 2009 Wyo. LEXIS 113 (Wyo. 2009).

Cited in

Marshall v. State, 2014 WY 168, 2014 Wyo. LEXIS 191 (Dec. 23, 2014).

§ 7-13-1304. Rebuttable presumption in violent crime or delivery of controlled substance cases.

If a person has been convicted of a violent felony or delivery or unlawful manufacture of a controlled substance under W.S. 35-7-1031 , there is a rebuttable presumption that the person is not a “qualified offender” for purposes of sentencing under this act. This presumption may be rebutted by clear and convincing evidence that the person who is an otherwise qualified offender convicted of a violent felony could participate in a treatment program without posing an unreasonable risk to the safety of the public. As to persons convicted of manufacture or delivery of a controlled substance, the presumption may be rebutted by clear and convincing evidence that the person committed the crime because of his own dependency.

History. Laws 2002, Sp. Sess., ch. 81, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-13-1301(a)(vii).

Report did not improperly contain confidential information. —

Presentence investigation report under the Addicted Offender Accountability Act, Wyo. Stat. Ann. § 7-13-1301 et seq., did not improperly contain confidential information because the information contained the in the evaluator's report to the probation and parole officer, which related directly to defendant's propensity for violence, was meant to be related to the district court as it was indispensable in deciding whether treatment options should be considered as part of any sentence. Janpol v. State, 2008 WY 21, 178 P.3d 396, 2008 Wyo. LEXIS 22 (Wyo. 2008).

Cited in

Marshall v. State, 2014 WY 168, 2014 Wyo. LEXIS 191 (Dec. 23, 2014).

Article 14. Expungement of Criminal Records

§ 7-13-1401. Petition for expungement; records of arrest, dismissal of charges, disposition; eligibility; no filing fee.

  1. A person, or the state with regard to a petition for the expungement  of records pertaining to a juvenile, may petition the  court in which a proceeding occurred, or would have occurred, for  an order expunging records of arrest, charges or dispositions which  may have been made in the case, subject to the following limitations:
    1. At least one hundred eighty (180) days have passed since the arrest, or from the date the charge or charges were dismissed for which expungement is sought, there are no formal charges pending against the person when the petition is filed, there were no dispositions pursuant to W.S. 7-13-301 to any charge or charges as the result of the incident leading to the arrest, including dispositions to a different or lesser charge, there were no dispositions pursuant to W.S. 35-7-1037 to any charge or charges as the result of the incident leading to the arrest, including dispositions to a different or lesser charge, there were no dispositions pursuant to former W.S. 7-13-203 to any charge or charges as the result of the incident leading to the arrest, including dispositions to a different or lesser charge, the petitioner sufficiently demonstrates that his petition satisfies all the requirements of this section, and at least one (1) of the following applies:
      1. There were no convictions pursuant to any charge or charges, including a conviction pursuant to a different or lesser charge as the result of the incident leading to the arrest;
      2. No criminal charges of any nature were filed in any court as the result of the incident leading to the arrest; or
      3. All criminal proceedings against the person were dismissed by the prosecutor or the court, and such proceedings were the result of the incident which led to the arrest.
  2. Any petition filed under this section shall be verified by the petitioner, served upon and reviewed by the prosecuting attorney, and no order granting expungement shall be issued prior to the expiration of twenty (20) days after service was made.
  3. The prosecuting attorney shall file with the court, an objection, if any, to the petition within twenty (20) days after service. If an objection is filed, the court shall set the matter for hearing. If no objection is filed, the court may summarily enter an order if the court finds that the petitioner is otherwise eligible for relief under this section.
  4. If the court finds that the petitioner is eligible for relief under this section, it shall issue an order granting the expungement of the applicable record. The court shall also place the court file under seal, available only for inspection by order of that court. The court shall transmit a certified copy of the order to the division of criminal investigation.
  5. There shall be no filing fee for a petition filed under this section.
  6. A person who has received an order of expungement under this section may respond to any inquiry as though the arrest, or charge or charges did not occur, unless otherwise provided by law.
  7. The state, through the prosecuting attorney, may appeal any order of expungement issued by any court under this section.
  8. Notwithstanding W.S. 1-39-101 through 1-39-120 , the division of criminal investigation and its employees are immune from liability, either as an agency or individually, for any actions, inactions or omissions by the agency or any employee thereof, pursuant to this section.
  9. As used in this section:
    1. “Expungement” means only the classification of the record maintained in the files of the state central repository at the division of criminal investigation as defined by W.S. 7-19-107(a), in a manner reasonably tailored to ensure that the record will not be available for dissemination purposes other than to a criminal justice agency of any state or a federal criminal justice agency, to be used solely for criminal justice purposes. Expungement shall not include investigatory files of any local, state or federal criminal justice agency, where those files are being used solely for criminal justice purposes;
    2. “Record” means any notation of the arrest, charge or disposition maintained in the state central repository at the division of criminal investigation, whether in paper or electronic format.
  10. The state may file a petition for the expungement of  a juvenile arrest record, charges or dispositions without service  on the juvenile. For the purposes of this subsection, “expungement”  means as defined in W.S. 14-6-241(f).

History. Laws 2003, ch. 137, § 1; 2005, ch. 137, § 1; 2019, ch. 29, § 1.

The 2005 amendment transferred the provisions pertaining to dispositions pursuant to §§ 7-13-301 , 35-7-1037 , and 7-13-203 from (a)(i)(A) to (a)(i).

Laws 2005, ch. 137, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 25, 2005.

The 2019 amendment, effective July 1, 2019, in (a), inserted ", or the state with regard to a petition for the expungement of records pertaining to a juvenile" and added (k).

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

Article 15. Expungement Of Records Of Convictions

§ 7-13-1501. Petition for expungement of records of conviction of certain misdemeanors; filing fee; notice; objections; hearing; definitionsexceptions.

  1. A person who  has pled guilty or nolo contendere to or  been convicted of a misdemeanor may petition the convicting court  for an expungement of the records of conviction, subject to the following  limitations:
    1. At least five (5) years have passed for nonstatus offenses and at least one (1) year has passed for status offenses as defined by W.S. 7-1-107(b)(iii) since the expiration of the terms of sentence imposed by the court, including any periods of probation or the completion of any program ordered by the court;
    2. Repealed by Laws 2015, ch. 164, § 2.
    3. The misdemeanor or misdemeanors for which the person is seeking expungement shall not have involved the use or attempted use of a firearm;
    4. A health care provider who has pled guilty or nolo  contendere to or has been convicted of an offense punishable under W.S. 6-2-313 which  was committed against a patient under the care of the health care  provider shall not be eligible for an expungement of the records of  conviction.
  2. A petition filed under this section shall be verified by the petitioner and served upon the prosecuting attorney and the division of criminal investigation. The filing fee for each petition filed under this section shall be one hundred dollars ($100.00) and shall be deposited in accordance with W.S. 5-9-144 .
  3. The prosecuting attorney shall serve notice of the petition for expungement by certified mail, return receipt requested, to any identifiable victims of the misdemeanors at their last known addresses of record on file with the prosecuting attorney. The notices shall include a copy of the petition and statutes applicable to the petition. In the event that there are no identifiable victims, or that there is at least one (1) identifiable victim and the prosecuting attorney has no address of record on file or the notice sent was returned or is otherwise undeliverable, the prosecuting attorney shall notify the court and shall be deemed to have complied with the provisions of this subsection.
  4. The court in its discretion may request a written report by the division of criminal investigation concerning the criminal history of the petitioner.
  5. The prosecuting attorney shall review the petition and shall file with the court an objection or recommendation, if any, to the petition within thirty (30) days after service of the notice by the petitioner upon the prosecuting attorney. If the prosecuting attorney or an identifiable victim submits a written objection to the court concerning the petition within thirty (30) days after service of the notice by the petitioner upon the prosecuting attorney, or if the petitioner objects to the criminal history report of the division of criminal investigation if requested by the court, the court shall set a date for a hearing and notify the prosecuting attorney, the identifiable victims who have submitted written objections to the petition, the division of criminal investigation and the petitioner of the date set for the hearing. Any person who has relevant information about the petitioner may testify at the hearing.
  6. If no objection is filed to the petition within thirty (30) days after service of the notice by the petitioner upon the prosecuting attorney, the court may summarily enter an order if the court finds that the petitioner is otherwise eligible for relief under this section. No order granting expungement shall be issued prior to the expiration of thirty (30) days after service was made to the prosecuting attorney.
  7. If the court finds that the petitioner is eligible for relief under this section and that the petitioner does not represent a substantial danger to himself, any identifiable victim or society, it shall issue an order granting expungement of the applicable records. The court shall also place the court files under seal, available for inspection only by order of that court. The court shall transmit a certified copy of the order to the division of criminal investigation.
  8. The state, through the prosecuting attorney, may appeal any order of expungement issued by any court under this section.
  9. Notwithstanding W.S. 1-39-101 through 1-39-120 , the division of criminal investigation and its employees and any prosecuting attorney are immune from liability, either as an agency or individually, for any actions, inactions or omissions by the agency or any employee thereof, pursuant to this section.
  10. Nothing in this section shall be construed to allow a person who has previously received an expungement of records of conviction under this section to seek a second or subsequent expungement of records of conviction under this section.
  11. As used in this section:
    1. “Expungement” means as defined in W.S. 7-13-1401(j)(i);
    2. “Misdemeanor” means as defined by W.S. 6-10-101 ;
    3. “Record” means as defined in W.S. 7-13-1401(j)(ii);
    4. “Health care provider” means an individual  who is licensed, certified or otherwise authorized or permitted by  the laws of this state to provide care, treatment, services or procedures  to maintain, diagnose or otherwise treat a patient’s physical  or mental condition.

History. Laws 2004, ch. 69, § 1; 2009, ch. 67, § 1; 2014, ch. 13, § 2; 2015, ch. 164, §§ 1, 2; 2018, ch. 80, § 2.

The 2009 amendment, in the introductory language of (a), inserted “under W.S. 6-2-501(a), (b) or (e), 6-2-504(a) or 6-6-102 , or those same” and deleted “for the purposes of restoring any firearm rights lost,” preceding “subject to”, in (a)(i), substituted “five (5) years have” for “one (1) year has”, in (a)(ii), “for which an expungement is sought under this section” for “arising out of the same occurrence or related course of events” and “under W.S. 6-2-501(a), (b) or (e), 6-2-504(a) or 6-6-102 ” for “for which firearm rights have been lost”, and in (k), deleted the former first and second sentences which related to an expungement granted for the purposes of restoring firearm rights.

Laws 2009, ch. 67, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved February 26, 2009.

The 2018 amendment, effective July 1, 2018, added (a)(iv); added (m)(iv); and made a stylistic change.

The 2014 amendment, effective July 1, 2014, deleted “or (e)” and inserted “6-2-510(a), 6-2-511(a)” in the introductory paragraph of (a) and in (a)(ii).

The 2015 amendment, effective July 1, 2015, in (a), deleted the phrase which read “under W.S. 6-2-501(a) or (b), 6-2-504(a), 6-2-510(a), 6-2-511(a) or 6-6-102 , or those same misdemeanors arising out of the same occurrence or related course of events” in the introductory language; in (a)(i), inserted “for nonstatus offenses and at least one (1) year has passed for status offenses as defined by W.S. 7-1-107(b)(iii).”

Editor's notes. —

There is no subsection (i) or (l) in this section as it appears in the printed acts.

Effective date. —

Laws 2004, ch. 69, § 2, makes the act effective July 1, 2004.

Relation to other laws. —

Congress intended the terms “expunge” and “set aside,” as used in 18 U.S.C.S. § 921(a)(33)(B)(ii), to require that a state procedure completely remove the effects of a prior misdemeanor conviction; this section undoubtedly failed to meet that standard, and accordingly district court correctly dismissed Wyoming's suit against the federal ATF, in which Wyoming sought review of the ATF's finding that this section would not restore federal firearm rights because it did not satisfy the federal definition of expunge or set aside. Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 2008 U.S. App. LEXIS 18224 (10th Cir. Wyo. 2008).

§ 7-13-1502. Petition for expungement of records of conviction of certain felonies; filing fee; notice; objections; hearing; definitions; restoration of rights.

  1. A person convicted of a felony or felonies subject to expungement under this section arising out of the same occurrence or related course of events, may petition the convicting court for an expungement of the records of conviction, subject to the following limitations:
    1. At least ten (10) years have passed since:
      1. The expiration of the terms of sentence imposed by the court, including any periods of probation;
      2. The completion of any program ordered by the court; and
      3. Any restitution ordered by the court has been paid in full.
    2. Other than convictions for which an expungement is sought under this section, the petitioner has not previously pleaded guilty or nolo contendere to or been convicted of a felony;
    3. The felony or felonies for which the person is seeking expungement shall not have involved the use or attempted use of a firearm unless the felony or felonies are offenses punishable under title 23 of Wyoming statutes;
    4. Felonies subject to expungement under this section shall not include:
      1. Violent felonies as defined in W.S. 6-1-104(a)(xii);
      2. Any offense punishable under W.S. 6-2-106(b);
      3. Any offense punishable under W.S. 6-2-108 ;
      4. Any offense punishable under W.S. 6-2-301 through 6-2-320 ;
      5. Any offense punishable under W.S. 6-2-501(f) as in effect prior to July 1, 2014 and any offense punishable under W.S. 6-2-511(b)(iii);
      6. Any offense punishable under W.S. 6-2-503 ;
      7. Any offense punishable under W.S. 6-2-508(b);
      8. and (J) Repealed by Laws 2014, ch. 124, §  2. (K) Any offense punishable under W.S. 6-4-303(b)(i) through (iii); (M) Any offense punishable under W.S. 6-4-402(b); (N) Any offense punishable under W.S. 6-4-405 ; (O) Any offense punishable under W.S. 6-5-102 ; (P) Any offense punishable under W.S. 6-5-204(c); (Q) Any offense punishable under W.S. 6-5-206 or 6-5-207 ; (R) Repealed by Laws 2014, ch. 124, § 2. (S) Any offense punishable under W.S. 6-8-101 and 6-8-102 ; or (T) Any offense subject to registration under W.S. 7-19-302(g) through (j); (U) and (W) Repealed by Laws 2014, ch. 124, § 2.
  2. A petition filed under this section shall be verified by the petitioner and served upon the prosecuting attorney and the division of criminal investigation. The filing fee for each petition filed under this section shall be three hundred dollars ($300.00) and shall be deposited in accordance with W.S. 5-3-205 .
  3. The prosecuting attorney shall, within thirty (30) days of service upon him, serve notice of the petition for expungement by certified mail, return receipt requested, to any identifiable victims of the nonviolent felonies at their last known addresses of record on file with the prosecuting attorney. The notices shall include a copy of the petition and statutes applicable to the petition. In the event that there are no identifiable victims, or that there is at least one (1) identifiable victim and the prosecuting attorney has no address of record on file or the notice sent was returned or is otherwise undeliverable, the prosecuting attorney shall notify the court and shall be deemed to have complied with the provisions of this subsection.
  4. The court in its discretion may request a written report by the division of criminal investigation concerning the criminal history of the petitioner.
  5. The prosecuting attorney shall review the petition and shall file with the court an objection or recommendation, if any, to the petition within ninety (90) days after service of the notice by the petitioner upon the prosecuting attorney. If the prosecuting attorney or an identifiable victim submits a written objection to the court concerning the petition within ninety (90) days after service of the notice by the petitioner upon the prosecuting attorney, or if the petitioner objects to the criminal history report of the division of criminal investigation if requested by the court, the court shall set a date for a hearing and notify the prosecuting attorney, the identifiable victims who have submitted written objections to the petition, the division of criminal investigation and the petitioner of the date set for the hearing. Any person who has relevant information about the petitioner may testify at the hearing.
  6. If no objection is filed to the petition within ninety (90) days after service of the notice by the petitioner upon the prosecuting attorney, the court may summarily enter an order if the court finds that the petitioner is otherwise eligible for relief under this section. No order granting expungement shall be issued prior to the expiration of ninety (90) days after service was made to the prosecuting attorney.
  7. If the court finds that the petitioner is eligible for relief under this section and that the petitioner does not represent a substantial danger to himself, any identifiable victim or society, it shall issue an order granting expungement of the applicable records. The court shall also place the court files under seal, available for inspection only by order of that court. The court shall transmit a certified copy of the order to the division of criminal investigation.
  8. The state, through the prosecuting attorney, may appeal any order of expungement issued by any court under this section.
  9. Notwithstanding W.S. 1-39-101 through 1-39-120 , the division of criminal investigation and its employees and any prosecuting attorney are immune from liability, either as an agency or individually, for any actions, inactions or omissions by the agency or any employee thereof, pursuant to this section.
  10. Nothing in this section shall be construed to allow a person who has previously received an expungement of records of conviction under this section to seek a second or subsequent expungement of records of conviction under this section.
  11. An expungement of records pursuant to this section shall restore any rights removed as a result of the conviction for which the expungement has been granted.
  12. As used in this section:
    1. “Expungement” means as defined in W.S. 7-13-1401(j)(i);
    2. “Record” means as defined in W.S. 7-13-1401(j)(ii).

History. Laws 2011, ch. 69, § 1; 2014, ch. 13, § 2; ch. 124, §§ 1, 2.

The 2014 amendments. —

The first 2014 amendment, by ch 13, § 2, effective July 1, 2014, added “as in effect prior to July 1, 2014 and any offense punishable under W.S. 6-2-511(b)(iii)” in (a)(iv)(E).

The second 2014 amendment, by ch 124 §§ 1, 2, effective July 1, 2014, in (a)(iii), added “unless the felony or felonies are offenses punishable under title 23 of Wyoming statutes”; in (a)(iv)(P), substituted “6-5-204(c)” for “6-5-204(b) or (c)”; and in (a)(iv)(S), substituted “and 6-8-102 ; or” for “through 6-8-103 ”; repealed former (a)(iv)(H) which read: “Any offense punishable under W.S. 6-3-111 ”; repealed former (a)(iv)(J) which read: “Any offense punishable under W.S. 6-4-103 ”; repealed former (a)(iv)(R) which read: “Any offense punishable under W.S. 6-5-301 ”; repealed former (a)(iv)(U) which read: “Any offense punishable as a felony under W.S. 31-5-233 ; or”; and repealed former (a)(iv)(W) which read: “Any offense punishable as a felony under W.S. 35-7-1031(a) through (c) or 35-7-1036 .”

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

Effective date. —

Laws 2011, ch. 69, § 3, makes the act effective July 1, 2011.

Editor's notes. —

There is no subsection (i) or ( l ) in this section as it appears in the printed acts.

Article 16. Court Supervised Treatment Programs Act

Effective dates. —

Laws 2009, ch. 145, § 5, makes the act effective July 1, 2009.

§ 7-13-1601. Short title.

This act shall be known and may be cited as the “Court Supervised Treatment Programs Act.”

History. Laws 2009, ch. 145, § 1.

§ 7-13-1602. Definitions.

  1. As used in this act:
    1. “Account” means the court supervised treatment account created by W.S. 7-13-1605(a);
    2. “Applicant” means the governing body of a city, town or county, a tribal government of either the Northern Arapaho or Eastern Shoshone tribes of the Wind River Indian Reservation or a nonprofit organization recognized under 26 U.S.C. 501(c)(3);
    3. “Continuum of care” means a seamless and coordinated course of substance abuse education and treatment designed to meet the needs of drug offenders as they move through the criminal justice system and beyond, maximizing self-sufficiency;
    4. “Department” means the Wyoming department of health;
    5. “Dual diagnosis” means substance abuse and a co-occurring mental health disorder;
    6. “Participant” means a substance offender or any other person as provided in title 14 of the Wyoming statutes who has been referred to and accepted into a program;
    7. “Participating judge” means the district, juvenile, circuit, municipal or tribal court judge or magistrate acting as part of a program team;
    8. “Program” or “court supervised treatment program” means a local court supervised treatment program that complies with rules and regulations adopted by the department;
    9. “Program coordinator” means the person responsible for coordinating the establishment, operation, evaluation and integrity of a program;
    10. “Program team” means the team created pursuant to W.S. 7-13-1609(a);
    11. “Recidivism” means any subsequent criminal charge;
    12. “Referring judge” means the district, juvenile, circuit, municipal or tribal court judge or magistrate who refers a substance offender or any other person as provided in title 14 of the Wyoming statutes to a program;
    13. “Staffing” means the meeting of a program team before a participant’s entry into the program, and during the participant’s participation in the program, to plan a coordinated response to the participant’s behaviors and needs;
    14. “Substance” means alcohol, any controlled substance as defined in W.S. 35-7-1002(a)(iv), any substance used for mind altering purpose or over-the-counter medications and inhalants which are used in a manner not intended by the manufacturer;
    15. “Substance abuse assessment” means as defined in W.S. 7-13-1301(a)(v);
    16. “Substance abuse treatment” means treatment designed to provide education and therapy directed toward ending substance abuse and preventing its return;
    17. “Substance offender” means a person charged with a substance related offense or an offense in which substance abuse is determined from the evidence to have been a significant factor in the commission of the offense;
    18. “This act” means W.S. 7-13-1601 through 7-13-1616 .

History. Laws 2009, ch. 145, § 1; 2016, ch. 71, § 2.

The 2016 amendment , effective July 1, 2016, substituted “7-13-1616” for “7-13-1615” in (a)(xviii).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-13-1603. Purposes and goals.

  1. The legislature recognizes the critical need in this state for treatment programs to break the cycle of substance abuse and the crimes committed as a result thereof. Court supervised treatment programs shall be facilitated for the purpose of providing sentencing options for the judicial system in cases stemming from substance abuse, by combining judicial supervision, probation, substance abuse assessment, substance abuse testing, monitoring, treatment, and aftercare for substance offenders.
  2. The goals of the programs funded under this act shall be:
    1. To reduce recidivism by participants;
    2. To strive for program retention and graduation of participants;
    3. To strive for sobriety of participants; and
    4. To monitor the services provided to participants.

History. Laws 2009, ch. 145, § 1.

§ 7-13-1604. Standards for attorneys and judges.

  1. Attorneys, participating judges and referring judges shall adhere to the standards set forth in the Wyoming Rules of Professional Conduct for Attorneys at Law, the Wyoming Code of Judicial Conduct and any rules adopted by the supreme court governing program practices.
  2. The referring judge in a particular case may be the participating judge in that participant’s treatment program, provided the participating judge shall not act upon any motion to revoke probation that may be filed in the original criminal or juvenile case, nor in sentencing or disposition.

History. Laws 2009, ch. 145, § 1.

§ 7-13-1605. Establishment of court supervised program account; rules and regulations; panel created; program funding.

  1. There is created a court supervised treatment program account. All interest earned on funds within this account shall be deposited in the account. The department shall oversee and provide funding for programs from the court supervised treatment program account. Funds within the account shall be expended by the department for the purposes of this act upon legislative appropriation provided, however, that surcharges deposited in the account pursuant to W.S. 7-13-1616(e) shall be distributed to programs by the department semiannually. Department expenses under this act shall not exceed ten percent (10%) of the total amount of funding provided by the department for programs in any fiscal biennium.
  2. The department shall determine whether an application for a program meets the qualifications specified in W.S. 7-13-1606(b) and the rules and regulations promulgated by the department pursuant to subsection (c) of this section.
  3. The department shall promulgate rules and regulations necessary to implement this act, including establishing standards consistent with the key components of drug courts defined by the United States department of justice or such similar rules as may be adopted by the department. The rules shall:
    1. Specify funding formulas for funding from the account which formula shall include provisions requiring local contribution to the cost of a program;
    2. Require participants to contribute financially to their own program;
    3. Establish program requirements, operational standards and protocols for programs, program team and staff training requirements, program data collection and maintenance, certification requirements for treatment personnel, and incentive and sanction limitations.
  4. A panel, consisting of the attorney general, the directors of the department of health, department of family services and department of corrections, the chairman of the governor’s advisory board on substance abuse and violent crimes and the state public defender, or their designees, shall make the final determination whether an application for a court supervised treatment program meets the qualifications of this act and shall determine the funding amount for each successful applicant. The panel may deny an application for a new program if the funding for the new program would substantially affect funding levels for existing programs.
  5. In addition to those funds deposited in the account created by this section, the department may accept, and shall deposit to the account, any gifts, contributions, donations, grants or federal funds specifically given to the department for the benefit of programs in Wyoming.
  6. Nothing in this act shall prohibit a program from obtaining or providing supplemental funding. All supplemental funds received by a program shall be reported to the department.

History. Laws 2009, ch. 145, § 1; 2019, ch. 132, § 1.

The 2019 amendment, effective July 1, 2019, in (a), added "provided, however, that surcharges deposited in the account pursuant to W.S. 7-13-1616(e) shall be distributed to programs by the department semiannually" at the end of the third sentence, and substituted "Department expenses under this act shall not exceed ten percent (10%) of the total amount of funding provided by the department for programs in any fiscal biennium" for "Any expenses incurred by the department in implementing this act shall be paid from the account and shall not exceed ten percent (10%) of the amounts appropriated to the department for purposes of this act" in the last sentence.

Editor's notes. —

Laws 2009, ch. 145, § 4, provides:

“(a) Effective July 1, 2009, any funds remaining in the drug court account created by W.S. 5-10-103 shall be transferred to the court supervised treatment program account created by W.S. 7-13-1605 .

“(b) Any drug court program in existence and receiving funding from the department of health for its operations may continue to operate until the funding authorized for the drug court program prior to July 1, 2009, is exhausted, or until the end of the fiscal year ending June 30, 2009, whichever occurs earlier. Thereafter, the program may receive funding under this act only upon compliance with the requirements specified in W.S. 7-13-1605 .”

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-13-1602(a)(xvii).

§ 7-13-1606. Establishment of court supervised treatment programs.

  1. Any court supervised treatment program that meets the qualifications specified in this section and the department’s rules and regulations may apply for funding from the account on a form developed by the department.
  2. The applicant shall be the contracting agent for all its program contracts. All program employees of a program shall be employees of the applicant that was awarded a grant under this section, but referring judges, participating judges, other judicial branch personnel and department of corrections personnel shall not be program employees. All program funds and grants shall be managed by the applicant to whom a grant is awarded pursuant to the provisions of a contract between the department and the applicant.
  3. All program billing shall be the responsibility of the applicant.
  4. The application shall identify participating judges and contain a plan for the participation of judges. The plan shall be consistent with rules adopted by the department and the supreme court.
  5. The application shall specify the treatment services to be provided by the program and shall identify the treatment providers.
  6. The application shall include other information that may be required by the department.

History. Laws 2009, ch. 145, § 1.

§ 7-13-1607. Participation in court supervised treatment program; conditions; extended probation.

  1. No substance offender may participate in a program unless the substance offender, in a Wyoming district, juvenile, circuit, municipal or tribal court, has been charged with an offense; and:
    1. Has entered an admission, or a guilty or nolo contendere plea;
    2. Has entered a guilty plea pursuant to W.S. 7-13-301 ;
    3. Has signed a consent decree under title 14 of the Wyoming statutes; or
    4. Is on parole under the provisions of W.S. 7-13-401 et seq.
  2. Any district, juvenile, circuit, municipal or tribal court judge, or magistrate, may refer substance offenders for participation in a program. The referring judge may act as a participating judge in a program as authorized by this act and by rules adopted by the supreme court. A substance offender who is a defendant in a criminal action or a respondent in a juvenile court action may be referred for participation in a program if:
    1. A substance abuse assessment reveals that the person is in need of treatment;
    2. The referring judge has reason to believe that participation in a program will benefit the person by addressing his substance abuse;
    3. In a juvenile court case, the referring judge has reason to believe that participation by the child’s parent or guardian will be in the best interest of the child; or
    4. The person’s case is processed pursuant to subsection (a) of this section.
  3. Participation in a program shall only be with the consent of the referring judge and the participant, and acceptance of the participant by the program team in accordance with a written agreement between the participant and the program team. The agreement shall include the participant’s consent to release of medical and other records relevant to his treatment history and assessment that meets the requirements of 42 U.S.C. 290dd-2(b) or 42 C.F.R. part 2.31, as applicable. Prior to a participant’s entry into a written agreement, the participating judge shall inform the participant that he may be subject to a term of probation that exceeds the maximum term of imprisonment established for the particular offense charged, as provided in W.S. 5-9-134 and 7-13-1614 .
  4. Nothing in this act shall confer a right or an expectation of a right to participate in a program, nor does this act obligate a program team to accept any proposed participant. Neither the establishment of a program nor anything herein contained shall be construed as limiting the discretion of a prosecuting attorney in regard to the prosecution of any criminal or juvenile case. Consent to participation in a program under subsection (c) of this section shall only be required from the referring judge and participant.

History. Laws 2009, ch. 145, § 1; 2019, ch. 195, § 1; ch. 78, § 2.

The 2019 amendments. —

The first 2019 amendment, by ch. 78, § 2, effective July 1, 2019, in (c), deleted "or W.S. 35-2-607(c)" and made related changes.

The second 2019 amendment, by ch. 195, 1, in (c), substituted "referring judge and the participant" for "referring judge, the participant and the prosecuting attorney"; and in (d), added the last sentence.

Applicability. —

Laws 2019, ch. 195 § 2, provides: "This act applies to criminal cases filed on or after July 1, 2019."

§ 7-13-1608. Incentives and sanctions; extended probation.

  1. The participating judge may grant reasonable incentives under the written agreement under W.S. 7-13-1607(c) if he finds that since the last staffing, the participant:
    1. Is performing satisfactorily in the program;
    2. Is benefiting from the program; and
    3. Has not violated any term or condition of the agreement.
  2. The participating judge may impose reasonable sanctions under the written agreement, including but not limited to, expulsion from the program, incarceration for a period not to exceed thirty (30) days if the participant is an adult, or detention for a period not to exceed thirty (30) days if the participant is a juvenile, if the participating judge finds that since the last staffing the participant:
    1. Is not performing satisfactorily in the program;
    2. Is not benefiting from the program;
    3. Has engaged in conduct rendering the participant unsuitable for the program;
    4. Has otherwise violated any term or condition of the written agreement; or
    5. Is unable to participate in the program.
  3. To ensure due process of law, expulsion from the program shall be at the discretion of the participating judge, following a hearing, based on the recommendation of the program team. Expulsion shall not occur without the participant first being notified of the reasons for the proposed expulsion and given an opportunity to be heard by the program team and the participating judge.

History. Laws 2009, ch. 145, § 1.

§ 7-13-1609. Program team to be created; duties; program coordinator.

  1. Each applicant seeking to establish a program shall create a program team, consisting of the following members, all of whom shall be appointed by the governing body of the applicant, subject to the individual consent of each appointee:
    1. A participating judge;
    2. A prosecuting attorney;
    3. An attorney who practices criminal defense or serves as a guardian ad litem;
    4. A representative of the treatment providers;
    5. The probation officer or other person who supervises participants;
    6. The program coordinator; and
    7. Other persons determined necessary and helpful by the participating judge.
  2. The program team shall, when practicable, conduct a staffing prior to each program session to discuss and provide updated information regarding participants scheduled to appear during the session. After determining the progress or lack thereof for each participant, the program team shall agree on the appropriate incentives or sanctions to be applied. If the program team cannot unanimously agree on the appropriate action to be taken, the participating judge shall make a decision based upon the information presented during the staffing.
  3. Each program shall have a program coordinator who shall be responsible for the general administration of the program.

History. Laws 2009, ch. 145, § 1.

§ 7-13-1610. Confidentiality of treatment records.

Program staff shall be provided with access to all records of any state or local government relevant to the participant’s treatment. The records and reports shall be maintained in a confidential file not available to the public and the contents thereof shall not be disclosed to any person outside the program without a court order. Program staff shall comply with the confidentiality rules contained in 42 U.S.C. 290dd-2 or 42 C.F.R. part 2, as applicable.

History. Laws 2009, ch. 145, § 1; 2019, ch. 78, § 2.

The 2019 amendment,

effective July 1, 2019, deleted "and W.S. 35-2-606 " and made related changes.

§ 7-13-1611. Treatment and support services.

  1. Each program shall strive to establish a system to ensure that participants are provided treatment services that have been certified by the department. Each program team shall strive to determine the type and duration of treatment service appropriate for the participant’s individualized needs, based upon objective medical diagnostic criteria.
  2. The program team shall strive to establish an adequate continuum of care for each participant, including adequate support services and aftercare.
  3. The program team shall strive to provide appropriate treatment to participants who have a dual diagnosis.
  4. The relationship between each treatment provider and the program shall be governed by a memorandum of understanding, which shall include a requirement for the timely reporting of the participant’s progress or lack thereof in treatment.

History. Laws 2009, ch. 145, § 1.

§ 7-13-1612. Substance abuse testing.

  1. The program team shall require accurate and reliable substance use testing of participants.
  2. Participants shall be required to submit to frequent, random and observed substance use testing.
  3. The results of all substance use tests shall be provided to the program team as soon as practicable.

History. Laws 2009, ch. 145, § 1.

§ 7-13-1613. Participant information and progress statistics.

  1. Participants may be required to provide access to the following information, the collection and maintenance of which by the program team shall be in a standardized format pursuant to department rules and regulations:
    1. Gender, race, ethnicity, marital status and child custody and support obligations;
    2. Criminal history;
    3. Substance abuse history, including substances of choice and prior treatment;
    4. Employment, education and income history;
    5. Number and health of children born to female participants;
    6. Incidents of recidivism occurring before, during and after successful completion of a program, or failed participation in a program.
  2. Programs shall maintain and report to the department the following information pursuant to department rules and regulations, none of which shall identify the participants:
    1. The number of participants screened for eligibility, the number of eligible persons who were, and who were not, admitted to the program and their case dispositions;
    2. The costs of operation and sources of funding of the program.

History. Laws 2009, ch. 145, § 1.

§ 7-13-1614. Municipal courts.

A municipal judge may place a criminal defendant on probation pursuant to W.S. 7-13-301 through 7-13-307 and require the defendant as a probationary condition to participate in a program under this act. Notwithstanding any other provision of law, the probation period for a defendant whose disposition includes participation in a program or a court supervised treatment program may exceed the maximum term of imprisonment established for the offense, but shall not exceed thirty-six (36) months.

History. Laws 2009, ch. 145, § 1.

§ 7-13-1615. Program participation as a condition of parole.

  1. The state board of parole may, as a condition of parole, require a parolee to participate in a program established under this act, provided:
    1. The program team accepts the parolee for participation in the program; and
    2. The parolee is subject to the rules and sanctioning powers of the program but remains under the authority of the board for all other matters related to the parole.

History. Laws 2009, ch. 145, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-13-1602(a)(xvii).

§ 7-13-1616. Surcharge to be assessed in certain criminal cases; paid to account.

  1. In addition to any fine or other penalty prescribed by law, a defendant who pleads guilty or nolo contendere to, or is convicted of, any offense under W.S. 31-5-233 or 35-7-1001 through 35-7-1057 may be assessed a surcharge of not more than fifty dollars ($50.00).
  2. The surcharge may be imposed upon any defendant for whom prosecution, trial or sentence is deferred under W.S. 7-13-301 and 7-13-302 or 35-7-1037 or who participates in any other diversion agreement for an offense specified in subsection (a) of this section.
  3. The court may waive the surcharge if the person is unable to pay the surcharge or for any other good cause shown. The court shall consider all other financial obligations imposed on the defendant and set the surcharge so as not to create an undue financial burden on the defendant.
  4. The surcharge shall be paid within ten (10) days of imposition. Failure to comply with the provisions for payment of the surcharge is punishable as contempt of court. Contempt or other proceedings, including proceedings under W.S. 6-10-105 , if applicable, to collect the surcharge may be initiated by the district attorney or by the court on its own motion.
  5. The proceeds from the surcharge imposed by this section shall be remitted promptly by the clerk of the court to the department for deposit in the account.

History. Laws 2016, ch. 71, § 1.

Effective date. —

Laws 2016, ch. 83, § 2, makes the act effective July 1, 2016. Approved March 4, 2016.

Article 17. 24/7 Sobriety Program

Effective date. —

Laws 2014, ch. 47, § 4, makes this act effective July 1, 2014.

§ 7-13-1701. Short title.

This article shall be known and may be cited as the “24/7 Sobriety Program Act.”

History. Laws 2014, ch. 47, § 1.

§ 7-13-1702. Definitions.

  1. As used in this article:
    1. “Account” means the “24/7 sobriety program account” created by W.S. 7-13-1707 ;
    2. “Court” means a district, circuit or municipal court;
    3. “Participation” in a 24/7 sobriety program means that the person ordered to participate submits to and passes all required tests;
    4. “Program” means the 24/7 sobriety program created under this article;
    5. “Rules” means the 24/7 sobriety program rules promulgated by the attorney general under this article;
    6. “Remote electronic alcohol monitoring device”  means any electronic instrument that is attached to a person and is  capable of determining and monitoring the presence of alcohol in the  person’s body, including any equipment necessary for the device  to perform properly;
    7. “Remote breath testing device” means  an unsupervised mobile breath testing device with the ability to confirm  the identify, location and presence of alcohol in a person and is  capable of scheduled, random and on demand tests that provide immediate  results to a participating agency.

History. Laws 2014, ch. 47, § 1; 2019, ch. 49, § 2.

The 2019 amendment, effective July 1, 2019, added (a)(vi) and (a)(vii).

§ 7-13-1703. 24/7 sobriety program created.

  1. There is created a 24/7 sobriety program to be administered by the attorney general. The purpose of the program is to reduce the number of repeat crimes that are related to substance abuse by monitoring an offender’s sobriety through intensive alcohol and drug testing and immediate and appropriate enforcement of violations.
  2. The program shall provide for frequent and certain testing for drug or alcohol use. The testing methods may include breath testing, drug patch testing, urinalysis, use of a remote breath testing device or a remote electronic alcohol monitoring device or other testing methods as provided by rule.

History. Laws 2014, ch. 47, § 1; 2019, ch. 49, § 2.

The 2019 amendment, effective July 1, 2019, in (b), substituted “use of a remote breath testing device or a remote electronic alcohol monitoring device” for “continuous or transdermal alcohol monitoring” following “urinalysis.”

§ 7-13-1704. Inclusion in program.

  1. Each county, through its sheriff, may take part in the program. A sheriff may designate an entity to provide the testing services or to take any other action authorized to be taken by the sheriff under this article with the exception of action taken to apprehend a violator under W.S. 7-13-1709 .
  2. The sheriff shall establish the testing locations and times for his county but shall have at least one (1) testing location and two (2) daily testing times approximately twelve (12) hours apart unless the sheriff utilizes a remote electronic alcohol monitoring device that complies with rules promulgated by the attorney general pursuant to W.S. 7-13-1705 .

History. Laws 2014, ch. 47, § 1; 2019, ch. 49, § 2.

The 2019 amendment, effective July 1, 2019, in (b), added “unless the sheriff utilizes a remote electronic alcohol monitoring device that complies with rules promulgated by the attorney general pursuant to W.S. 7-13-1705 .”

§ 7-13-1705. Rulemaking authority.

  1. The attorney general shall adopt rules to implement this article. The rules shall:
    1. Provide for the nature and manner of testing and the procedures and apparatuses to be used for testing;
    2. Establish fees and provide for the collection of fees. The fees shall be set as low as possible, but shall be set so that the total of fees and other funds credited to the program account defray the entire expense of the program, including all costs to the state; and
    3. Establish a data management program to manage program data, including testing results, fees and required reports. The data management program shall be used by all counties taking part in the program.

History. Laws 2014, ch. 47, § 1.

§ 7-13-1706. Distribution of testing fees.

The sheriff shall collect and transmit testing fees to the state treasurer to be credited to the 24/7 sobriety program account created by W.S. 7-13-1707 . The fees shall be distributed as provided by this article and the rules.

History: Laws 2014, ch. 47, § 1.

§ 7-13-1707. 24/7 sobriety program account.

  1. There is created a 24/7 sobriety program account. The account shall be used by the attorney general to defray all the costs of the program to the state, including the costs of the attorney general in administering this article. Disbursements from the account shall not exceed the monies credited to it. All monies in the account are continuously appropriated to the attorney general to be used solely for the administration of the program and for no other purpose. After paying participating vendors, the attorney general shall return no less than seventy-five percent (75%) of the remaining fees collected under W.S. 7-13-1706 to the sheriff who collected the fee. The sheriff shall utilize the funds only to administer or enhance the county’s 24/7 sobriety program. Notwithstanding W.S. 9-2-1008 and 9-4-207 funds in the account shall not lapse at the end of the fiscal period. Interest earned on funds in the account shall be deposited to the account.
  2. The attorney general may accept, and shall deposit in the account, any gifts, contributions, donations, grants or federal funds specifically designated for the benefit of the program.

