§ 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.”

§ 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); [and] [BRACKETED BOLDED LANGUAGE REINSERTED AS A RESULT OF THE REPEAL OF 2020 WYO. SESS. LAWS CH. 114]
      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. [ (P) 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. ] [BRACKETED BOLDED LANGUAGE SHOWN AS STRICKEN AS A RESULT OF THE REPEAL OF 2020 WYO. SESS. LAWS CH. 114]

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.

Legislative Service Office note. —

Laws 2021, ch. 109 § 6 contained a scrivener’s error that inadvertently repealed Laws 2020, ch. 114 in its entirety. Drafting practices dictate that the repeal should have been limited to the noncodified § 1. The effect of the scrivener's error was to repeal the original legislative enactment of laws codified in the Wyoming Statutes. The text in this section shown in bold and bracketed is text that was affected by the repeal of the original legislative enactment. The bold and bracketed emphasis is included to provide context and clarity to the legislative history of this section.

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.”

§ 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).

§ 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).

§ 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.

§ 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

§ 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.

§ 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.

§§ 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.

§ 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.

§ 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).

§ 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).

§ 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.”

§ 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).

§ 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).

§ 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 .

§ 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.

§ 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).

§ 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).

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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).

Trial court did not err by failing to hold a third competency hearing due to the head injury defendant sustained immediately prior to the sentencing hearing because there was no evidence the head injury gave the trial court reasonable cause to believe that he had developed a mental illness or deficiency, as defense counsel told the trial court that defendant had been checked out by emergency services and he wished to proceed with sentencing, and defendant’s one-word answers were consistent with his answers at the change of plea hearing. Merlak v. State, 2021 WY 95, 2021 Wyo. LEXIS 104 (Wyo. 2021).

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).

§ 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).

§ 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).

§ 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).

§ 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 .

§ 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.