 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bush v. State12/2/2003
t Pickup were combined with parts from the wrecked 1991 GMC Pickup, the Court will grant a credit in favor of [Bush] to be deducted from the restitution figure set forth in paragraph numbered 5 herein, and in this regard, a credit of $4,200.00 shall be given for the 1991 GMC Pickup parts.
We note that a mathematical error occurred in the district court's calculation, and the restitution amount should have been set at $9,644.00. Because we reverse and remand for further proceedings, this error is of no consequence, but we did not want the miscalculation to appear to have gone unnoticed.
DISCUSSION
Waiver of Right to Appeal
The threshold question is whether Bush's waiver of right to appeal encompasses the right to appeal the district court's determination of restitution. The State's contention is that the waiver was plenary and bars this appeal. It is established that a defendant may waive his right to appeal, so long as that waiver is knowing and voluntary. United States v. Hernandez, 143 F.3d 1435, 1437 (10th Cir. 1998). However, the sentence imposed in such a circumstance must be within that which is authorized by statute. See United States v. Glass, 15 Fed. Appx. 621 (10th Cir 2001); United States v. Baeza, 16 Fed. Appx. 973 (10th Cir. 2001); United States v. Neill, 17 Fed. Appx. 743 (10th Cir. 2001); and Kristine Cordier Karnezis, Annotation, Validity and Effect of Criminal Defendant's Express Waiver of Right to Appeal as Part of Negotiated Plea Agreement, 89 A.L.R.3d 864 (1979 and 2002 Supp.).
We are able to readily conclude that Bush knowingly and voluntarily waived his right to appeal, in a general sense. However, he did not waive his right to appeal a sentence that exceeded the punishment prescribed by law:
The source of the legislature's power to limit judicial authority as to sentencing is found in the constitutional separation of powers. The legislative branch has the exclusive power to define crimes and to prescribe punishments for those crimes. Billis v. State, 800 P.2d 401, 412-15 (Wyo.1990). Consequently, a court may only impose a sentence of incarceration that falls within the minimum and maximum punishment prescribed by statute. Williams v. State, 692 P.2d 233, 235 (Wyo.1984).
Daugherty v. State, 2002 WY 52, 15, 44 P.3d 28, 34 15 (Wyo. 2002).
In Ryan v. State, 988 P.2d 46, 62-63 (Wyo. 1999), we iterated our definition of an illegal sentence:"An illegal sentence is one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law." Sanchez v. State, 982 P.2d 149, 150 (Wyo.1999) ( citing Duran v. State, 49 P.2d 885, 887 (Wyo.1997)). The determination of whether a sentence is illegal is made by reference to the authorizing statute or applicable constitutional provisions and is, therefore, a matter of statutory interpretation. Interpretation of statutes is a question of law, which we review de novo. French v. Amax Coal West, 960 P.2d 1023, 1027 (Wyo.1998); Chevron U.S.A., Inc. v. State, 918 P.2d 980, 983 (Wyo.1996).
Was the Restitution Order a Legal Sentence
Appellate review of restitution is confined to a search for procedural error or a clear abuse of discretion. Brown v. State, 2003 WY 72, 9, 70 P.3d 238 9 (Wyo. 2003); and see Penner v. State, 2003 WY 143, 7, ___ P.3d ___, 7 (Wyo. 2003). Moreover,
The distinction between whether a defendant is making a factual challenge to an order of restitution or whether he is challenging the authority of the trial court to make a particular award of restitution is an important one. Challenges to the factual basis of an a
Page 1 2 3 4 5 6 7 8 9 Wyoming Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|