Duffy v. State3/21/1990
rglary, see Schultz; Burke v. State, 746 P.2d 852 (Wyo. 1987). The armed robbery occurred after the conspiracy violation had been committed. The separate convictions could be sustained on the basis of a finding that separate evidence supported each charge. Furthermore, the two statutes do not provide an alternative means of committing a single offense, and the prosecutor did not attempt to parse the conspiracy count into multiple conspiracies. Therefore, the rules espoused in Tobin, 226 P. 681, and Snow, 120 U.S. 274, 7 S.Ct. 556, do not apply. While, arguably, the convictions could be affirmed as different offenses supported by different evidence, see Schultz, the record does not justify a conclusion that they did not rest on the same evidence. The only evidence presented by the prosecutor to provide the factual basis for the pleas of guilty to the two offenses was the several phone calls from Duffy to his accomplices and the subsequent actions of the accomplices. This makes it necessary to determine whether the offenses are separate and distinct by virtue of their statutory definition. See Goodman, 601 P.2d 178.
In Schultz, we held that the legislature intended the offense of conspiracy to be a separate offense from the substantive crime that was the object of a conspiracy. In Garcia v. State, 774 P.2d 623 (Wyo. 1989), we held that felony murder and conspiracy to commit aggravated robbery were intended by the legislature to be separate offenses. That same rationale pertains here. Each of the offenses with which Duffy was charged contain elements that the other does not, which satisfies the Blockburger test. The gravamen of conspiracy, and the evil intended to be addressed by the conspiracy statute is the agreement of criminal minds and the potential threat to the public from such agreements. Percival v. State, 745 P.2d 557 (Wyo. 1987); Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168, reh. denied 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 164 (1977); Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312, reh. denied 365 U.S. 825, 81 S.Ct. 687, 5 L.Ed.2d 703 (1961); Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489, reh. denied 329 U.S. 818, 67 S.Ct. 26, 91 L.Ed. 697 (1946). The purpose of the aggravated robbery statute is to protect the person and the property of the individual. See Birr. Consequently, the gravamen of robbery is different from that of conspiracy. These statutes are set forth in separate sections of the criminal code, and each contains its independent penalty provision. These indicators all point to only one conclusion, that is, that the legislature intended these offenses to be punished as separate offenses. The result is that Duffy could be convicted of each of the charged offenses, and the court could impose consecutive sentences for those convictions without violating Duffy's constitutional protection against double jeopardy.
In his next argument, Duffy contends that the sentence imposed is illegal because the one-day difference between the minimum sentence and the maximum sentence in each instance does not permit him to accumulate good time against his maximum sentence. In support of this contention, Duffy asserts that, since the State granted him a right to earn good time, he has been invested with a protected liberty interest that cannot be denied without due process. This argument is premised on the rationale that, according to Dorman v. State, 665 P.2d 511 (Wyo. 1983), any good time earned cannot be applied to reduce his minimum sentence.
In Dorman, we held that the legislature had created only a limited interest in good time, conditioned on the fact that any good time could not reduce a se
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