Appeal from the District Court of Johnson County The Honorable John G. Fenn, Judge
The opinion of the court was delivered by: Burke, Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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 was adjudicated delinquent in juvenile court. Based on the same incident, he was later convicted on a criminal charge. He asserts that the criminal prosecution violated his constitutional right not to be placed twice in jeopardy. The State concedes error. We agree that Appellant's constitutional rights were violated, and will reverse his criminal conviction.
[¶2] The first issue presented by Appellant is whether his conviction for sexual abuse of a minor in the second degree should be reversed due to violations of the double jeopardy clauses of the United States and Wyoming Constitutions. Because we reverse his conviction based on this issue, we will not address his second issue, a claim of ineffective assistance of counsel in the criminal proceedings.
[¶3] The facts are not in dispute. Their primary significance in this appeal is due to the order in which the events occurred. On May 13, 2009, Appellant was charged with first degree sexual abuse of a minor, in violation of Wyo. Stat. Ann. § 6-2-314(a)(i) (LexisNexis 2009), and with second degree sexual abuse of a minor, in violation of Wyo. Stat. Ann. § 6-2-315(a)(ii). He was sixteen years of age at the time, but was charged as an adult. After various preliminary proceedings, including denial of a motion to transfer the case to juvenile court, the district court arraigned him on October 13, 2009. At arraignment, Appellant pled guilty to the charge of second degree sexual abuse of a minor, and the State dismissed the charge of first degree sexual abuse of a minor. The district court deferred its acceptance of the guilty plea and delayed sentencing, in order to accommodate Appellant's participation in a sexual offender treatment program at the Wyoming Boys' School.
[¶4] Five months later, on March 23, 2010, the State filed a delinquency petition against Appellant in juvenile court. The act of delinquency alleged was the same act that gave rise to the criminal charge of second degree sexual abuse of a minor. On April 12, 2010, Appellant admitted the allegations of the delinquency petition. The juvenile court adjudicated him a delinquent child, and ordered that he was to remain in the custody of the Wyoming Boys' School.
[¶5] On June 1, 2010, nearly two months after the delinquency adjudication, the district court accepted Appellant's guilty plea in the criminal case. It sentenced him to ten to fifteen years incarceration, but suspended that in lieu of eight years of supervised probation. A Judgment and Sentence was entered on June 28, 2010.
[¶6] No direct appeals were filed in either the criminal case or the juvenile case. However, on November 22, 2011, Appellant filed a petition for post-conviction relief alleging a violation of the constitutional prohibition against double jeopardy. The district court denied that petition. Appellant petitioned this Court for a writ of certiorari, which we granted, ordering reinstatement of his right to direct appeal. His pursuit of that appeal brings the case before us now.
[¶7] We generally decline to review non-jurisdictional issues not raised in the original proceedings. Belden v. State, 2003 WY 89, ¶ 55, 73 P.3d 1041, 1090 (Wyo. 2003).
We have previously held, however, that the issue of double jeopardy is jurisdictional because it involves the power of the State to bring the appellant into court, and it may, therefore, be raised at any time. Taylor v. State, 2003 WY 97, ¶ ...