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Jones v. State3/1/2002
visions in subsection (e). Further, the sentence allowing for probation in subsection (e) states: " he judge may suspend part or all of the discretionary portion of an imprisonment sentence under this subsection and place the defendant on probation on condition that the defendant pursues and completes an alcohol education or treatment program as prescribed by the judge." (emphasis added) The statutory language is clear that the probation provision applies only to a sentence under subsection (e).
[ ] The majority opinion reaches its conclusion by creating an ambiguity where none exists. Even if an ambiguity did exist, the rule of lenity in construing criminal statutes would lead to the result opposite of that reached by the majority opinion. As written, subsection (h) allows for a maximum jail sentence of one year (and/or a fine). By grafting the probation provisions of subsection (e) into subsection (h), the penalty is extended beyond the one-year jail term to also potentially include an additional three years probation. This interpretation certainly does not favor a person convicted under subsection (h).
[ ] It is well-established that " he authority to prescribe punishment for criminal offenses is vested in the legislative department of state government, and courts can impose only those sentences which the legislature has authorized." Keller v. State, 771 P.2d 379, 386 (Wyo. 1989). A corollary of this (as the majority opinion points out in footnote 3) is that a court has no inherent right to grant probation. A plain reading of the statutory language at issue in this appeal reveals that subsection (h) contains no corollary to the potential three-year probation provisions of subsection (e). "Our rule with respect to penal statutes is that they must be strictly construed and cannot be enlarged by implication or extended by inference or construction." Smith v. State, 902 P.2d 1271, 1284 (Wyo. 1995). Subsection (h) does not contain any specific provision for the imposition of a maximum three-year term of probation. This Court cannot add such language into the subsection under the guise of statutory interpretation. There simply is no statutory authority for imposing a term of three years probation on someone convicted under subsection (h).
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