History. Laws 2014, ch. 47, § 1; 2019, ch. 49, § 2.

The 2019 amendment, effective July 1, 2019, added the fifth sentence.

§ 7-13-1708. Authority of court to order participation in program.

  1. Upon a charge or offense for conduct committed while intoxicated or under the influence of a controlled substance, a court may order participation in the program as a condition of pretrial release, bond, suspension of sentence, probation or other conditional release.
  2. Participation in the program may be imposed as a condition of release under the Wyoming Rules of Criminal Procedure, including rules 46.1 and 46.2.
  3. Before ordering participation in the program, a court may require the person to undergo a substance abuse assessment. The cost of the substance abuse assessment shall be paid by the offender.
  4. The state board of parole may require a parolee to participate in the program as a condition of parole.

History. Laws 2014, ch. 47, § 1; 2019, ch. 49, § 2.

The 2019 amendment, effective July 1, 2019, in (a), deleted “second or subsequent” preceding “charge or offense.”

§ 7-13-1709. Apprehension of violators.

  1. Upon the failure of a person to submit to a test under the program or upon a positive test for alcohol or controlled substance in violation of the program, a peace officer or a probation and parole agent shall complete a written statement establishing the person, in the judgment of the officer or agent, violated a condition of release by failing to submit to or pass a test. A peace officer shall immediately arrest the person without warrant after completing or receiving the written statement.
  2. A person taken into custody under this section shall appear before a court within a reasonable time and shall not be released unless the person has made a personal appearance before a court.

History. Laws 2014, ch. 47, § 1; 2019, ch. 49, § 2.

The 2019 amendment, effective July 1, 2019, in (a) deleted “or pass” following “person to submit to,” and added “or upon a positive test for alcohol or controlled substance in violation of the program” following “under the program.”

§ 7-13-1710. 24/7 sobriety program director; appointment.

The attorney general may appoint a director to administer the program. The appointment shall be subject to senate confirmation in the manner provided for in W.S. 28-12-101 and 28-12-102 for gubernatorial appointments. The director shall receive an annual salary determined by the department of administration and information human resources division.

History. Laws 2014, ch. 47, § 1; 2019, ch. 49, § 2.

The 2019 amendment, effective July 1, 2019, deleted the last sentence which read: “No state funds shall be used to fund the salary or benefits of the director.”

§ 7-13-1711. Sunset provision. [Repealed]

History. Laws 2014, ch. 47, § 1; Repealed by Laws 2019, ch. 49, § 3.

Article 18. Probation and Parole Incentives and Sanctions

History. Laws 2019, ch. 116, § 1.

§ 7-13-1801. Incentives and sanctions system; duties of the department of corrections; definitions.

  1. The department shall by rule and regulation establish, maintain and implement an incentives and sanctions system to utilize as responses to positive and negative behavior by probationers, parolees and conditional releasees under the department’s supervision. The system shall provide for graduated responses to compliance violations and other violations of supervision conditions in a swift, certain and proportional manner and shall include guidance and procedures to determine when and how to:
    1. Request a warrant;
    2. Initiate and conduct any hearing required under W.S. 7-13-1803 ; and
    3. Seek departmental approval to use custodial sanctions.
  2. To implement and continuously improve the incentives and sanctions system, the department shall:
    1. Provide information and training on the system to probation and parole agents and supervisors and to members and staff of the state board of parole;
    2. Offer information and training on the system to the Wyoming supreme court, district court judges, circuit court judges, district attorneys, defense attorneys, law enforcement officers, corrections and detention officers, contracted service providers and other interested personnel;
    3. Review the system at least one (1) time every five (5) years to ensure that the system adheres to evidence-based practices and that the use of incentives and sanctions by probation and parole agents is consistent throughout the state;
    4. Ensure that the responses, guidance and procedures established in the system consider community safety and the needs of the victim and offender;
    5. Collect data relating to placement decisions determined by using the system;
    6. Aggregate collected data and submit a report by September 1 of each year to the joint judiciary interim committee.
  3. As used in this article:
    1. “Cognitive-behavioral programming” means programming or therapy that utilize cognitive-behavioral and social learning theories to target a person’s dysfunctional beliefs, thoughts and patterns of behavior that contribute or lead to criminal behaviors;
    2. “Compliance violation” means as defined in W.S. 7-13-401(a)(xv);
    3. “Department” means the department of corrections.

History. Laws 2019, ch. 116, § 1.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Effective date. —

Laws 2019, ch. 116 § 8, makes the act effective July 1, 2019.

§ 7-13-1802. Authorized sanctions.

  1. The sanctions authorized under W.S. 7-13-1801(a) may include:
    1. Loss or restriction of privileges;
    2. Community service;
    3. Placement in an intensive supervision program established under W.S. 7-13-1102 or a nonresidential community correctional program established under W.S. 7-18-103 or 7-18-104 ;
    4. Custodial sanctions authorized under subsection (b) of this section, subject to any procedure required under W.S. 7-13-1803 and any rules promulgated under W.S. 7-13-1801(a).
  2. Subject to the requirements in W.S. 7-13-1803(c), custodial sanctions authorized by W.S. 7-13-1801(a) for compliance violations shall include one (1) or more of the following:
    1. A sanction of time served in custody between arrest and hearing or between arrest and the disposition of the alleged violation if a hearing is not held;
    2. Immediate confinement in a consenting Wyoming county jail, to be imposed as a two (2) or three (3) day consecutive period;
    3. Confinement in a consenting Wyoming county jail for up to fifteen (15) consecutive days in addition to any time served between arrest and hearing;
    4. Confinement for up to ninety (90) days in a residential community correction program established under W.S. 7-18-103 or 7-18-104 coupled with substance abuse treatment, cognitive-behavioral programming to address criminal thinking or other programming that the department deems appropriate;
    5. Confinement for up to ninety (90) days in a consenting Wyoming county jail coupled with substance abuse treatment contracted with and paid for by the department;
    6. Incarceration in a state penal institution for up to ninety (90) days coupled with substance abuse treatment, cognitive-behavioral programming to address criminal thinking or other programming that the department deems appropriate.

History. Laws 2019, ch. 116, § 1.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Effective date. —

Laws 2019, ch. 116 § 8, makes the act effective July 1, 2019.

§ 7-13-1803. Procedure for imposing sanctions; housing violators; civil actions against officials.

  1. A probation and parole agent who reasonably believes that a defendant, probationer, parolee or conditional releasee has committed one (1) or more compliance violations that require a sanction shall utilize sanctions available within the incentives and sanctions system to determine an appropriate response. Subject to subsection (d) of this section, the agent shall initiate a hearing in accordance with subsection (b) of this section and W.S. 7-13-408 and shall attempt to gain the person’s compliance with the conditions of probation, parole or conditional release through the sanctions provided in W.S. 7-13-1802 .
  2. Any hearing under this section shall be before the field services administrator, his designated hearing officer or any other person authorized pursuant to the laws of this state to hear cases of alleged probation, parole or conditional release violations, except that no hearing officer shall be the person making the allegation of violation. If the hearing officer determines by a preponderance of the evidence that the defendant, probationer, parolee or conditional releasee has violated a condition of probation, parole or conditional release, the hearing officer shall utilize the incentives and sanctions system to determine an appropriate response, which may include the sanctions authorized under W.S. 7-13-1802 .
  3. Any imposition of custodial sanctions shall be subject to the following conditions:
    1. All time in custody related to the compliance violation shall be credited toward the defendant’s, probationer’s, parolee’s or conditional releasee’s sentence;
    2. The total of all confinement under W.S. 7-13-1802(b)(i) and (ii) shall not exceed eighteen (18) days during the term of probation, parole or conditional release;
    3. Cumulative custodial sanctions imposed under W.S. 7-13-1802(b)(i) through (iii) shall not exceed ninety (90) days during the term of probation, parole or conditional release prior to any revocation.
  4. A hearing shall be held before custodial sanctions are imposed. The imposition of sanctions shall not require a hearing if:
    1. The probationer or parolee is a participant in the intensive supervision program pursuant to W.S. 7-13-1105 ;
    2. The probationer is a qualified offender whose probation has been previously revoked pursuant to W.S. 7-13-1303(d); or
    3. The probationer or parolee consents to the administrative sanction without a hearing.
  5. Upon agreement of the sheriff and the director of the department of corrections, the probationer, parolee or conditional releasee may be maintained at the county jail at an agreed per diem rate to be paid by the department. The department shall pay for any medical treatment of the probationer, parolee or conditional releasee, other than for conditions demanding immediate medical attention which can be treated at the county jail for which the county is liable under W.S. 18-6-303(c)(i). Except for emergency medical treatment, no treatment which is the responsibility of the department under this subsection shall be provided without the prior approval of the department.
  6. If any civil action is brought against any sheriff, his undersheriff, deputy, agent or employee, by reason of acts committed or allegedly committed in the performance of necessary duties in connection with the housing and care of a probation, parole or conditional release violator under this section, the state shall indemnify and hold harmless the officers, agents or employees from all civil liability incurred or adjudged except punitive damage awards. Upon request, the state shall provide legal counsel at the state’s expense to assist in the defense of any action referred to in this subsection.
  7. Probationers, parolees and conditional releasees committed to the county jail or a residential community correctional program pursuant to this section shall be housed in accordance with subsection (e) of this section or W.S. 7-18-115(b).

History. Laws 2019, ch. 116, § 1.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Effective date. —

Laws 2019, ch. 116 § 8, makes the act effective July 1, 2019.

Chapter 14 Remedy for Violation of Constitutional Rights

Chapter applicable to double jeopardy claims. —

Prisoner's double jeopardy claim should have been asserted through a petition for post-conviction relief pursuant to this chapter, and invoking Rule 35(a), W.R. Cr. P., by a motion for correction of an illegal sentence was an inefficacious method of seeking relief. DeSpain v. State, 865 P.2d 584, 1993 Wyo. LEXIS 185 (Wyo. 1993).

Consolidated petition for post-conviction relief and habeas corpus, filed in the district court of the county of trial and dismissed by the trial judge, was treated by the supreme court as a petition for post-conviction relief for the following reasons: (1) the court's judgment could not be impeached by a writ of habeas corpus; (2) the court in habeas corpus was not authorized to grant a new trial; (3) all issues which could have been raised in a habeas proceeding were raised in the petition for post-conviction relief; and (4) no appeal lay from the denial of the habeas petition. State ex rel. Hopkinson v. District Court, 696 P.2d 54, 1985 Wyo. LEXIS 455 (Wyo.), cert. denied, 474 U.S. 865, 106 S. Ct. 187, 88 L. Ed. 2d 155, 1985 U.S. LEXIS 4988 (U.S. 1985).

Cited in

Escobedo v. State, 601 P.2d 1028, 1979 Wyo. LEXIS 499 (Wyo. 1979); Hamill v. Ferguson, 937 F. Supp. 1517, 1996 U.S. Dist. LEXIS 17115 (D. Wyo. 1996).

Law reviews. —

For comment, “Post Conviction Relief: Do It Once, Do It Right and Be Done With It,” see XXIV Land & Water L. Rev. 473 (1989).

§ 7-14-101. Definition of “this act”; commencement and conduct of proceedings.

  1. As used in W.S. 7-14-101 through 7-14-108 “this act” means W.S. 7-14-101 through 7-14-108 .
  2. Any person serving a felony sentence in a state penal institution who asserts that in the proceedings which resulted in his conviction or sentence there was a substantial denial of his rights under the constitution of the United States or of the state of Wyoming, or both, may institute proceedings under this act. The proceeding shall be commenced by filing with the clerk of the court where the conviction occurred a petition verified by affidavit. A copy of the petition shall be served by the inmate on the Wyoming attorney general by mail or by some other method reasonably calculated to assure prompt and verifiable service. The clerk shall docket the petition upon receipt and bring it promptly to the attention of the court.
  3. Unless otherwise inconsistent with the provisions of this act, proceedings under this act shall be conducted pursuant to the Wyoming Rules of Civil Procedure and the Wyoming Rules of Evidence, except:
    1. Any evidentiary hearing shall be conducted before the court without a jury; and
    2. Rules 3, 4, 14, 22, 23, 24, 38, 39, 40.1, 42, 47, 48, 51, 55, 59 and 64 through 71.1 of the Wyoming Rules of Civil Procedure shall not apply to proceedings under this act.

History. Laws 1961, ch. 63, § 1; W.S. 1957, § 7-408.1; Laws 1987, ch. 157, § 3; 1988, ch. 46, § 1; 2018, ch. 77, § 2.

The 2018 amendment, in (b), inserted “or sentence” following “his conviction” in the first sentence, and substituted “by mail or by some other method reasonably calculated to assure prompt and verifiable service” for “by certified or registered mail.”

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

Cross references. —

As to attorney general, see § 9-1-601 et seq.

For the Wyoming Rules of Civil Procedure and Wyoming Rules of Evidence, see the Wyoming Court Rules Annotated.

Hearing not required in every case. —

This section merely permits the court to hold an evidentiary hearing in the event it deems a hearing is necessary; the statute does not require that a hearing be held in every case. Smizer v. State, 835 P.2d 334, 1992 Wyo. LEXIS 87 (Wyo. 1992).

An evidentiary hearing is necessary when the court cannot adequately review the issues by relying upon the record alone. Smizer v. State, 835 P.2d 334, 1992 Wyo. LEXIS 87 (Wyo. 1992).

District court without jurisdiction to hear appeal. —

Except where there has been a remand following an appeal in a criminal case, or where one of the statutes or rules, Wyo. Stat. Ann. § 1-27-101 et seq., Wyo. Stat. Ann. § 7-14-101 through 7-14-108 , Wyo. R. Crim. P. 35, otherwise expressly permits a district court to continue to assert jurisdiction over that criminal case, no authority exists for the district court to act in the case and its jurisdiction over the case should end. Barela v. State, 2002 WY 143, 55 P.3d 11, 2002 Wyo. LEXIS 168 (Wyo. 2002).

Remedy of post-conviction relief is afforded to persons imprisoned in penitentiary. Therefore, since appellant was not imprisoned in the penitentiary at the time of filing his petition nor was he in constructive custody of the state of Wyoming, he having been discharged from probation, the district court was without jurisdiction under the post-conviction relief statute to entertain or decide appellant's petition. Diefenderfer v. State, 745 P.2d 556, 1987 Wyo. LEXIS 535 (Wyo. 1987).

Section does not afford relief from alleged errors for which remedies were available before and during the original trial. Johnson v. State, 592 P.2d 285, 1979 Wyo. LEXIS 383 (Wyo.), cert. denied, 442 U.S. 932, 99 S. Ct. 2864, 61 L. Ed. 2d 300, 1979 U.S. LEXIS 2095 (U.S. 1979).

Post-conviction petition not appeal substitute. —

This section does not give a defendant the right to have the case tried over and may not be employed as a substitute for an appeal. Johnson v. State, 592 P.2d 285, 1979 Wyo. LEXIS 383 (Wyo.), cert. denied, 442 U.S. 932, 99 S. Ct. 2864, 61 L. Ed. 2d 300, 1979 U.S. LEXIS 2095 (U.S. 1979).

Applicability to sentencing proceeding. —

Inmate's claim on his petition seeking postconviction relief that he was prejudiced pursuant to W.R.E. 404(b) by admission of evidence concerning his prior crimes, including victim impact evidence as to those crimes, during the sentencing phase of his trial was waived under Wyo. Stat. Ann. § 7-14-103(a)(i) when it was not raised on direct appeal. Furthermore, this section clearly confines the state supreme court's role under the post-conviction relief act to those proceedings that resulted in a conviction, and not to sentencing proceedings. Harlow v. State, 2005 WY 12, 105 P.3d 1049, 2005 Wyo. LEXIS 14 (Wyo.), cert. denied, 546 U.S. 835, 126 S. Ct. 63, 163 L. Ed. 2d 90, 2005 U.S. LEXIS 6229 (U.S. 2005).

Appropriate double jeopardy remedy. —

A motion under Rule 35(a), W.R.Cr.P. is not the proper remedy by which to assert a violation of double jeopardy protections. Upon exhaustion of the right to directly appeal from conviction, post-conviction relief provided in §§ 7-14-101 through 7-14-108 is the only proper method of gaining relief on a double jeopardy claim. Birr v. State, 878 P.2d 515, 1994 Wyo. LEXIS 87 (Wyo. 1994).

Appeal proper remedy for irregularities evident in record. —

Where the issues raised by appellant relate only to claimed irregularities at trial are not of constitutional dimensions, they are matters which are evident in the record and which could and should have been raised in an appeal. Munoz v. Maschner, 590 P.2d 1352, 1979 Wyo. LEXIS 375 (Wyo. 1979).

Claim that defendant charged with wrong offense not properly raised. —

A defendant's claim that he should have been charged with unauthorized use of an automobile, and not felony larceny, was not properly raised in a proceeding for post-conviction relief. Such a claim should have been raised in a direct appeal from his conviction. Morgan v. State, 708 P.2d 1244, 1985 Wyo. LEXIS 606 (Wyo. 1985).

Failure to raise on appeal issue that sentence was disproportionate to crimes for which defendant was convicted is a bar to its being raised in a post-conviction relief proceeding. Pote v. State, 733 P.2d 1018, 1987 Wyo. LEXIS 406 (Wyo. 1987).

Failure to file direct appeal did not bar petition. —

Issues not raised on direct appeal, generally, would have been procedurally defaulted pursuant to Wyo. Stat. Ann. § 7-14-103(a)(i), however, a district court abrogated its duty to protect petitioner's right to appeal by failing to advise him of his right to appeal his conviction as mandated by Wyo. R. Crim. P. 32(c)(3); thus, where the court undermined petitioner's ability to take a timely direct appeal, petitioner's failure to appeal could not be relied upon as grounds for summarily dismissing his petition for post-conviction relief pursuant to this section. Hauck v. State, 2007 WY 113, 162 P.3d 512, 2007 Wyo. LEXIS 121 (Wyo. 2007).

Constitutional issues relating to guilt were cognizable. —

Issue whether petitioner was given appropriate credit on his sentence for time served was not cognizable in a post-conviction relief action pursuant to this section; however, petitioner's other claims fell outside the scope of § 7-14-101(b), and his challenges to his competency, his Sixth Amendment right to counsel, the use of restraints at trial, and prosecutorial misconduct all implicated constitutional protections. were related to the finding of guilt, and thus were to be considered on remand. Hauck v. State, 2007 WY 113, 162 P.3d 512, 2007 Wyo. LEXIS 121 (Wyo. 2007).

Post-conviction relief will be granted only in extraordinary circumstances where there is a likelihood that without some deprivation of constitutional rights the defendant would not have been found guilty, and the probability of a miscarriage of justice is strong. Johnson v. State, 592 P.2d 285, 1979 Wyo. LEXIS 383 (Wyo.), cert. denied, 442 U.S. 932, 99 S. Ct. 2864, 61 L. Ed. 2d 300, 1979 U.S. LEXIS 2095 (U.S. 1979); Hoggatt v. State, 606 P.2d 718, 1980 Wyo. LEXIS 237 (Wyo. 1980).

Post-conviction relief is an extraordinary authorization to seek relief under circumstances which suggest a “miscarriage of justice.” The substance of a fair trial must be missing in order to justify its application. Murray v. State, 776 P.2d 206, 1989 Wyo. LEXIS 157 (Wyo. 1989).

Nolo contendere plea. —

The defendant, who pleaded nolo contendere to charges of obtaining money by false pretenses and with intent to defraud, and who failed to present any claims for post-conviction relief which raised any jurisdictional defects, had no viable claim for relief in post-conviction proceedings. Martin v. State, 780 P.2d 1354, 1989 Wyo. LEXIS 210 (Wyo. 1989).

Plea withdrawals. —

Where defendant entered nolo contendere pleas to operating an unlawful clandestine laboratory operation and possession of a controlled substance, the state failed to uphold the provision in the plea agreement promising that defendant would not be charged with federal firearms crimes; because the sentence and judgment had already been imposed, the district court had no jurisdiction over defendant's motion to withdraw his guilty plea, and the proper avenue for presenting a challenge to defendant's conviction was by way of post-conviction relief under this section. Brown v. State, 2008 WY 9, 175 P.3d 1158, 2008 Wyo. LEXIS 10 (Wyo. 2008).

Plea agreement procedure. —

A petition for post-conviction relief was properly dismissed, where, although the trial court did not comply with Rule 11(e), W.R.Cr.P. (plea agreement procedure), at a change of plea proceeding, the court discharged its constitutional obligations and duties to the accused. Gist v. State, 768 P.2d 1054, 1989 Wyo. LEXIS 53 (Wyo. 1989).

Scope of inquiry. —

The inquiry under this section is limited to a determination of whether or not the defendant was denied the right to be represented by counsel, to have witnesses and to have a fair opportunity to prepare and present his defense. Johnson v. State, 592 P.2d 285, 1979 Wyo. LEXIS 383 (Wyo.), cert. denied, 442 U.S. 932, 99 S. Ct. 2864, 61 L. Ed. 2d 300, 1979 U.S. LEXIS 2095 (U.S. 1979).

Stand-alone claim of ineffective assistance of appellate counsel is not cognizable under this section because post-conviction relief is limited to the alleged denial of constitutional rights during the proceedings which resulted in conviction. Schreibvogel v. State, 2012 WY 15, 269 P.3d 1098, 2012 Wyo. LEXIS 16 (Wyo. 2012).

Unconstitutional sentencing. —

A claimed constitutional error concerning sentencing cannot be reached under Wyoming post-conviction relief statutes, since the violation does not occur in the proceeding that resulted in defendant's conviction. Whitney v. State, 745 P.2d 902, 1987 Wyo. LEXIS 538 (Wyo. 1987).

Claim that convict's sentence is illegal cannot be raised in a proceeding initiated pursuant to this chapter. Schuler v. State, 771 P.2d 1217, 1989 Wyo. LEXIS 97 (Wyo. 1989).

No error in acceptance of Alford plea. —

There was no abuse of discretion in the district court's implicit finding that defendant failed to show any error in the court's acceptance of his Alford plea, let alone manifest injustice. Duran v. State, 949 P.2d 885, 1997 Wyo. LEXIS 158 (Wyo. 1997).

Claim of ineffective assistance of counsel. —

Defendant's claim of ineffective assistance of his appellate counsel, for failure to raise the issue of ineffective assistance of his trial counsel, requires that an evidentiary hearing be held to determine whether his trial counsel rendered effective representation. Smizer v. State, 835 P.2d 334, 1992 Wyo. LEXIS 87 (Wyo. 1992).

Where a claim of ineffective assistance of counsel has been raised and decided against the appellant in his direct appeal, he may not raise a claim of ineffective assistance of counsel, based upon different allegations, in a petition for post-conviction relief because the claim is procedurally barred by this section. Therefore, a trial court did not err by dismissing a post-conviction relief petition where different allegations of ineffective assistance of counsel were raised on direct appeal and in the post-conviction petition. Schreibvogel v. State, 2012 WY 15, 269 P.3d 1098, 2012 Wyo. LEXIS 16 (Wyo. 2012).

Petitioner must present substantial claim with some specificity. —

Before a person seeking post conviction relief is entitled to an evidentiary hearing, he must present initially a substantial claim, and some specificity is required. Boggs v. State, 484 P.2d 711, 1971 Wyo. LEXIS 216 (Wyo. 1971).

Petition to be supported by something more than “information and belief.” —

A petition for post-conviction relief had to be supported by affidavits based on something more solid than “information and belief.” The court was justified in calling upon the petitioner to set out facts under oath to show how he could prove his allegations before granting an evidentiary hearing. State ex rel. Hopkinson v. District Court, 696 P.2d 54, 1985 Wyo. LEXIS 455 (Wyo.), cert. denied, 474 U.S. 865, 106 S. Ct. 187, 88 L. Ed. 2d 155, 1985 U.S. LEXIS 4988 (U.S. 1985).

Application is properly denied without hearing where it states only bald legal conclusions with no supporting factual allegations. Boggs v. State, 484 P.2d 711, 1971 Wyo. LEXIS 216 (Wyo. 1971).

In case where allegations of petition consisted principally of bald legal conclusions sans specificity, court properly denied petition after considering only the court file. Bibbins v. State, 696 P.2d 1300, 1985 Wyo. LEXIS 464 (Wyo. 1985).

But better practice to permit amendment of petition. —

Where there are insufficient factual allegations in support of an application to warrant an evidentiary hearing, it is usually better practice to permit the petitioner to amend his petition than to dismiss it. Boggs v. State, 484 P.2d 711, 1971 Wyo. LEXIS 216 (Wyo. 1971).

Petitioner's burden of proof. —

A petitioner seeking post-conviction relief has the burden of showing that he has been denied constitutional safeguards. Munoz v. Maschner, 590 P.2d 1352, 1979 Wyo. LEXIS 375 (Wyo. 1979); Hoggatt v. State, 606 P.2d 718, 1980 Wyo. LEXIS 237 (Wyo. 1980).

Where the error complained of in a post-conviction proceeding is characterized as a violation of procedural due process, a showing must be made by the petitioner that a protected liberty has been affected. Hoggatt v. State, 606 P.2d 718, 1980 Wyo. LEXIS 237 (Wyo. 1980).

Proper motion for dismissal. —

A post conviction action was properly dismissed on motion reciting: (1) the petition failed to state a cause of action, and (2) all issues presented had been raised on an appeal to the supreme court and fully adjudicated. Kennedy v. State, 443 P.2d 138, 1968 Wyo. LEXIS 179 (Wyo. 1968).

Statutory five-year limitation is flexible and gives petitioner relief where he “alleges facts showing that the delay was not due to his own neglect.” Opie v. Meacham, 293 F. Supp. 647, 1968 U.S. Dist. LEXIS 8113 (D. Wyo. 1968), aff'd, 419 F.2d 465, 1969 U.S. App. LEXIS 9653 (10th Cir. Wyo. 1969).

Claims alleging a violation of double jeopardy are not cognizable under the language of Rule 35, W.R.Cr.P. Instead, such challenges must be brought as a petition for post-conviction relief under this chapter. Parker v. State, 882 P.2d 1225, 1994 Wyo. LEXIS 122 (Wyo. 1994).

Applied in

Owens v. State, 398 P.2d 556, 1965 Wyo. LEXIS 120 (Wyo. 1965); Teton v. State, 482 P.2d 123, 1971 Wyo. LEXIS 204 (Wyo. 1971); Collingwood v. State, 493 P.2d 1048, 1972 Wyo. LEXIS 226 (Wyo. 1972).

Quoted in

Opie v. Meacham, 419 F.2d 465, 1969 U.S. App. LEXIS 9653 (10th Cir. 1969); Albert v. State, 466 P.2d 826, 1970 Wyo. LEXIS 159 (Wyo. 1970); York v. State, 619 P.2d 391, 1980 Wyo. LEXIS 321 (Wyo. 1980); Alberts v. State, 745 P.2d 898, 1987 Wyo. LEXIS 539 (Wyo. 1987); Osborn v. Shillinger, 861 F.2d 612, 1988 U.S. App. LEXIS 14834 (10th Cir. 1988).

Stated in

Boyd v. State, 747 P.2d 1143, 1987 Wyo. LEXIS 573 (Wyo. 1987); Parkhurst v. Shillinger, 128 F.3d 1366, 1997 U.S. App. LEXIS 29095 (10th Cir. 1997).

Cited in

Albert v. Meacham, 458 P.2d 728, 1969 Wyo. LEXIS 158 , 41 A.L.R.3d 1115 (Wyo. 1969); Cox v. State, 494 P.2d 541, 1972 Wyo. LEXIS 232 (Wyo. 1972); Fondren v. State, 749 P.2d 767 (Wyo. 1988); Smith v. State, 902 P.2d 1271, 1995 Wyo. LEXIS 161 (Wyo. 1995); Weldon v. Wyoming Dep't of Cors., 963 F. Supp. 1098, 1997 U.S. Dist. LEXIS 6606 (D. Wyo. 1997); Harlow v. State, 2003 WY 69, — P.3d —, 2003 Wyo. LEXIS 86 (Wyo. May 29, 2003); Amin v. State, 2006 WY 84, 138 P.3d 1143, 2006 Wyo. LEXIS 91 (2006); Smith v. State, 2008 WY 98, 190 P.3d 522, 2008 Wyo. LEXIS 101 (Aug. 19, 2008); Neidlinger v. State, 2010 WY 54, 230 P.3d 306, 2010 Wyo. LEXIS 59 (Apr. 27, 2010); Stanton v. Wyoming Ag, — F.3d —, 2010 U.S. App. LEXIS 21199 (Oct. 14, 2010).

Law reviews. —

For article, “Post Conviction Remedies,” see XIX Wyo. L.J. 213 (1965).

For comment, “Disqualification of District Judges in Wyoming: An Assessment of the Revised Rules,” see XIX Land & Water L. Rev. 655 (1984).

§ 7-14-102. Contents of petition.

  1. The petition shall state:
    1. The proceeding in which the petitioner was convicted;
    2. The date of the rendition of the final judgment;
    3. The facts which show the petitioner’s constitutional rights were violated; and
    4. Any previous proceedings in which the petitioner has been involved to secure relief from his conviction.
  2. The petition shall be accompanied by affidavits, records or other evidence supporting the allegations or shall state why the same are not attached.
  3. The petition may contain argument, citations and discussion of authorities.

History. Laws 1961, ch. 63, § 2; W.S. 1957, § 7-408.2; Laws 1987, ch. 157, § 3.

Supporting documents required to create entitlement to evidentiaryhearing. —

A petition for post-conviction relief was a continuation of the criminal case and not a civil action, and it was not appropriate to apply the Wyoming Rules of Civil Procedure to the extent urged. Specifically, the filing of the petition was not, in itself, sufficient to create entitlement to an evidentiary hearing; supporting documents were required to be attached. State ex rel. Hopkinson v. District Court, 696 P.2d 54, 1985 Wyo. LEXIS 455 (Wyo.), cert. denied, 474 U.S. 865, 106 S. Ct. 187, 88 L. Ed. 2d 155, 1985 U.S. LEXIS 4988 (U.S. 1985).

And affidavits to be supported by something more than “informationand belief.” —

A petition for post-conviction relief had to be supported by affidavits based on something more solid than “information and belief.” The court was justified in calling upon the petitioner to set out facts under oath to show how he could prove his allegations before granting an evidentiary hearing. State ex rel. Hopkinson v. District Court, 696 P.2d 54, 1985 Wyo. LEXIS 455 (Wyo.), cert. denied, 474 U.S. 865, 106 S. Ct. 187, 88 L. Ed. 2d 155, 1985 U.S. LEXIS 4988 (U.S. 1985).

Applied in

Pote v. State, 733 P.2d 1018, 1987 Wyo. LEXIS 406 (Wyo. 1987); Stogner v. State, 792 P.2d 1358, 1990 Wyo. LEXIS 58 (Wyo. 1990).

Quoted in

Long v. State, 745 P.2d 547, 1987 Wyo. LEXIS 542 (Wyo. 1987); Osborn v. Shillinger, 861 F.2d 612, 1988 U.S. App. LEXIS 14834 (10th Cir. 1988).

Cited in

Harlow v. State, 2005 WY 12, 105 P.3d 1049, 2005 Wyo. LEXIS 14 (2005).

§ 7-14-103. Claims barred; applicability of act.

  1. A claim under this act is procedurally barred and no court has jurisdiction to decide the claim if the claim:
    1. Could have been raised but was not raised in a direct appeal from the proceeding which resulted in the petitioner’s conviction;
    2. Was not raised in the original or an amendment to the original petition under this act; or
    3. Was decided on its merits or on procedural grounds in any previous proceeding which has become final.
  2. Notwithstanding paragraph (a)(i) of this section, a court may hear a petition based on any of the following:
    1. The petitioner sets forth facts supported by affidavits or other credible evidence which was not known or reasonably available to him at the time of a direct appeal;
    2. The court finds from a review of the trial and appellate records that the petitioner’s appellate counsel provided constitutionally ineffective assistance by failing to assert a claim that was likely to result in a reversal of the petitioner’s conviction or sentence on his direct appeal. This finding may be reviewed by the supreme court together with any further action of the district court taken on the petition; or
    3. The petitioner was represented by the same attorney in the trial and appellate courts.
  3. This act does not apply to claims of error or denial of rights in any proceeding:
    1. For the revocation of probation or parole;
    2. Provided by statute or court rule for new trial, sentence reduction, sentence correction or other post-verdict motion.
  4. No petition under this act shall be allowed if filed more than five (5) years after the judgment of conviction was entered.

History. Laws 1961, ch. 63, § 3; W.S. 1957, § 7-408.3; Laws 1987, ch. 157, § 3; 1988, ch. 46, § 1; 1989, ch. 17, § 1; 2018, ch. 77, § 2.

The 2018 amendment, in (b), substituted “petition based on any of the following” for “petition if”; in (b)(ii), rewrote the first sentence, which read: “The court makes a finding that the petitioner was denied constitutionally effective assistance of counsel on his direct appeal”; added (b)(iii); and made stylistic changes.

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-14-101(a).

Issues not decided, but not raised, barred. —

Any issues which were not previously decided, but which were not raised in a previous petition, were barred by this section or were not properly matters for consideration under a Rule 35(a), W.R.Cr.P. motion to correct an illegal sentence. Brown v. State, 894 P.2d 597, 1995 Wyo. LEXIS 62 (Wyo. 1995).

Claim of ineffective assistance of counsel. —

Defendant's claim of ineffective assistance of his appellate counsel, for failure to raise the issue of ineffective assistance of his trial counsel, requires that an evidentiary hearing be held to determine whether his trial counsel rendered effective representation. Smizer v. State, 835 P.2d 334, 1992 Wyo. LEXIS 87 (Wyo. 1992).

In a 28 U.S.C.S. § 2254 case in which a pro se state inmate asserted that he was eligible for equitable tolling, the Martinez decision, which applied Arizona law, was distinguishable. Unlike Arizona, Wyoming did not prohibit a defendant from bringing an ineffective assistance claim on direct appeal. 2013 U.S. App. LEXIS 9749.

Ineffective assistance claim procedurally barred. —

Issues raised by the petitioner and phrased in terms of constitutional infirmities, based on a theme of ineffective assistance of trial counsel, were procedurally barred. Amin v. State, 774 P.2d 597, 1989 Wyo. LEXIS 129 (Wyo. 1989).

Unpublished decision: Because petitioner failed to demonstrate “cause” for the procedural default in state court of his ineffective assistance of counsel claim (petitioner's argument that nothing in the cold trial record would have indicated to the appellate counsel that the trial counsel had not investigated the defendant's mental deficiencies was waived because he had not raised it before the district court), reasonable jurists could not have debated the correctness of the district court's decision to dismiss the claim as procedurally barred. Rawle v. Wyo. Dep't of Corr. State Penitentiary Warden, 390 Fed. Appx. 769, 2010 U.S. App. LEXIS 16285 (10th Cir. Wyo. 2010).

Petitioner's claims that he was denied his sixth amendment right to have compulsory process for obtaining witnesses and that he had ineffective assistance of counsel were procedurally barred, where the issues were presented to the district court with the aid of appointed counsel who was not the same attorney that assisted petitioner in either his trial or in his direct appeal. Campbell v. State, 772 P.2d 543, 1989 Wyo. LEXIS 101 (Wyo. 1989).

Where prior sexual conduct evidence was held inadmissible due to remoteness as well as untimeliness, and the defendant's counsel stated an experienced investigator had been used to inquire into the victim's background but was unable to uncover any evidence of prostitution, evidence that the defendant claimed existed, the defendant failed to demonstrate facts which occurred at his trial that supported his claim of ineffective assistance of counsel, or that counsel improperly failed to raise errors made at trial. Stogner v. State, 792 P.2d 1358, 1990 Wyo. LEXIS 58 (Wyo. 1990).

Petitioner's failure to raise his claim of ineffective assistance of appellate counsel in his state postconviction petition within the time required by this section procedurally defaulted that claim, and a federal court would not entertain that claim. Parkhurst v. Shillinger, 128 F.3d 1366, 1997 U.S. App. LEXIS 29095 (10th Cir. Wyo. 1997).

Where a claim of ineffective assistance of counsel has been raised and decided against the appellant in his direct appeal, he may not raise a claim of ineffective assistance of counsel, based upon different allegations, in a petition for post-conviction relief because the claim is procedurally barred by this section. Therefore, a trial court did not err by dismissing a post-conviction relief petition where different allegations of ineffective assistance of counsel were raised on direct appeal and in the post-conviction petition. Schreibvogel v. State, 2012 WY 15, 269 P.3d 1098, 2012 Wyo. LEXIS 16 (Wyo. 2012).

Jurisdictional exception for the consideration of ineffective assistance of appellate counsel provided in this section is limited to situations where a claim could have been raised but was not raised in the direct appeal, as addressed by this section. Schreibvogel v. State, 2012 WY 15, 269 P.3d 1098, 2012 Wyo. LEXIS 16 (Wyo. 2012).

Stand-alone claim of ineffective assistance of appellate counsel is not cognizable under this section because post-conviction relief is limited to the alleged denial of constitutional rights during the proceedings which resulted in conviction. Schreibvogel v. State, 2012 WY 15, 269 P.3d 1098, 2012 Wyo. LEXIS 16 (Wyo. 2012).

Ineffective assistance claim not procedurally barred. —

Petitioner's ineffective assistance of counsel claim was not procedurally barred from being raised for the first time on a petition for post-conviction review because he was represented by the same law firm at both trial and on appeal, and therefore the petitioner did not truly have an opportunity to make an ineffective assistance of trial counsel claim on direct appeal. Keats v. State, 2005 WY 81, 115 P.3d 1110, 2005 Wyo. LEXIS 95 (Wyo. 2005).

Issues not procedurally barred where right to appeal was compromised. —

Issues not raised on direct appeal, generally, would have been procedurally defaulted pursuant to this section, however, a district court abrogated its duty to protect petitioner's right to appeal by failing to advise him of his right to appeal his conviction as mandated by Wyo. R. Crim. P. 32(c)(3); thus, where the court undermined petitioner's ability to take a timely direct appeal, petitioner's failure to appeal could not be relied upon as grounds for summarily dismissing his petition for post-conviction relief pursuant to Wyo. Stat. Ann. § 7-14-101(b). Hauck v. State, 2007 WY 113, 162 P.3d 512, 2007 Wyo. LEXIS 121 (Wyo. 2007).

Second petition raising same issues not considered. —

Since issues raised in the most recent petition which were heard in the first postconviction proceeding are res judicata, petitioner is not entitled to have a second postconviction petition considered. Bibbins v. State, 741 P.2d 115, 1987 Wyo. LEXIS 492 (Wyo. 1987).

Decided issues may not be relitigated. —

Motion to correct an illegal sentence did not permit a defendant to relitigate an issue which had already been considered and decided as those issues were governed by the law of the case and could not be raised in subsequent motions under Wyo. R. Crim. P. 35(a). Accordingly, the district court did not err in denying defendant relief. Brown v. State, 2004 WY 119, 99 P.3d 489, 2004 Wyo. LEXIS 156 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 182 (Wyo. Nov. 16, 2004), cert. denied, 544 U.S. 966, 125 S. Ct. 1743, 161 L. Ed. 2d 612, 2005 U.S. LEXIS 3057 (U.S. 2005).

Claims not raised on direct appeal waived. —

Inmate's claim on his petition seeking postconviction relief that he was prejudiced pursuant to W.R.E. 404(b) by admission of evidence concerning his prior crimes, including victim impact evidence as to those crimes, during the sentencing phase of his trial was waived under this section when it was not raised on direct appeal. Furthermore, Wyo. Stat. Ann. § 7-14-101(b) clearly confines the state supreme court's role under the post-conviction relief act to those proceedings that resulted in a conviction, and not to sentencing proceedings. Harlow v. State, 2005 WY 12, 105 P.3d 1049, 2005 Wyo. LEXIS 14 (Wyo.), cert. denied, 546 U.S. 835, 126 S. Ct. 63, 163 L. Ed. 2d 90, 2005 U.S. LEXIS 6229 (U.S. 2005).

Because Wyoming applies a procedural bar to claims that could have been raised on direct appeal but were not, pursuant to Wyo. Stat. Ann. § 7-14-103(a), the United States Court of Appeals for the Tenth Circuit can reach such a claim's merits only if a habeas petitioner demonstrates cause and prejudice or a fundamental miscarriage of justice. Belden v. Wyo. Dep't of Corr., 251 Fed. Appx. 512, 2007 U.S. App. LEXIS 24249 (10th Cir. Wyo. 2007), cert. denied, 552 U.S. 1281, 128 S. Ct. 1733, 170 L. Ed. 2d 516, 2008 U.S. LEXIS 2905 (U.S. 2008).

