Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
VOIGT, J., delivers the opinion of the Court; BURKE, J., files a specially concurring opinion.
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] In these consolidated appeals, the appellant challenges the district court's denials of motions to correct illegal sentence that he filed in two unrelated, but temporally overlapping, cases. He was first sentenced in a burglary case (S-11-0154), and was later sentenced in a stolen property case (S-11-0155). We find that presentence confinement time was not properly credited against the burglary sentence, and therefore remand S-11-0154 to the district court for correction of that sentence. In S-11-0155, we conclude that, even though the appellant was given credit for time served in that case to which he was not necessarily "entitled," such did not create an illegal sentence, and we affirm the sentence in S-11-0155.
[¶2] Was the sentence in either or both cases illegal because the appellant was not given the amount of credit for presentence confinement to which he was entitled?
[¶3] The question of whether a sentence is illegal because it does not include proper credit for time served is a question of law that we review de novo. Swain v. State, 2009 WY 142, ¶ 8, 220 P.3d 504, 506 (Wyo. 2009).
[¶4] On October 18, 2005, the appellant committed a burglary. Although
it is not precisely clear in the record, it appears that the appellant
was arrested on the day of the offense. He remained in jail until he
was sentenced nearly a full year later, on October 3, 2006.*fn1
He was sentenced to the custody of the Department of
Corrections for a period of not less than three years, nor more than
five years. That sentence was suspended, however, pursuant to the
"split sentencing" provisions of Wyo. Stat. Ann. § 7-13-107
(LexisNexis 2011), and the appellant was ordered to spend one year in
the Fremont County Detention Center, to be followed by four years of
[¶5] Two specific terms of this sentence are relevant to the discussion herein. First, the appellant was given credit for 350 days already served in jail. Second, as a condition of probation, the appellant was ordered to "submit himself to high intensity residential [substance abuse] treatment." The district court made it clear that the credit for time served was to be applied against the jail sentence by noting that the appellant had only "15 days left on your sentence." In addition, the district court enunciated its intention that the appellant enter into the residential treatment program immediately upon his service of the jail sentence.
[¶6] On October 11, 2006, the district court entered an Order for Furlough for Treatment. The essential elements of that order were: (1) that the appellant be released from jail even though the one-year sentence had not fully been served; (2) that the Sheriff's Department was to transport the appellant to the treatment facility; (3) that the appellant was to be considered in the custody of the Sheriff while in the treatment facility; and (4) that the Sheriff was to transport the appellant back to the Detention Center upon his discharge from the treatment facility.*fn2 The appellant successfully completed residential treatment and was released from the facility on August 8, 2007.
[¶7] To recapitulate: the appellant served 350 days in the county jail before sentencing (October 18, 2005 to October 3, 2006), eight days in the county jail following sentencing (October 3, 2006 to October 11, 2006), and 301 days in the treatment facility (October 11, 2007 to August 8, 2007), for a total of 659 days ...