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Bud Corey Morrison v. the State of Wyoming

March 20, 2012

BUD COREY MORRISON, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Weston County The Honorable Dan R. Price II, Judge

The opinion of the court was delivered by: Voigt, 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] The appellant contends that he did not receive full credit against his sentence for all presentence time served, and that he should not have been assessed an indigent civil legal services fee. We disagree as to the first issue, we decline to address the second, and we affirm.

ISSUES

[¶2] 1. Is the appellant's sentence illegal because he did not receive credit for the time he spent, presentence, in a residential substance abuse treatment facility?

2. Is the appellant's sentence illegal because he should not have been assessed an indigent civil legal services fee?

STANDARD OF REVIEW

[¶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." Hagerman v. State, 2011 WY 151, ¶ 3, 264 P.3d 18, 19 (Wyo. 2011). The same standard applies to the second issue.

FACTS

[¶4] The material facts of this case are all procedural facts. On April 27, 2009, the appellant was arrested for felony attempted larceny.*fn1 An initial appearance was held in the circuit court on April 29, 2009, and an Order Setting Bail, with a $10,000 cash or surety appearance bond, was entered the same day. After a preliminary hearing, the appellant was bound over to the district court for trial. At his arraignment in district court on May 20, 2009, the appellant pled not guilty. Bond was not mentioned, and the appellant remained in jail.

[¶5] On August 10, 2009, the appellant filed a Motion for Furlough and Continuance of Pretrial Conference and Jury Trial. Attached to the motion was a letter from WYSTAR, a residential substance abuse treatment facility, indicating that the appellant had been accepted into WYSTAR's treatment program. The motion indicated that the State did not object to the furlough on the condition that the appellant "acknowledge that a refusal to abide by the terms of the release is punishable as a charge of felony escape." On the same date, the district court entered an Order for Furlough and Continuance of Pretrial Conference and Jury Trial. For our present purposes, three terms of that order are significant: (1) the appellant was released from custody to travel to WYSTAR on his own; (2) the appellant was to return directly to jail upon his release from WYSTAR; and (3) the release to WYSTAR would not reduce the terms of his incarceration. In addition to these specific terms, the following language appeared on the order below the judge's signature:

DEFENDANT TAKE FAILURE TO RETURN TO THE DETENTION CENTER AS REQUIRED IS A CRIME (ESCAPE FROM CUSTODY)

I understand and accept the conditions imposed upon my Furlough/Conditional Release privileges by the Order and agree to fully abide ...


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