Where defendant did not raise all constitutional claims in first postconviction petition, did not seek to amend that petition before it was ruled upon and, after its denial, did not appeal, the issues raised in that petition were res judicata and a second postconviction petition would not be allowed. Boyd v. State, 747 P.2d 1143, 1987 Wyo. LEXIS 573 (Wyo. 1987).

Statute of limitations provision not unconstitutional. —

Five-year statute of limitations contained in this section did not violate equal protection clause of United States Constitution, and state relied upon an adequate state ground to establish defendant's procedural default. Phillips v. Ferguson, 182 F.3d 769, 1999 U.S. App. LEXIS 14908 (10th Cir. Wyo. 1999).

Untimeliness of petition barred consideration. —

Even if a former inmate's pro se “petition to show cause why judgment was not void '' were to be construed as a motion for postconviction relief, the former inmate was too late in the request, where the former inmate filed the petition more than five years after he had been convicted. Taylor v. State, 2003 WY 97, 74 P.3d 1236, 2003 Wyo. LEXIS 118 (Wyo. 2003).

Without any facts to indicate that the inmate could have filed a viable petition for post-conviction relief, the supreme court could not determine that the inmate had been injured by the expiration of the applicable statute of limitations under this section; thus, the inmate's complaint was properly dismissed as he did not allege an actual injury. Belden v. Lampert, 2011 WY 83, 251 P.3d 325, 2011 Wyo. LEXIS 84 (Wyo. 2011).

Applied in

Boggs v. State, 484 P.2d 711, 1971 Wyo. LEXIS 216 (Wyo. 1971); Murray v. State, 776 P.2d 206, 1989 Wyo. LEXIS 157 (Wyo. 1989); Swazo v. Shillinger, 932 F. Supp. 1350, 1996 U.S. Dist. LEXIS 16694 (D. Wyo. 1996).

Quoted in

Aden v. State, 761 P.2d 88, 1988 Wyo. LEXIS 114 (Wyo. 1988); Hamill v. Ferguson, 937 F. Supp. 1517, 1996 U.S. Dist. LEXIS 17115 (D. Wyo. 1996); Heinemann v. Murphy, 401 Fed. App. 304, 2010 U.S. App. LEXIS 21014 (Oct. 12, 2010).

Stated in

Neidlinger v. State, 2010 WY 54, 230 P.3d 306, 2010 Wyo. LEXIS 59 (Apr. 27, 2010).

Cited in

Kallas v. State, 776 P.2d 198, 1989 Wyo. LEXIS 153 (Wyo. 1989); Weldon v. Wyoming Dep't of Cors., 963 F. Supp. 1098, 1997 U.S. Dist. LEXIS 6606 (D. Wyo. 1997); Hamill v. State, 948 P.2d 1356, 1997 Wyo. LEXIS 144 (Wyo. 1997); Rathbun v. State, 2011 WY 116, 257 P.3d 29, 2011 Wyo. LEXIS 120 (Aug. 8, 2011).

§ 7-14-104. No right to appointed counsel.

  1. and (b) Repealed by Laws 1990, ch. 95, § 2.
  2. An indigent petitioner seeking relief under this act is not entitled to representation by the state public defender or by appointed counsel.

History. Laws 1963, ch. 63, § 4; W.S. 1957, § 7-408.4; Laws 1987, ch. 157, § 3; ch. 176, § 1; 1988, ch. 46, § 1; 1990, ch. 95, §§ 1, 2.

Cross references. —

As to right to assignment of counsel, see Rule 44, W.R. Cr. P.

Meaning of “this act.” —

For the definition of “this act,” referred to in subsection (c), see § 7-14-101(a).

Stated in

State ex rel. Hopkinson v. District Court, 696 P.2d 54, 1985 Wyo. LEXIS 455 (Wyo. 1985); Cutbirth v. State, 751 P.2d 1257, 1988 Wyo. LEXIS 28 (Wyo. 1988).

Cited in

Keats v. State, 2005 WY 81, 115 P.3d 1110, 2005 Wyo. LEXIS 95 (2005).

§ 7-14-105. Answer by state; withdrawal of petition; amendments and further pleadings.

  1. Within forty-five (45) days after being ordered to respond to the petition by the court, or within any further time as the court may fix, the attorney general on behalf of the state shall answer or move to dismiss the petition. No other or further pleadings shall be filed except as the court may order on its own motion or on that of either party.
  2. The court may grant leave to the petitioner, at any stage of the proceeding prior to entry of judgment, to withdraw the petition.
  3. The court may by order authorize:
    1. Amendment of the petition or any other pleadings;
    2. The filing of further pleadings; or
    3. An extension of the time for filing any further pleading other than the original petition.

History. Laws 1961, ch. 63, § 5; W.S. 1957, § 7-408.5; Laws 1987, ch. 157, § 3; 2018, ch. 77, § 2.

The 2018 amendment, in (a), substituted “Within forty-five (45) days after being ordered to respond to the petition by the court, or” for “Within thirty (30) days after filing the petition, or.”

Laws 2018, ch. 77, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2018.

Cross references. —

As to enlargement of time, see Rule 6(b), W.R.C.P.

As to additional pleadings, see Rule 7(a), W.R.C.P.

As to amended and supplemental pleadings, see Rule 15, W.R.C.P.

Where defendant did not raise all constitutional claims in first post-conviction petition, did not seek to amend that petition before it was ruled upon and, after its denial, did not appeal, the issues raised in that petition were res judicata and a second post-conviction petition would not be allowed. Boyd v. State, 747 P.2d 1143, 1987 Wyo. LEXIS 573 (Wyo. 1987).

Quoted in

Schuler v. State, 771 P.2d 1217, 1989 Wyo. LEXIS 97 (Wyo. 1989).

Cited in

Fondren v. State, 749 P.2d 767 (Wyo. 1988).

§ 7-14-106. Evidence received by court; orders entered upon favorable finding; contents of final judgment or order.

  1. The court may, if it determines it to be necessary, receive proof by affidavits, deposition, oral testimony or other evidence and may order the petitioner brought before the court for the hearing.
  2. If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and any supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.
  3. The final judgment or order on a petition under this act shall state the basis for the court’s decision and may contain findings of fact and conclusions of law.

History. Laws 1961, ch. 63, § 6; W.S. 1957, § 7-408.6; Laws 1987, ch. 157, § 3; 1988, ch. 46, § 1.

Cross references. —

For Wyoming Rules of Evidence, see the Wyoming Court Rules Annotated.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-14-101(a).

In appropriate cases court may act on petition, considering only court file. This chapter does not mandate a formal hearing nor does it require that a petitioner be brought back into court for a hearing, nor that oral testimony, depositions, affidavits or other evidence be produced; these depend on the circumstances of each case. Bibbins v. State, 696 P.2d 1300, 1985 Wyo. LEXIS 464 (Wyo. 1985).

There was no abuse of discretion in holding of post-conviction hearing without the defendant being physically present, where relief was resolved on the files and records in the trial court. Matlack v. State, 695 P.2d 635, 1985 Wyo. LEXIS 448 (Wyo.), cert. denied, 472 U.S. 1030, 105 S. Ct. 3508, 87 L. Ed. 2d 638, 1985 U.S. LEXIS 2327 (U.S. 1985).

Evidentiary hearing not required. —

The trial judge did not abuse his discretion by not affording defendant an evidentiary hearing since defendant's petition was comprised of naked allegations and conclusions unsupported by depositions or affidavits and defendant did not explain how his allegations could be proven. Pote v. State, 733 P.2d 1018, 1987 Wyo. LEXIS 406 (Wyo. 1987).

Applied in

State ex rel. Hopkinson v. District Court, 696 P.2d 54, 1985 Wyo. LEXIS 455 (Wyo. 1985).

§ 7-14-107. Appellate review.

Any final judgment or order entered upon a petition under this act may be reviewed by the supreme court on writ of certiorari upon the petition of either party pursuant to the Wyoming Rules of Appellate Procedure.

History. Laws 1961, ch. 63, § 7; W.S. 1957, § 7-408.7; Laws 1987, ch. 157, § 3; 1988, ch. 46, § 1.

Cross references. —

For Wyoming Rules of Appellate Procedure, see the Wyoming Court Rules Annotated.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-14-101(a).

Review of illegal sentence.

Appellate court could not review defendant's claim that the judgment and sentence entered after he pleaded guilty were illegal under this section due to the fact that he was not advised that his guilty pleas could result in the disqualification of his right to possess firearms pursuant to federal law because he raised it for the first time on appeal; moreover, even if the claim had been raised before the district court, it would have been barred by res judicata because the claim could have been raised on direct appeal and in defendant's petition for post-conviction relief. Lunden v. State, 2013 WY 35, 2013 Wyo. LEXIS 39 (Mar 20, 2013).

Only petitions in correct form considered. —

Final judgments or orders of a district court entered upon petitions filed pursuant to this chapter will be considered in the supreme court only if they are in the form required by Rule 13, W.R.A.P. Such petitions may be accompanied by a request that counsel be appointed. Smizer v. State, 763 P.2d 1254, 1988 Wyo. LEXIS 140 (Wyo. 1988).

State prisoner's Fed. R. Civ. P. 60(b)(1) motion was properly denied because the record made clear that his § 2254 petition was not timely filed under 28 U.S.C.S. § 2244(d) in that the district court properly included the entire time from the filing of the state postconviction motion to the eventual denial of certiorari of his conviction for bribery under Wyo. Stat. Ann. § 6-5-102(a). An additional 45-days of statutory tolling was not required because the prisoner's appeal of the denial of postconviction relief was not the procedurally proper manner to seek review pursuant to Wyo. Stat. Ann. § 7-14-107 and Wyo. R. App. P. 13.01(a). Stanton v. Wyoming Ag, 2010 U.S. App. LEXIS 21199 (Oct. 14, 2010).

Applied in

State ex rel. Hopkinson v. District Court, 696 P.2d 54, 1985 Wyo. LEXIS 455 (Wyo. 1985).

Cited in

Osborn v. Shillinger, 861 F.2d 612, 1988 U.S. App. LEXIS 14834 (10th Cir. 1988); Duran v. State, 949 P.2d 885, 1997 Wyo. LEXIS 158 (Wyo. 1997); Saunders v. Hornecker, 2015 WY 34, 2015 Wyo. LEXIS 39 (Mar. 5, 2015).

§ 7-14-108. Existing statutory provisions.

W.S. 7-14-101 through 7-14-108 shall not repeal any existing laws.

History. Laws 1961, ch. 63, § 8; W.S. 1957, § 7-408.8; Laws 1987, ch. 157, § 3; 1988, ch. 46, § 1.

Cited in

Albert v. Meacham, 458 P.2d 728, 1969 Wyo. LEXIS 158 , 41 A.L.R.3d 1115 (Wyo. 1969); Albert v. State, 466 P.2d 826, 1970 Wyo. LEXIS 159 (Wyo. 1970); Smith v. State, 902 P.2d 1271, 1995 Wyo. LEXIS 161 (Wyo. 1995); Hauck v. State, 2007 WY 113, 162 P.3d 512, 2007 Wyo. LEXIS 121 (July 18, 2007).

Chapter 15 Interstate Detainers

§ 7-15-101. Another interstate compact.

The agreement on detainers is hereby enacted into law and entered into by the state of Wyoming with all other jurisdictions legally joining therein in the form substantially as follows: the contracting states solemnly agree that:

History. Laws 1971, ch. 171, § 1; W.S. 1957, § 7-408.9; Laws 1987, ch. 157, § 3.

Article I

The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trials of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

Article II

  1. As used in this agreement:
    1. “State” shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the commonwealth of Puerto Rico;
    2. “Sending state” shall mean a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to Article III hereof or at the time that a request for custody or availability is initiated pursuant to Article IV hereof;
    3. “Receiving state” shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV hereof.

Article III

  1. Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial at the next term of court after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
  2. The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
  3. The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
  4. Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner's request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner's written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
  5. Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
  6. Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in paragraph (a) hereof shall void the request.

Article IV

  1. The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further that there shall be a period of thirty (30) days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
  2. Upon receipt of the officer's written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
  3. In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
  4. Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
  5. If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Article V

  1. In response to a request made under Article III or Article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in Article III of this agreement. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner's presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.
  2. The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:
    1. Proper identification and evidence of his authority to act for the state into whose temporary custody the prisoner is to be given;
    2. A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.
  3. If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the periods provided by this act, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
  4. The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one (1) or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.
  5. At the earliest practicable time consonant with the purpose of this agreement, the prisoner shall be returned to the sending state.
  6. During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.
  7. For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
  8. From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one (1) or more untried indictments, informations or complaints are pending or in which trial is being had, shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing herein contained shall be construed to alter or affect any internal relationship among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor.

Article VI

  1. In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
  2. No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.

Article VII

Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.

Article VIII

This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect nor shall it affect their rights in respect thereof.

Article IX

This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstances is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the states affected as to all severable matters.

Cross references. —

As to escapes by prisoners, see §§ 6-5-206 and 6-5-207 .

Editor's notes. —

There is no subsection (b) in article II in this section as it appears in the printed acts.

Laws 1971, ch. 171, § 8, makes the act effective from and after passage. Approved February 27, 1971.

Agreement on detainers. —

See § 7-15-102(a)(ii), (b) and notes thereto.

Meaning of “this act.” —

For the definition of “this act,” referred to in article V(c), see § 7-15-102(a)(ii) and notes thereto.

Meaning of “this agreement.” —

For the definition of “this agreement,” referred to in articles I through III and V through IX, see § 7-15-102(a)(ii) and notes thereto.

Equal protection challenge. —

Inmate's equal protection rights under the Fourteenth Amendment and Wyo. Const. art. I, §§ 2, 34 were not violated when he was denied certain good time credit because the inmate was not similarly situated with other Wyoming prisoners where he had been transferred under the Interstate Agreement on Detainers, Wyo. Stat. Ann. § 7-15-101 et seq., to face charges, and then transferred back to Colorado; the inmate was not processed in Wyoming after his conviction. Even if the inmate had been similarly situated, there was still no violation because there was a rational basis for the differing treatment since the credit was a behavioral incentive for Wyoming inmates. Merchant v. State Dep't of Corr., 2007 WY 159, 168 P.3d 856, 2007 Wyo. LEXIS 171 (Wyo. 2007).

Agreement provides statutory, not constitutional, rights. —

The Interstate Agreement on Detainers is merely a statutory set of procedural rules that do not rise to the level of constitutionally guaranteed rights. Green v. State, 784 P.2d 1360, 1989 Wyo. LEXIS 254 (Wyo. 1989).

Statute subject to federal construction. —

Adopted as law by the state of Wyoming, the Interstate Agreement on Detainers is a congressionally sanctioned interstate compact within the compact clause, U.S. Const., art. I, § 10, cl. 3, and thus is a federal law subject to federal construction. Knox v. Wyoming Dep't of Corrections State Penitentiary, 34 F.3d 964, 1994 U.S. App. LEXIS 24093 (10th Cir. Wyo. 1994), cert. denied, 513 U.S. 1091, 115 S. Ct. 753, 130 L. Ed. 2d 652, 1995 U.S. LEXIS 295 (U.S. 1995).

Applicability. —

Wyo. Stat. Ann. § 7-15-101(a) applies whenever a person has entered upon a term of imprisonment and during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner. Odhinn v. State, 2003 WY 169, 82 P.3d 715, 2003 Wyo. LEXIS 204 (Wyo. 2003).

Because defendant's case in Wyoming was not resolved within 180 days of his request to have the charges against him in Wyoming resolved, his speedy trial rights were violated, and charges against him should have been dismissed as being in violation of the Interstate Agreement on Detainers. Odhinn v. State, 2003 WY 169, 82 P.3d 715, 2003 Wyo. LEXIS 204 (Wyo. 2003).

It is clear from the language of Wyo. Stat. Ann. § 7-15-101 that its speedy trial provisions apply exclusively to untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner; by its terms, the 180-day time period, and thus the dismissal requirement, is limited to pending charges upon which the detainer is based; there is nothing in the language of § 7-15-101 which mandates dismissal of non-detainer charges after 180 days, including those charges arising out of the same criminal transaction as the charges forming the basis for the detainer. The Supreme Court of Wyoming's review of § 7-15-101, coupled with decisions from other courts interpreting similar Interstate Agreement on Detainers' provisions, convinces the court that neither the 180-day time period in § 7-15-101, art. III(a) nor the dismissal provision in § 7-15-101, art. V(c) applies to non-detainer same transaction offenses. Layton v. State, 2007 WY 1, 150 P.3d 173, 2007 Wyo. LEXIS 1 (Wyo. 2007).

Applicability. —

District court properly denied defendant's motion to dismiss based on the speedy trial provisions of the Interstate Agreement on Detainers (IAD), Wyo. Stat. Ann. § 7-15-101 (2013), where defendant produced no evidence that prosecutors or law enforcement in Wyoming ever communicated with county jail officials or law enforcement in Texas or that the prosecutor did any of the things necessary to effect a transfer under Wyo. Stat. Ann. 7-15-101 , art. III or IV, and thus, no detainer was ever lodged and the IAD did not apply. Turner v. State, 2015 WY 29, 343 P.3d 801, 2015 Wyo. LEXIS 33 (Wyo. 2015).

Agreement on Detainers not violated. —

Allowing defendant's return to Weld County, Colorado before his trial in Wyoming facilitated an expeditious resolution of charges against him in Colorado, and purposes and policies behind Agreement on Detainers were thus supported and facilitated by defendant's temporary transfers; if anything, defendant was aided, not injured, and his request for dismissal of charges was therefore denied. Merchant v. State, 4 P.3d 184, 2000 Wyo. LEXIS 70 (Wyo. 2000).

Three-month delay for new judge reasonable. —

Following the original trial judge recusing himself for cause, a delay of almost three months for the new judge to assume charge of a proceeding and to decide pretrial motions was neither unexpected nor unreasonably lengthy. The 120-day time limit of article IV(c) was tolled during this period. Jones v. State, 813 P.2d 629, 1991 Wyo. LEXIS 105 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 119 (Wyo. July 11, 1991), cert. denied, 833 P.2d 540, 1992 Wyo. LEXIS 77 (Wyo. 1992); Knox v. State, 848 P.2d 1354, 1993 Wyo. LEXIS 50 (Wyo. 1993).

Dismissal for alleged violation of 180-day time period not warranted. —

Motion to dismiss a felony information was properly denied because the 180-day period under this section applied since defendant was the party who requested a disposition; moreover, he did not raise a timing issue until he filed an appellate brief. Defendant delayed Wyoming proceedings by 64 days by seeking a continuance of a preliminary hearing, and this delay was not unreasonable or not attributable to defendant; therefore, a jury trial was timely commenced in the 180-day period. Short v. State, 2009 WY 52, 205 P.3d 195, 2009 Wyo. LEXIS 53 (Wyo. 2009).

Processing of inmates. —

Under the Interstate Agreement on Detainers (IAD), Wyo. Stat. Ann. § 7-15-101 et seq., the scope of the receiving state's custody is carefully limited and designed to be “temporary” in nature, and an inmate remains under the jurisdiction of the sending state. Therefore, Wyoming was not required to process an inmate after he had been tried, sentenced, and returned to Colorado. Merch. v. State Dep't of Corr., 2007 WY 159, 168 P.3d 856, 2007 Wyo. LEXIS 171 (Oct. 10, 2007).

Applied in

Heffernan v. State, 824 P.2d 1271, 1992 Wyo. LEXIS 19 (Wyo. 1992).

Quoted in

Duffy v. State, 730 P.2d 754, 1986 Wyo. LEXIS 655 (Wyo. 1986).

Cited in

Green v. State, 776 P.2d 754, 1989 Wyo. LEXIS 166 (Wyo. 1989); Long v. Shillinger, 927 F.2d 525, 1991 U.S. App. LEXIS 3473 (10th Cir. 1991); Smith v. State, 871 P.2d 186, 1994 Wyo. LEXIS 38 (Wyo. 1994).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction and application of Interstate Agreement on Detainers, 98 ALR3d 160.

Availability of postconviction relief under 28 USC § 2255 based on alleged governmental violation of the Interstate Agreement on Detainers Act (18 USC Appx), 58 ALR Fed 443.

§ 7-15-102. Additional definitions; short title.

  1. As used in W.S. 7-15-101 through 7-15-105 :
    1. “Appropriate court” means district court when the reference is to a court of this state;
    2. “This act” or “this agreement” means W.S. 7-15-101 through 7-15-105 .
  2. This act may be cited as the “Agreement on Detainers”.

History. Laws 1971, ch. 171, § 2; W.S. 1957, § 7-408.10; Laws 1987, ch. 157, § 3; 2004, ch. 130, § 1.

Cross references. —

As to district courts, see chapter 3 of title 5.

The 2004 amendment, in (a)(ii), substituted “7-15-105” for “7-15-106.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

§ 7-15-103. Cooperation in enforcement of agreement.

All courts, departments, agencies, officers and employees of this state and its political subdivisions shall enforce the Agreement on Detainers and cooperate with one another and with other party states in enforcing the agreement and effectuating its purpose.

History. Laws 1971, ch. 171, § 3; W.S. 1957, § 7-408.11; Laws 1987, ch. 157, § 3.

Agreement on detainers. —

See § 7-15-102(a)(ii), (b) and notes thereto.

§ 7-15-104. Delivery of inmate to another state.

It shall be lawful and mandatory upon the warden or other official in charge of a penal or correctional institution in this state to deliver an inmate of the institution to the proper authority of another party state if required under the Agreement on Detainers.

History. Laws 1971, ch. 171, § 5; W.S. 1957, § 7-408.13; W.S. 1977, § 7-15-105 ; Laws 1987, ch. 157, § 3.

Cross references. —

As to warden of Wyoming state penitentiary, see § 25-2-101 .

Agreement on detainers. —

See § 7-15-102(a)(ii), (b) and notes thereto.

§ 7-15-105. Duties of attorney general.

The attorney general shall act as coordinator of this agreement and, acting jointly with like officers of party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this act, and shall provide within and without the state, information necessary to the effective operation of this agreement.

History. Laws 1971, ch. 171, § 6; W.S. 1957, § 7-408.14; W.S. 1977, § 7-15-106; Laws 1987, ch. 157, § 3.

Cross references. —

As to attorney general, see § 9-1-601 et seq.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-15-102(a)(ii) and notes thereto.

Meaning of “this agreement.” —

For the definition of “this agreement,” referred to twice in this section, see § 7-15-102(a)(ii) and notes thereto.

Chapter 16 Labor by Prisoners

Article 1. County Jail

§ 7-16-101. Persons subject to required work.

  1. The sentencing court may require the following persons to perform work pursuant to W.S. 7-16-101 through 7-16-104 :
    1. Persons sentenced to a definite term of imprisonment in the county jail, whether or not a fine is imposed as a part of the sentence;
    2. Persons committed to jail pursuant to W.S. 6-10-105 for refusal to pay a fine or costs; and
    3. Persons for whom work is imposed as a condition of probation pursuant to W.S. 7-13-304(b).
  2. No person charged with a crime and awaiting the action of the grand jury or awaiting trial shall be required to perform work pursuant to W.S. 7-16-101 through 7-16-104 .

History. Laws 1927, ch. 74, § 1; R.S. 1931, § 33-1701; C.S. 1945, § 10-2901; W.S. 1957, § 7-363; W.S. 1977, § 7-13-701 ; Laws 1984, ch. 68, § 1; 1987, ch. 157, § 3.

Cross references. —

As to grand jury, see chapter 5 of this title.

As to continuation of employment during probation, see § 7-13-501 et seq.

§ 7-16-102. Restrictions; supervision; costs; civil liability.

  1. No prisoner shall be required to perform work more than eight (8) hours in any one (1) calendar day or to work on any legal holiday.
  2. No person shall be required to perform work who is unable to do so due to physical or mental disability.
  3. The court shall direct whether the work shall be performed under the supervision of the county sheriff, the state probation and parole officer or some other responsible person approved by the court. No person shall be directed to perform work unless the court, after consultation with the sheriff or other entity or person to be charged with supervision, determines that adequate staffing is available to provide for the safe and secure supervision of the prisoner.
  4. Any additional expenses, including costs for guarding the prisoner, incurred by a county as a result of allowing a prisoner to perform work shall be paid by the board of county commissioners in which the labor is performed but may be assessed against any financial credit earned by the prisoner under W.S. 7-16-104 . The court may also require that a reasonable sum for room and board be assessed against any credits earned by a prisoner.
  5. The person charged with supervising a prisoner’s work shall keep an accurate record and account of all work performed and all credits received and shall make periodic reports as required by the court.
  6. The court may impose any other reasonable terms or conditions relating to the performance of work by prisoners and probationers, not inconsistent with W.S. 7-16-101 through 7-16-104 .
  7. If any civil action is brought against any sheriff, his undersheriff, deputy, agent or employee, by reason of acts committed or alleged in the performance of necessary duties in connection with the care of a prisoner performing work pursuant to W.S. 7-16-101 through 7-16-104 , the state shall indemnify and hold harmless the officers, agents or employees from all civil liability incurred or adjudged except for liability arising out of willful and wanton or malicious acts. Upon request, the state shall provide legal counsel at state expense to assist in the defense of any action covered by this subsection.

History. Laws 1927, ch. 74, § 2; R.S. 1931, § 33-1702; C.S. 1945, § 10-2902; W.S. 1957, § 7-364; W.S. 1977, § 7-13-702 ; Laws 1984, ch. 68, § 1; 1987, ch. 157, § 3; 1995, ch. 122, § 2.

Cross references. —

As to state probation and parole officer, see § 7-13-405(b).

As to governmental claims, see chapter 39 of title 1.

As to county sheriffs, see § 18-3-601 et seq.

§ 7-16-103. Compensation of sheriff.

Except for reimbursement for additional expenses authorized by W.S. 7-16-102(d), a sheriff is not entitled to any extra compensation, fee or reward for supervising a prisoner performing work pursuant to W.S. 7-16-101 through 7-16-104 .

History. Laws 1927, ch. 74, § 3; R.S. 1931, § 33-1703; C.S. 1945, § 10-2903; W.S. 1957, § 7-365; W.S. 1977, § 7-13-703; Laws 1984, ch. 68, § 1; 1987, ch. 157, § 3.

Cross references. —

As to sheriff's salary and fees, see § 18-3-608 .

§ 7-16-104. Credits.

  1. The sentencing court may reduce the term of a sentence, fine, costs or attorney fees of a prisoner sentenced to imprisonment or placed on probation, for work performed under W.S. 7-16-101 through 7-16-104 .
  2. If a reduction is ordered pursuant to subsection (a) of this section, the reduction shall be:
    1. At the rate of one (1) day for each eight (8) hours of work performed under W.S. 7-16-101 through 7-16-104 , provided the reduction in sentence shall not exceed one-half (1/2) of the original sentence;
    2. In an amount equal to the federal minimum hourly wage for each hour of work performed provided that the total amount of reduction in the fine, costs or attorney fees shall not exceed one-half (1/2) of the total amount of the fine, costs and attorney fees.
  3. The court shall direct whether the credits under subsection (b) of this section shall apply against the prisoner’s term of imprisonment, his fine, court costs, attorney fees or other fees imposed by the court.
  4. A person committed to county jail for refusal to pay a fine or costs shall, in addition to the credit allowed by W.S. 6-10-105 , be granted a credit against his fine or costs in an amount equal to the federal minimum hourly wage for each hour of work performed.

History. Laws 1927, ch. 74, § 4; R.S. 1931, § 33-1704; C.S. 1945, § 10-2904; W.S. 1957, § 7-366; W.S. 1977, § 7-13-704; Laws 1984, ch. 68, § 1; 1987, ch. 157, § 3; 1989, ch. 89, § 1.

Repealing clauses. —

Laws 1927, ch. 74, § 5, repealed all laws and parts of laws in conflict therewith.

Article 2. Prison Labor

Am. Jur. 2d, ALR and C.J.S. references. —

60 Am. Jur. 2d Penal Institutions §§ 162 to 173, 203 to 206.

72 C.J.S. Prisons § 144 et seq.

§ 7-16-201. Contracting to private persons.

Except as authorized by W.S. 25-13-101 through 25-13-107 , no person in charge of prisoners at any state penal institution shall contract to supply prisoner labor to any private person or private business entity.

History. Laws 1886, ch. 51, § 1; R.S. 1887, § 3373; R.S. 1899, § 5538; C.S. 1910, § 6400; C.S. 1920, § 7696; Laws 1931, ch. 90, § 1; R.S. 1931, § 33-1705; C.S. 1945, § 10-2905; W.S. 1957, § 7-367; W.S. 1977, § 7-13-705; Laws 1986, ch. 65, § 1; 1987, ch. 157, § 3; 1999, ch. 141, § 2.

Cross references. —

As to state institutions, see § 25-1-201 .

§ 7-16-202. Persons subject to required work.

  1. All prisoners sentenced to the custody of the department of corrections to serve a term of imprisonment in a state penal institution may be employed within the institution or in any work for the benefit of and use by the state or any of its agencies or political subdivisions.
  2. An inmate of a state penal institution shall be required to perform available hard labor which is suited to the inmate’s age, gender, physical and mental condition, strength and attainments in the institution proper, in the industries established in connection with the institution, or at other places as provided in subsection (a) of this section. Substantially equivalent hard labor programs shall be available to both male and female inmates. Inmates performing hard labor at a location other than within or on the grounds of a state penal institution shall be attired in brightly colored uniforms that readily identify them as inmates of state penal institutions. The employment of inmates in hard labor shall not displace employed workers, shall not be applied to skills, crafts or trades in which a local surplus of labor exists, and shall not impair existing contracts for employment or services.
  3. For purposes of this section, “hard labor” means physical or mental labor which is performed for a period of time which shall average, as nearly as possible, forty (40) hours each week, and may include useful and productive work. “Hard labor” may include menial labor, any training necessary to perform any work required, and if possible, work providing an inmate with marketable vocational skills. “Hard labor” does not include labor which is dangerous to an inmate’s life or health, is unduly painful or is required to be performed under conditions that would violate occupational safety and health standards applicable to such labor if performed by a person who is not an inmate.
  4. Notwithstanding subsection (b) of this section, an inmate who has been determined by the institution administrator to be unsuitable for the performance of hard labor due to the inmate’s age, gender, physical or mental condition, strength or security status shall not be required to perform hard labor.
  5. The department of corrections shall adopt rules to implement this section.

History. Laws 1911, ch. 61, § 1; C.S. 1920, § 589; R.S. 1931, § 108-812; C.S. 1945, § 19-1006; W.S. 1957, § 7-370; W.S. 1977, § 7-13-708; Laws 1987, ch. 46, § 1; ch. 157, § 3; 1992, ch. 25, § 3; 1997, ch. 202, § 1.

No protected property interest. —

Wyoming statutes indicate broad discretion over whether an inmate can work and, if so, whether he or she can receive any compensation; inmate therefore has no legally cognizable property interest in his prison work assignment or rate of pay. Garnett v. Hettgar, 2 P.3d 558, 2000 Wyo. LEXIS 99 (Wyo. 2000), overruled in part, Brown v. City of Casper, 2011 WY 35, 248 P.3d 1136, 2011 Wyo. LEXIS 36 (Wyo. 2011).

§ 7-16-203. Compensation.

  1. Persons in confinement in state corrections institutions may receive compensation as specified by the department of corrections for services performed under W.S. 7-16-202 . In no case shall the total of all compensation credited exceed the general fund appropriation for that institution. The compensation rate to be paid to any prisoner shall not exceed the state minimum wage.
  2. The compensation limitations in subsection (a) of this section do not apply to correctional industries programs authorized under W.S. 25-13-101 through 25-13-107 .

History. Laws 1911, ch. 61, § 7; C.S. 1920, § 595; R.S. 1931, § 108-818; C.S. 1945, § 19-1011; W.S. 1957, § 7-376; Laws 1973, ch. 245, § 3; W.S. 1977, § 7-13-714; Laws 1984, ch. 68, § 1; 1987, ch. 157, § 3; 1992, ch. 25, § 3; 1999, ch. 141, § 2.

Cross references. —

As to good time allowances, see § 7-13-420 .

As to credits for county jail prisoners, see § 7-16-102 .

As to working prisoners convicted for violation of municipal ordinances, see § 5-6-211 .

As to commitment for nonpayment of fine, and as to rate per day, see § 6-10-105 .

As to minimum wage, see § 27-4-202 .

No protected property interest. —

Wyoming statutes indicate broad discretion over whether an inmate can work and, if so, whether he or she can receive any compensation; inmate therefore has no legally cognizable property interest in his prison work assignment or rate of pay. Garnett v. Hettgar, 2 P.3d 558, 2000 Wyo. LEXIS 99 (Wyo. 2000), overruled in part, Brown v. City of Casper, 2011 WY 35, 248 P.3d 1136, 2011 Wyo. LEXIS 36 (Wyo. 2011).

Freezing inmate's prison account unconstitutional. —

Freezing an inmate's prison account, while charging him for transportation from another prison, gave rise to a federal civil rights claim for relief based on a deprivation of his property without due process, but did not support a claim of cruel and unusual punishment. Gillihan v. Shillinger, 872 F.2d 935, 1989 U.S. App. LEXIS 4823 (10th Cir. Wyo. 1989), overruled in part, Clark v. Wilson, 625 F.3d 686, 2010 U.S. App. LEXIS 23939 (10th Cir. Okla. 2010).

Child support. —

Since child support obligations are specifically designated in § 7-16-205 , it is clear that the legislature intended they be paid where reasonably possible, and where prisoner made no credible showing that payment of his minimal child support would deprive him of necessities during his prison incarceration, the court did not abuse its discretion in ordering the prisoner to pay child support. Glenn v. Glenn, 848 P.2d 819, 1993 Wyo. LEXIS 54 (Wyo. 1993).

If an incarcerated parent does have assets or income while in prison, that income can properly be applied against that parent's outstanding support obligation. Glenn v. Glenn, 848 P.2d 819, 1993 Wyo. LEXIS 54 (Wyo. 1993).

§ 7-16-204. Fines for misconduct.

The department of corrections shall adopt rules and regulations to establish a system for punishing prisoner misconduct through the imposition of fines to be deducted from compensation earned as provided by W.S. 7-16-203 . The rules shall provide for the distribution of the proceeds of fines collected under this section as special aid to discharged or paroled prisoners who are infirm or in any way incapable of earning a sufficient subsistence after their release.

History. Laws 1911, ch. 61, § 8; C.S. 1920, § 596; R.S. 1931, § 108-819; C.S. 1945, § 19-1012; W.S. 1957, § 7-377; Laws 1973, ch. 245, § 3; W.S. 1977, § 7-13-715; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3.

Applied in

Gillihan v. Shillinger, 872 F.2d 935, 1989 U.S. App. LEXIS 4823 (10th Cir. 1989).

§ 7-16-205. Disposition of earnings; confidentiality of amount.

  1. Payment for services performed by any prisoner under W.S. 7-16-202 shall be deposited in the trust and agency account at the institution and shall be disbursed for the purposes provided in this subsection and in the order specified:
    1. Unless the prisoner is serving a sentence of death or life without the possibility of parole or is subject to mandatory savings under W.S. 25-13-107(b)(i), ten percent (10%) shall be credited to the prisoner’s personal savings account within the correctional facility’s trust and agency account, until the prisoner’s account has a balance of one thousand dollars ($1,000.00). Once the prisoner’s personal savings account balance reaches one thousand dollars ($1,000.00), the income otherwise distributed to the prisoner’s savings account under this paragraph shall be distributed to the prisoner as provided by paragraphs (ii) through (vi) of this subsection. Funds in the prisoner’s personal savings account shall be paid to the prisoner upon parole or final discharge;
    2. Support of dependent relations of the prisoner;
    3. Personal necessities and assessments of fees for programs, services and assistance pursuant to subsection (e) of this section;
    4. Repealed by Laws 1999, ch. 62, § 2.
    5. Court ordered restitution, fines, sanctions and reimbursement for the services of public defender or court appointed counsel, the surcharge imposed under W.S. 1-40-119 , victims compensation obligations under W.S. 1-40-112(g) and the surcharge imposed under W.S. 7-13-1616 ;
    6. Remaining funds shall be paid the prisoner upon parole or final discharge.
  2. The amount in the trust and agency fund assigned to the credit of any prisoner is confidential information and is not subject to public inspection.
  3. Except as otherwise provided for correctional industries programs authorized by W.S. 25-13-101 through 25-13-107 , any compensation earned by a prisoner while incarcerated shall be subject to the provisions of this section.
  4. The department of corrections shall establish regulations governing provisions for travel, clothing and cash needed by each prisoner upon release from any state penal institution.
  5. The department of corrections may establish regulations providing for assessment of fees to prisoners for self-improvement programs, services, including medical services, and assistance provided by the department when the inmate has money to pay for the programs, services and assistance.

History. Laws 1911, ch. 61, § 9; 1919, ch. 62, § 1; C.S. 1920, § 597; Laws 1923, ch. 46, § 1; R.S. 1931, § 108-820; C.S. 1945, § 19-1013; W.S. 1957, § 7-378; Laws 1959, ch. 72, § 1; 1967, ch. 11, § 1; 1973, ch. 245, § 3; W.S. 1977, § 7-13-716; Laws 1984, ch. 68, § 1; 1987, ch. 157, § 3; 1992, ch. 25, § 3; 1999, ch. 62, §§ 1, 2; ch. 141, § 2; 2010, ch. 43, § 1; 2016, ch. 71, § 2.

Cross references. —

As to victim restitution, see chapter 9 of this title.

The 2010 amendment, effective July 1, 2010, added (a)(i), and redesignated former (a)(i), (a)(iii) and (a)(v) as (a)(iii), (a)(v) and (a)(vi).

The 2016 amendment, effective July 1, 2016, deleted “and” following “W.S. 1-40-119 ” and inserted “and the surcharge imposed under W.S. 7-13-1616 ” in (a)(v).

Repealing clauses. —

Laws 1911, ch. 61, § 14, repealed all laws and parts of laws in conflict therewith.

Life sentence. —

District court correctly applied the law and did not abuse its discretion in denying an inmate's motion for relief because it properly disposed of the inmate's civil rights suit; the district court concluded that the inmate's life sentence did not fall within the exemption for inmates under a death sentence or a sentence of “life without the possibility of parole” because it was not designated as a sentence of life without parole, which was the type of life sentence addressed in the exemption Nicodemus v. Lampert, 2014 WY 135, 336 P.3d 671, 2014 Wyo. LEXIS 150 (Wyo. 2014).

Restitution withdrawn from prison earnings. —

District court did not by ordering restitution that the Department of Corrections could withdraw from defendant's prison earnings because unless the district court found that defendant was unable to pay restitution, it was required to set the total amount she had to repay the victim, and its order to that effect constituted a judgment upon which the victim could execute. McEwan v. State, 2013 WY 158, 314 P.3d 1160, 2013 Wyo. LEXIS 164 (Wyo. 2013).

Freezing inmate's prison account unconstitutional. —

Freezing an inmate's prison account, while charging him for transportation from another prison, gave rise to a federal civil rights claim for relief based on a deprivation of his property without due process, but did not support a claim of cruel and unusual punishment. Gillihan v. Shillinger, 872 F.2d 935, 1989 U.S. App. LEXIS 4823 (10th Cir. Wyo. 1989), overruled in part, Clark v. Wilson, 625 F.3d 686, 2010 U.S. App. LEXIS 23939 (10th Cir. Okla. 2010).

Child support. —

Since child support obligations are specifically designated in § 7-16-205 , it is clear that the legislature intended they be paid where reasonably possible, and where prisoner made no credible showing that payment of his minimal child support would deprive him of necessities during his prison incarceration, the court did not abuse its discretion in ordering the prisoner to pay child support. Glenn v. Glenn, 848 P.2d 819, 1993 Wyo. LEXIS 54 (Wyo. 1993).

If an incarcerated parent does have assets or income while in prison, that income can properly be applied against that parent's outstanding support obligation. Glenn v. Glenn, 848 P.2d 819, 1993 Wyo. LEXIS 54 (Wyo. 1993).

Am. Jur. 2d, ALR and C.J.S. references. —

Loss of income due to incarceration as affecting child support obligation, 27 ALR5th 540.

7-16-206. Permitted institutional industries; powers of department.

