Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge Representing Appellant:
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
VOIGT, J., delivers the opinion of the Court; BURKE, J., files a dissenting 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] This is an appeal from the district court's order modifying a previous deferral order entered pursuant to Wyo. Stat. Ann. § 35-7-1037 (LexisNexis 2011), the district court's entry of judgment of conviction on one previously deferred count, and the district court's entry of judgment and sentence on that count. We affirm.
[¶2] 1. Are the State's Motion to Reconsider and the subsequent Order on State's Motion to Reconsider, and the subsequent Judgment and Sentence nullities, and therefore void?
2. If the Motion to Reconsider was not a nullity, was it deemed denied under W.R.C.P. 6(c)(2)?
[¶3] The appellant was charged with three counts of illegal drug possession, two counts being felonies and one count being a misdemeanor. Without having entered into a plea agreement with the State, the appellant pled guilty to all three counts at arraignment. The district court found that a factual basis existed for all three counts, but ordered a presentence investigation without accepting any of the pleas or adjudicating guilt.
[¶4] After the sentencing hearing some months later, the district court, over the objections of the State, entered an Order Pursuant to W.S. § 35-7-1037. The relevant term of that order, for purposes of this appeal, is the district court's deferral of further proceedings without adjudicating guilt on both of the felonies.*fn1
[¶5] One day after the order was entered, the State filed a Motion to Reconsider. The Motion to Reconsider was based on three arguments: (1) the appellant did not deserve a deferral; (2) Wyo. Stat. Ann. § 35-7-1037 is unconstitutional in that it violates the doctrine of separation of powers by not requiring the State's consent to a deferral; and (3) the district court lacks authority to grant a deferral where an information contains multiple counts. The Motion to Reconsider was filed on November 17, 2011, but it was not heard by the district court until March 27, 2012, which was 131 days later.
[¶6] During the motion hearing, the district court stated that it believed it had erred as a matter of law in granting deferrals on both counts, withdrew one of the deferrals, accepted the appellant's guilty plea on one count, and proceeded to sentencing. A Judgment and Sentence was filed on April 20, 2012, followed five days later by the Order on State's Motion to Reconsider. The gravamen of the order is contained in its first two findings:
1. W.S. § 35-7-1037 does not authorize the Court to order deferral of multiple counts of an information or indictment;
2. The Court erred in deferring entry of conviction and sentence in both Counts 1 and 2[.]
[¶7] The appellant now challenges both the Order on State's Motion to Reconsider and the subsequent Judgment and Sentence. As can be seen from the appellant's statement of the issues set forth above, see supra ¶ 2, the appellant is not herein contesting the district court's determination that it lacked the authority to grant two deferrals in the case.*fn2 Rather, the appellant is challenging the district court's authority to consider the State's Motion to Reconsider.
[¶8] The parties agree that this appeal is in the nature of a challenge to subject matter jurisdiction, which is a question of law that we review de novo. Eckdahl v. State, 2011 ...