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Merkison v. State2/17/2000
OCTOBER TERM, A.D. 1999
Appeal from the District Court of Natrona County Honorable W. Thomas Sullins, Judge
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Second. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors in order that corrections may be made before final publication in the permanent volume.
Benjamin Merkison (Appellant) appeals from that portion of his sentence imposing restitution to the Division of Criminal Investigation (DCI).
We affirm.
ISSUES
Appellant presents a single issue for our review:
Whether the trial court erred when it awarded restitution to the Division of Criminal Investigation of funds voluntarily expended making undercover drug buys[.]
The State presents its position in the form of three issues:
I. May Appellant challenge the district cour's restitution order after he has signed an agreement to pay restitution and has made the payments, without objection, or after he has served his prison sentence and been discharged from parole?
II. Was the Division of Criminal Investigation a Avictim within the meaning of Wyo. Stat. ' 7-9-101, so that the district court properly ordered restitution of the Abuy money paid to purchase methamphetamine?
III. Did the district court properly order Appellant to pay restitution in the amount of $100.00?
DISCUSSION
Appellant was convicted of conspiracy to deliver a controlled substance, methamphetamine, in violation of Wyo. Stat. 1977, as amended, '' 35-7-1031(a)(i) and 35-7-1042. During the trial, there was testimony from an undercover DCI agent that he had purchased $100.00 of methamphetamine from Appellant. Appellant's presentence investigation report contained a statement under the Restitution and Costs section wherein DCI requested restitution for $100.00 in an apparent bid to recoup the costs of its drug purchase. At sentencing, while Appellant objected to various aspects of the presentence investigation report, he did not raise any objection to the DCI request. The trial court ordered that Appellant pay $100.00 in restitution to DCI as part of his sentence.
Appellant subsequently signed a APayment Agreement wherein he agreed to pay costs that were assessed against him as part of his sentencing, including the $100.00 restitution. On May 5, and June 9, 1997, Appellant made two payments to the clerk of the district court totaling $200.00 with a portion of it specifically designated as restitution.
On appeal from his conviction, Appellant has contested only that portion of his sentence which required him to pay restitution to DCI. Appellant contends that DCI was not Adamaged, nor was it a Avictim, as those terms are used in the Wyoming statutes authorizing restitution. Appellant also challenges the sufficiency of the evidence supporting the amount of restitution ordered.
The State initially counters Appellan's claim by arguing that he is procedurally barred from attacking the restitution order since he failed to object to the restitution at sentencing. In the alternative, the State maintains this Court no longer has jurisdiction over the issue since Appellant has served his sentence and been discharged from parole. The State goes on to argue that DCI is a Avictim who has suffered Apecuniary damage under the restitution statutes, and that the amount ordered is supported by sufficient evidence.
Jurisdiction
As an initial matter, we must address the Stat's cont
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