  1. The department of corrections, for purposes of assisting in the rehabilitation of residents of state penal institutions, may:
    1. Establish industries in state penal institutions that will result in the manufacture of products or the provision of services that may be used by any agency or political subdivision of this state, any agency of the federal government or any agency or political subdivision of another state;
    2. Contract with private industry for the sale of products manufactured in state penal institutions and for the provision of services pursuant to W.S. 25-13-104 ;
    3. Print and distribute catalogs describing goods manufactured in state penal institutions;
    4. Fix the sale price for products manufactured or services produced at state penal institutions and purchased by the state of Wyoming or any of its political subdivisions, not to exceed open market prices for comparable goods and services;
    5. Provide for the repair and maintenance of property and equipment of state penal institutions by residents of those institutions;
    6. Provide for the repair and maintenance of any state agency’s furniture and equipment by residents of state penal institutions;
    7. Sell on the open market products manufactured at state penal institutions; and
    8. Pay a resident of a penal institution from the proceeds of products manufactured or services provided in a program in which the resident is working pursuant to this subsection.
  2. Payment for the performance of work authorized pursuant to subsection (a) of this section shall be based in part on the following criteria:
    1. Knowledge or skill;
    2. Attitude toward authority;
    3. Physical effort;
    4. Responsibility for equipment and materials; and
    5. Regard for safety of others.
  3. A manufactured product shall not be sold under paragraph (a)(ii) or (vii) of this section if the same or comparable product is manufactured elsewhere in this state.
  4. The maximum rate of pay for work performed pursuant to subsection (a) of this section shall be determined by the appropriation established for each program in accordance with W.S. 7-16-202 through 7-16-205 .
  5. Proceeds from the sale of products manufactured or services provided at a state penal institution pursuant to subsection (a) of this section shall be deposited in the correctional industries account in accordance with W.S. 25-13-103(a).

History. Laws 2004, ch. 76, § 1; 2005, ch. 231, § 1; 2013, ch. 9, § 1.

The 2005 amendment, effective July 1, 2005, in (e), substituted “account” for “enterprise or internal service fund.”

The 2013 amendment, effective July 1, 2013, added “and for the provision of services pursuant to W.S. 25-13-104 ” in (a)(ii); and substituted “correctional industries in account in accordance with W.S. 25-13-103(a)” for “appropriate account for the use of the industries program of the same institution” in (e).

Conflicting legislation. —

Laws 2005, ch. 231, § 3, provides: “The provisions of this act shall supersede the provisions of any other bill enacted into law during the 2005 general session which amends or references accounts or funds to the extent any other enactment is inconsistent with the establishment of the funds and accounts created under this act. The state auditor shall account for any fund or account created in any other legislation enacted in the 2005 general session in accordance with generally accepted accounting principles (GAAP) as promulgated by the governmental accounting standards board (GASB) and in accordance with this act.”

Effective date. —

Laws 2004, ch. 76, § 2, makes the act effective July 1, 2004.

Article 3. Work Release

§ 7-16-301. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.1; Laws 1977, ch. 136, § 1; W.S. 1977, § 7-13-717; Laws 1987, ch. 157, § 3; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-302. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.2; Laws 1977, ch. 136, § 1; W.S. 1977, § 7-13-718; Laws 1986, ch. 65, § 1; 1987, ch. 157, § 3; 1992, ch. 25, § 3; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-303. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.3; Laws 1977, ch. 136, § 1; W.S. 1977, § 7-13-719; Laws 1987, ch. 157, § 3; 1991, ch. 252, § 2; 1992, ch, 25, § 3; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-304. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.4; Laws 1977, ch. 136, § 1; W.S. 1977, § 7-13-720; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-305. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.5; Laws 1977, ch. 136, § 1; W.S. 1977, § 7-13-721; Laws 1987, ch. 157, § 3; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-306. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.6; Laws 1977, ch. 136, § 1; W.S. 1977, § 7-13-722; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-307. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.7; W.S. 1977, § 7-13-723; Laws 1987, ch. 157, § 3; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-308. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.8; Laws 1977, ch. 136, § 1; W.S. 1977, § 7-13-724; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3; 1999, ch. 62, §§ 1, 2; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-309. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.9; Laws 1977, ch. 136, § 1; W.S. 1977, § 7-13-725; Laws 1987, ch. 157, § 3; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-310. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.10; W.S. 1977, § 7-13-726; Laws 1987, ch. 157, § 3; 1992, ch. 25, § 3; Repealed by Laws 2014, ch. 117, § 2.

§ 7-16-311. [Repealed.]

History. Laws 1975, ch. 190, § 1; W.S. 1957, § 7-378.11; W.S. 1977, § 7-13-727; Laws 1987, ch. 157, § 3; Repealed by Laws 2014, ch. 117, § 2.

Chapter 17 Roadblocks

Cross references. —

As to highways, see title 24.

Law reviews. —

For comment, “Filling in the Blanks after Prouse: A New Standard for the Drinking-Driving Roadblock,” see XX Land & Water L. Rev. 241 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of routine roadblocks by state or local police for purpose of discovery of vehicular or driving violations, 37 ALR4th 10.

§ 7-17-101. Definitions.

  1. As used in W.S. 7-17-101 through 7-17-103 :
    1. “Peace officer” means as defined by W.S. 7-2-101 ;
    2. “Temporary roadblock” means any device or means used by a peace officer to control all traffic through a point on any highway within the state whereby all vehicles may be slowed or stopped for the purposes defined in W.S. 7-17-102 ;
    3. “Highway” means as defined by W.S. 31-1-101(a)(viii).

History. Laws 1975, ch. 101, § 1; W.S. 1957, § 7-461; Laws 1987, ch. 157, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of police roadblocks or checkpoints for purpose of discovery of alcoholic intoxication — post-Sitz cases, 74 ALR5th 319.

Validity of police roadblocks or checkpoints for purpose of discovery of illegal narcotics violations, 82 ALR5th 103.

§ 7-17-102. Authority to establish.

Peace officers may establish, in their respective or adjacent jurisdictions, temporary roadblocks upon the highways within this state for the purpose of apprehending persons reasonably believed by the officers to be wanted for violation of the laws of this or any other state, or of the United States, and who are using any highway within the state.

History. Laws 1975, ch. 101, § 1; W.S. 1957, § 7-462; Laws 1987, ch. 157, § 3.

§ 7-17-103. Minimum requirements.

  1. For the purpose of warning and protecting the traveling public, the following minimum requirements shall be met by peace officers establishing temporary roadblocks if time and circumstances allow:
    1. The temporary roadblock shall be established at a point on the highway clearly visible at a distance of not less than two hundred (200) yards in either direction;
    2. At the point of the temporary roadblock flashing warning lights shall be visible to oncoming traffic for a distance of not less than two hundred (200) yards. The display of flashing emergency warning lights on a marked law enforcement vehicle shall be sufficient under this paragraph; and
    3. At least one (1) person working a temporary roadblock shall be in uniform and visible and at least one (1) vehicle used in a temporary roadblock shall be clearly marked as a law enforcement vehicle.

History. Laws 1975, ch. 101, § 1; W.S. 1957, § 7-463; Laws 1987, ch. 157, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of police roadblocks or checkpoints for purpose of discovery of illegal narcotics violations, 82 ALR5th 103.

Chapter 18 Community Corrections

Intent and purpose of act. —

Laws 1985, ch. 219, § 2, provides that the purpose and intent of this act is to encourage the development of community correctional facilities and programs and the diversion to these local community programs of adult low risk felons who would benefit by treatment in a community corrections program and to provide a program to aid in reintegrating inmates of correctional institutions into society, and further provides that it is the intent of the legislature that in the initial two years of operation, community correctional facilities and programs established pursuant to this act shall serve approximately equal numbers of clients from each of the following three categories: (1) offenders who would otherwise be incarcerated in state correctional institutions; (2) offenders who would otherwise be placed on probation; and (3) inmates serving a term of incarceration in a state correctional institution who meet the criteria of § 7-18-109(b).

Legislative intent in enacting chapter was to provide “halfway house” between prison and probation. Peper v. State, 768 P.2d 26, 1989 Wyo. LEXIS 22 (Wyo. 1989).

Am. Jur. 2d, ALR and C.J.S. references. —

Liability of private operator of “halfway house” or group home housing convicted prisoners before final release for injury to third person caused by inmate, 9 ALR5th 969.

§ 7-18-101. Short title.

This act shall be known and may be cited as the “Adult Community Corrections Act”.

History. Laws 1985, ch. 219, § 1.

Meaning of “this act.” —

For the definition of “[t]his act,” referred to in this section, see § 7-18-102(a)(ix).

§ 7-18-102. Definitions.

  1. As used in this act:
    1. “Adult community correctional facility or program” means a community based or community-oriented facility or program which is operated either by a unit of local government or by a nongovernmental agency which:
      1. May provide residential and nonresidential accommodations and services for offenders, parolees and inmates;
      2. Provides programs and services to aid offenders, parolees and inmates in obtaining and holding regular employment, in enrolling in and maintaining academic courses, in participating in vocational training programs, in utilizing the resources of the community in meeting their personal and family needs and in participating in whatever specialized treatment programs exist within the community; and
      3. Provides supervision for offenders, parolees and inmates as required.
    2. “Corrections board” means a community corrections board created pursuant to this act;
    3. “Inmate” means an adult serving a felony sentence in any state penal institution or any correctional facility operated pursuant to a contract under W.S. 7-22-102 , excluding any inmate who:
      1. At the time of consideration has any criminal proceedings pending against him which could affect his status as an inmate;
      2. Has been convicted of first degree murder;
      3. Is serving a term of life imprisonment; or
      4. Has been sentenced to death.
    4. “Nongovernmental agency” means any person or organization other than a unit of local government and includes private profit and not for profit organizations;
    5. “Offender” means an adult who has entered a plea of guilty or has been convicted of a misdemeanor punishable by imprisonment or a felony, excluding any person who:
      1. At the time of consideration has any other felony criminal proceedings pending against him;
      2. Has been convicted of, or pled guilty to, first degree murder;
      3. Has been convicted of, or pled guilty to, a crime punishable by life imprisonment; or
      4. Has been convicted of, or pled guilty to, a crime punishable by death.
    6. “Unit of local government” means a county, city or town;
    7. “Department” means the state department of corrections;
    8. “Parolee” means an adult who has been granted parole under W.S. 7-13-402 ;
    9. “Validated risk-need assessment”  means as defined in W.S. 7-13-1101(a)(iii);
    10. “This act” means W.S. 7-18-101 through 7-18-115 .

History. Laws 1985, ch. 219, § 1; 1986, ch. 65, § 1; 1990, ch. 11, § 1; 1991, ch. 84, § 1; ch. 252, § 2; 1992, ch. 25, § 3; 1995, ch. 101, § 2; 2003, ch. 42, § 1; 2019, ch. 116, § 2.

The 2019 amendment, effective July 1, 2019, added (a)(ix) and redesignated former (a)(ix) as (a)(x).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Applicability of act. —

Laws 1991, ch. 252, § 3, provides: “The powers and authority set forth in this act shall be in addition to such other powers and authority as may presently exist under the laws of the state of Wyoming relating to correctional facilities or jails, and the requirements set forth in this act (including in particular, requirements relating to the obtaining of necessary consents and approvals) shall be deemed to apply only to actions taken or to be taken under authority of this act and shall not apply to any such other powers or authority as may presently exist under the laws of the state of Wyoming.”

Cross references. —

As to state penitentiary, penitentiary farms, and Wyoming women's center, see chapter 2 of title 25.

Credit for time spent in Surveillance and Treatment Program. —

Where defendant was placed on probation and ordered to participate in Surveillance and Treatment of Offender Program (S.T.O.P.), defendant was not eligible for credit for the time spent in the program when her probation was revoked, since the defendant could not be charged with escape from S.T.O.P., and S.T.O.P. was not a community correctional center. Kupec v. State, 835 P.2d 359, 1992 Wyo. LEXIS 101 (Wyo. 1992).

§ 7-18-103. Establishment and operation of facilities and programs by local governments; screening procedures; acceptance or rejection of offenders, parolees or inmates.

  1. Any unit of local government may establish, maintain and operate adult community correctional facilities and programs deemed necessary to serve its own needs and may enter into contracts or agreements with a corrections board for the placement of offenders, parolees and inmates in its adult community correctional facility or program.
  2. The unit of local government shall establish procedures for screening offenders, parolees and inmates who are to be placed in its adult community correctional facility or program. The screening shall take into account the risk the offender, parolee or inmate may present to himself and others as well as the aptitude, attitude and social and occupational skills of the offender, parolee or inmate.
  3. The unit of local government has the authority to accept, reject or reject after acceptance the placement of any offender, parolee or inmate in its adult community correctional facility or program pursuant to any contract or agreement with a corrections board. If an offender, parolee or inmate is rejected by the unit of local government after initial acceptance, the offender, parolee or inmate shall remain in the custody of the unit of local government for a reasonable period of time pending receipt of appropriate orders for transfer of the offender, parolee or inmate.

History. Laws 1985, ch. 219, § 1; 1995, ch. 101, § 2; 2003, ch. 42, § 1.

§ 7-18-104. Establishment and operation of facilities or programs by nongovernmental agencies; required governmental approval; acceptance or rejection of offenders, parolees or inmates.

  1. If approved as provided in subsection (b) of this section, a nongovernmental agency may establish, maintain and operate an adult community correctional facility and program and may contract with a corrections board to provide services to offenders, parolees and inmates.
  2. The establishment of any nongovernmental adult community correctional facility or program shall be subject to approval of the board of county commissioners of the county and the governing body of the city or town in which the proposed facility or the situs of the program is to be located. Approval or denial of the establishment of the facility or program shall be made only after consultation with the corrections board and the department.
  3. The nongovernmental agency operating an adult community correctional facility or program has the authority to accept, reject or reject after acceptance the placement of any offender, parolee or inmate in its facility or program pursuant to any contract or agreement with a corrections board. If an offender, parolee or inmate is rejected by the nongovernmental agency after initial acceptance, the offender, parolee or inmate shall remain in the custody of the nongovernmental agency for a reasonable period of time pending receipt of appropriate orders for transfer of the offender, parolee or inmate.

History. Laws 1985, ch. 219, § 1; 1995, ch. 101, § 2; 2003, ch. 42, § 1.

Cross references. —

As to requirements for operation of a private jail or prison, see § 7-22-101 et seq.

§ 7-18-105. Establishment of county boards; membership; terms of office; compensation; meetings; officers.

  1. A county may establish, or two (2) or more counties may agree to establish jointly, a community corrections board in accordance with this act.
  2. A corrections board shall consist of nine (9) members appointed by the county commissioners. When two (2) or more counties have agreed to establish a corrections board, the county commissioners of each participating county shall appoint members as provided in the agreement of the counties. The corrections board shall be composed of:
    1. One (1) district judge designated by the chief justice of the Wyoming supreme court;
    2. One (1) prosecuting attorney;
    3. One (1) municipal law enforcement officer;
    4. One (1) county law enforcement officer;
    5. One (1) probation and parole officer; and
    6. Four (4) lay citizens, no more than two (2) of whom shall be from the same county if the corrections board is established by two (2) or more counties. If the community corrections board is established for a county in which a community college is located, one (1) of the four (4) lay citizen members shall be a representative of the community college.
  3. Members of community corrections boards shall serve for rotating terms of four (4) years. Of the members first appointed, one-third (1/3) shall be appointed for two (2) years, one-third (1/3) for three (3) years and one-third (1/3) for four (4) years.
  4. Members of a corrections board shall serve without compensation.
  5. A majority of the corrections board constitutes a quorum. All actions of the corrections board shall be approved by a majority of those present at the meeting.
  6. A corrections board shall annually elect from its members a chairman to preside at meetings, a secretary to maintain the records and a finance officer who shall file with the board a bond with an approved corporate surety in the penal sum designated by the corrections board.

History. Laws 1985, ch. 219, § 1.

Cross references. —

As to county commissioners, see § 18-3-501 et seq.

Meaning of “this act.” —

For the definition of “this act,” referred to in subsection (a), see § 7-18-102(a)(ix).

§ 7-18-106. Powers and duties of boards.

  1. Subject to this act, a corrections board may:
    1. Contract with the department to accept offenders, parolees and inmates for placement in an adult community correctional facility or program operating under a contract for services with the corrections board within the county or counties served by the corrections board;
    2. Repealed by Laws 2003, ch. 42, § 2.
    3. Accept, reject or reject after acceptance the placement pursuant to a contract with the department, of any offender, parolee or inmate in an adult community correctional facility or program. If an offender, parolee or inmate is rejected by the corrections board after initial acceptance, the offender, parolee or inmate shall be placed in the custody of a sheriff of a county served by the corrections board for a reasonable period of time pending receipt of appropriate orders for the transfer of the offender, parolee or inmate.
  2. A corrections board shall:
    1. Screen all offenders, parolees and inmates proposed to be placed in an adult community correctional facility or program taking into account the potential risk resulting from the placement of the offender, parolee or inmate as well as the aptitude, attitude and social and occupational skills of the offender, parolee or inmate;
    2. Review, inspect and evaluate all adult community correctional facilities and programs operating within the county or counties served by the corrections board; and
    3. If the offender is a convicted misdemeanant, obtain funding for the placement from nonstate sources.
  3. Notwithstanding W.S. 1-39-101 through 1-39-120 or any other provision of law and except for intentional torts or illegal acts, a corrections board and its members are immune from any liability, either as a board or individually, for any actions or omissions by the board or any member thereof pursuant to this act.

History. Laws 1985, ch. 219, § 1; 1991, ch. 84, § 1; 1992, ch. 25, § 3; ch. 83, § 1; 1995, ch. 101, § 2; 2003, ch. 42, §§ 1, 2.

Cross references. —

As to county sheriff, see § 18-3-601 et seq.

Meaning of “this act.” —

For the definition of “this act,” referred to in the introductory language of subsection (a) and in this section, see § 7-18-102(a)(ix).

§ 7-18-107. Required guidelines in contracts; review by local government.

  1. Every contract for services entered into pursuant to this act between a corrections board and a local unit of government or a nongovernmental agency shall provide guidelines for the operation of the adult community correctional facility or program and minimum standards for the services provided, including:
    1. Requirements for strict accountability procedures and practices for the conduct and supervision of offenders, parolees and inmates including requirements for twenty-four (24) hour supervision of offenders, parolees and inmates in residential programs;
    2. Guidelines for service providers to perform periodic and unscheduled tests to determine the use of drugs by offenders, parolees and inmates; and
    3. Guidelines for service providers to develop individual treatment plans for each offender, parolee or inmate.
  2. Prior to entering into agreement or contract with any nongovernmental adult community corrections agency, the corrections board shall submit the agreement or contract and any proposed guidelines for the use of any program or facility to the department and the governing body of any affected unit of local government for its review and recommendations.

History. Laws 1985, ch. 219, § 1; 1995, ch. 101, § 2; 2003, ch. 42, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in the introductory language of subsection (a), see § 7-18-102(a)(ix).

Detention. —

When defendant was confined to a community corrections facility, there was not doubt that she was officially detained in a corrections facility, and the escape statute, Wyo. Stat. Ann. § 7-18-112(a)(i) still applied. When she signed out of the facility, ostensibly to go to work, she was guilty of escape because she was no longer employed. Jones v. State, 2006 WY 40, 132 P.3d 162, 2006 Wyo. LEXIS 43 (Wyo. 2006).

§ 7-18-108. Placement of offender in program by court; placement by department as administrative sanction.

  1. Subject to subsection (b) of this section, following an eligible adult offender’s conviction or his plea of guilty, the sentencing court may, as a condition of probation, order that the offender participate in a residential or nonresidential adult community correctional program during all or any part of his term of probation.
  2. Placement of an offender in an adult community correctional facility or program under this section shall be made only if:
    1. The adult community correctional facility or program is operated by a governmental unit or a nongovernmental agency which has entered into a contract with the corrections board serving the county in which the defendant is sentenced and the corrections board has contracted with the department to provide adult community correctional services for offenders;
    2. Funding for the placement is available;
    3. The offender is acceptable to the corrections board; and
    4. The offender is assessed through a validated risk-need assessment as a high risk for reoffending or violating a condition of probation.
  3. Prior to the placement of an offender in any nongovernmental adult community correctional facility, the sentencing judge shall notify or cause to be notified the law enforcement agencies of affected units of local government concerning the identity of the offender to be placed.
  4. The probation and parole agent for the judicial district shall include in the presentence report or otherwise recommend to the sentencing judge recommendations for the utilization of any governmental or, when available, nongovernmental adult community correctional facility or program which has been approved for use by the corrections board.
  5. The probation and parole officers for the judicial district shall have general supervisory authority over all offenders placed in adult community correctional facilities or programs under this section.
  6. Subject to subsection (b) of this section, the department may impose the administrative sanctions provided in W.S. 7-13-1802(b) on any probationer participating in an intensive supervision program who violates the rules and restrictions of the program as an alternative to probation revocation.
  7. Notwithstanding paragraph (b)(iv) of this section, placement of a probationer in an adult community correctional program as a sanction under subsection (f) of this section and W.S. 7-13-1801 through 7-13-1803 or following a revocation of probation shall not require the probationer to be assessed through a validated risk-need assessment as a high risk for reoffending or violating a condition of probation.

History. Laws 1985, ch. 219, § 1; 1987, ch. 212, § 1; 1990, ch. 11, § 1; 1992, ch. 25, § 3; 1999, ch. 174, § 1; 2003, ch. 42, § 1; 2011, ch. 30, § 1; 2019, ch. 116, § 2; ch. 167, § 1; 2020, ch. 18, § 1.

Cross references. —

As to payment of expenses for return of an accused to the state, see § 7-3-224 .

As to presentence investigation and report, see Rule 32(a), W.R. Cr. P.

The 2011 amendment, effective July 1, 2011, in (d), substituted “agent” for “officers,” substituted “include” for “be responsible for including,” and inserted “when available.”

The 2019 amendments. — The first 2019 amendment, by ch. 116, § 2, effective July 1, 2019, added (b)(iv), substituted "W.S. 7-13-1801 through 7-13-1803 " for "W.S. 7-13-1107 ." and made related changes in (f).

The second 2019 amendment, by ch. 167, § 1, effective July 1, 2019, inserted “or otherwise recommend” preceding “to the sentencing judge” in (d).

The 2020 amendment, in (f), substituted “impose the administrative sanctions provided in W.S. 7-13-1802(b) on” for “, as an administrative sanction pursuant to W.S. 7-13-1801 through 7-13-1803 , require” and deleted “to participate in a residential adult community correctional program for a period not to exceed sixty (60) days” following “restrictions of the program”; and added (g).

Laws 2020, ch. 18, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2020.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Penitentiary credit for time served in facility. —

Upon being sentenced to the penitentiary for violation of probation, one who has served time as a resident in a community correctional facility is entitled to credit for that time served. Prejean v. State, 794 P.2d 877, 1990 Wyo. LEXIS 74 (Wyo. 1990).

Appellant inmate was improperly denied credit for the time spent at a community corrections facility (CCF) after a violation of probation because time in a CCF constituted official detention under this section and a person in a CCF could be charged with escape under Wyo. Stat. Ann. § 7-18-112 . Baker v. State, 2011 WY 53, 248 P.3d 640, 2011 Wyo. LEXIS 55 (Wyo. 2011).

Quoted in

Endris v. State, 2010 WY 73, 233 P.3d 578, 2010 Wyo. LEXIS 76 (June 3, 2010).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of conditioning probation on defendant's submission to polygraph or other lie detector testing, 86 ALR4th 709.

§ 7-18-109. Transfer of inmate to facility by department.

  1. Subject to subsection (b) of this section, and upon recommendation of the warden or superintendent of the institution, the department may transfer an adult inmate to a residential adult community correctional facility.
  2. A transfer of an inmate to a residential adult community correctional facility under this section may be made only if:
    1. The department determines the inmate poses a low risk of escape or violence;
    2. The inmate is eligible under W.S. 7-18-102(a)(iii);
    3. The inmate is within at least twenty-four (24) months of his parole eligibility date and his conduct during his confinement has been such that he is appropriate for placement;
    4. The residential adult community correctional facility is operated under a contract with a corrections board and the corrections board has contracted with the department to provide services which include placement of pre-parole inmates;
    5. The inmate has been accepted by the corrections board;
    6. Funding for the placement is available; and
    7. The department determines the correctional needs of the inmate will be better served by the transfer.
  3. Prior to the placement of an inmate in any nongovernmental adult community correctional facility, the department shall notify or cause to be notified the law enforcement agencies of affected units of local government concerning the identity of the inmate to be placed.
  4. No inmate shall be transferred to a residential adult community corrections facility under this section unless he agrees in writing to abide by the regulations of the program provider and any additional conditions imposed by the department. Approval of a transfer under this section is not a discharge of the inmate but shall be construed as an extension of the limits of confinement of the institution to which the inmate was committed. The department may revoke the approval of the transfer of an inmate under this section at any time for violation by the inmate of any conditions of the placement. Upon revocation the inmate shall be returned to the physical custody of the department.
  5. The probation and parole officers for the judicial district shall have general supervisory authority over all inmates in adult community correctional facilities or programs under this section.

History. Laws 1985, ch. 219, § 1; 1986, ch. 65, § 1; 1990, ch. 11, § 1; 1992, ch. 25, § 3; ch. 83, § 1; 1999, ch. 174, § 1; 2003, ch. 42, § 1.

Cross references. —

As to “inmate” of institution, see § 7-18-102(a)(iii).

Penitentiary credit for time served in facility. —

Upon being sentenced to the penitentiary for violation of probation, one who has served time as a resident in a community correctional facility is entitled to credit for that time served. Prejean v. State, 794 P.2d 877, 1990 Wyo. LEXIS 74 (Wyo. 1990).

Cited in

Wood v. Wood, 964 P.2d 1259, 1998 Wyo. LEXIS 146 (Wyo. 1998); Turner v. State, 2015 WY 29, 2015 Wyo. LEXIS 33 (Feb. 25, 2015).

§ 7-18-110. Authority of department of corrections to contract for services.

  1. Subject to legislative appropriation, the department may, by negotiation without competitive bids or by competitive bidding, contract with any community corrections board created under this act, to provide services for:
    1. Convicted felony offenders ordered by a sentencing court to participate in adult community correctional facilities or programs as a condition of probation;
    2. Inmates transferred to a residential adult community correctional facility by the department pursuant to W.S. 7-18-109 ; or
    3. Parolees required to participate in a residential or nonresidential adult community correctional program as a condition of parole pursuant to W.S. 7-18-115 .
  2. No inmate, parolee or offender shall be deemed to be a third party beneficiary of, or to be otherwise entitled to enforce any provision of, any contract entered into under subsection (a) of this section.

History. Laws 1985, ch. 219, § 1; 1991, ch. 84, § 1; 1992, ch. 25, § 3; ch. 83, § 1; 1995, ch. 101, § 2; 2003, ch. 42, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in the introductory language of subsection (a), see § 7-18-102(a)(ix).

§ 7-18-111. Duties of department of corrections.

  1. The department shall:
    1. Establish minimum facility standards for residential adult community correctional facilities operated by any entity receiving funds under this act;
    2. Establish minimum standards for adult community correctional programs;
    3. Review and evaluate all adult community correctional facilities and programs funded under this act;
    4. Prescribe accounting and reporting standards for all program providers under this act;
    5. Establish a per diem rate to be paid program providers under this act which shall not exceed the daily cost of keeping an inmate at the Wyoming state penitentiary;
    6. Promulgate rules and regulations reasonably necessary to carry out the provisions of this act.

History. Laws 1985, ch. 219, § 1; 1992, ch. 25, § 3; 2003, ch. 42, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-18-102(a)(ix).

§ 7-18-112. Escape.

  1. An offender, parolee or an inmate is deemed guilty of escape from official detention and shall be punished as provided by W.S. 6-5-206(a)(i) if, without proper authorization, he:
    1. Fails to remain within the extended limits of his confinement or to return within the time prescribed to an adult community correctional facility to which he was assigned or transferred; or
    2. Being a participant in a program established under the provisions of this act he leaves his place of employment or fails or neglects to return to the adult community correctional facility within the time prescribed or when specifically ordered to do so.

History. Laws 1985, ch. 219, § 1; 1995, ch. 101, § 2; 2003, ch. 42, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to in subsection (a)(ii), see § 7-18-102(a)(ix).

Specific intent. —

Supreme Court of Wyoming cannot find any indication in Wyo. Stat. Ann. §§ 6-5-206(a)(i) or 7-18-112 that the legislature intended there to be a specific intent element to the crime of escape, and, as the supreme court has previously said, escape is a general intent crime. Seymore v. State, 2007 WY 32, 152 P.3d 401, 2007 Wyo. LEXIS 33 (Wyo. 2007), limited, Wyant v. State, 2020 WY 15, 458 P.3d 13, 2020 Wyo. LEXIS 14 (Wyo. 2020).

Participation in community correctional program does not constitute “supervision on probation or parole” that would preclude prosecution for the offense of escape from official detention. Peper v. State, 768 P.2d 26, 1989 Wyo. LEXIS 22 (Wyo. 1989).

Wyoming grants credit for the time spent in those environments from which a charge of escape would lie. Kupec v. State, 835 P.2d 359, 1992 Wyo. LEXIS 101 (Wyo. 1992).

Credit for time spent in community corrections facility. —

Appellant inmate was improperly denied credit for the time spent at a community corrections facility (CCF) after a violation of probation because time in a CCF constituted official detention under Wyo. Stat. Ann. § 7-18-108(a) and a person in a CCF could be charged with escape under this section. Baker v. State, 2011 WY 53, 248 P.3d 640, 2011 Wyo. LEXIS 55 (Wyo. 2011).

Credit for time spent in Surveillance and Treatment Program.—

Where defendant was placed on probation and ordered to participate in Surveillance and Treatment of Offender Program (S.T.O.P.), defendant was not eligible for credit for the time spent in the program when her probation was revoked, since the defendant could not be charged with escape from S.T.O.P., and S.T.O.P. was not a community correctional center. Kupec v. State, 835 P.2d 359, 1992 Wyo. LEXIS 101 (Wyo. 1992).

Jury not instructed prohibited conduct had to be undertakenvoluntarily. —

Conviction for escape was reversed where cumulative effect of an instructional error and the prosecutor's misstatements Wyo. Stat. Ann. § 6-5-206(a)(i) created verdict that could not be trusted, because the jury had not been instructed that it had to find that appellant had acted voluntarily; even a general intent crime required a showing that the prohibited conduct was undertaken voluntarily. Seymore v. State, 2007 WY 32, 152 P.3d 401, 2007 Wyo. LEXIS 33 (Wyo. 2007), limited, Wyant v. State, 2020 WY 15, 458 P.3d 13, 2020 Wyo. LEXIS 14 (Wyo. 2020).

Sufficiency of Evidence. —

When a defendant signed out of a community corrections facility, ostensibly to go to work when she no longer had a job, evidence was sufficient to show defendant was guilty of escape. Moreover, defendant failed to show that this section was unconstitutional; she failed to raise the constitutional issue before the district court, and she failed to show plain error. Jones v. State, 2006 WY 40, 132 P.3d 162, 2006 Wyo. LEXIS 43 (Wyo. 2006).

Evidence was sufficient to support defendant's conviction for escape. Although there was no direct evidence of where defendant was during the hours he was missing from a work site, the circumstantial evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that defendant left his place of employment. Martin v. State, 2007 WY 2, 149 P.3d 707, 2007 Wyo. LEXIS 3 (Wyo. 2007).

Applied in

Smith v. State, 932 P.2d 1281, 1997 Wyo. LEXIS 26 (Wyo. 1997).

Quoted in

Angerhofer v. State, 758 P.2d 1041, 1988 Wyo. LEXIS 104 (Wyo. 1988); Prejean v. State, 794 P.2d 877, 1990 Wyo. LEXIS 74 (Wyo. 1990); Jenkins v. State, 2002 WY 107, 49 P.3d 1028, 2002 Wyo. LEXIS 113 (Wyo. 2002); Hagen v. State, 2014 WY 141, 2014 Wyo. LEXIS 161 (Nov. 5, 2014).

Cited in

Young v. State, 904 P.2d 359, 1995 Wyo. LEXIS 191 (Wyo. 1995); Shaughnessy v. United States, 2000 U.S. Dist. LEXIS 5300, 93 F. Supp. 2d 1195 (D. Wyo. 2000); Endris v. State, 2010 WY 73, 233 P.3d 578, 2010 Wyo. LEXIS 76 (June 3, 2010); Yearout v. State, 2013 WY 133, 311 P.3d 180, 2013 Wyo. LEXIS 139 , 2013 WL 5728045 (Oct 22, 2013); Yearout v. State, 2013 WY 133, 311 P.3d 180, 2013 Wyo. LEXIS 139 , 2013 WL 5728045 (Oct 22, 2013).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes “custody” under 18 USCS § 751(a) defining offense of escape from custody, 114 ALR Fed 581.

§ 7-18-113. Confinement of violators.

If the administrator of an adult community correctional facility or any other appropriate supervising authority has cause to believe that an offender, parolee or inmate placed in an adult community correctional facility has violated any rule or condition of that person’s placement in that facility or any term of post-release supervision or cannot be safely housed in that facility, the administrator or other authority shall certify to the department the facts which are the basis for the belief and execute a transfer order to the sheriff of the county in which the facility is located, who shall confine the offender, parolee or inmate in the county jail pending a determination by the appropriate judicial or executive authorities as to whether or not the offender, parolee or inmate shall remain in community corrections.

History. Laws 1985, ch. 219, § 1; 1992, ch. 25, § 3; 1995, ch. 101, § 2; 2003, ch. 42, § 1.

§ 7-18-114. Record and disbursement of wages; exemption from process; confidentiality of amount.

  1. Wages earned by an inmate, parolee or offender while in an adult community corrections program shall be retained and accounted for by the program operator and shall be disbursed for the purposes provided in this subsection and in the order specified:
    1. Personal necessities;
    2. Room and board to the program operator at a rate to be established by the department;
    3. Support of dependent relations;
    4. Court ordered restitution, fines, sanctions and reimbursement for the services of public defender or court appointed counsel, the surcharge imposed under W.S. 1-40-119 , victims compensation obligations under W.S. 1-40-112(g) and the surcharge imposed under W.S. 7-13-1616 ;
    5. Repealed by Laws 1999, ch. 62, § 2.
    6. Costs of health insurance; and
    7. Remaining funds shall be paid to the inmate, parolee or offender upon parole or final discharge.
  2. Wages earned by offenders, other than parolees or inmates, while in a residential adult community corrections program shall be retained and accounted for by the program operator and shall be disbursed only for the purposes and in the order specified in subsection (a) of this section unless otherwise ordered by the sentencing court. Any remaining funds shall be paid to the offender upon his satisfactory discharge from the program. Upon revocation of an offender’s probation, the program operator shall forward any remaining funds to the court or to the institution to which the offender is sentenced as directed by the court.
  3. Program operators shall keep an accurate record and account of all wages earned by inmates, parolees and offenders pursuant to the rules promulgated by the department.
  4. The earnings of inmates under this act are not subject to garnishment, attachment or execution.
  5. Information relating to the amount of wages earned by an inmate, parolee or offender in an adult community corrections program is confidential and is not subject to public inspection.

History. Laws 1985, ch. 219, § 1; 1988, ch. 39, § 1; 1990, ch. 94, § 1; 1992, ch. 25, § 3; 1995, ch. 101, § 2; 1999, ch. 62, §§ 1, 2; 2003, ch. 42, § 1; 2016, ch. 71, § 2.

Cross references. —

As to victim restitution, see chapter 9 of this title.

As to attachment, replevin and garnishment, see chapter 15 of title 1.

The 2016 amendment, effective July 1, 2016, deleted “and” following “W.S. 1-40-119 ” and inserted “and the surcharge imposed under W.S. 7-13-1616 ” in (a)(iv).

Meaning of “this act.” —

For the definition of “this act,” referred to in subsection (d), see § 7-18-102(a)(ix).

§ 7-18-115. Assignment of parolee to program by state board of parole; placement by department as administrative sanction.

  1. Subject to subsection (b) of this section, the state board of parole may, as a condition of parole, require a parolee to participate in a residential or nonresidential adult community correctional program during all or any part of his term of parole.
  2. Placement of a parolee in an adult community correctional facility or program under this section shall be made only if:
    1. Repealed by Laws 2019, ch. 116, §  3.
    2. The adult community correctional facility or program is operated under a contract with a corrections board and the corrections board has contracted with the department to provide services which include placement of parolees;
    3. The parolee has been accepted by the corrections board;
    4. Funding for the placement is available; and
    5. The offender is assessed through a validated risk-need assessment as a high risk of reoffending or violating a condition of parole.
  3. Prior to the placement of a parolee in any nongovernmental adult community correctional facility, the department shall notify or cause to be notified the law enforcement agencies of affected units of local government concerning the identity of the parolee to be placed.
  4. No parolee shall be paroled to an adult residential community corrections facility under this section unless he agrees in writing to abide by the regulations of the program provider and any additional conditions imposed by the state board of parole and the department.
  5. The state board of parole may revoke a parolee’s parole at any time for violation by the parolee of any conditions of the placement under this section. Upon revocation, the parolee shall be returned to the physical custody of the department.
  6. The probation and parole officers for the judicial district shall have general supervisory authority over all parolees placed in adult community correctional facilities or programs under this section.
  7. Subject to subsection (b) of this section, the department may impose the administrative sanctions provided in W.S. 7-13-1802(b) on any parolee participating in an intensive supervision program who violates the rules and restrictions of the program as an alternative to parole revocation.
  8. Notwithstanding paragraph (b)(v) of this section, placement of a parolee in an adult community correctional program authorized under this article as a sanction under subsection (g) of this section, W.S. 7-13-1801 through 7-13-1803 or following a modification or revocation of parole shall not require the parolee to be assessed through a validated risk-need assessment as a high risk for reoffending or violating a condition of probation.

History. Laws 1995, ch. 101, § 1; 1999, ch. 174, § 1; 2003, ch. 42, § 1; 2019, ch. 116, §§ 2, 3; 2020, ch. 18, § 1.

The 2019 amendments. — The first 2019 amendment, by ch. 116 § 2, effective July 1, 2019, added (b)(v) in (g), substituted "W.S. 7-13-1801 through 7-13-1803 " for "W.S. 7-13-1107 " and made related changes.

The second 2019 amendment, by ch. 116 § 3, effective July 1, 2019, repealed (b)(i), which read: "The state board of parole determines the inmate poses a low risk of escape or violence."

The 2020 amendment, in (g), substituted “impose the administrative sanctions provided in W.S. 7-13-1802(b) on” for “, as an administrative sanction pursuant to W.S. 7-13-1801 through 7-13-1803 , require” and deleted “to participate in an adult residential community correctional program for a period not to exceed sixty (60) days” following “restrictions of the program”; and added (h).

Laws 2020, ch. 18, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2020.

Applicability. —

Laws 2019, ch. 116 § 4, provides: "The provisions of this act shall apply to all persons who are sentenced on or after the effective date of this act."

Chapter 19 Criminal History Records

Article 1. In General

§ 7-19-101. Short title.

This act shall be known and may be cited as the “Wyoming Criminal History Record Act”.

History. Laws 1987, ch. 163, § 1.

Meaning of “this act.” —

For the definition of “This act,” referred to in this section, see § 7-19-103(a)(x).

§ 7-19-102. Scope and applicability of provisions.

  1. This act governs all systems of records for the collection, maintenance, use and dissemination of individually identifiable criminal history record information by any criminal justice agency.
  2. This act applies to criminal history record information compiled for all felonies, high misdemeanors and other misdemeanors determined by the division pursuant to W.S. 9-1-623(a) but does not apply to violations of municipal ordinances.
  3. Notwithstanding any provision of this act, specific provisions relating to confidentiality of records contained in Title 14, Wyoming statutes, shall govern in those circumstances to which the more specific statute applies. This subsection shall not apply to the disclosure requirements provided in W.S. 7-19-309 .

History. Laws 1987, ch. 163, § 1; 2016, ch. 13, § 2.

The 2016 amendment , effective July 1, 2016, in (c), add “This subsection shall not apply to the disclosure requirements provided in W.S. 7-19-309 .”

Meaning of “this act.” —

For the definition of “this act,” referred to throughout this section, see § 7-19-103(a)(x).

§ 7-19-103. Definitions.

