Appeal from the District Court of Natrona County The Honorable Scott W. Skavdahl, Judge
The opinion of the court was delivered by: Golden, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Appellant Keith Allan Tyner was convicted of battery under Wyo. Stat. Ann. § 6-2-501(b). Because this was Tyner's third battery conviction involving a household member, the conviction was enhanced pursuant to Wyo. Stat. Ann. § 6-2-501(f)(ii) to a felony. He was sentenced accordingly to a term of imprisonment of two to four years, which was suspended in favor of a split sentence of six months in county jail followed by three years of supervised probation. In this appeal, Tyner challenges the use of his previous convictions as a basis for the felony enhancement. We need not reach the merits of Tyner's complaints because we find there is fundamental error requiring that we vacate Tyner's conviction. See Sanchez v. State, 592 P.2d 1130, 1131 (Wyo. 1979) (sua sponte recognition of blatant error resulting in a miscarriage of justice); Town of Green River v. Martin, 71 Wyo. 81, 97, 254 P.2d 198, 201 (1953) (court may notice fundamental error appearing in the record although not called to its attention).
[¶2] The record shows that Tyner was convicted of violating a statute that had been superseded at the time the alleged criminal activity occurred. Section 6-2-501(b) was amended on July 1, 2009. 2009 Wyo. Sess. Laws, chs. 124, 169. Before the amendment, the statute provided:
A person is guilty of battery if he unlawfully touches another in a rude, insolent, or angry manner or intentionally, knowingly or recklessly causes bodily injury to another.
Wyo. Stat. Ann. § 6-2-501(b) (LexisNexis 2007).
[¶3] The 2009 amendment substantively rewrote the statute, separating out the crime of battery and the crime of unlawful contact. Section 6-2-501 now provides in pertinent part:
(b) A person is guilty of battery if he intentionally, knowingly or recklessly causes bodily injury to another person by use of physical force.
(g) A person is guilty of unlawful contact if he:
(i) Touches another person in a rude, insolent or angry manner without intentionally using sufficient physical force to cause bodily injury to another; or
(ii) Recklessly causes bodily injury to another person.
Wyo. Stat. Ann. § 6-2-501 (LexisNexis 2009).
[¶4] The Information in this case charged Tyner in ...