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Blakeman v. State5/6/1988
er imprison a person solely because he lacked the resources to pay it." Bearden v. Georgia, supra, 461 U.S. at 667-668, 103 S.Ct. at 2070.
Simplistically, if § 1-40-119 is to be applied as was done in this case in ignoring ability to pay so that confinement results from poverty, then the state statute is patently unconstitutional. I would rather conclude that effectuation of any provisions of confinement are subject to judicial good sense and the penal cost confinement constraints of Bearden. I would not attribute to the legislature an object of passing an obviously unconstitutional law as further including a characteristic of clear economic absurdity. No one has found a way to repeal a basic economic law that ability to pay is required to create an opportunity to collect.
III. BELATED APPEAL
The next problem presented here is the belated appeal. In the 1987 session of the Wyoming legislature, § 5-2-119, Ch. 132 S.L.W.S. 1987 was enacted:
"Notwithstanding any other provision of law, any case originating in a municipal court, a justice of the peace court or county court may be appealed to the district courts and thereafter to the Wyoming supreme court only if the supreme court grants a writ of certiorari agreeing to hear the appeal. The Wyoming supreme court shall adopt procedures under which the court will grant or deny appeals to the court in such cases and provide the standards and extent of review."
This statute, initially for Wyoming jurisprudence, denies rights of automatic appeal to this court in every case. Pursuant to that statute, Rule 13.01, W.R.A.P. was submitted to the statutory rules advisory committee and following review, adopted July 30, 1987 with an effective date of October 20, 1987 as providing for discretionary appeal by a writ of certiorari where a prior district court appeal was involved. Since this case had been determined by first appeal to the district court, the second discretionary appeal rule specifically applies.
Clearly, Blakeman, while residing in the Rawlins penitentiary, although to be assisted by appointed counsel, cannot have individually been expected to be aware of the deadline date for appeal of October 20. And so as dated October 21, and filed October 26, the public defender then filed a notice of appeal for him with leave from the district court to proceed with the appeal in forma pauperis.
The proceeding was filed in this court as an appeal on December 4, 1987 and appellant's brief was filed February 23, 1988. On March 24, the State at that date, instead of filing appellee's brief, moved to dismiss since the appeal was out of the October 20, 1987 rule deadline and " ppellant did not file a petition for writ of certiorari in this action * * *." Responsive thereto, this court entered an order of dismissal of the appeal on April 9, 1988. No Evitts v. Lucey consideration was given. Pending business is now circumscribed by this court's decision to deny the certiorari petition which stated to us:
"COMES NOW, the Petitioner, Clayton Blakeman, through his attorney, Steven Weerts, and moves this Court to grant a Writ of Certiorari. This writ is made pursuant to Article 5, Section 3 of the Wyoming Constitution and Rule 13.01 of the Wyoming Rules of Appellate Procedure.
"Petitioner has met all the requirements for review of certiorari in the appeal and brief that has been filed in this case. The only item lacking in the appeal that was filed is the title `Writ of Certiorari.' "Petitioner contends that there are special and important reasons for considering this case. The district court in its appellate capacity has decided a question of substance not
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