  1. As used in this act:
    1. “Conviction data” includes records indicating criminal justice transactions related to an offense that have resulted in a conviction, guilty plea or a plea of nolo contendere of an individual;
    2. “Criminal history record information” means information, records and data compiled by criminal justice agencies on individuals for the purpose of identifying criminal offenders consisting of identifiable descriptions of the offenders and notations or a summary of arrests, detentions, indictments, information, pre-trial proceedings, nature and disposition of criminal charges, sentencing, rehabilitation, incarceration, correctional supervision and release. Criminal history record information is limited to information recorded as the result of the initiation of criminal proceedings. It does not include intelligence data, analytical prosecutorial files, investigative reports and files or statistical records and reports in which individual identities are not ascertainable, any document relating to restoration of voting rights, or any document signed by the governor granting a pardon, commutation of sentence, reprieve, remission of fine or forfeiture, or a restoration of civil rights;
    3. “Criminal justice agency” means any agency or institution of state or local government other than the office of the public defender which performs as part of its principal function, activities relating to:
      1. The apprehension, investigation, prosecution, adjudication, incarceration, supervision or rehabilitation of criminal offenders;
      2. The collection, maintenance, storage, dissemination or use of criminal history record information.
    4. “Division” means the Wyoming division of criminal investigation within the office of the attorney general;
    5. “High misdemeanor” means a misdemeanor for which the penalty authorized by law exceeds the jurisdiction of municipal courts;
    6. “Interstate system” means all agreements, arrangements and systems for the interstate transmission and exchange of criminal history record information. The term does not include record keeping systems in the state maintained or controlled by any state or local agency, or group of agencies, even if the agencies receive or have received information through, or otherwise participate or have participated in, systems for the interstate exchange of criminal history record information;
    7. “Nonconviction data” means arrest information in cases in which:
      1. There has been an acquittal, dismissal or annulment of verdict or plea;
      2. An interval of one (1) year has elapsed from the date of arrest and no active prosecution of the charge is pending;
      3. A law enforcement agency has elected not to refer a matter to a prosecutor;
      4. A prosecutor has elected not to commence criminal proceedings; or
      5. The proceedings have been indefinitely postponed.
    8. “State” means the state of Wyoming;
    9. “System of record” means any group of records under the control of a criminal justice agency from which information is retrieved using the name of the individual or some identifying number, symbol or other identifier particularly assigned to the individual. The term does not include records that are maintained only in chronological order or by numbers which are not particular to individuals;
    10. “This act” means W.S. 7-19-101 through 7-19-109 .

History. Laws 1987, ch. 163, § 1; 2001, ch. 48, § 1; 2003, ch. 132, § 1; 2004, ch. 42, § 1; 2015, ch. 163, § 1.

Cross references. —

As to public defender, see chapter 6 of this title.

As to jurisdiction of municipal judge, see § 5-6-201 .

As to division of criminal investigation, see § 9-1-611 .

The 2004 amendment, in (a)(v), deleted “and justice of the peace” following “jurisdiction of municipal.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

The 2015 amendment, in (a)(ii), inserted “any document relating to restoration of voting rights”, deleted the last phrase which read: “by the governor or restoration of voting rights by the state board of parole.”

Laws 2015, ch. 163, § 5(b), makes the act effective January 1, 2016.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-19-104. Procedures to insure currentness of information; disposition and arrest data.

  1. The collection, storage, dissemination and use of criminal history record information under this act shall take place under procedures reasonably designed to ensure that all information is kept current.
  2. Criminal history record information collected, stored, disseminated or used under this act shall contain, to the maximum extent feasible, disposition as well as arrest data where arrest data is included.

History. Laws 1987, ch. 163, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in both subsections (a) and (b), see § 7-19-103(a)(x).

§ 7-19-105. Rules and regulations.

  1. The division shall promulgate reasonable rules and regulations to carry out the provisions of this act. The rules shall include:
    1. Standards and procedures to ensure the security and privacy of all criminal history record information and that the information is used only for criminal justice and other lawful purposes; and
    2. Standards and procedures in conformance with this act relating to access to and dissemination of criminal history record information, research, system security, record completeness and accuracy, training, intrastate and interstate exchanges, user agreements, audits and procedures for review and challenge of records.

History. Laws 1987, ch. 163, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to in the first sentence in the introductory language of subsection (a), and in paragraph (a)(ii), see § 7-19-103(a)(x).

§ 7-19-106. Access to, and dissemination of, information.

  1. Criminal history record information shall be disseminated by criminal justice agencies in this state, whether directly or through any intermediary, only to:
    1. Other criminal justice agencies;
    2. Any person designated for the purpose provided by W.S. 14-6-227 ;
    3. The department of family services;
    4. Other governmental agencies as authorized by the laws of the United States or any state or by executive order;
    5. An individual who has met the requirements established by the division to ensure the record will be used solely as a statistical research or reporting record and that the record is to be transferred in a form that is not individually identifiable;
    6. Any record subject as provided by W.S. 7-19-109 ;
    7. The department of health;
    8. The Wyoming state board of nursing for purposes of obtaining background information on applicants for licensure or certification under the board;
    9. Court supervised treatment program staff solely for the purposes of utilizing the information pursuant to the Court Supervised Treatment Programs Act in title 7, chapter 13, article 6;
    10. Repealed by Laws 2013, ch. 127, § 3.
    11. The secretary of state, through the electronic voter registration system, for confirmation of the existence or nonexistence of felony conviction records of registered voters and of individuals seeking to register to vote. If the criminal history record information indicates that the subject’s voting rights have been restored, that information shall also be provided. Notwithstanding subsection (c) of this section and W.S. 7-19-108 , the subject’s fingerprints shall not be required and no fee shall be charged. The necessary identifying information shall be provided to the division and the disclosures made in accordance with the terms agreed upon by the secretary of state and the attorney general;
    12. The board of examiners for optometry for purposes of obtaining background information on applicants for licensure or certification by the board;
    13. Any public fire department, ambulance service, counties providing fire protection services pursuant to W.S. 18-3-509 , regional emergency response team or fire protection district, using paid employees or volunteers on a full-time or part-time basis, for purposes of obtaining criminal history record information on prospective employees;
    14. The office of homeland security for purposes of obtaining background information on prospective homeland security workers and regional emergency response team participants;
    15. The military department for purposes of obtaining criminal history record information on prospective employees or volunteers;
    16. The department of transportation for purposes of dealer and wholesaler licensing and permitting under title 31, chapter 16 and for purposes of performing background checks required by W.S. 31-7-103(b) and 31-7-114(f)(iv);
    17. The department of audit;
    18. The certified real estate appraiser board for purposes of permitting or registration under title 33, chapter 39;
    19. The state auditor;
    20. The Wyoming retirement system;
    21. The board of physical therapy for purposes of obtaining background information on applicants for licensure or certification by the board;
    22. The state banking commissioner for purposes of licensing and registration pursuant to W.S. 40-14-604 , 40-14-634 , 40-14-642 , 40-22-108 , 40-23-103 and 40-23-125 ;
    23. The board of medicine for purposes of obtaining background information on applicants for licensure or certification by the board whose application or other information received by the board indicates the applicant has or may have been convicted of a crime, and for purposes of investigation of complaints and disciplinary action against licensees of the board;
    24. The board of midwifery for purposes of obtaining background information on applicants for licensure by the board whose application or other information received by the board indicates the applicant has or may have been convicted of a crime, and for purposes of investigation of complaints and disciplinary action against licensees of the board;
    25. The department of insurance, for purposes of licensing under Wyoming statutes title 26, chapter 9;
    26. The Wyoming professional teaching standards board for purposes of obtaining background information on applications for certification and if requested by a school district, to school district boards of trustees for obtaining background information on employees who may have access to minors in the course of employment;
    27. The department of enterprise technology services for purposes of obtaining background information on prospective and current employees;
    28. A health care licensure board that licenses health care professionals under title 33 of the Wyoming statutes for purposes of obtaining background information on applicants for licensure pursuant to an interstate compact entered into by the state of Wyoming;
    29. The collection agency board for purposes of licensing under Wyoming statutes title 33, chapter 11;
    30. The department of health for purposes of obtaining background information on persons specified in W.S. 40-28-103(d) as part of a medical digital innovation sandbox application;
    31. The banking commissioner or the secretary of state for purposes of obtaining background information on persons specified in W.S. 40-29-104(d) as part of a financial technology sandbox application;
    32. The state treasurer;
    33. The board of examiners of speech-language pathology and audiology for purposes of obtaining background information on persons applying for licensure on or after July 1, 2020 as speech-language pathologists, audiologists or speech-language pathology assistants under Wyoming statutes title 33, chapter 33;
    34. The mental health professions licensing board for purposes of obtaining background information on applicants for licensure or certification by the board.
    35. The Wyoming gaming commission.
  2. Notwithstanding subsection (a) of this section, the division may disseminate criminal history record information to central repositories of other states and to the Federal Bureau of Investigation in accordance with rules and regulations promulgated by the division governing participation in an interstate system for the exchange of criminal history record information, and upon assurance that the information will be used only for purposes that are lawful under the laws of the other states involved or the laws applicable to the Federal Bureau of Investigation.
  3. All applications or requests to the division for criminal history record information submitted by the record subject or any other person except a criminal justice agency or the department of family services, shall be accompanied by the record subject’s fingerprints in addition to any other information required by the division.
  4. No criminal justice agency or individual employed by the agency shall confirm the existence or nonexistence of criminal history record information to any person that would not be eligible to receive the information.
  5. Nothing in this act prohibits the dissemination of conviction data for purposes related to the issuance of visas and the granting of citizenship.
  6. Each person requesting criminal history record information from the division or a criminal justice agency shall upon request be advised in writing whether the person is found to be eligible or ineligible for access.
  7. No information shall be disseminated by the division or by any criminal justice agency to any person or agency prior to determination of eligibility.
  8. Each criminal justice agency holding or receiving criminal history record information shall maintain dissemination logs and other records relative to the release of the information in accordance with rules promulgated by the division.
  9. No criminal history record information released to an authorized recipient shall be released, used or disseminated by that recipient to any other person for any purpose not included in the original request except that the record subject may make further dissemination in his discretion.
  10. Notwithstanding subsection (a) of this section, the division may disseminate criminal history record information concerning a record subject, or may confirm that no criminal history record information exists relating to a named individual:
    1. In conjunction with state or national criminal history record information check under W.S. 7-19-201 ; or
    2. If application is made for a voluntary record information check, provided:
      1. The applicant submits proof satisfactory to the division that the individual whose record is being checked consents to the release of the information to the applicant;
      2. The application is made through a criminal justice agency in this state authorized to access criminal history record information maintained by the division which application shall then be forwarded to the division by the criminal justice agency; and
      3. The applicant pays the fees required by W.S. 7-19-108 .
  11. Notwithstanding any other provision of this act, the Wyoming department of corrections and county jails may release the following information regarding any individual, except juveniles charged with a status offense as defined by W.S. 14-6-201(a)(xxiii), who is or has been committed to the supervision or custody of the department or county jails, unless release of the information could compromise the physical safety of the individual:
    1. Name and other identifying information;
    2. Photograph and physical description;
    3. Any conviction for which the individual was committed to the supervision or custody of the department or county jail;
    4. Sentencing information regarding any conviction for which the individual was committed to the supervision or custody of the department or county jail;
    5. Projected parole eligibility, release and discharge dates;
    6. Current location of the individual’s supervision or custody; and
    7. Date of release from the department’s or county jail’s supervision or custody.
  12. Unless otherwise specifically prohibited by court order, or if disclosure may be withheld under other pertinent law, the Wyoming department of corrections may, ten (10) years after the date of death of the record subject, release to the public any record created and maintained by the department relating to an individual committed to the supervision or custody of the department, except:
    1. Records regarding the victim of the crime;
    2. Medical, psychological and dental records of the inmate;
    3. Records relating to the security of any facility in which the inmate was housed during his incarceration; and
    4. Records relating to out of state placement of the inmate.

History. Laws 1987, ch. 163, § 1; 1991, ch. 113, § 2; ch. 161, § 3; 1993, ch. 153, § 1; 1997, ch. 20, § 1; 2001, ch. 48, § 1; ch. 150, § 2; 2003, ch. 182, § 2; 2004, ch. 94, § 2; 2005, ch. 59, § 1; ch. 171, § 1; 2006, ch. 62, § 1; 2007, ch. 21, § 1; ch. 80, § 2; ch. 107, § 1; ch. 184, § 1; 2008, ch. 7, § 1; 2009, ch. 35, § 1; ch. 72, § 1; ch. 75, § 1; ch. 134, § 2; ch. 145, § 2; ch. 184, § 2; ch. 201, § 1; 2010, ch. 46, § 2; 2011, ch. 55, § 1; 2012, ch. 71, § 1; 2013, ch. 27, § 1; ch. 71, § 1; ch. 127, § 3; ch. 180, § 2; 2017, ch. 129, § 1; ch. 147, § 1; 2018, ch. 19, § 1; 2019, ch. 61, § 3; ch. 198, § 2; 2020, ch. 8, § 1; ch. 128, § 2; 2021, ch. 37, § 1; ch. 109, § 2.

The 2004 amendment added (a)(xi).

Laws 2004, ch. 94, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 5, 2004.

The 2005 amendments. —

The first 2005 amendment, by ch. 59, § 1, added (a)(xii).

Laws 2005, ch. 59, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 18, 2005.

The second 2005 amendment, by ch. 171, § 1, effective July 1, 2005, added (a)(xii) (now (a)(xiii)).

This section is set out as directed by the Wyoming legislative service office.

The 2006 amendment, in (a)(xiii), deleted “or private” following “Any public,” substituted “counties providing fire protection services pursuant to W.S. 18-3-509 ” for “or local,” inserted “or fire protection district,” deleted “state and national” preceding “criminal history record,” deleted “who will respond to emergencies as an employee or volunteer of the fire department, ambulance service or local or regional emergency response team” at the end; added (xiv); and made related changes.

Laws 2006, ch. 62, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 15, 2005.

The 2007 amendments. —

The first 2007 amendment, by ch. 21, § 1, effective July 1, 2007, added (a)(xv).

The second 2007 amendment, by ch. 80, § 2, effective July 1, 2007, added (a)(xvi).

The third 2007 amendment, by ch. 107, § 1, inserted (a)(xvii).

Laws 2007, ch. 107, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 23, 2007.

The fourth 2007 amendment, by ch. 184, § 1, effective July 1, 2007, added subsection (a)(xviii).

While none of the amendments gave effect to the others, all have been set out as reconciled by the legislative service office.

The 2008 amendment, effective July 1, 2008, added (a)(xix).

The 2009 amendments. —

The first 2009 amendment, by ch. 35, § 1, effective January 1, 2010, inserted “and for purposes of performing background checks required by W.S. 31-7-103(b)” at the end of (a)(xvi).

The second 2009 amendment, by ch. 72, § 1, added (a)(xx).

Laws 2009, ch. 72, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 26, 2009.

The third 2009 amendment, by ch. 75, § 1, in (m), added “and county jails” or similar language, and “except juveniles charged with a status offense as defined by W.S. 14-6-201(a)(xxiii)” in the introductory language.

Laws 2009, ch. 75, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 27, 2009.

The fourth 2009 amendment, by ch. 134, § 2, effective July 1, 2009, added (a)(xxi).

The fifth 2009 amendment, by ch. 145, § 2, effective July 1, 2009, in (a)(ix), substituted “Court supervised treatment program” for “Drug court,” inserted “solely for the purposes of” preceding “utilizing,” and substituted “Court Supervised Treatment Programs Act in title 7, chapter 13, article 6” for “drug court act in title 5, chapter 10.”

The sixth 2009 amendment, by ch. 184, § 2, effective July 1, 2009, added (a)(xxii).

The seventh 2009 amendment, by ch. 201, § 1, added (a)(xxiii).

Laws 2009, ch. 201, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2009.

The 2010 amendment, added (a)(xxiv).

Laws 2010, ch. 46, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 5, 2010.

The 2011 amendment, effective July 1, 2011, added (a)(xxv).

The 2012 amendment, added (a)(xxvi).

Laws 2012, ch. 71 § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 13, 2012.

The 2013 amendments. —

The first 2013 amendment, by ch. 27, § 1, effective July 1, 2013, added “40-14-604, 40-14-634 ” and “40-22-108” in (a)(xxii).

The second 2013 amendment, by ch. 71, § 1, effective July 1, 2014, added (a)(viii)(T).

The third 2013 amendment, by ch. 127, § 3, effective July 1, 2013, repealed former (a)(x), which read: “The Wyoming animal euthanasia technicians board for purposes of obtaining background information on applicants for certification by the board.”

The fourth 2013 amendment, by ch. 180, § 2, effective July 1, 2013, added “or registration” in (a)(xviii).

While none of the amendments gave effect to the other, all have been given effect in this section as set out above.

The 2017 amendments. —

The first 2017 amendment, by ch. 129, § 1, adds (a)(xxvii).

The second 2017 amendment, by ch. 147, § 1, added (a)(xxvii).

Laws 2017, ch. 147, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Art. 4, § 8, Wyo. Const. Approved Mar. 6, 2017.

While neither amendment gave effect to the other, both have been set out as reconciled by the legislative service office.

The 2018 amendment, added (a)(xxix).

Laws 2018, ch. 19, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2018.

The 2019 amendments. — The first 2019 amendment, by ch. 61, § 3, effective January 1, 2020, added (a)(xxxi).

The second 2019 amendment, by ch. 198, § 2, effective January 1, 2020, added (a)(xxx).

The 2020 amendments. — The first 2020 amendment, by ch. 8, § 1, added (a)(xxxiii).

Laws 2020, ch. 8, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art 4, § 8 of the Wyo. Const. Approved March 5, 2020.

The second 2020 amendment, by ch. 128, § 2, effective July 1, 2020, added (a)(xxxiii).

This section is set out as reconciled by the Wyoming legislative service office.

The 2021 amendments. —

The first 2021 amendment, by ch. 37, § 1, effective July 1, 2021, added (a)(xxxiv).

The second 2021 amendment, by ch. 109, § 2, added (a)(xxxiv).

Laws 2021, ch. 109, § 7, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 5, 2021.

This section is set out as reconciled by the Wyoming legislative service office.

Editor's notes. —

There is no subsection (i) or ( l ) in this section as it appears in the printed acts.

Laws 2005, ch. 59, § 1, and Laws 2005, ch. 171, § 1, each added a paragraph (xii) to subsection (a). The paragraph added by ch. 171, § 1, has been redesignated as paragraph (a)(xiii) at the direction of the legislative service office.

Effective date. —

Laws 2019, ch. 61 § 5, makes the act effective January 1, 2020.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-19-103(a)(x).

Redaction of confidential information. —

Prison officials, in complying with an order to produce information concerning their remedial plan to address shortcomings in the prison's internal investigation process, could not redact from investigative reports the non-confidential information concerning the conditions of confinement but were allowed to redact and not publish to the public or inmates confidential materials relating to medical, personnel, and criminal history records, and information which, under a reasonable person standard, was necessary to protect the safety of inmates cooperating in the investigation process. Skinner v. Uphoff, 2005 U.S. Dist. LEXIS 31945 (D. Wyo. Sept. 27, 2005), aff'd, 175 Fed. Appx. 255, 2006 U.S. App. LEXIS 9237 (10th Cir. Wyo. 2006).

§ 7-19-107. Central repository; information to be submitted; audits; interstate exchanges.

  1. The division of criminal investigation within the office of the attorney general is designated as the central repository for criminal history record information.
  2. For the purpose of maintaining complete and accurate criminal history record information at the central repository, all city, county and state law enforcement agencies, district courts, courts of limited jurisdiction, district attorneys, the department of corrections, state juvenile correctional institutions and local probation and parole agencies shall submit the criminal history record information required under this section for which they are responsible to the division for filing at the earliest time possible following the occurrence of the reportable event. Except as provided in subsection (k) of this section, reports shall be submitted on uniform forms approved and provided by the division.
  3. All criminal justice agencies making arrests for offenses covered by this act shall furnish the division with information concerning the charges and description of all persons arrested and shall furnish their fingerprints. Each agency shall also notify the division of any decision not to refer an arrest for prosecution. An agency making arrests covered by this subsection may enter into arrangements with other agencies for the purpose of furnishing required information to the division on its behalf.
  4. All district attorneys shall notify the division of all final disposition information in cases covered by this act including charges not filed in criminal cases for which the division has a record of an arrest.
  5. Except as provided in subsection (k) of this section, all district attorneys and clerks of the district courts and courts of limited jurisdiction shall furnish the division with information concerning final dispositions in criminal cases covered by this act. The information shall include, for each charge:
    1. All judgments of not guilty, discharges and dismissals in the trial courts;
    2. All court orders filed in the case which reverse or remand a reported conviction or vacate, modify or annul a sentence or conviction;
    3. All judgments terminating or revoking a sentence to probation, supervision or conditional discharge and any order relating to resentencing after the termination or revocation.
  6. After the court pronounces sentence in any case covered by this act, including an order of probation, parole or suspended sentence, the sheriff shall fingerprint any convicted defendant who has not previously been fingerprinted for the same case or whose fingerprints for the same case were rejected as unreadable. The sheriff shall submit the fingerprints to the division.
  7. The director of the department of corrections, the superintendents of the Wyoming boys’ school and Wyoming girls’ school and the sheriff of each county shall furnish the division with all information concerning the receipt, escape, execution, death, release, pardon, parole, commutation of sentence, granting of executive clemency or discharge of any individual who has been sentenced to the agency’s custody for any offense covered by this act.
  8. The division shall regularly audit its own records and practices to ensure the completeness and accuracy of criminal history record information collected, maintained, used or disseminated by it, and to evaluate its procedures and facilities relating to the privacy and security of information. The division shall periodically audit the records and practices of each criminal justice agency in this state authorized to access criminal history record information maintained by the division.
  9. The division may enter into agreements with criminal records central repositories and criminal justice agencies of other states or the federal government to establish uniform procedures and practices, including codes, formats and fee schedules to facilitate the interstate exchange of criminal record information.
  10. Upon implementation of a case management system in a circuit or district court, the supreme court shall, on behalf of the district or circuit court, furnish electronically to the division an abstract of the court record within ten (10) days after entry of a judgment of conviction or forfeiture of bail. The abstract shall include:
    1. The name and address of the person charged;
    2. A citation to the statute of each offense charged;
    3. The finding or disposition of each offense charged;
    4. The amount of fine, forfeiture or penalty imposed, if any, or any changes to the amount;
    5. Other information as determined and agreed upon by the office of the attorney general and the supreme court pursuant to rules promulgated by the attorney general and the supreme court.
  11. Nothing in subsection (k) of this section shall preclude a state agency from requesting and obtaining public court records as provided by court rule.

History. Laws 1987, ch. 163, § 1; 1992, ch. 25, § 3; 2020, ch. 4, § 1.

Cross references. —

As to division of criminal investigation, see § 9-1-611 .

The 2020 amendment, effective July 1, 2020, added “Except as provided in subsection (k) of this section” at the end of (b) and beginning of (e); added (k); and added (m).

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to throughout subsections (c) through (g), see § 7-19-103(a)(x).

Am. Jur. 2d, ALR and C.J.S. references. —

What is agency subject to Privacy Act provisions ( 5 U.S.C. § 552a), 150 ALR Fed 521.

§ 7-19-108. Fees.

  1. The division may charge the record subject or any other person or noncriminal justice agency qualified to receive criminal history record information, a reasonable application fee of not more than fifteen dollars ($15.00) for processing of fingerprints and other information submitted for a criminal history records check, except:
    1. No fee shall be charged to criminal justice agencies or the department of family services;
    2. The application fee charged shall be not more than ten dollars ($10.00) if:
      1. The applicant is an organization engaged in providing volunteer services to youth or victims of family violence. Examples of those organizations include big brothers and big sisters and volunteer workers in safe houses for victims of family violence; and
      2. The applicant requests the background investigation be performed solely to determine the suitability of a prospective volunteer to provide volunteer services.
    3. If national criminal history record information is requested by the submitting party pursuant to W.S. 7-19-201 , the application shall include any additional fee required by the federal bureau of investigation in accordance with federal P.L. 92-544.
  2. Criminal justice agencies which fingerprint applicants at the request of noncriminal justice agencies for criminal history record information may charge a reasonable fee of not more than five dollars ($5.00) for fingerprinting. Fees collected under this subsection shall be credited to the state general fund or to the general fund of the appropriate county or municipality.

History. Laws 1987, ch. 163, § 1; 1991, ch. 113, § 2; ch. 161, § 3.

Cross references. —

As to family violence, see chapter 20 of this title.

Federal law. —

P.L. 92-544 is codified in various provisions in titles 22, 28, 42, 48, and 50 Appx. of the U.S. Code.

§ 7-19-109. Inspection; deletion or modification of information.

  1. An individual has the right to inspect all criminal history record information located within this state which refers to him. The record subject may apply to the district court for an order to purge, modify or supplement inaccurate or incomplete information. Notification of each deletion, amendment or supplementary notation shall be promptly disseminated to any person or agency which received a copy of the record in question during the previous twelve (12) month period as well as the person whose record has been altered.
  2. Criminal justice agencies may prescribe reasonable hours and places for inspection of criminal history record information and may impose additional restrictions, including fingerprinting, reasonably necessary to both assure the records’ security and to verify the identities of those who seek to inspect the records.
  3. When an application for inspection of criminal history record information is received by a criminal justice agency the agency shall determine whether a record pertaining to the applicant is maintained. If a record is maintained, the agency shall inform the applicant of the existence of the record and inform him of the procedure for examining the record. Upon verification of his identity, the applicant or his authorized representative shall be allowed to examine the record pertaining to him and to receive a true copy.

History. Laws 1987, ch. 163, § 1.

Cross references. —

As to district courts, see chapter 3 of title 5.

Am. Jur. 2d, ALR and C.J.S. references. —

Expunction of federal arrest records in absence of conviction, 97 ALR Fed 652.

Article 2. State or National Criminal History Record Information

§ 7-19-201. State or national criminal history record information.

  1. The following persons shall be required to submit to fingerprinting in order to obtain state and national criminal history record information:
    1. Employees of substitute care providers certified by the department of family services pursuant to W.S. 14-4-101 through 14-4-116 ;
    2. State institution, department of family services or department of health employees who may have access to minors, to persons suffering mental illness or developmental disabilities or to the elderly;
    3. Applicants for initial certification by the professional teaching standards board and employees initially hired by a school district on or after July 1, 1996, who may have access to minors in the course of their employment. In accordance with W.S. 21-3-111(a) (xxi), employees of a school district who meet the qualifications of this paragraph shall also be required to submit to fingerprinting for purposes of this subsection upon request of, and payment of applicable fees by, the employing school district;
    4. All persons applying for licensure to the Wyoming Board of Examiners for Optometry on or after July 1, 2005;
    5. Department of health or department of family services contractors providing specialized home care or respite care to minors;
    6. Persons applying for a permit or license under W.S. 11-25-104(f) or if required under W.S. 11-25-104(k);
    7. Prospective employees or volunteers of a public fire department, ambulance service, a county providing fire protection services pursuant to W.S. 18-3-509 or fire protection district if the department, service, county or district requires prospective employees or volunteers or both, to submit to fingerprinting in order to obtain state and national criminal history record information as a condition for a position with the department, service, county or district;
    8. Prospective employees of or volunteers with the Wyoming military department if the department requires prospective employees or volunteers, or both, to submit to fingerprinting in order to obtain state and national criminal history record information as a condition for a position with the department;
    9. Persons applying for a dealer or Wyoming based manufacturer license under W.S. 31-16-103 or a special sales permit under W.S. 31-16-127 ;
    10. Department of audit employees or applicants for employment who have access to confidential financial or accounting records;
    11. Persons applying for a permit under W.S. 33-39-109 or a registration under W.S. 33-39-209 or 33-39-211 ;
    12. State auditor employees or applicants for employment who have access to confidential financial or accounting records;
    13. Persons applying for a new license under W.S. 33-28-106 ;
    14. Wyoming retirement system employees or applicants for employment who have access to confidential financial information or records;
    15. All persons applying for licensure or certification to the Wyoming board of physical therapy on or after July 1, 2009;
    16. Mortgage lenders, mortgage brokers, mortgage loan originators, money transmitters and persons identified in W.S. 40-23-107(b)(i), as necessary to perform the background checks required by W.S. 40-14-604(a)(vii), 40-14-634(p)(i), 40-14-642(c)(i), 40-22-108(e) and (h)(i), 40-23-103(a)(viii) and 40-23-125(c)(i);
    17. All persons applying for licensure or certification to the Wyoming board of medicine on or after July 1, 2009, whose application or other information received by the board indicates that the applicant has or may have been convicted of a crime, and any licensee of the board of medicine upon written request from the board of medicine as part of an ongoing investigation of or disciplinary action against the licensee;
    18. Employees, prospective employees and volunteers of the Wyoming department of transportation, as necessary to perform the background checks required by W.S. 31-7-103(b) and 31-7-114(f)(iv);
    19. All persons applying for licensure to the Wyoming board of midwifery whose application or other information received by the board indicates that the applicant has or may have been convicted of a crime, and any licensee of the board of midwifery upon written request from the board of midwifery as part of an ongoing investigation of or disciplinary action against the licensee;
    20. Persons applying for an initial license under Wyoming statutes title 26, chapter 9;
    21. Board members, applicants, vendors and retailers required to receive a background investigation as provided in W.S. 9-17-104(c), 9-17-110(e) and 9-17-120(b) and (c)(i). Fingerprint card submissions under this paragraph shall be forwarded through the division of criminal investigation and the division of criminal investigation shall be responsible for receiving and screening the results of any record check to determine an applicant’s suitability for employment or licensing under the provisions specified in this paragraph;
    22. Persons conducting skills testing under W.S. 31-7-114(f)(iv);
    23. Employees of the state, state agencies, institutions and political subdivisions of the state, or applicants for employment with any of those entities, whose job duties require access to federal tax information, if the head of the agency, institution or political subdivision, or their designee, determines that federal law governing access to federal tax information requires a criminal history record check of the employee or applicant. The provisions of this paragraph shall also apply to individuals who are contractors or subcontractors providing goods or services to any of the specified entities, if in the performance of the contract the individual has or will have access to federal tax information and the contracting governmental entity determines that federal law requires the criminal history record check;
    24. Department of enterprise technology services employees or applicants for employment who have access to confidential information or records, if required by the state chief information officer as a condition for a position with the department of enterprise technology services;
    25. Health care professionals applying for licensure under title 33 of the Wyoming statutes, if required as a condition for licensure pursuant to an interstate compact entered into by the state of Wyoming;
    26. If requested by the department of health, persons specified in W.S. 40-28-103(d) as part of a medical digital innovation sandbox application;
    27. Persons specified in W.S. 40-29-104(d) as part of a financial technology sandbox application;
    28. State treasurer’s office employees, interns or applicants for employment who have access to confidential financial, accounting or investment information or records;
    29. Persons applying for licensure on or after July 1, 2020 as speech-language pathologists, audiologists or speech-language pathology assistants under Wyoming statutes title 33, chapter 33;
    30. All persons applying for licensure or certification to the mental health professions licensing board under title 33, chapter 38 of the Wyoming statutes.
  2. Fingerprints taken pursuant to this article shall be submitted to the Wyoming division of criminal investigation for processing and obtaining state and national criminal history record information and shall be accompanied by the fee required by W.S. 7-19-108 . Upon payment of required fees, the division shall process and obtain state and national criminal history record information for the Wyoming state board of nursing and the board of pharmacy or for an applicant for licensure or certification by either board.
  3. Pursuant to federal P.L. 92-544, the division may submit any applicant fingerprint cards received pursuant to this article to the federal bureau of investigation for the purpose of obtaining national criminal history record information.
  4. The department of administration and information shall promulgate rules and regulations necessary to carry out this section.
  5. The Wyoming military department, any public fire department, ambulance service or regional emergency response team may as a condition of employment or other participation with the entity require all applicants for employee or volunteer positions with the entity to submit to fingerprinting in order to obtain state and national criminal history record information. In addition, the office of homeland security may as a condition of participation in a regional emergency response team require all team participants to submit to fingerprinting in order to obtain state and national criminal history record information.

History. Laws 1991, ch. 113, § 1; 1993, ch. 153, § 1; 1996, ch. 94, § 2; 1997, ch. 20, § 1; 2003, ch. 176, § 2; ch. 201, § 1; 2005, ch. 59, § 1; ch. 171, § 1; 2006, ch. 26, § 1; ch. 62, § 1; 2007, ch. 21, § 1; ch. 80, § 2; ch. 107, § 1; ch. 184, § 1; 2008, ch. 7, § 1; 2009, ch. 35, § 1; ch. 63, § 1; ch. 72, § 1; ch. 134, § 2; ch. 184, § 2; ch. 201, § 1; 2010, ch. 46, § 2; ch 82, § 1; 2011, ch. 55, § 1; 2012, ch. 71, § 1; 2013, ch. 27, § 1; ch. 71, § 1; ch. 180, § 2; ch. 200, § 2; 2017, ch. 129, § 1; ch. 131, § 1; ch. 147, § 1; 2019, ch. 61, § 3; ch. 198, § 2; 2020, ch. 8, § 1; ch. 114, § 2; ch. 128, § 2; 2021, ch. 37, § 1; ch. 109, § 2.

The 2005 amendments. —

The first 2005 amendment, by ch. 59, § 1, rewrote (a), moving provisions pertaining to fingerprinting to an introductory sentence, adding paragraph designations, and adding (a)(iv).

Laws 2005, ch. 59, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 18, 2005.

The second 2005 amendment, by ch. 171, § 1, effective July 1, 2005, added (e).

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

The 2006 amendments. —

The first 2006 amendment, by Laws 2006, ch. 26, § 1, effective July 1, 2006, added (a)(vi).

The second 2006 amendment, by Laws 2006, ch. 62, § 1, added (a)(vi) which is now redesignated as (a)(vii); in (e), deleted “or private” following “Any public,” and added the last sentence.

Laws 2006, ch. 62, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 15, 2006.

Neither amendment gave effect to the other and this section is set out as reconciled by the legislative service office.

The 2007 amendments. —

The first 2007 amendment, by ch. 21, § 1, effective July 1, 2007, added (a)(viii); in (e) substituted “The Wyoming military department, any” for “Any.”

The second 2007 amendment, by ch. 80, § 2, effective July 1, 2007, added (a)(ix).

The third 2007 amendment, by ch. 107, § 1, added (a)(viii).

Laws 2007, ch. 107, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 23, 2007.

The fourth 2007 amendment, by ch. 184, § 1, effective July 1, 2007, added subsection (a)(xi).

While none of the amendments gave effect to the others, this section is set out as reconciled by the legislative service office.

The 2008 amendment, effective July 1, 2008, added (a)(xii).

The 2009 amendments. —

The first 2009 amendment, by ch. 35, § 1, effective January 1, 2010, added (a)(xviii).

The second 2009 amendment, by ch. 63, § 1, effective July 1, 2009, added (a)(xiv).

The third 2009 amendment, by ch. 72, § 1, added (a)(xv).

Laws 2009, ch. 72, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 26, 2009.

The fourth 2009 amendment, by ch. 134, § 2, effective July 1, 2009, added (a)(xvi).

The fifth 2009 amendment, by ch. 184, § 2, effective July 1, 2009, added (a)(xvii)

The sixth 2009 amendment, by ch. 201, § 1, added (a)(xviii).

Laws 2009, ch. 201, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2009.

This section is set out as reconciled by the Wyoming legislative service office.

The 2010 amendments. —

The first 2010 amendment, by ch. 46, § 2, added (a)(xix).

Laws 2010, ch. 46, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 5, 2010.

The second 2010 amendment, by ch. 82, § 1, in (a)(xvi), substituted “40-23-107(b)(i)” for “40-23-107(a)(iii).”

Laws 2010, ch. 82, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2010.

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

The 2011 amendment, effective July 1, 2011, added (a)(xx).

The 2012 amendment, added the last sentence of (a)(iii).

Laws 2012, ch. 71 § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 13, 2012.

The 2013 amendments. —

The first 2013 amendment, by ch. 27, § 1, effective July 1, 2013, in (a)(xvi), inserted “money transmitters,” and inserted internal references.

The second 2013 amendment, by ch. 71, § 1, effective January 1, 2014, added “and 31-7-114(f)(iv)” in (a)(xviii); and added (xxi).

The third 2013 amendment, by ch. 180, § 2, effective July 1, 2013, added “or a registration under W.S. 33-39-209 or 33-39-211 ” in (a)(xi).

The fourth 2013 amendment, by ch. 200, § 2, effective January 1, 2013, added (a)(xxi).

This section is set out as reconciled by the Legislative Service Office.

The 2017 amendments. —

The first 2017 amendment, by ch. 129, § 1, adds (a)(xxiii).

Laws 2017, ch. 129, § 2, makes the amendment effective immediately upon completion of all acts necessary for a bill to become law as provided by Art. 4, § 8, Wy. Const. Approved Mar. 6, 2017.

The second 2017 amendment, by ch. 131, § 1, effective July 1, 2017, added (a)(xxiii).

The third 2017 amendment, by ch. 147, § 1, added (a)(xxiii).

Laws 2017, ch. 147, § 2, makes the amendment effective immediately upon completion of all acts necessary for a bill to become law as provided by Art. 4, § 8, Wy. Const. Approved Mar. 6, 2017.

While none of the amendments gave effect to the others, all have been set out as reconciled by the legislative service office.

The 2019 amendments. — The first 2019 amendment by ch. 61, § 3, effective January 1, 2020, added (a)(xxvii).

The second 2019 amendment by ch. 198, § 2, effective January 1, 2020, added (a)(xxvi).

The 2020 amendments. — The first 2020 amendment, by ch. 8, § 1, added (a)(xxviii).

Laws 2020, ch. 8, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art 4, § 8 of the Wyo. Const. Approved March 5, 2020.

The second 2020 amendment, by ch. 114, § 2, in (a)(vi) added “or if otherwise required under title 11, chapter 25 of the Wyoming statutes” at the end.

Laws 2020, ch. 114, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo Const. Approved March 17, 2020.

The third 2020 amendment, by ch. 128, § 2, effective July 1, 2020, added (a)(xxix).

This section is set out as reconciled by the Wyoming legislative service office.

The 2021 amendments. —

The first 2021 amendment, by ch. 37, § 1, effective July 1, 2021, added (a)(xxx).

The second 2021 amendment, by ch. 109, § 2, substituted "or if required under W.S. 11-25-104(k)" for "or if otherwise required under title 11, chapter 25 of the Wyoming statutes" in (a)(vi).

Laws 2021, ch. 109, § 7, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 5, 2021.

Article 3. Sex Offender Registration

For discussion of Wyoming Sex Offenders Registration Act as constitutional, see Snyder v. State, 912 P.2d 1127, 1996 Wyo. LEXIS 37 (Wyo. 1996).

Am. Jur. 2d, ALR and C.J.S. references. —

53 Am. Jur. 2d Mentally Impaired Persons §§ 137 to 149.

57 C.J.S. Mental Health §§ 248 to 253.

§ 7-19-301. Definitions.

