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Duffy v. State3/21/1990
esult of the phone calls from Colorado to Wyoming, Duffy was charged with aiding and abetting aggravated robbery and conspiracy to commit burglary. He was extradited to Fremont County, and the initial trial judge, having been removed at Duffy's request, assigned the case to the judge who had tried the Hopkinson murder cases. Hopkinson v. State, 679 P.2d 1008 (Wyo.), cert. denied 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984); Hopkinson v. State, 664 P.2d 43 (Wyo.), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); Hopkinson v. State, 632 P.2d 79, 166 (Wyo. 1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), which also involved contention of a telephone call from incarceration to arrange a crime. The appointed public defender, whose office was 200 miles from Lander, was given, in best light, a difficult time by the successor judge.
The trial judge sentenced Duffy to a maximum of twenty-five years and a minimum of twenty-four years, eleven months and twenty-nine days for aiding and abetting robbery. For conspiracy, Duffy was sentenced to a consecutive maximum term of ten years and a minimum of nine years, eleven months and twenty-nine days. The effect of this one day difference (actually two days with November sentencing date) was designed to foreclose options normally available to prison officials to control their crowded facility by providing the incentive of good time for cooperative behavior. Duffy v. State, 730 P.2d 754 (Wyo. 1986) (Duffy I), Urbigkit, J., dissenting. The sentence was thirty-five years maximum and thirty-five years less four days minimum.
II. ISSUES PRESENTED ABOUT WHICH I DISSENT
In this second appeal, I again dissent from the decision of this court for several reasons. First, this case allows prosecutors to duplicate charges and hoist upon a defendant more punishment for a single criminal act than was intended by Wyoming's legislature. Second, this case not only introduces "ripeness" to criminal prosecutions, which until now has been used to limit the availability of judicial review in administrative law cases, but the analysis offered considers only one prong to the two pronged ripeness test. Hardship on the individual, the second prong, is not even mentioned. Third, because our understanding of legislative intent determines whether or not the federal and state double jeopardy clauses have been violated, it seems prudent to openly reappraise our analytic capacity to discern legislative intent after Wyoming's legislature had to step in to correct what was a complete misunderstanding of legislative intent in Duffy I, 730 P.2d 754.
III. LITIGATIVE AND LEGISLATIVE HISTORY
My disaffinity remains unchanged regarding the Duffy sentence which was an effort by the trial court to change the Wyoming indeterminate sentencing system, including good time rights, into a determinate sentencing system. Some combination of my dissent in Duffy I and legislative recognition of the judicial misunderstanding in Duffy I of the clear intent of the law led to a change in the statute by Wyo. Sess. Laws ch. 157, § 3 (1987). W.S. 7-13-201 (emphasis added) provides:
Except where a term of life is required by law, or as otherwise provided by W.S. 7-13-101, when a person is sentenced for the commission of a felony, the court imposing the sentence shall not fix a definite term of imprisonment but shall establish a maximum and minimum term within the limits authorized for the statute violated. The maximum term shall not be greater than the maximum provided by law for the statute violated, and the minimum term shall not be less than the minimum provided by law for the statute violated, nor great
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Wyoming DUI Attorneys
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