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Jones v. State3/1/2002
ible victims of crime, they may provoke an offender into committing the crime of which the individual was a victim or potential victim. Courts have often conditioned a defendant's probation on not associating with a victim, the victim's family, or those that have been targets of violent acts by the defendant. As long as the condition limiting the defendant's freedom of association is designed to further the ends of rehabilitation or to protect the public, the condition has generally been upheld.
[ ] " estriction of the right of association is part of the nature of the criminal process." People v. Robinson, 199 Cal.App.3d 816, 245 Cal.Rptr. 50, 51 (1988). Courts in other jurisdictions have upheld the constitutionality of similar conditions on their grants of probation or parole. United States v. Furukawa, 596 F.2d 921, 922-23 (9 th Cir. 1979); Birzon v. King, 469 F.2d 1241, 1242-43 (2 nd Cir. 1972). Therefore, "freedom of association may be restricted if reasonably necessary to accomplish the essential needs of the state . . .." Malone v. United States, 502 F.2d 554, 556 (9 th Cir. 1974), cert. denied, 419 U.S. 1124 (1975).
[ ] Where a defendant is convicted of a DWUI causing serious bodily injury resulting in death, a probation condition limiting the defendant from associating with people who drink or who use controlled substances may be valid. However, it is for the sentencing court to specify the type of individuals or specific individuals in its judgment and sentence in order to make clear to the defendant with whom he may not associate. It is also necessary for the sentencing court to indicate how this will further the ends of rehabilitation, protect the public, or is necessary to accomplish essential needs of the state.
[ ] We remand with instructions that the Judgment and Sentence Upon Remand be amended to conform to this opinion.
[ ] Finally, we will correct a discrepancy found in the Judgment and Sentence Upon Remand. The condition in error states that the petitioner " erform five hundred (100) hours of Community Service Work . . .." We have stated that "'an orally pronounced sentence controls over a judgment and commitment order when the two conflict.'" Christensen v. State, 854 P.2d 675, 678 (Wyo. 1993) (quoting United States v. Villano, 816 F.2d 1448, 1450 (10 th Cir. 1987)). The trial record is clear that the circuit court sentenced the petitioner to 100 hours of community service rather than 500 hours.
CONCLUSION
[ ] The Judgment and Sentence Upon Remand is affirmed, but we remand for amendment to conform probation conditions (h) and (i) to this opinion. In addition, the number of hours of community service to be served shall be corrected to 100.
Golden, Justice, dissenting.
[ ] I respectfully dissent from the majority's resolution of the first issue in this appeal regarding whether incarceration can be followed by probation. The majority opinion has taken the probation provisions contained in subsection (e) and grafted them into subsection (h). This violates fundamental rules of statutory construction.
[ ] Structurally, subsections (e) and (h) are independent subsections of Wyo. Stat. Ann. ยง 31-5-233. They are of equal dignity. A sentencing provision in subsection (e) cannot apply to subsection (h) unless expressly provided. There simply is no express provision allowing the probation provisions of subsection (e) to apply to sentencing under subsection (h). In fact, subsection (e) begins with the phrase " xcept as provided in subsection (h) of this section." This clearly indicates that the two subsections are mutually exclusive and that provisions of subsection (h) override any pro
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