  1. Unless otherwise provided, for the purposes of this act:
    1. and (ii) Repealed by Laws 2007, ch. 160, § 2.
    2. “Convicted” includes pleas of guilty, nolo contendere, verdicts of guilty upon which a judgment of conviction may be rendered and adjudications as a delinquent for offenses specified in W.S. 7-19-302(j). “Convicted” shall not include dispositions pursuant to W.S. 7-13-301 ;
    3. “Criminal offense against a minor” means the offenses specified in this paragraph in which the victim is less than eighteen (18) years of age. “Criminal offense against a minor” includes an offense committed in another jurisdiction, including a federal court or courts martial, which, if committed in this state, would constitute a “criminal offense against a minor” as defined in this paragraph. “Criminal offense against a minor” includes:
      1. Kidnapping under W.S. 6-2-201 ;
      2. Felonious restraint under W.S. 6-2-202 ;
      3. False imprisonment under W.S. 6-2-203 ;
      4. Offenses under W.S. 6-4-101 through 6-4-103 in which a minor is the object of the sexual act or proposed sexual act;
      5. Producing obscene material under W.S. 6-4-302 if the offense involves the use of a minor in a sexual performance;
      6. Soliciting sexual conduct under W.S. 6-2-318 ;
      7. Sexual exploitation of a child under W.S. 6-4-303 ;
      8. An attempt to commit an offense described in subparagraphs (A) through (G) of this paragraph;
      9. Human trafficking under W.S. 6-2-702 or 6-2-703 or sexual servitude under W.S. 6-2-705 or 6-2-706 .
    4. “Department” means the state department of corrections;
    5. “Division” means the Wyoming division of criminal investigation created within the office of the attorney general;
    6. “Minor” means a person who has not attained the age of eighteen (18) years at the time of the offense;
    7. “Offender” means a person convicted of a criminal offense specified in W.S. 7-19-302(g) through (j), 6-2-702 , 6-2-703 , 6-2-705 or 6-2-706 . “Offender” shall also include any person convicted:
      1. As an accessory before the fact as provided in W.S. 6-1-201 for a criminal offense specified in W.S. 7-19-302(g) through (j), 6-2-702, 6-2-703, 6-2-705 or 6-2-706;
      2. Of a criminal offense in Wyoming or any other jurisdiction containing the same or similar elements, or arising out of the same or similar facts or circumstances, as a criminal offense specified in W.S. 7-19-302(g) through (j), 6-2-702, 6-2-703, 6-2-705 or 6-2-706.
    8. “Predatory” means an act directed at a stranger or a person with whom a relationship has been established or promoted for the primary purpose of victimization;
    9. “Recidivist” means an offender convicted of an offense requiring registration under this act two (2) or more times. Offenses which would have required registration under this act, but which had a sentencing date prior to January 1, 1985, shall be counted as convictions for purposes of this paragraph;
    10. “Reside” and words of similar import mean the physical address of each residence of an offender, including:
      1. All real property owned by the offender that is used by the offender for the purpose of shelter or other activities of daily living;
      2. Any physical address where the offender habitually visits; and
      3. Temporary residences such as hotels, motels, public or private housing, camping areas, parks, public buildings, streets, roads, highways, restaurants, libraries or other places the offender may frequent and use for shelter or other activities of daily living.
    11. through (xiv) Repealed by Laws 2007, ch. 160, § 2.
    12. “This act” means W.S. 7-19-301 through 7-19-310 ;
    13. “Attending school” means enrollment on a full or part-time basis at any institution;
    14. “Employed” means any full or part-time employment, with or without compensation or other benefit, for a period of more than fourteen (14) days, or for an aggregate period exceeding thirty (30) days in any one (1) calendar year. Institutional contractors and contract employees performing work on an educational institution campus shall be considered institution employees;
    15. “Educational institution” or “institution” means any type of public or private educational facility or program, including elementary, middle and high schools, parochial, church and religious schools as defined by W.S. 21-4-101(a)(iv), trade and professional schools, colleges and universities;
    16. “Residence” means a dwelling place with an established physical address or identifiable physical location intended for human habitation;
    17. “Report” means providing information in person, or by any other means authorized by the sheriff if the person is required to report to the sheriff;
    18. “Working days” shall not include Saturdays, Sundays and legal holidays;
    19. “Vehicle” includes any of the following that is registered under Wyoming law:
      1. Aircraft as defined in W.S. 10-1-101(a)(i);
      2. Motor vehicle, commercial vehicle or trailer as defined in W.S. 31-1-101 ;
      3. Watercraft as defined in W.S. 41-13-101(a)(vii).
    20. Words in the plural form include the singular and words in the singular form include the plural.

History. Laws 1994, ch. 60, § 1; 1999, ch. 203, § 2; 2000, ch. 81, § 1; 2005, ch. 218, § 1; 2006, ch. 114, § 1; 2007, ch. 159, § 2, ch. 160, §§ 1, 2; 2009, ch. 162, § 1; 2011, ch. 179, § 1; 2013, ch. 91, § 2; 2016, ch. 13, § 2; 2017, ch. 83, § 1; ch. 144, § 2.

The 2005 amendment, effective July 1, 2005, added the proviso at the beginning of (a); added (a)(iv)(G), redesignating former (a)(iv)(G) as (a)(iv)(H) and updating an internal reference accordingly; in (a)(xi) substituted “residence” for “domicile” and “ten (10)” for “thirty (30)”; added (a)(xvi) through (a)(xix); and made stylistic changes.

The 2006 amendment, substituted “7-19-307” for “7-19-308.”

Laws 2006, ch. 114, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 24, 2006.

The 2007 amendments. —

The first 2007 amendment, by ch. 159, § 1, effective July 1, 2007, in (a)(iv)(F) substituted “6-2-318” for “14-3-104” at the end of the sentence.

The second 2007 amendment, by ch. 160, § 2, effective July 1, 2007, repealed former (a)(i) and (a)(ii), which pertained to the meanings of “‘Aggravated sex offender,’” and “‘Aggravated sex offense’”; in (a)(viii), deleted “sex offender or a” preceding “person convicted of a,” substituted “specified in W.S. 7-19-203(g) through (j), or convicted of a criminal offense from Wyoming or any other jurisdiction containing the same or similar elements, or arising out of the same or similar facts or circumstances, as a criminal offense specified in W.S. 7-19-302(g) through (j)” for “against a minor”; added (xx) through (xxi); and repealed former (a)(xii) through (a)(xiv), which pertained to the meanings of “‘Sex offender,’” “‘Sex offense,’” and “‘Sexually violent predator.’”

While neither amendment gave effect to the other, both have been set out above.

The 2009 amendment, effective July 1, 2009, in (a)(xi), substituted “the physical address of each residence of an offender, including” for “having established a permanent or temporary residence for ten (10) or more days”; and added (a)(xi)(A) through (a)(xi)(C).

The 2011 amendment, effective July 1, 2011, in (a)(iii), inserted “and adjudications as a delinquent for offenses specified in W.S. 7-19-302(j)”; added (a)(xxii) and (a)(xxiii); and made stylistic changes.

The 2013 amendment, effective July 1, 2013, added (a)(iv)(J); and added “6-2-702, 6-2-703 , 6-2-705 or 6-2-706 ” in (a)(viii).

The 2016 amendment, effective July 1, 2016, in (a)(xv), substituted “7-19-309” for “7-19-307.”

The 2017 amendments. —

The first 2017 amendment, by ch. 83, § 1, effective July 1, 2017, in (a)(viii), deleted ”or convicted of a criminal offense from Wyoming or any other jurisdiction containing the same or similar elements, or arising out of the same or similar facts or circumstances, as a criminal offense specified in W.S. 7-19-302(g) through (j), 6-2-702 , 6-2-703 , 6-2-705 or 6-2-706 ” following “or 6-2-706 ”; added ““Offender” shall also include any person convicted” at the end of the first paragraph; and added (A) and (B).

The second 2017 amendment, by ch. 144, § 2, effective July 1, 2017, at the end of (a)(xv), substituted “7-19-310” for “7-19-309.”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Prospective operation. —

Laws 1999, ch. 203, § 4, provides: “Nothing in this act requires an offender who was previously required to register in accordance with the provisions of W.S. 7-19-301 through 7-19-306 prior to the amendments made by this act to register if his duty to register was terminated by the granting of a petition by the court under W.S. 7-19-304(b).”

Appropriations. —

Laws 2006, ch. 114, § 4, states as follows: “Notwithstanding subsection 3 of this act, Section 300 (c) as created by the 2006 legislature in House Enrolled Act 11, being original House Bill 0001, is amended to read:

“(c) There is appropriated from the budget reserve account to the legislative stabilization reserve account created by 2005 Wyoming Session Laws, Chapter 191, Section 4, Section 301(d), one hundred eighty-three million seven hundred nineteen thousand one hundred eighty-eight dollars ($183,719,188.00). This appropriation shall only be transferred as funds become available in the budget reserve account as determined by the state auditor but not later than June 30, 2008. The appropriation in this subsection shall be reduced by an amount necessary to maintain an unappropriated budget reserve account balance on June 30, 2008, of eighty-six million five hundred thousand dollars ($86,500,000.00). The appropriation in this subsection shall not be transferred to the legislative stabilization reserve account until after the state auditor has determined that there will be sufficient funds within the budget reserve account to fulfill all appropriations and transfers from the budget reserve account under this act and any other legislation enacted into law in the 2006 budget session.”

Laws 2007, ch. 160, § 3, states as follows: “There is appropriated two hundred thousand dollars ($200,000.00) from the general fund to the attorney general for the period beginning with the effective date of this section and ending June 30, 2008. The funds appropriated under this section shall only be used to purchase computer equipment and software necessary to implement the registration and notification requirements under W.S. 7-19-301 through 7-19-307 .”

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “[A]ny other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Equal protection.—

This section did not violate the Equal Protection Clause in Wyo. Const. art. I, § 2, as juveniles were afforded the same opportunity as adults to enter into a consent decree deferring their respective cases and have them discharged and never adjudicated delinquent. Vaughn v. State, 2017 WY 29, 391 P.3d 1086, 2017 Wyo. LEXIS 28 (Wyo. 2017).

Right To Privacy. —

Sexual offender does not stand on equal footing with the unconvicted as far as his right to be left alone by the government is concerned. The nature of his crime has heightened society's interest in protecting itself from him. In re JJF v. State, 2006 WY 41, 132 P.3d 170, 2006 Wyo. LEXIS 44 (Wyo. 2006).

Due Process. —

Supreme Court of Wyoming simply does not believe that the possible injury to a sexual offender from erroneous classification is significantly greater than any possible harm to the state. The ‘possible injury’ to the registrant is that he will be classified as a higher risk than what he actually is, with the attendant statutory consequences; the ‘possible harm’ to the State is a new sexual assault victim, with the attendant shattered life. In re JJF v. State, 2006 WY 41, 132 P.3d 170, 2006 Wyo. LEXIS 44 (Wyo. 2006).

Conflicting legislation. —

Registration and limited notification requirements for certain adjudicated delinquents under the Wyoming Sexual Offender Registration Act (WSORA) did not conflict with the purposes of the Wyoming Juvenile Justice Act (WJJA), Wyo. Stat. Ann. § 14-6-201 et seq., as the language of the WJJA showed that it was to be administered to assure public safety as well as promote the interest of the child and was drafter with knowledge of the WSORA. Vaughn v. State, 2017 WY 29, 391 P.3d 1086, 2017 Wyo. LEXIS 28 (Wyo. 2017).

Stated in

Johnson v. State, 922 P.2d 1384, 1996 Wyo. LEXIS 128 (Wyo. 1996).

Cited in

Andrews v. State, 2002 WY 28, 40 P.3d 708, 2002 Wyo. LEXIS 47 (Wyo. 2002).

§ 7-19-302. Registration of offenders; procedure; verification; fees.

  1. Any offender residing in this state or entering this state for the purpose of residing, attending school or being employed in this state shall register with the sheriff of the county in which he resides, attends school or is employed, or other relevant entity specified in subsection (c) of this section. The offender shall be photographed, fingerprinted and palmprinted by the registering entity or another law enforcement agency and shall provide the following additional information when registering:
    1. Name, including any aliases ever used;
    2. Address;
    3. Date and place of birth;
    4. Social security number;
    5. Place and physical address of employment;
    6. Date and place of conviction;
    7. Crime for which convicted;
    8. The name and physical address of each educational institution in this state at which the person is employed or attending school;
    9. The license plate number and a description of any vehicle owned or operated by the offender;
    10. A DNA sample. As used in this paragraph, “DNA” means as defined in W.S. 7-19-401(a)(vi);
    11. The age of each victim;
    12. Internet identifiers, including each email address and other designations used by the offender for self-identification or routing in internet communications or postings. As used in this paragraph, “internet” means as defined in W.S. 9-2-3219(a)(iii); and
    13. Any phone number at which the offender may be reached or which may be used on a frequent basis by the offender to place telephone calls.
  2. In addition to the requirements of subsection (a) of this section, the department, for offenders sentenced to imprisonment, and the sheriff of the county where judgment and sentence is entered for all other offenders, shall obtain the name of the offender, identifying features, anticipated future residence, offense history and documentation of any treatment received, including prescribed psychotropic medication history, for any psychiatric condition of the offender. This information shall be transmitted to the division within three (3) working days of receipt for entry into the central registration system. A person found to be an offender by a court in another state shall provide information required under this subsection at the time of registration under this act.
  3. Offenders required to register under this act shall register with the entities specified in this subsection and within the following time periods:
    1. Offenders who, on or after July 1, 1999, are in custody of the department, local jail or a public or private agency pursuant to a court order, as a result of an offense subjecting them to registration, who are sentenced on or after January 1, 1985, shall register prior to release from custody. The agency with custody of the offender immediately prior to release shall register the offender and perform the duties specified in W.S. 7-19-305 . If the offender refuses to register or refuses to provide the required information, the agency shall so notify local law enforcement before releasing the offender;
    2. Offenders who are convicted of an offense subjecting them to registration under this act but who are not sentenced to a term of confinement shall register immediately after the imposition of the sentence. The sheriff of the county where the judgment and sentence is entered shall register the offender and perform the related duties specified in W.S. 7-19-305 unless the offender does not reside in the county where the judgment and sentence is entered, in which case he shall register in the county in which he resides within three (3) working days;
    3. Offenders convicted of an offense subjecting them to registration, who, except as provided by paragraph (v) of this subsection, are sentenced on or after January 1, 1985, who reside in or enter this state for the purposes of residing and who are under the jurisdiction of the department or state board of parole or other public agency as a result of that offense shall register within three (3) working days of entering this state. The Wyoming agency that has jurisdiction over the offender shall notify the offender of the registration requirements before the offender moves to this state. Within three (3) working days after the offender arrives in this state, the Wyoming agency that has jurisdiction over the offender shall notify the county sheriff of the county in which the offender resides of the offender’s presence in the county;
    4. Offenders convicted of an offense subjecting them to registration, who, except as provided by paragraph (v) of this subsection, are sentenced on or after January 1, 1985, who reside in or enter this state and who are not under the jurisdiction or custody of the department, board of parole or other public agency as a result of that offense shall register within three (3) working days of entering this state if not a current resident;
    5. Offenders convicted of an offense subjecting them to registration, whose registration requirement was added by the 2011 amendments to this act and who are sentenced after July 1, 2001 shall register as required by paragraph (iii) or (iv) of this subsection as appropriate.
  4. A nonresident who is employed or attends school in this state shall register with the county sheriff of the county in which he is employed or attends school within three (3) working days of beginning employment or starting to attend school. A resident or nonresident who is employed, resides or attends school in more than one (1) location in this state, shall register with the county sheriff of each county in which he is employed, resides or attends school within three (3) working days of beginning employment, establishing a residence in this state or starting to attend school. The registration information accepted under this subsection shall be subject to the provisions of W.S. 7-19-303 .
  5. If any person required to register under this act changes his residence address within the same county, he shall provide notice of the change of address in person to the sheriff of the county in which he resides within three (3) working days of establishing the new residence. If any person required to register under this act moves to a new county in this state, he shall notify in person the county sheriff in the new county and the county sheriff of the county of his previous residence within three (3) working days of establishing the new residence. If the person changes residence to another state and that state has a registration requirement, the division shall, within three (3) working days of receipt of the information, notify the law enforcement agency with which the person must register in the new state. Any person who has not established a new residence within three (3) working days of leaving his previous residence, or becomes transient through lack of residence, shall report on a weekly basis to the sheriff in the county in which he is registered, until he establishes another residence. The information provided to a sheriff under this subsection shall be transmitted by the sheriff to the division within three (3) working days of receipt for entry into the central registry. The division shall notify the victim, or if the victim is a minor the victim’s parent or guardian, within the same time period if the victim, or a minor victim’s parent or guardian, has requested in writing that the division provide notification of a change of address of the offender and has provided the division a current address of the victim, parent or guardian as applicable.
  6. An offender who changes residence to another state shall register the new address with the law enforcement agency with whom he last registered and shall also register with the designated law enforcement agency in the new state not later than three (3) working days after establishing residence in the new state.
  7. For an offender convicted of a violation of W.S. 6-2-316(a)(i) and (iv), 6-4-303(b)(iv) or W.S. 6-4-304(b) if the victim was a minor, 18 U.S.C. §§ 2252B, 2252C, 2424 and 2425, an offense in another jurisdiction containing the same or similar elements, or arising out of the same or similar facts or circumstances as a criminal offense specified in this subsection or an attempt or conspiracy to commit any of the offenses specified in this subsection, the division shall annually verify the accuracy of the offender’s registered address, and the offender shall annually report, in person, his current address to the sheriff in the county in which the offender resides, during the period in which he is required to register. During the annual in-person verification, the sheriff shall photograph the offender. Confirmation of the in-person verification required under this subsection, along with the photograph of the offender, shall be transmitted by the sheriff to the division within three (3) working days. Any person under this subsection who has not established a residence or is transient, and who is reporting to the sheriff as required under subsection (e) of this section, shall be deemed in compliance with the address verification requirements of this section.
  8. For an offender convicted of a violation of W.S. 6-2-304(a)(iii) if the victim was at least fourteen (14) years of age, W.S. 6-2-314(a)(ii) and (iii), 6-2-315(a)(i) and (iii), W.S. 6-2-315(a)(iv) if the victim was thirteen (13) through fifteen (15) years of age, W.S. 6-2-317(a)(i) and (ii) or 6-2-318 , W.S. 6-4-102 if the person solicited was a minor, W.S. 6-4-103 if the person enticed or compelled was a minor, W.S. 6-4-302(a)(i) if the offense involves the use of a minor in a sexual performance or W.S. 6-4-303(b)(i) through (iii), 18 U.S.C. § 2251, an offense in another jurisdiction containing the same or similar elements, or arising out of the same or similar facts or circumstances as a criminal offense specified in this subsection, an attempt or conspiracy to commit any of the offenses specified in this subsection, or any offense enumerated in subsection (g) of this section if the offender was previously convicted of any offense enumerated in subsection (g) of this section, the division shall verify the accuracy of the offender’s registered address, and the offender shall report, in person, his current address to the sheriff in the county in which the offender resides, every six (6) months after the date of the initial release or commencement of parole. If the offender’s appearance has changed substantially, and in any case at least annually, the sheriff shall photograph the offender. Confirmation of the in-person verification required by this subsection, and any new photographs of the offender, shall be transmitted by the sheriff to the division within three (3) working days. Any person under this subsection who has not established a residence or is transient, and who is reporting to the sheriff as required under subsection (e) of this section, shall be deemed in compliance with the address verification requirements of this section.
  9. For an offender convicted of a violation of W.S. 6-2-201 if the victim was a minor, W.S. 6-2-302 or 6-2-303 , W.S. 6-2-304(a)(iii) if the victim was under fourteen (14) years of age, W.S. 6-2-314(a)(i), W.S. 6-2-314(a)(ii) and (iii) if the victim was less than thirteen (13) years of age, W.S. 6-2-315(a)(ii), W.S. 6-2-315(a)(iii) and (iv) if the victim was less than thirteen (13) years of age, W.S. 6-2-316(a)(ii) and (iii), 6-4-402 , 18 U.S.C. § 2245, or an offense in another jurisdiction containing the same or similar elements, or arising out of the same or similar facts or circumstances as a criminal offense specified in this subsection, an attempt or conspiracy to commit any of the offenses specified in this subsection, any offense enumerated in subsection (h) of this section if the offender was previously convicted of any offense enumerated in subsection (g) of this section or any offense enumerated in subsection (g) or (h) of this section if the offender was previously convicted of any offense enumerated in subsection (h) of this section, the division shall verify the accuracy of the offender’s registered address, and the offender shall report, in person, his current address to the sheriff in the county in which the offender resides every three (3) months after the date of the initial release or commencement of parole. If the offender’s appearance has changed substantially, and in any case at least annually, the sheriff shall photograph the offender. Confirmation of the in-person verification required by this subsection, and any new photographs of the offender, shall be transmitted by the sheriff to the division within three (3) working days. Any person under this subsection who has not established a residence or is transient, and who is reporting to the sheriff as required under subsection (e) of this section, shall be deemed in compliance with the address verification requirements of this section.
  10. Any person required to register under this act shall provide information in person to the sheriff of the county in which he is registered and to any other relevant registering entity specified in subsection (c) of this section regarding each change in employment or enrollment status at any educational institution in this state, including any of the information collected pursuant to subsection (a) of this section within three (3) working days of the change to the entity with whom the offender last registered. This information shall be forwarded immediately from the registering entity to the division on a form prescribed by the division, and the division shall then enter the information into the central registry and forward the information to the campus police department or other law enforcement agency with jurisdiction over the educational institution.
  11. Any person required to register under this act shall provide information in person to the sheriff of the county in which he is registered and to any other relevant registering entity specified in subsection (c) of this section regarding each change of employment and shall disclose all places of employment if there is more than one (1), including any loss of employment, within three (3) working days of the change to the entity with whom the offender last registered. The information shall be forwarded within three (3) working days from the registering entity to the division and the division shall then enter the information into the central registry.
  12. Any person required to register under this act shall provide any new or updated information in person to the sheriff of the county in which he is registered and to any other relevant registering entity specified in subsection (c) of this section regarding any changes, modifications or other information necessary to keep current any of the information specified in this section and W.S. 7-19-303 , within three (3) working days of the change to the entity with whom the offender last registered. The information shall be forwarded within three (3) working days from the registering entity to the division and the division shall then enter the information into the central registry.
  13. If the division lacks sufficient information or documentation to identify the offender’s crime for which convicted or equivalent Wyoming offense, it shall register the offender as if he were convicted of an offense listed in subsection (j) of this section. If the division receives additional verifiable information or documentation that demonstrates that the offender was not convicted of an offense specified under subsection (j) of this section or an offense from any other jurisdiction containing the same or similar elements or arising out of the same or similar facts or circumstances, it shall modify the offender’s status.
  14. Any person convicted of any offense enumerated in subsection (g), (h) or (j) of this section who is released from confinement for any reason before being sentenced shall register as described in this section with the county sheriff for each county in which that person resides, is employed or attends school.
  15. Any offender registered pursuant to this act shall notify the county sheriff of each county in which he is registered at least twenty-one (21) days before traveling outside of the United States of America. The notification shall include the name of each country the offender plans to visit, the dates the offender intends to be in each country, the purpose for which the offender is traveling, the offender’s means of travel and the offender’s country of citizenship, passport number and country of issue. Each county sheriff receiving notification of an offender’s intention to travel outside of the United States of America shall forward that information to the division within three (3) working days.
  16. Except as provided in subsection (s) of this section, all offenders required to register or report updated information pursuant to this act shall pay fees established by rules of the division. The division shall establish fees in accordance with the following:
    1. At the time of initial registration, the offender shall pay a state registration fee in an amount not to exceed one hundred twenty dollars ($120.00) and a county registration fee in an amount equal to twenty-five percent (25%) of the state registration fee;
    2. Each time the offender is required to report updated information pursuant to subsection (e), (f), (k) or (m) of this section, the offender shall pay a state reporting fee in an amount not to exceed twenty-five dollars ($25.00) and a county reporting fee in an amount equal to twenty-five percent (25%) of the state reporting fee;
    3. The state registration and reporting fees established by the division shall, to the extent practicable, generate a total revenue that approximates, but does not exceed, the direct and indirect costs of administering and enforcing the provisions of this act.
  17. No fee required under subsection (r) of this section shall be charged to:
    1. An offender in custody of the department, a local jail or a public or private agency pursuant to a court order during the period in which the offender is in custody;
    2. An indigent offender, as provided in rules established by the division. The rules shall establish criteria and procedures for determinations of indigency in accordance with the following:
      1. Standards for indigency shall be similar to the standards used to determine indigency for the purposes of the appointment of counsel;
      2. An offender shall apply for a determination of indigency at the time of registration or reporting updated information by submitting to the division or the sheriff of the county in which the offender is required to register or report, under penalty of perjury, an application and supporting documentation regarding the offender’s income, property owned, outstanding obligations, number and ages of the offender’s dependents and any other factors relevant to the offender’s ability to pay registration and reporting fees. The application and information shall detail the offender’s financial status for a period of not less than one (1) year preceding the date of the application;
      3. If an offender is unable to submit a complete application at the time of registration or reporting updated information, the offender may submit an application to the division or the sheriff of the county in which the offender is required to register or report updated information within thirty (30) days of registration or reporting. Failure to submit an application and all required information within thirty (30) days of registration or reporting updated information shall be deemed to be a waiver of the offender’s ability to request a determination of indigency and the fees required under subsection (r) of this section shall be payable;
      4. The division shall approve or deny an application for a determination of indigency and provide notice of the determination to the offender within thirty (30) days of receipt of the application;
      5. The division’s determination that the offender is indigent shall be valid for a period of one (1) calendar year from the registration or reporting updated information date for which the application was submitted. Upon the expiration of the period, the offender may submit an application for a new determination of indigency;
      6. If the division determines the offender is not indigent, the offender shall pay the fees required under subsection (r) of this section within thirty (30) days from the date the offender receives notice of the denial. An offender may apply for a determination of indigency only once per calendar year, unless the offender can show a material change in circumstances;
      7. The division’s determination that an offender is not indigent is an agency action subject to judicial review as provided under W.S. 16-3-114 and 16-3-115 .
  18. The sheriff of the county in which the offender is required to register or report updated information shall:
    1. Collect the fees required under subsection (r) of this section;
    2. Retain the county registration and reporting fees collected to be expended for purposes of administering and enforcing the provisions of this act and to cover the administrative expenses and costs of collecting and remitting the state registration and reporting fees;
    3. Remit to the division the state registration and reporting fees to be deposited in the sex offender registration account created by W.S. 7-19-310 ; and
    4. Forward to the division any applications for a determination of indigency.
  19. If an offender fails to pay the fees required under subsection (r) of this section, the sheriff of the county in which the offender is required to register or report updated information shall provide to the division the registration or reporting information required under this act and notify the division of the offender’s failure to pay. Unpaid fees become delinquent thirty (30) days after the date the fee is imposed, the date the offender waives the ability to request a determination of indigency by failing to submit an application or the date the division notifies the offender he does not qualify as indigent, whichever is later. Unpaid fees may be collected by the division as otherwise provided by law and as provided in W.S. 9-1-415(a). Nothing in this subsection shall be construed to prohibit the prosecution of an offender for failure to register or report updated information or for any other offense.

History. Laws 1994, ch. 60, § 1; 1999, ch. 203, § 2; 2000, ch. 81, § 1; 2001, ch. 81, § 1; 2005, ch. 218, § 1; 2007, ch. 160, § 1; 2008, ch. 116, § 1; 2009, ch. 162, § 1; 2011, ch. 179, § 1; 2017, ch. 144, § 2; 2021, ch. 56, § 3.

Cross references. —

As to the penalties for failure to register within the required time, see § 7-19-307 .

The 2005 amendment, effective July 1, 2005, added (a)(viii); in (c)(iii) and (c)(iv) substituted “ten (10) days” for “forty (40) days”; in (d) deleted the definitions for “employed” and “attends school”; in (e) added the fourth sentence; in (g) and (h) added the last sentence; and added (j).

The 2007 amendment, effective July 1, 2007, substituted “three (3) working” for “ten (10)” throughout; added (ix) and (x) in (a); in (b), deleted “aggravated sex” preceding “offenders,” substituted “features” for “factors,” substituted “psychiatric condition” for “mental abnormality or personality disorder,” substituted “an offender by a” for “a sexually violent predator by a sentencing”; rewrote (g) and (h) inserting internal references regarding offenders convicted of violations; added (J), redesignating the remaining subsection accordingly; and made related and stylistic changes.

Laws 2007, ch. 160, § 4, makes Section 3 of the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved July 1, 2007.

The 2008 amendment made stylistic changes.

Laws 2008, ch. 116, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 13, 2008.

The 2009 amendment, effective July 1, 2009, in the introductory language in (a), inserted “attending school or being employed,” substituted “sheriff of the county in which he resides, attends school or is employed” for “division of criminal investigation,” and substituted “or other relevant entity specified in subsection (c) of this section” for “or other entity in accordance with the provisions of this act”; added (a)(xi); in (c), added the last sentence in (c)(i), added the proviso at the end of (c)(ii), deleted “with the division” following “shall register” in (c)(iv); rewrote (d); in (e), in the first sentence, substituted “provide notice” for “send written notice,” inserted “in person” following “change of address,” and substituted “sheriff of the county in which he resides” for division, in the second sentence, substituted “notify in person” for “notify the division,” rewrote the fifth sentence, which read: “The division shall, within three (3) working days of receipt of a registration or notice of change of address, notify the sheriff of the county in which an offender resides, unless the division received the registration information from the sheriff”; added the second-to-last sentence in (g); added the second and third sentences in (h); in (j), deleted “(g) or” preceding “(h) of this section” and added the second sentence; in (k), in the first sentence, deleted “In addition to any other requirements of this section and of this act” from the beginning, substituted “in person to the sheriff of the county in which he is registered and to any other relevant registering entity specified in subsection (c) of this section” for “in writing” and inserted “including any of the information collected pursuant to subsection (a) of this section,” and in the second sentence, inserted “educational”; added (m), (n) and (o) and made stylistic and related changes.

The 2011 amendment, effective July 1, 2011, in (a)(v), inserted “and physical address”; in (a)(viii), substituted “physical address” for “location”; added (a)(xii) and (a)(xiii); inserted the exception in (c)(iii) and (c)(iv); deleted “or on or before August 1, 1999, if a current resident” at the end of the first sentence of (c)(iii) and also following “shall register” in (c)(iv); in (c)(iii), deleted “and shall register the offender and perform the related duties specified in W.S. 7-19-305 ” at the end of the second sentence, and added the last sentence; added (c)(v); in (d), inserted “within three (3) working days of beginning employment or starting to attend school” and “within three (3) working days of beginning employment, establishing a residence in this state or starting to attend school”; in (g), substituted “6-2-316(a)(i) and (iv)” for “6-2-202 if the victim was a minor and the offender is not the victim's parent or guardian, W.S. 6-2-203 if the victim was a minor and the offender is not the victim's parent or guardian, W.S. 6-2-315(a)(iv), 6-2-316(a)(iii) and (iv), 6-2-317(a)(i),” and inserted “18 U.S.C. §§ 2252B, 2252C, 2424 and 2425, an offense in another jurisdiction containing the same or similar elements, or arising out of the same or similar facts or circumstances as a criminal offense specified in this subsection”; in (h), substituted “6-2-315(a)(i) and (iii), W.S. 6-2-315(a)(iv) if the victim was thirteen (13) through fifteen (15) years of age, W.S. 6-2-317(a)(i) and (ii)” for “6-2-315(a)(iii), 6-2-316(a)(i), 6-2-317(a)(ii),” inserted “18 U.S.C. § 2251, an offense in another jurisdiction containing the same or similar elements, or arising out of the same or similar facts or circumstances as a criminal offense specified in this subsection,” and substituted “offense enumerated in subsection (g) of this section if the offender was previously convicted of any offense enumerated in” for “felony enumerated in this section if the offender was previously convicted of a felony under”; in (j), substituted “W.S. 6-2-314(a)(ii) and (iii) if the victim was less than thirteen (13) years of age, W.S. 6-2-315(a)(ii), W.S. 6-2-315(a)(iii) and (iv) if the victim was less than thirteen (13) years of age, W.S. 6-2-316(a)(ii) and (iii), 6-4-402 , 18 U.S.C. § 2245, or an offense in another jurisdiction containing the same or similar elements, or arising out of the same or similar facts or circumstances as a criminal offense specified in this subsection, an attempt or conspiracy to commit any of the offenses specified in this subsection, any offense enumerated in subsection (h) of this section if the offender was previously convicted of any offense enumerated in subsection (g) of this section or any offense enumerated in subsection (g) or (h) of this section if the offender was previously convicted of any offense enumerated in” for “6-2-315(a)(i) and (ii), 6-2-316(a)(ii), 6-4-402 , an attempt or conspiracy to commit any of the offenses specified in this subsection, or any felony enumerated in this section if the offender was previously convicted of a felony under”; added (p) and (q); and made related changes.

The 2017 amendment, effective July 1, 2017, added (r) through (u).

The 2021 amendment substituted "9-2-3219(a)(iii)" for "9-2-1035(a)(iii)" in (a)(xii).

Laws 2021, ch. 56, § 7, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 1, 2021.

Editor's notes. —

There is no subsection (i) or ( l ) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-19-301(a)(xv).

Constitutionality. —

In a case where defendant challenged his conviction for failure to register as a sex offender, the Wyoming Sex Offender Registration Act did not violate the ex post facto clauses of the federal or state constitutions because the effects of the Act did not negate the legislature's intent to impose a regulatory scheme as it bore a rational connection to the goal of public safety by providing for identification of individuals convicted of sex offenses, and by making that information available to law enforcement agencies and the general public; and its requirements constituted a reasonable method of achieving the goal of public safety. Kammerer v. State, 2014 WY 50, 322 P.3d 827, 2014 Wyo. LEXIS 55 (Wyo. 2014).

Jurisdiction.—

Granting the State’s motion for relief under Wyo. R. Civ. P. 60(b)(1) was not an abuse of discretion as Wyo. Stat. Ann. § 7-19-304(a)(i) clearly limited persons who could petition for relief for offenses specified in Wyo. Stat. Ann. § 7-19-302(j) to persons who were adjudicated as delinquents of the offense, and petitioner was undeniably ineligible for relief from the reporting requirements under § 7-19-304(a)(i). Moreover, the decision to grant the State’s motion to vacate the judgment was an appropriate exercise of judicial discretion. Gunsch v. State, 2019 WY 79, 444 P.3d 1278, 2019 Wyo. LEXIS 81 (Wyo. 2019).

Termination of duty to register. —

Potential sex offender registrant's duty to register was improperly terminated under a 10-year provision because he pled guilty to fourth degree sexual assault, which was akin to third degree sexual assault, an offense to which a 25-year termination provision applied; moreover, the state did not waive its right to appeal the termination decision by failing to attend two hearings. Office of the AG, Division of Criminal Investigation v. Thomason, 2008 WY 143, 197 P.3d 144, 2008 Wyo. LEXIS 145 (Wyo. 2008).

Regulatory measure. —

Because this section is a regulatory measure rather than part of a sex offender's penalty or punishment, a court does not err by failing to advise a defendant about the registration requirement and consequences for failure to register prior to accepting the defendant's plea under Rule 11, W.R.Cr.P. Johnson v. State, 922 P.2d 1384, 1996 Wyo. LEXIS 128 (Wyo. 1996).

Cited in

Vaughn v. State, 2017 WY 29, 391 P.3d 1086, 2017 Wyo. LEXIS 28 (Wyo. 2017).

Applied in

Askin v. State, 2016 WY 9, 365 P.3d 784, 2016 Wyo. LEXIS 8 (Wyo. 2016).

Stated in

Norgaard v. State, 2014 WY 157, 2014 Wyo. LEXIS 181 (Dec. 9, 2014).

Am. Jur. 2d, ALR and C.J.S. references. —

State statutes or ordinances requiring persons previously convicted of crime to register with authorities, 36 ALR5th 161.

§ 7-19-303. Offenders central registry; dissemination of information.

  1. An entity registering an offender shall forward the information and fingerprints obtained pursuant to W.S. 7-19-302 to the division within three (3) working days. The division shall maintain a central registry of offenders required to register under W.S. 7-19-302 and shall adopt rules necessary to carry out the purposes of W.S. 7-19-302. The division shall immediately enter information received pursuant to this act into the central registry and shall immediately transmit the conviction data, palmprints and fingerprints to the federal bureau of investigation and national sex offender registry.
  2. The information collected under this act shall be confidential, except for that information collected in accordance with paragraph (c)(iii) of this section which information shall be a matter of public record.
    1. and (ii) Repealed by Laws 2007, ch. 160, § 2.
  3. The division shall provide notification of registration under this act, including all registration information, to the district attorney of the county where the registered offender is residing at the time of registration or to which the offender moves. In addition, the following shall apply:
    1. Repealed by Laws 2007, ch. 160, § 2.
    2. If the offender was convicted of an offense specified in W.S. 7-19-302(h) or (j), notification shall be provided by mail, personally or by any other means reasonably calculated to ensure delivery of the notice to residential neighbors within at least seven hundred fifty (750) feet of the offender’s residence, organizations in the community, including schools, religious and youth organizations by the sheriff or his designee. In addition, notification regarding an offender employed by or attending school at any educational institution shall be provided upon request by the educational institution to a member of the institution’s campus community as defined by subsection (h) of this section;
    3. Notification  of registration under this act shall be provided to the public through  a public registry, as well as to the persons and entities required  by paragraph (ii) of this subsection. The division shall make the  public registry available to the public, with the exception of internet  identifiers, telephone numbers and adjudications as delinquent unless disclosure is authorized pursuant to W.S. 7-19-309 , through electronic internet technology and shall  include:
      1. The offender’s name, including any aliases;
      2. Physical address;
      3. Date and place of birth;
      4. Date and place of conviction;
      5. Crime for which convicted;
      6. Photograph;
      7. Physical characteristics including race, sex, height, weight, eye and hair color;
      8. History of all criminal convictions subjecting an offender to the registration requirements of this act;
      9. The license plate or registration number and a description of any vehicle owned or operated by the offender; and
      10. The physical address of any employer that employs the offender; and
      11. The physical address of each educational institution in this state at which the person is attending school.
    4. The division shall adopt rules necessary to provide for the maintenance and dissemination of the information contained in the central registry of offenders.
  4. and (e) Repealed by Laws 2007, ch. 160, § 2.
  5. The identity of the victim of an offense that requires registration under this act shall not be released to the public unless the victim has authorized the release of the information, provided:
    1. Nothing in this subsection shall bar the disclosure of information concerning the characteristics of the victim and the nature and circumstances of the offense so long as the victim is not identified;
    2. Nothing in this subsection shall bar the disclosure of victim identity information contained as part of the criminal history record information disclosed to persons authorized to receive such information under W.S. 7-19-106 ; and
    3. This subsection does not apply to victim identity information contained in public records which exist independently of this act.
  6. Any person who, by virtue of employment or official position has possession of, or access to, registration information furnished pursuant to this act or victim identifying information, and willfully discloses it in any manner to any person or agency not entitled to receive the information is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  7. An educational institution in this state shall instruct members of its campus community, by direct advisement, publication or other means, that a member can obtain information regarding offenders employed by or attending school at the institution by contacting the campus police department or other law enforcement agency with jurisdiction over the institution. For the purposes of this subsection, “member of the campus community” means a person employed by or attending school at the educational institution at which the offender is employed or attending school, or a person’s parent or guardian if the person is a minor.
  8. The attorney general shall maintain a public record of the number of registered offenders in each county.
  9. The legislature directs the division to facilitate access to the information on the public registry available through electronic internet technology without the need to consider or assess the specific risk of reoffense with respect to any individual prior to his inclusion within the registry, and the division shall place a disclaimer on the division’s internet website indicating that:
    1. No determination has been made that any individual included in the registry is currently dangerous;
    2. Individuals included within the registry are included solely by virtue of their conviction record and state law; and
    3. The main purpose of providing the information on the internet is to make the information more easily available and accessible, not to warn about any specific individual.

History. Laws 1994, ch. 60, § 1; 1997, ch. 78, § 1; 1999, ch. 203, § 2; 2005, ch. 218, § 1; 2007, ch. 160, §§ 1, 2; 2009, ch. 162, § 1; 2011, ch. 179, § 1; 2016, ch. 13, § 2.

The 2005 amendment, effective July 1, 2005, updated an internal reference in (b)(ii); in (c), twice inserted provisions requiring a preponderance of evidence standard, and added the fourth and fifth sentences; in (c)(ii) added the last sentence; added (h), redesignating former (h) as (j); and made stylistic changes.

The 2007 amendment, effective July 1, 2007, repealed former (b)(i), (ii), (c)(i), (d) and (e) which pertained to requirements authorized to receive criminal history record information, low risk of reoffense and the courts' considerations and release of information.

Laws 2007, ch. 160, § 4, makes Section 3 of the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved July 1, 2007.

The 2009 amendment, effective July 1, 2009, in (a), inserted “palmprints” preceding “and fingerprints”; in (c)(ii), in the first sentence inserted “by mail, personally or by any other means reasonably calculated to ensure delivery of the notice” and added “by the sheriff or his designee” at the end, and in the second sentence inserted “by the educational institution”; and in (c)(iii)(H), inserted “subjecting an offender to the registration requirements of this act.”

The 2011 amendment, effective July 1, 2011, in the introductory clause of (c)(iii), inserted “with the exception of internet identifiers, telephone numbers and adjudications as delinquent”; in (c)(iii)(J), inserted “or registration”; added (c)(iii)(K) and (c)(iii)(M); and made related changes.

The 2016 amendment, effective July 1, 2016, in (c)(iii), added “unless disclosure is authorized pursuant to W.S. 7-19-309 ” following “delinquent.”

Editor's notes. —

There is no subsection (i), subparagraph (c)(iii)(I), or subparagraph (c)(iii)(L) in this section as it appears in the printed acts.

Appropriations. —

Laws 2007, ch. 160, § 3, appropriates two hundred thousand dollars ($200,000.00) from the general fund to the attorney general for the period beginning with the effective date of this section and ending June 30, 2008. The funds appropriated under this section shall only be used to purchase computer equipment and software necessary to implement the registration and notification requirements under W.S. 7-19-301 through 7-19-307 .

Section 3 of this act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8, of the Wyoming Constitution. Approved March 1, 2007.

Statute Does Not Violate Due Process. —

Former Wyoming Sex Offender Registration Act did not violate Due Process because, inter alia, the statutory scheme provides the offender with notice and a right to be heard, with both sides participating in the evidentiary hearing. The offender's somewhat limited rights are adequately protected by a requirement that the State prove any classification by a preponderance of the evidence. In re JJF v. State, 2006 WY 41, 132 P.3d 170, 2006 Wyo. LEXIS 44 (Wyo. 2006).

Risk of re-offense. —

The State's evidence when considered under the mandatory factors of § 7-19-303(d) was insufficient even under a preponderance of the evidence standard for the district court to classify defendant as high risk, where the evidence presented by the State did not show that: (1) defendant's conduct was characterized by repetitive and compulsive behavior, (2) there were any psychological or psychiatric profiles to indicate a risk of recidivism, (3) defendant's recent behavior indicated a threat of re-offense, or (4) the defendant had made recent threats or expressions of intent to re-offend. Avery v. State (In re Avery), 2002 WY 87, 47 P.3d 973, 2002 Wyo. LEXIS 92 (Wyo. 2002).

District court did not err in finding it was more probable than not that sexual offender would reoffend because the quantum of evidence necessary to convince a court to classify a sexual offender as a moderate risk of reoffense was not very high and, inter alia, he was convicted of having sexual intercourse with a fifteen-year-old girl, to whom he had supplied alcohol. His probationary sentence was revoked due to a subsequent cocaine offense, and he was not receiving any counseling besides periodic NA attendance. In re JJF v. State, 2006 WY 41, 132 P.3d 170, 2006 Wyo. LEXIS 44 (Wyo. 2006).

Weight To Be Given To Relevant Evidence. —

Evidence is relevant and material if it tends to prove or disprove any of the factors found in former Wyo. Stat. Ann. § 7-19-303(d). The weight to be given to the evidence is up to the trier of fact, and the statute does not suggest what weight to give to what factor. In re JJF v. State, 2006 WY 41, 132 P.3d 170, 2006 Wyo. LEXIS 44 (Wyo. 2006).

Cited in

Vaughn v. State, 2017 WY 29, 391 P.3d 1086, 2017 Wyo. LEXIS 28 (Wyo. 2017).

§ 7-19-304. Termination of duty to register.

  1. The duty to register under W.S. 7-19-302 shall begin on the date of sentencing and continue for the duration of the offender’s life, subject to the following:
    1. An offender specified in W.S. 7-19-302 (g) or adjudicated as a delinquent for offenses specified in W.S. 7-19-302(j), who has been registered for at least ten (10) years, exclusive of periods of confinement and periods in which the offender was not registered as required by law, may petition the district court for the district in which the offender is registered to be relieved of the duty to continue to register if the offender has maintained a clean record as provided in subsection (d) of this section. Upon a showing that the offender has maintained a clean record as provided in subsection (d) of this section for ten (10) years, the district court may order the offender relieved of the duty to continue registration;
    2. An offender specified in W.S. 7-19-302(h) who has been registered for at least twenty-five (25) years, exclusive of periods of confinement and periods in which the offender was not registered as required by law, may petition the district court for the district in which the offender is registered to be relieved of the duty to continue to register if the offender has maintained a clean record as provided in subsection (d) of this section. Upon a showing that the offender has maintained a clean record as provided in subsection (d) of this section for twenty-five (25) years, the district court may order the offender relieved of the duty to continue registration; and
      1. and (B) Repealed by Laws 1999, ch. 203, § 3.
    3. A petition filed under this subsection shall be served on the prosecuting attorney for the county in which the petition is filed. The court shall not grant a petition that was not served on the prosecuting attorney. The prosecuting attorney may file a responsive pleading within thirty (30) days after service of the petition.
  2. Repealed by Laws 1999, ch. 203, § 3.
  3. Nothing in W.S. 7-13-302 shall be construed as operating to relieve the offender of his duty to register pursuant to W.S. 7-19-302 .
  4. An offender seeking a reduction in his registration period as provided in paragraph (a)(i) or (ii) of this section shall demonstrate to the court that he has maintained a clean record by:
    1. Having no conviction of any offense for which imprisonment for more than one (1) year may be imposed;
    2. Having no conviction of any sex offense;
    3. Successfully completing any periods of supervised release, probation and parole; and
    4. Successfully completing any sex offender treatment previously ordered by the trial court or by his probation or parole agent.

History. Laws 1994, ch. 60, § 1; 1999, ch. 203, §§ 2, 3; 2007, ch. 160, § 1; 2009, ch. 162, § 1; 2011, ch. 179, § 1.

The 2007 amendment, effective July 1, 2007, rewrote (a) and added (d).

The 2009 amendment, effective July 1, 2009, in (a)(i), in the second sentence, inserted “offender may petition the district court for the district in the which the offender is registered to reduce the” and deleted “may be reduced” preceding “by five (5) years”; added (a)(iii); and rewrote (d)(iv), which read: “Successfully completing an appropriate sex offender treatment program certified by the state,” and made related changes

The 2011 amendment, effective July 1, 2011, rewrote (a)(i), which formerly read: “For an offender specified in W.S. 7-19-302(g), the duty to register shall end fifteen (15) years after the offender was released from prison, placed on parole, supervised release or probation, provided the registration period shall be tolled for subsequent periods of confinement. The offender may petition the district court for the district in the which the offender is registered to reduce the period of registration under this paragraph by five (5) years if the offender maintains a clean record as provided in subsection (d) of this section”; in (a)(ii), inserted “and periods in which the offender was not registered as required by law” and “if the offender has maintained a clean record as provided in subsection (d) of this section” in the first sentence, and substituted “maintained a clean record as provided in subsection (d) of this section for twenty-five (25) years” for “had no further felony or misdemeanor convictions during the period of registration”; and in the introductory language of (d), substituted “An offender seeking a reduction in his registration period as provided in paragraph (a)(i) or (ii) of this section shall demonstrate to the court that he has maintained a clean record by” for “A registration period under subsection (a) of this section may be reduced if, after the duty to register arises, the offender specified in W.S. 7-19-302(g) maintains a clean record for ten (10) years by.”

Meaning of “this act.” —

For the definition of “this act,” referred to in subsection (b) of this section, see § 7-19-301(a)(xv).

Jurisdiction.—

Granting the State’s motion for relief under Wyo. R. Civ. P. 60(b)(1) was not an abuse of discretion as Wyo. Stat. Ann. § 7-19-304(a)(i) clearly limited persons who could petition for relief for offenses specified in Wyo. Stat. Ann. § 7-19-302(j) to persons who were adjudicated as delinquents of the offense, and petitioner was undeniably ineligible for relief from the reporting requirements under § 7-19-304(a)(i). Moreover, the decision to grant the State’s motion to vacate the judgment was an appropriate exercise of judicial discretion. Gunsch v. State, 2019 WY 79, 444 P.3d 1278, 2019 Wyo. LEXIS 81 (Wyo. 2019).

Applicability. —

Potential sex offender registrant's duty to register was improperly terminated under a 10-year provision because he pled guilty to fourth degree sexual assault, which was akin to third degree sexual assault, an offense to which a 25-year termination provision applied; moreover, the state did not waive its right to appeal the termination decision by failing to attend two hearings. Office of the AG, Division of Criminal Investigation v. Thomason, 2008 WY 143, 197 P.3d 144, 2008 Wyo. LEXIS 145 (Wyo. 2008).

Cited in

Vaughn v. State, 2017 WY 29, 391 P.3d 1086, 2017 Wyo. LEXIS 28 (Wyo. 2017).

§ 7-19-305. Registration; duties of registering entities; notice to persons required to register.

  1. The entity required to register an offender under W.S. 7-19-302 (c) shall provide written notification to the offender of the requirements of this act and shall receive and retain a signed acknowledgment of receipt. The entity shall forward all registration information to the division within three (3) working days after registering the offender. When registering an offender the registering entity shall:
    1. Obtain the information required for the registration by W.S. 7-19-302 ;
    2. Inform the offender that if he changes residence address he shall give the new address to the sheriff in person within three (3) working days, or if he becomes transient through lack of residence, he shall report on a weekly basis to the sheriff in the county in which he is registered until he establishes another residence;
    3. Inform the offender that if he changes residence to another state, he shall register the new address with the law enforcement agency with whom he last registered and shall also register with the designated law enforcement agency in the new state not later than three (3) working days after establishing residence in the new state;
    4. Obtain, or arrange for another law enforcement agency to provide, fingerprints, DNA sample and a photograph of the offender if these have not already been obtained in connection with the offense that triggers the registration requirement;
    5. Inform the offender that if he is employed or attends school in another state while continuing residence in this state he must register with the other state as a nonresident worker or nonresident student;
    6. Inform the offender that in addition to any other registration requirements of this act, if the offender becomes employed by or attends school at any educational institution in this state, or if his status of employment or enrollment at any educational institution in this state as reported during his last registration changes in any manner, he shall register the change within three (3) working days of the change with the entity with whom he last registered.
  2. The department or other agency assuming jurisdiction shall provide written notification to an offender convicted in another state of the registration requirements of W.S. 7-19-302 at the time the department or agency accepts supervision and has legal authority of the individual under the terms and conditions of the interstate compact agreement under W.S. 7-3-401 .

History. Laws 1994, ch. 60, § 1; 1999, ch. 203, § 2; 2005, ch. 218, § 1; 2009, ch. 162, § 1.

The 2005 amendment, effective July 1, 2005, added the proviso in (a)(ii) pertaining to an offender who has not established a new residence within 10 days of leaving a previous residence or who has become transient; in (a)(v) deleted definitions for “employed” and “attends school”; and added (a)(vi).

The 2009 amendment, effective July 1, 2009, substituted “three (3) working days” for “ten (10) days” in (a)(ii), (a)(iii) and (a)(vi); and in (a)(ii), substituted “the sheriff in person” for “to the division in writing” and deleted “has not established a new residence within ten (10) days of leaving his previous residence or” preceding “becomes transient.”

Am Jur 2d, ALR and C.J.S. references. —

Validity of statutes imposing residency restrictions on registered sex offenders. 25 A.L.R.6th 227.

§ 7-19-306. [Repealed.]

Repealed by Laws 1999, ch. 203, § 3.

Cross references. —

As to present provisions providing penalties for failure to register, see § 7-19-307 .

Editor's notes. —

The section, which derived from Laws 1994, ch. 60, § 1, provided the penalties for failure to register as a sex offender.

§ 7-19-307. Penalties.

  1. Failure to register, update any registration information or pay any fee required under subsection (r) of this section within the time required under W.S. 7-19-302 constitutes a per se violation of this act and is punishable as provided in this section. The division shall notify the appropriate authorities when it discovers that an offender fails to register, update any registration information or pay any fee required under subsection (r) of this section within the time required under W.S. 7-19-302 or when an offender absconds.
  2. An arrest on charges of failure to register, service of an information or complaint for a violation of this act, or arraignment on charges for a violation of this act, constitutes actual notice of the duty to register. Any person charged with the crime of failure to register under this act who asserts as a defense the lack of notice of the duty to register shall register immediately following actual notice of the duty through arrest, service or arraignment. Failure to register as required under this subsection constitutes grounds for filing another charge of failing to register. Registering following arrest, service or arraignment on charges shall not relieve the offender from criminal liability for failure to register prior to the filing of the original charge.
  3. A person who knowingly fails to register as required by W.S. 7-19-302 is guilty of a felony punishable by a fine of up to one thousand dollars ($1,000.00), imprisonment for not more than five (5) years, or both.
  4. A person convicted of a subsequent violation of knowingly failing to register as required by W.S. 7-19-302 is guilty of a felony punishable by a fine of one thousand dollars ($1,000.00), imprisonment for not more than ten (10) years, or both.
  5. A person who willfully fails to pay fees required under W.S. 7-19-302 is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00), imprisonment in the county jail for not more than six (6) months, or both.

History. Laws 1999, ch. 203, § 1; 2000, ch. 48, § 1; 2005, ch. 218, § 1; 2007, ch. 13, § 2; ch. 160, § 1; 2009, ch. 162, § 1; 2011, ch. 179, § 1; 2017, ch. 144, § 2.

The 2005 amendment, effective July 1, 2005, inserted “or failure to provide information regarding any change in employment or enrollment status at any educational institution in this state as required by W.S. 7-19-302(j)” in (a).

The 2007 amendments. —

The first 2007 amendment, by ch. 13, § 2, effective July 1, 2007, in (c), substituted “felony” for “high misdemeanor,” substituted “one thousand dollars ($1,000.00)” for “seven hundred fifty dollars ($750.00),” substituted “five (5) years” for “one (1) year”; and substituted “ten (10)” for “five (5)” in (d).

The second 2007 amendment, by ch. 160, § 1, effective July 1, 2007, in (a), substituted “through (j)” for “and (h)” and substituted “7-19-302(k)” for “7-19-302(j)”; in (c), substituted “felony” for “high misdemeanor,” substituted “one thousand dollars ($1,000.00)” for “seven hundred fifty dollars ($750.00)” and substituted “five (5) years” for “one (1) year”; and substituted “ten (10” for “five (5)” in (d).

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

The 2009 amendment, effective July 1, 2009, in (a), added “or update any registration information” and deleted the second sentence, which read: “Failure to report his address as required by W.S. 7-19-302(g) through (j), or failure to provide information regarding any change in employment or enrollment status at any educational institution in this state as required by W.S. 7-19-302(k), is punishable as provided in subsections (c) and (d) of this section.”

The 2011 amendment, effective July 1, 2011, in (a), added the second sentence.

The 2017 amendment, effective July 1, 2017, in (a), inserted “or pay any fee required under subsection (r) of this section” twice, and deleted “subsections (c) and (d) of” following “as provided in; and added (e).

Prospective operation. —

Laws 1999, ch. 203, § 4, provides: “Nothing in this act requires an offender who was previously required to register in accordance with the provisions of W.S. 7-19-301 through 7-19-306 prior to the amendments made by this act to register if his duty to register was terminated by the granting of a petition by the court under W.S. 7-19-304(b).”

Constitutionality. —

Consecutive sentences. —

Constitutionality. —

In a case where defendant challenged his conviction for failure to register as a sex offender, the Wyoming Sex Offender Registration Act did not violate the ex post facto clauses of the federal or state constitutions because the effects of the Act did not negate the legislature's intent to impose a regulatory scheme as it bore a rational connection to the goal of public safety by providing for identification of individuals convicted of sex offenses, and by making that information available to law enforcement agencies and the general public; and its requirements constituted a reasonable method of achieving the goal of public safety. Kammerer v. State, 2014 WY 50, 322 P.3d 827, 2014 Wyo. LEXIS 55 (Wyo. 2014).

Consecutive sentences. —

After the district court reimposed a suspended sentence of four to six years related to a failure to register as a sex offender charge, it then imposed, based upon a separate and subsequent charge of escape, a three to seven year sentence but suspended execution of the sentence in favor of probation, which was statutorily permitted; it was legal for the district court to order the probationary sentence for the escape charge to be served consecutively after completion of the reimposed sentence related to the sex offender registration violation. Askin v. State, 2013 WY 162, 314 P.3d 1182, 2013 Wyo. LEXIS 167 (Wyo. 2013).

Applied in

Askin v. State, 2016 WY 9, 365 P.3d 784, 2016 Wyo. LEXIS 8 (Wyo. 2016).

Am Jur 2d, ALR and C.J.S. references. —

Admissibility of actuarial risk assessment testimony in proceeding to commit sex offender. 20 A.L.R.6th 607.

§ 7-19-308. Harboring a sex offender; penalties; exceptions.

  1. A person is guilty of the crime of harboring, assisting, concealing, or withholding information about, a sex offender, if the person has knowledge that a sex offender is required to register under W.S. 7-19-302 and the person:
    1. Assists the sex offender in eluding a law enforcement agency that is seeking to question the sex offender about, or to arrest the sex offender for, his noncompliance with the requirements of W.S. 7-19-302 or any other law prohibiting a sexual offense, child abuse or kidnapping;
    2. Withholds information, including but not limited to the location of the sex offender, from, or fails to notify, the law enforcement agency about the sex offender’s noncompliance with the requirements of W.S. 7-19-302 or any other law prohibiting a sexual offense, child abuse or kidnapping and commits an affirmative act in furtherance of paragraph (a)(i), (iii) or (iv) of this section;
    3. Harbors, or attempts to harbor, or assists another person in harboring or attempting to harbor, the sex offender;
    4. Conceals or attempts to conceal, or assists another person in concealing or attempting to conceal, the sex offender; or
    5. Provides information to the law enforcement agency regarding the sex offender which the person knows to be false.
  2. Subsection (a) of this section shall not apply if the sex offender is incarcerated in a local, state or federal detention or correctional facility, or is in the custody of a law enforcement agency.
  3. A violation of subsection (a) of this section shall be a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 2007, ch. 13, § 1; 2009, ch. 162, § 1.

The 2009 amendment, effective July 1, 2009, in (a), deleted “who” preceding “is required to register” and deleted “is not complying, or has not complied, with the requirements of W.S. 7-19-302 ” preceding “and the person.”

Effective dates

Laws 2007, ch. 13, § 3, makes the act effective July 1, 2007.

§ 7-19-309. Juvenile sex offenders; risk assessment; factors; reporting requirements.

  1. A minor offender convicted or adjudicated as a delinquent as specified in W.S. 7-19-301(a)(iii), shall be subject to this section.
  2. The division shall provide notification of registration under this section, including all registration information, to the district attorney of the county where the registered offender is residing at the time of registration or to which the offender moves. Upon receipt of notification, the district attorney shall file an application for hearing under this subsection if, based upon a review of the risk of reoffense factors specified in subsection (c) of this section, the review indicates that public safety requires that notification be provided to persons in addition to those authorized to receive criminal history record information under W.S. 7-19-106 . Upon application of the district attorney and following notice to the offender and an in-camera hearing, the district or juvenile court shall, based upon its finding as to the risk of reoffense by the offender, authorize the division, county sheriff, police chief or their designee to release information regarding the offender as follows:
    1. If the risk of reoffense is low, notification shall be in accordance with the requirements of W.S. 7-19-106 to persons authorized to receive criminal history record information under W.S. 7-19-106;
    2. If the risk of reoffense is moderate or high, notification shall be provided to residential neighbors within seven hundred fifty (750) feet of the offender’s residence, organizations in the community including schools, religious and youth organizations and to the persons authorized under paragraph (i) of this subsection, through means specified in the court’s order.
  3. In determining an offender’s risk of reoffense under subsection (b) of this section, the court shall consider:
    1. Conditions of release that minimize risk of reoffense, including whether the offender is under supervision through a program provided in title 14 or a juvenile service program, on probation or parole, receiving counseling, therapy or treatment or residing in a home situation that provides guidance and supervision;
    2. Physical conditions that minimize the risk of reoffense;
    3. Criminal history factors indicative of high risk of reoffense, including:
      1. Whether the offender’s conduct was found to be characterized by repetitive and compulsive behavior;
      2. The age of the victim of the sexual offense;
      3. Whether psychological or psychiatric profiles indicate a risk of recidivism;
      4. The offender’s response to treatment;
      5. Recent behavior, including behavior while confined or while under supervision in the community as well as behavior in the community following service of sentence;
      6. Recent threats against any person or expressions of intent to commit additional crimes;
      7. Other criminal history factors, including:
        1. The relationship between the offender and the victim;
        2. The number, date and nature of any prior offenses or acts resulting in an adjudication of delinquency; and
      8. Any other factors the court deems necessary and relevant.
  4. To the extent any other provision of law conflicts with the disclosure requirements of this section, the provisions of this section shall govern.

History. Laws 2016, ch. 13, § 1.

Effective date. —

Laws 2016, ch. 13 § 4, makes the act effective July 1, 2016.

7-19-310. Sex offender registration account; purposes.

There is created the sex offender registration account to be administered by the division. Any state registration or reporting fees collected pursuant to W.S. 7-19-302 shall be deposited into the account. Funds in the account shall be expended only upon appropriation by the legislature and shall not be transferred or expended for any purpose other than administering and enforcing the provisions of this act. Interest accruing to the account shall be retained in the account and shall be expended for the purposes provided in this section.

History. Laws 2017, ch. 144, § 1.

Effective dates. —

Laws 2017, ch. 144, § 3, makes the act effective July 1, 2017.

Article 4. DNA Identification Record System

§ 7-19-401. Definitions.

  1. For purposes of this act:
    1. “CODIS” means the FBI’s national DNA identification index system;
    2. “Convicted” includes pleas of guilty, nolo contendere and verdicts of guilty upon which a judgment of conviction may be rendered. “Convicted” shall not include dispositions pursuant to W.S. 7-13-301 or 35-7-1037 ;
    3. “Criminal justice agency” means any agency or institution of state or local government, other than the office of the public defender, which performs as part of its principal function, activities relating to:
      1. The apprehension, investigation, prosecution, adjudication, incarceration, supervision or rehabilitation of criminal offenders; or
      2. The collection, maintenance, storage, dissemination or use of criminal history record information.
    4. “Department” means the Wyoming department of corrections;
    5. “Division” means the division of criminal investigation within the office of the Wyoming attorney general;
    6. “DNA” means deoxyribonucleic acid located in the cells;
    7. “DNA record” means DNA identification information stored in the state DNA database or CODIS for the purposes of generating investigative leads or supporting statistical interpretation of DNA test results. The objective form of DNA analysis test including numerical representation of DNA fragment lengths, the digital image of autoradiographs and discrete allele assignment numbers of a DNA sample, together with the identity of the submitting agency shall be stored as a DNA record in the state DNA database;
    8. “DNA sample” means a human tissue sample containing DNA which may include, but is not limited to, blood, hair and buccal cells;
    9. “FBI” means the federal bureau of investigation;
    10. “In custody” means imprisoned in the Wyoming state penitentiary, state penitentiary farms and camps or Wyoming women’s center, committed to the Wyoming boys’ school pursuant to W.S. 7-13-101 , or on probation or parole;
    11. “State DNA database” means the DNA identification record system established under this act;
    12. “Sexual assault biological evidence”  includes DNA samples and evidence gathered during an examination conducted  under W.S. 6-2-309 ;
    13. “This act” means W.S. 7-19-401 through 7-19-407 .

History. Laws 1997, ch. 139, § 1; 2019, ch. 76, § 2.

The 2019 amendment, effective July 1, 2019, added (a)(xii), redesignated existing (a)(xii) as (a)(xiii), and substituted "7-19-407" for "7-19-406."

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-19-402. DNA database created; uses of information restricted.

  1. The division shall establish a state DNA database for convicted felons, crime scene specimens and close biological relatives of missing persons in accordance with the provisions of this act. The state DNA database shall be used to assist federal, state and local criminal justice agencies in the putative identification, detection or exclusion of individuals who are subjects of a prosecution of a crime involving biological evidence from the crime scene. The database may also be used:
    1. To support development of a population statistics database, when personal identifying information is removed;
    2. To support identification research and protocol development of forensic DNA analysis methods;
    3. For quality control purposes; and
    4. To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes, including identification of living missing persons.
  2. DNA samples collected and stored for the state DNA database shall not be used or disseminated for purposes other than those specified in this act.
  3. The state DNA database, including test procedures, laboratory equipment, supplies and computer software shall be compatible with that utilized by the FBI. Local criminal justice agencies that establish or operate a DNA identification record system shall ensure that such system is compatible with the state DNA database and that the local system is equipped to receive and answer inquiries from the state DNA database and transmit DNA records to the state DNA database. Procedures and rules for the collection, analysis, storage, expungement and use of DNA identification data shall be uniform throughout the state DNA database.

History. Laws 1997, ch. 139, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-19-401(a)(xii).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and operation of state DNA database statutes, 76 ALR5th 239.

§ 7-19-403. DNA samples required; collection; testing; reimbursement of costs.

  1. Every person convicted of a felony on or after July 1, 1997, and every person who on or after July 1, 1997, is in custody in this state as a result of a felony conviction shall provide a DNA sample for analysis to determine identification characteristics specific to the person. The DNA record resulting from the DNA analysis shall be stored and maintained by the division in the state DNA database.
  2. DNA samples shall be collected in a medically approved manner by a physician, registered nurse, qualified clinical or laboratory technician or other person qualified by training and experience. Persons authorized to draw or collect DNA samples under this section shall not be civilly liable for such acts when acting in a reasonable manner according to generally accepted medical practices. DNA samples required under this section for persons in custody on or after July 1, 1997, shall be provided prior to release from custody. DNA samples required under this section for persons convicted on or after July 1, 1997, and not sentenced to imprisonment shall be provided as a condition of the sentence immediately after sentencing. The division shall promulgate rules and regulations governing the policies and procedures for the collection of DNA samples and transfer of DNA samples to the division. Criminal justice agencies having custody of a person required to provide a DNA sample under this section shall comply with rules and regulations of the division relating to the collection of DNA samples and transfer of such DNA samples for analysis.
  3. DNA samples collected under this section shall be transmitted to the division for the state DNA database. The division shall perform tests on the DNA samples as necessary to implement the purposes of the state DNA database as specified in W.S. 7-19-402(a). The division may contract for services to perform DNA typing under this subsection. The division shall ensure that:
    1. Any contractor conducts forensic DNA analysis in accordance with national standards for DNA quality assurance and proficiency testing issued pursuant to the Federal DNA Identification Act of 1994; and
    2. Typing results meet acceptance criteria established by the FBI for inclusion of DNA records in CODIS.
  4. The division shall reimburse any Wyoming city, town, county or agency required to collect DNA samples under this act for the cost of collecting the sample. The procedure for reimbursement shall be in accordance with rules adopted by the division.

History. Laws 1997, ch. 139, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-19-401(a)(xii).

Constitutionality. —

The DNA Identification Act's purpose in collecting DNA identification information to advance the legitimate state interest in criminal law enforcement does not violate the Fourth Amendment, because collecting DNA samples either from blood, saliva, or hair, through routine, unobtrusive procedures is minimally intrusive, and convicted felons have diminished privacy rights. Doles v. State, 994 P.2d 315, 1999 Wyo. LEXIS 197 (Wyo. 1999).

§ 7-19-404. Access to database; information authorized to be stored.

  1. The division shall authorize access to or disclose DNA records and DNA samples collected in the state DNA database only in the following circumstances:
    1. To criminal justice agencies for law enforcement identification purposes;
    2. For criminal defense purposes, to a defendant who shall have access to samples and analyses performed in connection with the case in which such defendant is charged;
    3. For a population statistics database, identification research and protocol development or quality control purpose, and then only if personal identifying information is removed; and
    4. To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes, including identification of living missing persons.
  2. Access to the state DNA database shall be limited to duly constituted federal, state and local criminal justice agencies through their servicing forensic DNA laboratories. The division shall allow access to defendants for criminal defense purposes as defined in paragraph (a)(ii) of this section upon court order. The division shall adopt rules and procedures to ensure the state DNA database is protected against unauthorized access to the system or files containing DNA related information.
  3. Only DNA records which directly relate to the identification characteristics of individuals shall be collected and stored in the state DNA database. The information contained in the state DNA database shall not be collected or stored for the purpose of obtaining information about physical characteristics, traits or predisposition for disease and shall not serve any purpose other than those stated in W.S. 7-19-402(a). The submitting agency may maintain control of the DNA records it develops.
  4. Any person who, by virtue of employment or official position, has possession of or access to, a DNA record and willfully discloses it in any manner to any person or agency not entitled to receive the record is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. Any person who, without authorization, willfully obtains or attempts to obtain any DNA record, or tampers with or attempts to tamper with any DNA sample, is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1997, ch. 139, § 1.

Stated in

Doles v. State, 994 P.2d 315, 1999 Wyo. LEXIS 197 (Wyo. 1999).

§ 7-19-405. Expungement of information.

  1. Any person whose DNA profile has been included in the state DNA database pursuant to this act may request expungement on the grounds the felony conviction on which the authority for including the DNA profile was based has been reversed and dismissed. The division shall expunge all identifiable information and DNA records in the state DNA database relating to the subject conviction from the person upon receipt of:
    1. A written request for expungement pursuant to this section; and
    2. A certified copy of the court order reversing and dismissing the conviction or providing for expungement.

History. Laws 1997, ch. 139, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-19-401(a)(xii).

§ 7-19-406. Enforcement.

Duly authorized law enforcement and corrections personnel may employ reasonable force in cases where a person refuses to submit to DNA testing as required under this act, and no such employee shall be criminally or civilly liable for the use of such reasonable force. If a person required to provide a DNA sample under this act refuses to do so, the criminal justice agency having custody of the person may apply to the district court for an order requiring the person to provide the sample in conformity with the provisions of this act. Refusal to provide the sample shall be punishable as contempt of the court.

History. Laws 1997, ch. 139, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-19-401(a)(xii).

§ 7-19-407. Sexual assault biological evidence reports.

  1. Beginning January 1, 2020, each criminal justice agency shall report to the division all investigations in which sexual assault biological evidence is gathered. The report shall include the type of crime involved, whether the evidence was submitted to a laboratory for analysis, the name of the lab, whether lab analysis has been completed, and if not submitted, the reasons for nonsubmission and any other information required by the division. Reports shall not include the names of any of the persons involved in an incident or any information which would serve to identify any individual person.
  2. At least annually, the division shall compile a statistical report that shall include the information received pursuant to subsection (a) of this section. Copies of the statistical report shall be published in the “Uniform Crime Reporting, Crime in Wyoming” publication and shall be made available to the public upon request.

History. Laws 2019, ch. 76, § 1.

Effective date. —

Laws 2019, ch. 76 § 4, makes the act effective July 1, 2019.

Article 5. Juvenile Justice Information System

§ 7-19-501. Definitions.

  1. As used in this act:
    1. “Adjudicated” or “adjudication” means as defined by W.S. 14-6-201(a)(i);
    2. “Adult” means an individual who has attained the age of majority;
    3. “Delinquent child” means as defined by W.S. 14-6-201(a)(x);
    4. “Disposition” means the action ordered by the juvenile court judge under W.S. 14-6-229 upon adjudication of a juvenile for a delinquent act;
    5. “Division” means the Wyoming division of criminal investigation within the office of the attorney general;
    6. “Juvenile” means an individual who is under the age of majority;
    7. “Qualifying offense” means conduct that, if committed by an adult, would constitute a felony under the provisions of W.S. 6-1-104(a)(xii) or 35-7-1031 or under similar federal law;
    8. “This act” means W.S. 7-19-501 through 7-19-505 .

History. Laws 2001, ch. 118, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-19-502. Record system created.

  1. The division shall create and maintain a database for a juvenile justice information system as provided in this act.
  2. The database shall contain the information required by this act. Access to information in the database shall be limited as provided by W.S. 7-19-504 .
  3. The division shall promulgate reasonable rules and regulations necessary to carry out the provisions of this act. The division shall annually report by March 1 to the joint judiciary interim committee on the numbers of entries and usage of the database.

History. Laws 2001, ch. 118, § 1.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 7-19-501(a)(viii).

§ 7-19-503. Collection of juvenile justice information.

  1. In any case in which a juvenile is adjudicated a delinquent child for the commission of a qualifying offense, the court shall direct that, to the extent possible, the following information be collected and provided to the division:
    1. Offender identification information including:
      1. The juvenile offender’s name, including other names by which the juvenile is known, and social security number;
      2. The juvenile offender’s date and place of birth;
      3. The juvenile offender’s physical description, including sex, weight, height, race, ethnicity, eye color, hair color, scars, marks and tattoos;
      4. The juvenile offender’s last known residential address; and
      5. The juvenile offender’s fingerprints.
    2. Offense identification information including:
      1. The criminal offense for which the juvenile was adjudicated delinquent;
      2. Identification of the juvenile court in which the juvenile was adjudicated delinquent; and
      3. The date and description of the final disposition ordered by the juvenile court.
  2. The information maintained by the division shall not include predisposition studies and reports, social summaries, medical or psychological reports, educational records, multidisciplinary team minutes and records or transcripts of dispositional hearings.
  3. The division may designate codes relating to the information described in subsection (a) of this section.

History. Laws 2001, ch. 118, § 1.

§ 7-19-504. Access to and dissemination of information.

  1. Information contained in the juvenile justice information system shall be accessible, whether directly or through an intermediary, to:
    1. Other criminal justice agencies;
    2. Any person designated for the purpose provided by W.S. 14-6-227 ;
    3. The department of family services if the subject is in the custody of the department;
    4. An individual who has met the requirements established by the division to ensure the record will be used solely as a statistical research or reporting record and that the record is to be transferred in a form that is not individually identifiable;
    5. Any record subject as provided by W.S. 7-19-109 .
  2. When a subject reaches the age of majority, all information in the juvenile justice information system pertaining to that subject shall be deleted.
  3. Any person who willfully violates subsection (a) or (b) of this section is guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars ($500.00). Any person or entity who violates subsection (a) of this section shall be denied further access to the system.

History. Laws 2001, ch. 118, § 1.

§ 7-19-505. Inspection of information.

An individual, his parents and guardian have the right to inspect all juvenile justice record information located within this state which refers to that individual in accordance with W.S. 7-19-109 .

History. Laws 2001, ch. 118, § 1.

Article 6. National Crime Prevention and Privacy Compact Act

Effective dates. —

Laws 2005, ch. 28, § 2, makes the act effective July 1, 2005.

§ 7-19-601. Short title.

This act may be cited as “The National Crime Prevention and Privacy Compact Act”.

History. Laws 2005, ch. 28, § 1.

§ 7-19-602. Interstate compact.

The National Crime Prevention and Privacy Compact is enacted into law and entered into by this state with any other state or jurisdiction legally joining the compact in the form substantially as follows:

History. Laws 2005, ch. 28, § 1.

Article I Definitions

  1. As used in this compact, unless the context clearly requires otherwise:
    1. “Attorney general” means the attorney general of the United States;
    2. “Compact officer” means:
      1. With respect to the federal government, an official so designated by the director of the FBI; and
      2. With respect to a party state, the chief administrator of the state's criminal history record repository or a designee of the chief administrator who is a regular full-time employee of the repository.
    3. “Council” means the compact council established under article VI of this compact;
    4. “Criminal history records” means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments or other formal criminal charges, and any dispositions arising therefrom, including acquittal, sentencing, correctional supervision or release, but does not include identification information such as fingerprint records if that information does not indicate involvement of the individual with the criminal justice system;
    5. “Criminal history record repository” means the state agency designated by the governor or other appropriate executive official or the legislature of a state to perform centralized recordkeeping functions for criminal history records and services in the state;
    6. “Criminal justice” means the activities relating to the detection, apprehension, detention, pretrial release, posttrial release, prosecution, adjudication, correctional supervision or rehabilitation of accused persons or criminal offenders. The administration of criminal justice includes criminal identification activities and the collection, storage and dissemination of criminal history records;
    7. “Criminal justice agency” means:
      1. Courts;
      2. A governmental agency or any subunit thereof that:
        1. Performs the administration of criminal justice pursuant to a statute or executive order; and
        2. Allocates a substantial part of its annual budget to the administration of criminal justice; and
      3. Includes federal and state inspectors general offices.
    8. “Criminal justice services” means services provided by the FBI to criminal justice agencies in response to a request for information about a particular individual or as an update to information previously provided for criminal justice purposes;
    9. “Criterion offense” means any felony or misdemeanor offense not included on the list of nonserious offenses published periodically by the FBI;
    10. “Direct access” means access to the national identification index by computer terminal or other automated means not requiring the assistance of, or intervention by, any other party or agency;
    11. “Executive order” means an order of the president of the United States or the chief executive officer of a state that has the force of law and that is promulgated in accordance with applicable law;
    12. “FBI” means the federal bureau of investigation;
    13. “Interstate identification system” or “III system” means the cooperative federal-state system for the exchange of criminal history records and includes the national identification index, the national fingerprint file and, to the extent of their participation in the system, the criminal history record repositories of the states and the FBI;
    14. “National fingerprint file” means a database of fingerprints or other uniquely personal identifying information relating to an arrested or charged individual maintained by the FBI to provide positive identification or record subjects indexed in the III system;
    15. “National identification index” means an index maintained by the FBI consisting of names, identifying numbers and other descriptive information relating to record subjects about whom there are criminal history records in the III system;
    16. “National indices” means the national identification index and the national fingerprint file;
    17. “Nonparty state” means a state that has not ratified this compact;
    18. “Noncriminal justice purposes” means uses of criminal history records for purposes authorized by federal or state law other than for purposes relating to criminal justice activities, including employment suitability, licensing determinations, immigration and naturalization matters and national security clearances;
    19. “Party state” means a state that has ratified this compact;
    20. “Positive identification” means a determination, based on a comparison of fingerprints or other equally reliable biometric identification techniques, that the subject of a record search is the same person as the subject of a criminal history record or records indexed in the III system. Identification based solely upon a comparison of subjects' names or other nonunique identification characteristics or numbers, or combinations thereof, shall not constitute positive identification;
    21. “Sealed record information” means:
      1. With respect to adults, that portion of a record that is:
        1. Not available for criminal justice uses;
        2. Not supported by fingerprints or other accepted means of positive identification; or
        3. Subject to restrictions on dissemination for noncriminal justice purposes pursuant to a federal or state statute that requires action on a sealing petition filed by a particular record subject; and
      2. With respect to juveniles, whatever each state determines is a sealed record under its own law and procedure.
    22. “State” means any state, territory or possession of the United States, the District of Columbia and the Commonwealth of Puerto Rico.

Article II Purposes

  1. The purposes of this compact are to:
    1. Provide a legal framework for the establishment of a cooperative federal-state exchange of criminal history records for noncriminal justice purposes;
    2. Require the FBI to permit use of the national identification index and the national fingerprint file by each party state and to provide, in a timely fashion, federal and state criminal history records to requesting states, in accordance with the terms of this compact and with rules, procedures and standards established by the council under article VI(a) of this compact;
    3. Require party states to provide information and records for the national identification index and the national fingerprint file and to provide criminal history records, in a timely fashion, to criminal history record repositories of other states and the federal government for noncriminal justice purposes, in accordance with the terms of this compact and with rules, procedures and standards established by the council under article VI(a) of this compact;
    4. Provide for the establishment of a council to monitor III system operations and to prescribe system rules and procedures for the effective and proper operation of the III system for noncriminal justice purposes; and
    5. Require the FBI and each party state to adhere to III system standards concerning record dissemination and use, response times, system security, data quality and other duly established standards, including those that enhance the accuracy and privacy of such records.

Article III Responsibilities of Compact Parties

  1. The director of the FBI shall:
    1. Appoint an FBI compact officer who shall:
      1. Administer this compact within the federal department of justice and among federal agencies and other agencies and organizations that submit search requests to the FBI pursuant to article (V)(c) of this compact;
      2. Ensure that compact provisions and rules, procedures and standards prescribed by the council under article VI of this compact are complied with by the federal department of justice and the federal agencies and other agencies and organizations referred to in subparagraph (A) of this paragraph; and
      3. Regulate the use of records received by means of the III system from party states when the records are supplied by the FBI directly to other federal agencies.
    2. Provide to federal agencies and to state criminal history record repositories, criminal history records maintained in its databases for the noncriminal justice purposes described in article IV of this compact, including:
      1. Information from nonparty states; and
      2. Information from party states that is available from the FBI through the III system, but is not available from the party state through the III system.
    3. Provide a telecommunications network and maintain centralized facilities for the exchange of criminal history records for both criminal justice purposes and the noncriminal justice purposes described in article IV of this compact, and ensure that the exchange of the records for criminal justice purposes has priority over exchange for noncriminal justice purposes; and
    4. Modify or enter into user agreements with nonparty state criminal history record repositories to require them to establish record request procedures conforming to those prescribed in article V of this compact.
  2. Each party state shall:
    1. Appoint a compact officer who shall:
      1. Administer this compact within the state;
      2. Ensure that compact provisions and rules, procedures and standards established by the council under article VI(a) of this compact are complied with in the state; and
      3. Regulate the in-state use of records received by means of the III system from the FBI or from other party states.
    2. Establish and maintain a criminal history record repository, which shall provide:
      1. Information and records for the national identification index and the national fingerprint file; and
      2. The state's III system-indexed criminal history records for noncriminal justice purposes described in article IV of this compact.
    3. Participate in the national fingerprint file; and
    4. Provide and maintain telecommunications links and related equipment necessary to support the services set forth in this compact.
  3. In carrying out their responsibilities under this compact, the FBI and each party state shall comply with III system rules, procedures and standards duly established by the council concerning record dissemination and use, response time, data quality, system security, accuracy, privacy protection and other aspects of III system operation.
  4. Maintenance of record services shall comply with the following:
    1. Use of the III system for noncriminal justice purposes authorized in this compact shall be managed so as not to diminish the level of services provided in support of criminal justice purposes;
    2. Administration of compact provisions shall not reduce the level of service available to authorized noncriminal justice users on the effective date of this compact.

Article IV Authorized Record Disclosures

  1. To the extent authorized by section 552a of title 5, United States Code (commonly known as the Privacy Act of 1974), the FBI shall provide on request criminal history records (excluding sealed records) to state criminal history record repositories for noncriminal justice purposes allowed by federal statute, federal executive order, or a state statute that has been approved by the attorney general and that authorizes national indices checks.
  2. The FBI, to the extent authorized by section 552a of title 5, United States Code (commonly known as the Privacy Act of 1974), and state criminal history record repositories, shall provide criminal history records (excluding sealed records) to criminal justice agencies and other governmental or nongovernmental agencies for noncriminal justice purposes allowed by federal statute, federal executive order, or a state statute that has been approved by the attorney general, that authorizes national indices checks.
  3. Any record obtained under this compact may be used only for the official purposes for which the record was requested. Each compact officer shall establish procedures, consistent with this compact and with rules, procedures and standards established by the council under article VI of this compact, which procedures shall protect the accuracy and privacy of the records and shall:
    1. Ensure that records obtained under this compact are used only by authorized officials for authorized purposes;
    2. Require that subsequent record checks are requested to obtain current information whenever a new need arises; and
    3. Ensure that record entries that may not legally be used for a particular noncriminal justice purpose are deleted from the response and, if no information authorized for release remains, an appropriate “no record” response is communicated to the requesting official.

Article V Record Request Procedures

  1. Subject fingerprints or other approved forms of positive identification shall be submitted with all requests for criminal history record checks for noncriminal justice purposes.
  2. Each request for a criminal history record check utilizing the national indices made under any approved state statute shall be submitted through that state's criminal history record repository. A state criminal history record repository shall process an interstate request for noncriminal justice purposes through the national indices only if the request is transmitted through another state criminal history record repository or the FBI.
  3. Each request for criminal history record checks utilizing the national indices made under federal authority shall be submitted through the FBI or, if the state criminal history record repository consents to process fingerprint submissions, through the criminal history record repository in the state in which the request originated. Direct access to the national identification index by entities other than the FBI and state criminal history records repositories shall not be permitted for noncriminal justice purposes.
  4. A state criminal record repository or the FBI:
    1. May charge a fee, in accordance with applicable law, for handling a request involving fingerprint processing for noncriminal justice purposes; and
    2. May not charge a fee for providing criminal history records in response to an electronic request for a record that does not involve a request to process fingerprints.
  5. If an additional search is required, the following shall apply:
    1. If a state criminal history record repository cannot positively identify the subject of a record request made for noncriminal justice purposes, the request, together with fingerprints or other approved identifying information, shall be forwarded to the FBI for a search of the national indices;
    2. If, with respect to a request forwarded by a state criminal history record repository under paragraph (i) of this subsection, the FBI positively identifies the subject as having a III system indexed record or records:
      1. The FBI shall so advise the state criminal history record repository; and
      2. The state criminal history record repository shall be entitled to obtain the additional criminal history record information from the FBI or other state criminal history record repositories.

Article VI Establishment of Compact Council

  1. There is established a council to be known as the compact council, which shall have the authority to promulgate rules and procedures governing the use of the III system for noncriminal justice purposes, not to conflict with FBI administration of the III system for criminal justice purposes.
  2. The council shall:
    1. Continue in existence as long as this compact remains in effect;
    2. Be located, for administrative purposes, within the FBI; and
    3. Be organized and hold its first meeting as soon as practicable after the effective date of this compact.
  3. The council shall be composed of fifteen (15) members, each of whom shall be appointed by the attorney general, as follows:
    1. Nine (9) members, each of whom shall serve a two (2) year term, who shall be selected from among the compact officers of party states based on the recommendations of the compact officers of all party states, except that, in the absence of the requisite number of compact officers available to serve, the chief administrator of the criminal history record repositories of nonparty states shall be eligible to serve on an interim basis;
    2. Two (2) at-large members, nominated by the director of the FBI, each of whom shall serve a three (3) year term, of whom:
      1. One (1) shall be a representative of a criminal justice agency of the federal government and may not be an employee of the FBI; and
      2. One (1) shall be a representative of a noncriminal justice agency of the federal government.
    3. Two (2) at-large members, nominated by the chairperson of the council, once the chairperson is elected pursuant to subsection (d) of this article, each of whom shall serve a three (3) year term, of whom:
      1. One (1) shall be a representative of a state or local criminal justice agency; and
      2. One (1) shall be a representative of a state or local noncriminal justice agency.
    4. One (1) member, who shall serve a three (3) year term, and who shall simultaneously be a member of the FBI's advisory policy board on criminal justice information services, nominated by the membership of that policy board;
    5. One (1) member, nominated by the director of the FBI, who shall serve a three (3) year term, and who shall be an employee of the FBI.
  4. From its membership, the council shall elect a chairperson and a vice chairperson of the council, respectively. Both the chairperson and the vice chairperson of the council:
    1. Shall be a compact officer, unless there is no compact officer on the council who is willing to serve, in which case the chairperson may be an at-large member; and
    2. Shall serve a two (2) year term and may be reelected to only one (1) additional two (2) year term.
  5. The vice chairperson of the council shall serve as the chairperson of the council in the absence of the chairperson.
  6. The council shall meet at least once each year at the call of the chairperson. Each meeting of the council shall be open to the public. The council shall provide prior public notice in the federal register of each meeting of the council, including the matters to be addressed at the meeting.
  7. A majority of the council or any committee of the council shall constitute a quorum of the council or of the committee, respectively, for the conduct of business. A lesser number may meet to hold hearings, take testimony or conduct any business not requiring a vote.
  8. The council shall make available for public inspection and copying at the council office within the FBI, and shall publish in the federal register, any rules, procedures or standards established by the council.
  9. The council may request from the FBI, reports, studies, statistics or other information or materials as the council determines to be necessary to enable the council to perform its duties under this compact. The FBI, to the extent authorized by law, may provide assistance or information in response to a request by the council.
  10. The chairperson may establish committees as necessary to carry out this compact and may prescribe their membership, responsibilities and duration.

Article VII Ratification of Compact

  1. This compact shall take effect upon being entered into by two (2) or more states as between those states and the federal government. Upon subsequent entering into this compact by additional states, it shall become effective among those states and the federal government and each party state that has previously ratified it. When ratified, this compact shall have the full force and effect of law within the ratifying jurisdictions. The form of ratification shall be in accordance with the laws of the executing state.

Article VIII Miscellaneous Provisions

  1. Administration of this compact shall not interfere with the management and control of the director of the FBI over the FBI's collection and dissemination of criminal history records and the advisory function of the FBI's advisory policy board chartered under the Federal Advisory Committee Act (5 U.S.C. App.) for all purposes other than noncriminal justice.
  2. Nothing in this compact shall require the FBI to obligate or expend funds beyond those appropriated to the FBI.
  3. Nothing in this compact shall diminish or lessen the obligations, responsibilities and authorities of any state, whether a party state or a nonparty state, or of any criminal history record repository or other subdivision or component thereof, under the federal departments of state, justice and commerce, the judiciary, and Related Agencies Appropriation Act, 1973 (Pub. L. 92-544), or regulations and guidelines promulgated thereunder, including the rules and procedures promulgated by the council under article VI(a) of this compact, regarding the use and dissemination of criminal history records and information.

Article IX Renunciation

  1. This compact shall bind each party state until renounced by the party state.
  2. Any renunciation of this compact by a party state shall:
    1. Be effected in the same manner by which the party state ratified this compact; and
    2. Become effective one hundred eighty (180) days after written notice of renunciation is provided by the party state to each other party state and to the federal government.

Article X Severability

  1. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision of this compact is declared contrary to the constitution of any participating state, to the constitution of the United States or to the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If a portion of this compact is held contrary to the constitution of any party state, all other portions of this compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the party state affected, as to all other provisions.

Article XI Adjudication of Disputes

  1. The council shall:
    1. Have initial authority to make determinations with respect to any dispute regarding:
      1. Interpretation of this compact;
      2. Any rule or standard established by the council; and
      3. Any dispute or controversy between any parties to this compact.
    2. Hold a hearing concerning any dispute described in paragraph (i) of this subsection at a regularly scheduled meeting of the council and only render a decision based upon a majority vote of the members of the council. The decision shall be published pursuant to the requirements of article VI(e) of this compact.
  2. The FBI shall exercise immediate and necessary action to preserve the integrity of the III system, maintain system policy and standards, protect the accuracy and privacy of records and to prevent abuses, until the council holds a hearing on such matters.
  3. The FBI or a party state may appeal any decision of the council to the attorney general and thereafter may file suit in the appropriate district court of the United States, which shall have original jurisdiction of all cases or controversies arising under this compact. Any suit arising under this compact and initiated in a state court shall be removed to the appropriate district court of the United States in the manner provided by 24 U.S.C. § 1446, or other statutory authority.

    Editor's notes. —

    There is no subsection (b) in Articles I, II, VII, and X nor a subsection (i) in Article VI in this compact as it appears in the printed texts. The reference to “24 U.S.C.§ 1446” in subsection (c) of this section, should be 28 USC § 1446.

§ 7-19-603. Compact officer to administer the compact.

The Wyoming attorney general or his designee shall act as the compact officer responsible for implementation and administration of this compact on behalf of the state of Wyoming.

History. Laws 2005, ch. 28, § 1.

Chapter 20 Family Violence

Appropriations. —

Laws 2004, ch. 95, § 308, appropriates $200,000 from the general fund to the attorney general for contracting for the provision of a legal assistance clinic in Laramie, Wyoming for victims of domestic violence or sexual assault for the period beginning July 1, 2004 and ending June 30, 2006. Should federal funding become available for this purpose, any unexpended general fund appropriations are to revert to the general fund upon receipt of federal funds.

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children, 51 ALR5th 241.

§ 7-20-101. Definition of “peace officer”.

As used in this chapter “peace officer” has the meaning specified in W.S. 7-2-101 .

History. Laws 1987, ch. 140, § 1.

§ 7-20-102. Arrests without warrant.

  1. In addition to arrests specified in W.S. 7-2-102 , any peace officer who has probable cause to believe that a violation of W.S. 6-2-510(a) or 6-2-511(a) has taken place within the preceding twenty-four (24) hours or is taking place or that a violation of W.S. 6-2-502(a) or 6-2-504(a) or (b) has taken place within the preceding twenty-four (24) hours or is taking place and that the person who committed or is committing the violation is a household member as defined by W.S. 35-21-102(a)(iv), may arrest the violator without a warrant for that violation, regardless of whether the violation was committed in the presence of the peace officer.
  2. A peace officer, without a warrant, may arrest and take into custody a person if:
    1. An order of protection has been issued by a circuit or district court as authorized by W.S. 35-21-104 or 35-21-105 stating on its face the period of time for which the order is valid and specifically restraining or enjoining a household member, as defined by W.S. 35-21-102(a)(iv), from entering onto premises, from physical abuse, threats of personal abuse or acts which unreasonably restrain the personal liberty of any household member, or from abducting, removing or concealing any child in the custody of another household member or from transferring, concealing, encumbering or otherwise disposing of petitioner’s property or the joint property of the parties;
    2. A true copy and proof of service of the order has been filed with the sheriff’s office having jurisdiction of the area in which the moving party resides;
    3. The person named in the order has received notice of the injunctive order;
    4. The person named in the order is acting in violation of the order or the peace officer has probable cause to believe that the person violated the order within the preceding twenty-four (24) hours; and
    5. The order states on its face that a violation of its terms subjects the person to a criminal penalty pursuant to W.S. 6-4-404 .

History. Laws 1987, ch. 140, § 1; 1988, ch. 86, § 2; 1996, ch. 91, § 1; 1997, ch. 115, § 1; 2009, ch. 124, § 1; 2010, ch. 69, § 202; 2014, ch. 13, § 2.

Cross references. —

As to arrests without warrant generally, see § 7-2-102 .

The 2009 amendment, effective July 1, 2009, substituted “through (g)” for “or (f)” in (a).

The 2010 amendment, effective July 1, 2010, in (b)(i), substituted “issued by a circuit” for “issued by a county.”

The 2014 amendment, effective July 1, 2014, in (a), substituted “6-2-510(a) or 6-2-511(a) has taken place within the preceding twenty-four (24) hours or is taking place or that a violation of W.S.” for “6-2-501(a), (b), (e) through (g).”

§ 7-20-103. Appearance in court; hearing; probation.

  1. Any person arrested pursuant to W.S. 7-20-102 shall be brought before the court having jurisdiction in the cause without unnecessary delay. At the initial appearance under this section the court shall:
    1. Set a time for a hearing on the alleged violation of the order of protection within seventy-two (72) hours after the person is initially brought before the court under this subsection;
    2. Set a reasonable bond pending the hearing;
    3. If the arrest is pursuant to W.S. 7-20-102 (b), notify the party who procured the order of protection and direct that party to appear at the hearing and give evidence on the alleged violation; and
    4. If the defendant is found guilty of an offense referred to in W.S. 7-20-102(a) and 35-21-106(c) and if probation is otherwise available for the offense, the court, without entering a judgment of guilt and with the concurrence of the prosecutor and consent of the defendant, may defer further proceedings and place the defendant on probation as provided in this paragraph. The terms and conditions of probation shall include those necessary to provide for the protection of the alleged victim and other specifically designated persons and additional conditions and requirements which the court deems appropriate, including any counseling or diversionary programs available to the defendant. On violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided for revocation of probation. On fulfillment of the terms and conditions of probation, the court shall discharge the defendant and dismiss the proceedings against the defendant. This subsection does not apply in any case in which the defendant has previously been found guilty of an offense referred to in W.S. 7-20-102(a) and 35-21-106(c), or in which charges under this section have previously been dismissed in accordance with this subsection.

History. Laws 1987, ch. 140, § 1; 1988, ch. 86, § 2.

Cross references. —

As to probation and parole generally, see § 7-13-401 et seq.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-20-104. Notice to victim of services and legal rights and remedies.

At the time of arrest under W.S. 7-20-102 or as soon thereafter as is practicable, the peace officer shall advise the victim of the availability of a program that provides services to victims of battering in the community and give the victim notice of the legal rights and remedies available. The notice shall include furnishing the victim a copy of the following statement:

“IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE, you can ask the district attorney to file a criminal complaint. You also have the right to go to the circuit or district court and file a petition requesting any of the following orders for relief: (a) An order restraining your attacker from abusing you; (b) An order directing your attacker to leave your household; (c) An order preventing your attacker from entering your residence, school, business or place of employment; (d) An order awarding you or the other parent custody of or visitation with a minor child or children; (e) An order restraining your attacker from molesting or interfering with minor children in your custody; (f) An order directing the party not granted custody to pay support for minor children, or for support of the other party if that party has a legal obligation to do so. You also have the right to sue for losses suffered as a result of the abuse, including medical and moving expenses, loss of earnings or support and other out-of-pocket expenses for injuries sustained and damage to your property. This can be done without an attorney in small claims court if the total amount claimed is under $ (Officer to insert current jurisdictional limit of small claims court). 1. Name, address and phone number of local family violence program. 2. Name, address and phone number of district attorney's office.”

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History. Laws 1987, ch. 140, § 1; 2010, ch. 69, § 202.

Cross references. —

As to procedure for small claims, see § 1-21-201 et seq.

As to district courts, see chapter 3 of title 5.

As to district attorneys, see § 9-1-801 .

The 2010 amendment, effective July 1, 2010, substituted “circuit or district court” for “county or district court.”

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children, 51 ALR5th 241.

Validity, construction, and application of state constitutional or statutory victims' bill of rights, 91 ALR5th 343.

§ 7-20-105. Peace officer education and training.

  1. Law enforcement agencies and the Wyoming law enforcement academy shall provide peace officers with a uniform education and training program approved by the peace officer standards and training commission designed to inform the officers of the problems of family and household abuse, procedures to deal with these problems, the provisions of this chapter and the services and facilities available to abused family and household members. The amount and degree of peace officer training shall include the following:
    1. Officers who are currently employed by a law enforcement agency and have already completed and been certified through a state basic skills course shall be provided eight (8) hours of training through the local law enforcement agency at which the officer is employed. The law enforcement agency may contact the family violence program in the county to assist in designing and implementing this training;
    2. Officers who have not yet completed and been certified through the Wyoming state basic skills course shall be provided twelve (12) hours of training as part of the basic skills course at the Wyoming law enforcement academy. The department of health may be contacted to assist in designing and implementing this training.

History. Laws 1987, ch. 140, § 1; 1988, ch. 86, § 2; 1991, ch. 221, § 2.

Cross references. —

As to Wyoming law enforcement academy, see § 9-1-632 .

As to peace officer standards and training commission, see § 9-1-702 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-20-106. Civil or criminal liability of peace officer.

A peace officer making an arrest pursuant to this chapter is not civilly or criminally liable for that arrest if the officer acts upon probable cause and without malice.

History. Laws 1987, ch. 140, § 1.

§ 7-20-107. Identification codes; reports.

  1. The Wyoming division of criminal investigation within the office of the attorney general shall develop and each law enforcement agency shall use a domestic violence identification code or codes by January 1, 1988. In all incidents of domestic violence, a report shall be written and shall be thus identified on the face of the report as a domestic violence incident.
  2. The division of criminal investigation shall compile a quarterly and annual statistical report which shall include the number of reported incidents of domestic abuse for each county and for the state as a whole, the types of crime involved in the domestic abuse, the days of the week and hours of the day the incidents occurred and the final disposition of each reported incident. The statistical reports shall not include the names of any of the persons involved in an incident of domestic abuse or any information which would serve to identify such persons as individuals. Copies of the quarterly and annual statistical reports shall be published in the “Uniform Crime Reporting, Crime in Wyoming” publication and shall be made available to the public upon request.

History. Laws 1987, ch. 140, § 1.

Cross references. —

As to division of criminal investigation, see § 9-1-611 .

Chapter 21 Victim Impact Statements

§ 7-21-101. Definitions.

  1. As used in this chapter:
    1. “Crime” means a felony as defined by W.S. 6-10-101 ;
    2. “Family member” means a spouse, child, sibling, parent or legal guardian of a victim;
    3. “Victim” means an individual who has suffered direct or threatened physical, emotional or financial harm as the result of the commission of a crime or a family member of a minor, incompetent person or a homicide victim;
    4. “Victim impact statement” means an oral or written statement by the victim of a crime providing the information specified by W.S. 7-21-102(c).

History. Laws 1990, ch. 112, § 1.

Cross references. —

As to age of majority, see § 14-1-101 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

“Victim.” —

Neighbor of homicide victim qualified as a victim, and his statement was properly admitted to trial court. Trusky v. State, 7 P.3d 5, 2000 Wyo. LEXIS 130 (Wyo. 2000).

Nonvictims.—

In a case in which defendant pleaded guilty to second degree murder, and was sentenced to serve 75 years to life in prison, the trial court did not commit plain error by considering statements from individuals who did not meet the statutory definition of victim; the trial court could consider statements from persons other than the victim. Town v. State, 2015 WY 78, 351 P.3d 257, 2015 Wyo. LEXIS 89 (Wyo. 2015).

Inadmissibility of victim impact statements in death penaltycases. —

Neither the Wyo. Stat. Ann. § 6-2-102 death penalty statute nor Wyo. Stat. Ann. §§ 7-21-101 through 103 general victim impact statutes authorize the introduction of victim impact evidence during capital sentencing, and the trial court errs in allowing its introduction; such error, however, is subject to harmless error analysis. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Cited in

Brown v. State, 2005 WY 37, 109 P.3d 52, 2005 Wyo. LEXIS 43 (2005); Thompson v. State, 2014 WY 89, 2014 Wyo. LEXIS 97 , 2014 WL 3400960 (Jul 14, 2014).

§ 7-21-102. Notice to crime victims.

  1. If a defendant is convicted of a crime involving an identifiable victim, the district attorney, upon and in accordance with the request of the victim, shall give to the victim notice of the following:
    1. The defendant’s conviction;
    2. The offenses for which the defendant was convicted and the possible sentences for each offense;
    3. The victim’s opportunity to make a written or oral impact statement for use in the preparation of the presentence investigation report concerning the defendant when a presentence investigation report is to be prepared;
    4. The address and telephone number of the probation office which is to prepare the presentence investigation report;
    5. That a presentence investigation report and any statement of the victim included in the report will be made available to the defendant;
    6. The victim’s opportunity to make an impact statement at sentencing or at any subsequent hearing for correction or reduction of sentence; and
    7. The time and place of the sentencing proceeding and the time and place of any subsequent hearing for correction or reduction of sentence.
  2. The notice given by the district attorney to the victim pursuant to this section shall be given by any means reasonably calculated to give prompt actual notice.
  3. A notice given under subsection (a) of this section shall inform the victim that his impact statement may include but shall not be limited to the following:
    1. An explanation of the nature and extent of any physical, psychological or emotional harm or trauma suffered by the victim;
    2. An explanation of the extent of any economic loss or property damage suffered by the victim;
    3. The need for and extent of restitution and whether the victim has applied for or received compensation for loss or damage; and
    4. The victim’s recommendation for an appropriate disposition.

History. Laws 1990, ch. 112, § 1; 1991, ch. 191, § 1.

Credible evidence. —

Information contained in a victim impact statement is credible evidence upon which district court may impose a restitution amount. Brock v. State, 967 P.2d 26, 1998 Wyo. LEXIS 159 (Wyo. 1998).

Evidence sufficient to estimate victim's loss. —

District court did not abuse its discretion in sentencing defendant to make restitution in the amount of $500, where mother of minor with whom defendant had taken indecent liberties requested in victim impact statement that defendant pay her insurance policy deductible of $500 to cover costs of counseling for daughter; this information was sufficient to afford a reasonable basis for estimating the victim's loss. Brock v. State, 967 P.2d 26, 1998 Wyo. LEXIS 159 (Wyo. 1998).

Victim's impact statement. —

Even if defendant was correct in assertion that he was given ‘no meaningful alternative’ other than proceeding to trial, because he was charged with three prior felonies and had to be found innocent to avoid a mandatory life sentence, claim was rejected that testimony at trial from officers about shootings were relied on in imposing a ‘severe’ sentence; if case had not proceeded to trial, the district court inevitably would have been informed of the circumstances surrounding the crime through the presentence investigation report, factual basis for his guilty plea, and the officers' testimony at sentencing in the form of victim impact statements. Hopson v. State, 2006 WY 32, 130 P.3d 494, 2006 Wyo. LEXIS 35 (Wyo. 2006).

Stated in

Mehring v. State, 860 P.2d 1101, 1993 Wyo. LEXIS 151 (Wyo. 1993).

§ 7-21-103. Submission of victim impact statement to sentencing court.

  1. At any hearing to determine, correct or reduce a sentence, an identifiable victim of the crime may submit, orally, in writing or both, a victim impact statement to the court.
    1. and (ii) Repealed by Laws 2005, ch. 17, § 2.
  2. Any victim impact statement submitted to the court pursuant to this section shall be among the factors considered by the court in determining the sentence to be imposed upon the defendant or in determining whether there should be a correction or reduction of sentence.
  3. Any failure to comply with the terms of this chapter shall not create a cause for appeal or reduction of sentence for the defendant, or a civil cause of action against any person by the defendant.

History. Laws 1990, ch. 112, § 1; 1991, ch. 191, § 1; 1992, ch. 25, § 3; 2005, ch. 17, §§ 1, 2.

The 2005 amendment, effective July 1, 2005, rewrote and restructured (a) to clarify when and how a victim impact statement may be submitted.

Purpose of this section is to permit the sentencing court to consider information about the harm caused by the defendant during the commission of the particular crime for which sentence is about to be imposed. Mehring v. State, 860 P.2d 1101, 1993 Wyo. LEXIS 151 (Wyo. 1993).

Statement improperly considered. —

Trial court erred in considering a victim impact statement from defendant's daughter because such statements are limited to the victims of crimes for which a defendant is being sentenced, and the charge against defendant concerning the daughter had been dropped. Bitz v. State, 2003 WY 140, 78 P.3d 257, 2003 Wyo. LEXIS 170 (Wyo. 2003).

No error shown. —

Mere submission of a victim impact statement and presentence investigation report that contains statements from individuals who may be beyond those affected by the charged crimes does not without more constitute a procedural error in sentencing or prosecutorial misconduct; therefore, in a case involving sexual assault and indecent acts with a minor, error was not shown based on the fact that other statements were included. Hubbard v. State, 2008 WY 12, 175 P.3d 625, 2008 Wyo. LEXIS 13 (Wyo. 2008).

District court properly exercised its discretion in sentencing defendant, a high school teacher who was convicted of having had improper sexual relations with three students, because the fact that two of defendant's victims testified on defendant's behalf did not qualify their testimony as more credible, or warrant special status more so than the victim that did not testify. Thompson v. State, 2014 WY 89, 330 P.3d 804, 2014 Wyo. LEXIS 97 (Wyo. 2014).

Nonvictims.—

In a case in which defendant pleaded guilty to second degree murder, and was sentenced to serve 75 years to life in prison, the trial court did not commit plain error by considering statements from individuals who did not meet the statutory definition of victim; the trial court could consider statements from persons other than the victim. Town v. State, 2015 WY 78, 351 P.3d 257, 2015 Wyo. LEXIS 89 (Wyo. 2015).

Neighbor of victim. —

Neighbor of homicide victim qualified as a victim, and his statement was properly admitted under this section. Trusky v. State, 7 P.3d 5, 2000 Wyo. LEXIS 130 (Wyo. 2000).

Victim impact evidence is admissible in guilt phase of trial for credibility purposes. Barnes v. State, 858 P.2d 522, 1993 Wyo. LEXIS 134 (Wyo. 1993).

Cited in

Noel v. State, 2014 WY 30, 2013 Wyo. LEXIS 170 (Feb 25, 2013); Noel v. State, 2014 WY 30, 2013 Wyo. LEXIS 170 (Feb 25, 2013); Noel v. State, 2014 WY 30, 2013 Wyo. LEXIS 170 (Feb 25, 2013).

Quoted in

Deeds v. State, 2014 WY 124, 2014 Wyo. LEXIS 141 (Oct. 3, 2014).

Am. Jur. 2d, ALR and C.J.S. references. —

Victim impact evidence in capital sentencing hearings — post-Payne v. Tennessee, 79 ALR5th 33.

Chapter 22 Private Correctional Facilities

Editor's notes. —

There is no article 2 in this chapter as it appears in the printed acts.

Applicability of act. —

Laws 1991, ch. 252, § 3, provides: “The powers and authority set forth in this act shall be in addition to such other powers and authority as may presently exist under the laws of the state of Wyoming relating to correctional facilities or jails, and the requirements set forth in this act (including in particular, requirements relating to the obtaining of necessary consents and approvals) shall be deemed to apply only to actions taken or to be taken under authority of this act and shall not apply to any such other powers or authority as may presently exist under the laws of the state of Wyoming.”

Article 1. In General

§ 7-22-101. Definitions.

  1. As used in this article:
    1. “American correctional association standards” means those standards at the time of implementation of this act, or if amended, the amended American correctional association standards, which are approved by the state;
    2. “Contracting governmental entity” means the state or a local government which has entered into a contract with a contractor pursuant to this article;
    3. “Contractor” or “private contractor” means a person who has entered into a contract with the state or a local government pursuant to W.S. 7-22-102 ;
    4. “Deadly force” means force that is likely to cause death or serious bodily injury;
    5. “Facility” means a jail, prison or other incarceration facility constructed or operated pursuant to a contract under W.S. 7-22-102 ;
    6. “Five (5) state elected officials” means the governor, secretary of state, state auditor, state treasurer and superintendent of public instruction;
    7. “Local government” means any city, town, joint powers board or county in Wyoming;
    8. “Nondeadly force” means force that normally would cause neither death nor serious bodily injury;
    9. “Private-company detention officer” means a private contractor’s employee serving as a detention officer at a facility being operated pursuant to a contract under W.S. 7-22-102;
    10. “State” means the state of Wyoming acting through the office of the governor.

History. Laws 1991, ch. 252, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-22-102. Authority to contract; general conditions.

  1. The state or a local government may contract with private entities for the construction, lease (as lessor or lessee), acquisition, improvement, operation, maintenance, purchase or management of facilities and services as provided in this article, but only after receiving the consent of the five (5) state elected officials as to site, number of beds and classifications of inmates or prisoners to be housed in the facility.
  2. No contract shall be entered into or renewed unless the contracting governmental entity, with the concurrence of the five (5) state elected officials, determines the contract offers substantial cost savings to the contracting governmental entity and at least the same quality of services provided by the state or by similar local governments.
  3. After receiving the majority consent of the five (5) state elected officials as to the site, number of beds and classifications of inmates or prisoners to be housed in the facility, the state or the local government may contract with private entities for the construction, lease (as lessor or lessee), acquisition, improvement, operation, maintenance, purchase or management of facilities, either:
    1. For the incarceration of its own inmates or prisoners;
    2. For the incarceration of prisoners or inmates of the state or any other local government;
    3. For the incarceration of any prisoners or inmates:
      1. Under the jurisdiction of the United States government or any of its offices, departments or agencies;
      2. Otherwise under the control of the United States government or any of its offices, departments or agencies; or
      3. Lawfully confined by any jurisdiction within the United States.
  4. The state or the local government may reject or return prisoners from outside the state. Prisoners or inmates of out-of-state, nonfederal jurisdictions shall not be incarcerated in any facility operated by a local government entity under this article without the consent of the majority of the five (5) elected officials of this state. At no time shall the number of prisoners from out-of-state, nonfederal jurisdictions incarcerated in a facility operated by a local government entity under this article exceed thirty percent (30%) of the capacity of that facility. Any out-of-state, nonfederal prisoner shall be returned to the jurisdiction of origin to be released from custody by them, outside the state of Wyoming at the appropriate time.
  5. Notwithstanding any other provision of law or any rules or regulations adopted pursuant to statutory authority, a negotiated selection process, including requests for proposals from a list of applicants prequalified by the state or the local government, shall be applicable to any contract between the state or a local government and any private entity entered into under the authority of this article. Standards for prequalification of applicants under this subsection shall be promulgated as rules by the state or local government entity under the Wyoming Administrative Procedure Act before the commencement of the selection process.
  6. Rules and regulations promulgated under this article shall ensure that no contract entered into under this section shall result in the significant displacement of employed workers within a sixty (60) mile radius of the community.

History. Laws 1991, ch. 252, § 1.

Wyoming Administrative Procedure Act. —

See § 16-3-101(a), (b)(xi).

§ 7-22-103. Incarceration of inmates in privately operated facility.

At the direction of the state, in the case of a person sentenced to the custody of the department of corrections to serve a term of imprisonment in a state penal institution, or at the direction of the local government in the case of a person sentenced to imprisonment in a city or county jail, the person sentenced to imprisonment may be incarcerated in a facility constructed or operated by a private entity pursuant to a contract under this article.

History. Laws 1991, ch. 252, § 1; 1992, ch. 25, § 3.

§ 7-22-104. Contract term and renewal.

The initial contract for the operation of a facility or for incarceration of prisoners or inmates therein shall be for a period of not more than three (3) years with an option to renew biannually thereafter. Contracts for purchase or lease (as lessor or lessee) of a facility shall not exceed a term of thirty (30) years. Any contract for the construction or operation of a facility shall be subject to annual appropriation by the contracting governmental entity.

History. Laws 1991, ch. 252, § 1.

§ 7-22-105. Standards of operation.

  1. All facilities governed by this article shall be designed, constructed and at all times maintained and operated in accordance with the American correctional association standards in force at the time of contracting. The facility shall meet the percentage of standards required for accreditation by the American correctional association, except where the contract requires compliance with a higher percentage of nonmandatory standards. The contract may allow the contractor an extension of time in which to meet a lower percentage of nonmandatory standards only when the contract is for the renovation of an existing facility, in which case the contractor shall have not longer than three (3) months to meet those standards that are applicable to the physical plant.
  2. Facilities governed by this article shall comply with all federal and state constitutional standards, state and local laws, and all court orders.

History. Laws 1991, ch. 252, § 1.

§ 7-22-106. Private-company detention officers; use of force.

  1. No person shall be employed as a private-company detention officer unless the person has been trained in the use of force and the use of firearms in accordance with American correctional association standards, §§ 3-4070 through 3-4091, and, at the contractor’s expense, has satisfactorily completed a basic training program approved by the state. If the training is provided under contract with the state, the costs of a basic training program shall not be greater than the costs of peace officer training at the Wyoming law enforcement academy.
  2. A private-company detention officer may use force only while on the grounds of a facility or while transporting inmates. Nondeadly force and deadly force shall be used by a private-company detention officer only as provided in this section.
  3. A private-company detention officer is authorized to use only such nondeadly force as the circumstances require in the following situations:
    1. To prevent the commission of a felony or misdemeanor, including escape;
    2. To defend himself or others against physical assault;
    3. To prevent serious damage to property;
    4. To enforce institutional regulations and orders; and
    5. To prevent or quell a riot.
  4. A private-company detention officer who is trained pursuant to the provisions of subsection (a) of this section, shall have the right to carry and use firearms and shall exercise such authority and use deadly force only as a last resort when reasonably necessary to prevent the commission of a violent felony as defined in W.S. 6-1-104(a)(xii), to prevent the escape of a convicted felon from custody, or to defend the officer or any other person from imminent danger of death or serious bodily injury.
  5. Within three (3) days following an incident involving the use of force against an inmate or another, the employee shall file a written report describing the incident with the administrative staff of the facility and with the contract monitor appointed pursuant to W.S. 7-22-108 .
  6. A private contractor shall have the same standing, authority, rights and responsibilities as the contracting governmental entity in any agreement, formal or informal, with local law enforcement agencies concerning the latter’s obligations in the event of a riot, escape or other emergency situation.

History. Laws 1991, ch. 252, § 1.

§ 7-22-107. Employee training requirements.

All employees of a facility operated by a private contractor pursuant to this article shall receive, at a minimum, the same quality and quantity of training as that required for employees of state operated facilities. If any or all of the applicable American correctional association standards relating to training are more stringent than are governmental standards, training shall be provided in accordance with the more stringent standards. All training expenses shall be the responsibility of the private contractor.

History. Laws 1991, ch. 252, § 1.

§ 7-22-108. Monitoring; right of access.

  1. The contracting governmental entity at the contractor’s expense, shall employ an individual to be responsible for monitoring all aspects of the private contractor’s performance under a contract for the operation of a facility pursuant to W.S. 7-22-102 . The individual employed as contract monitor shall be qualified to perform this function by reason of education, training and experience as determined by the five (5) state elected officials. At a minimum, the contract monitor shall have completed at least the same training required by this article for detention officers and shall have served a minimum of three (3) years as a detention officer. The monitor, with the approval of the contracting governmental entity, shall appoint staff as necessary to assist in monitoring at the facility, which staff shall be at the contractor’s expense and will be solely responsible to the contract monitor. The monitor or his designee shall be provided an on-site work area by the contractor, shall be on-site on a daily basis, and shall have access to all areas of the facility and to inmates and staff at all times. The contractor shall provide any and all data, reports and other materials that the monitor determines are necessary to carry out monitoring responsibilities under this section.
  2. The monitor or his designee shall be responsible to and report to the state and any other contracting governmental entity at least monthly, and more often as necessary to ensure proper operation of the facility, concerning the contractor’s performance.
  3. Members of the public shall have the same right of access to facilities operated by a private contractor pursuant to this article as they do to state operated facilities.

History. Laws 1991, ch. 252, § 1.

§ 7-22-109. Liability and sovereign immunity.

  1. The contractor shall assume all liability arising under a contract entered into pursuant to W.S. 7-22-102 .
  2. Neither the sovereign immunity of the state nor the sovereign immunity applicable to any local government shall extend to the contractor. Neither the contractor nor the insurer of the contractor may plead the defense of sovereign immunity in any action arising out of the performance of the contract.
  3. Nothing in this article shall be construed to accord to any inmate in any facility or to a member of the public third party beneficiary status.

History. Laws 1991, ch. 252, § 1.

§ 7-22-110. Insurance.

  1. The contractor shall provide an adequate plan of insurance, specifically including insurance for civil rights claims, as determined by an independent risk management or actuarial firm with demonstrated experience in public liability for state governments. In determining the adequacy of the plan, the firm shall determine whether the insurance is adequate to:
    1. Fully indemnify the contracting governmental entity and the state from actions by third parties against the contractor, the contracting governmental entity or, the state or as a result of the contract;
    2. Assure the contractor’s ability to fulfill its contract with the contracting governmental entity in all respects and to assure that the contractor is not limited in this ability due to financial liability that results from judgments;
    3. Protect the local government and the state against claims arising as the result of any occurrence during the term of the contract on an occurrence basis; and
    4. Satisfy other requirements specified by the independent risk management or actuarial firm.

History. Laws 1991, ch. 252, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 7-22-111. Termination of contract and resumption of control.

  1. The board or the local government may, upon demonstration that a breach of contract has occurred and that after the passage of a reasonable period of time the breach has not been cured, without penalty to the state or the local government, cancel a contract for the private operation of a facility at any time on giving ninety (90) days written notice.
  2. Notwithstanding any other provision in this article to the contrary, prior to entering a contract for the private operation of a facility, a plan shall be developed by the contractor and approved by the contracting governmental entity establishing the method by which the state or the local government will resume control of the facility or the inmates incarcerated in a leased facility upon contract termination.
  3. Any contract entered into under this article for the private operation of a facility shall provide that upon declaration by the state or the local government of any material breach of contract on the part of the private contractor, the state or the local government may, if necessary, assume immediate temporary control of the operation of the facility pending transfer of inmates to another facility.

History. Laws 1991, ch. 252, § 1.

§ 7-22-112. Nondelegation of authority.

  1. No contract for private correctional services under this article shall authorize, allow or imply a delegation to a private contractor of authority or responsibility to:
    1. Classify inmates or place inmates in less restrictive custody or more restrictive custody;
    2. Transfer an inmate, although the contractor may recommend in writing that the state or the local government transfer a particular inmate;
    3. Formulate rules of inmate behavior, violations of which may subject inmates to sanctions, except to the extent that the rules are accepted or modified by the state or the local government;
    4. Take any disciplinary action against an inmate;
    5. Grant, deny or revoke good time credits;
    6. Recommend that the parole board either deny or grant parole, provided the contractor may submit written reports that have been prepared in the ordinary course of business unless otherwise requested by the parole board;
    7. Develop procedures for calculating good time credits or inmate release and parole eligibility dates;
    8. Determine inmate eligibility for furlough, compassionate leave or participation in community corrections;
    9. Require an inmate to work, except as directed or authorized by the state or the local government. In connection with work required by the state or the local government, the private contractor shall not have authority to:
      1. Approve the type of work that inmates may perform; or
      2. Award or withhold wages or good time credits based on the manner in which individual inmates perform such work.

History. Laws 1991, ch. 252, § 1; 2014, ch. 117, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

The 2014 amendment, in (a)(viii), inserted “or” following “compassionate leave” and deleted “or work release.”

§ 7-22-113. Authority of state to contract with local governments.

The state may contract with any local government or private contractor which is responsible for the maintenance or operation of a facility to house in the facility inmates or prisoners of the state penitentiary or any other facility operated or under the control of the state, and any local government or private contractor may accept and house such inmates or prisoners in the facility pursuant to any contract with the state. The contract shall specify such matters as are deemed relevant by the state, the local government or the private contractor and shall be approved as to form and content by the Wyoming attorney general.

History. Laws 1991, ch. 252, § 1.

§ 7-22-114. Rulemaking authority.

The state or the local government shall promulgate reasonable rules and regulations necessary to carry out this article.

History. Laws 1991, ch. 252, § 1.

§ 7-22-115. Contract authorizing operation required; exception.

  1. No private entity shall construct, operate or manage any private jail, prison or other structure to house or incarcerate inmates or prisoners in this state except pursuant to contract under this article.
  2. Subsection (a) of this section shall not apply to a nongovernmental community correctional facility or program approved under W.S. 7-18-104(b).

History. Laws 2001, ch. 138, § 1.

§ 7-22-116. [Repealed.]

Repealed by Laws 2003, ch. 202, § 2.

Editor's notes. —

This section, which derived from Laws 2002, Sp. Sess., ch. 81, § 1, read: “The provisions of W.S. 7-22-101 through 7-22-115 do not apply to a secure substance abuse treatment facility created under W.S. 9-2-2704 .”