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Demillard v. State

Supreme Court of Wyoming

August 19, 2014

ERIC L. DEMILLARD, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff)

Appeal from the District Court of Carbon County. The Honorable Norman E. Young, Judge.

Eric L. DeMillard, Appellant, Pro se.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General.

Before BURKE, C.J., and HILL, KITE,[*] DAVIS, and FOX, JJ.

OPINION

Page 535

FOX, Justice.

[¶1] Eric DeMillard appeals the district court's order denying his motion to correct his sentence. He contends the district court erred in revoking his probation when the term of his probation had already expired. Because his claims should have been raised earlier and his probation was revoked in a timely manner according to the Wyoming statutes, we affirm.

ISSUES

[¶2] Is Mr. DeMillard's claim that his probation revocation was unlawful barred by the doctrine of res judicata ? If not, did the district court have the authority to revoke Mr. DeMillard's probation and impose underlying sentences when the first term of probation had expired?

FACTS

[¶3] Mr. DeMillard held his four children hostage for four days in the Rawlins home of his estranged wife. He pled guilty to burglary and attempted assault on a peace officer and nolo contendre to four counts of interference with custody. DeMillard v. State, 2008 WY 93, ¶ 4, 190 P.3d 128, 129 (Wyo. 2008) ( DeMillard I ); DeMillard v. State, 2013 WY 99, ¶ 2, 308 P.3d 825, 827 (Wyo. 2013) ( DeMillard II ). On March 12, 2001, the district court sentenced him to prison on each of the counts, but suspended the sentence in favor of supervised probation consisting of two terms: a ten-year term for the burglary and attempted assault counts, followed by a two-year term for the interference with custody counts. As a condition of his probation, Mr. DeMillard was prohibited from contacting his children.

Page 536

[¶4] In 2007, Mr. DeMillard filed motions seeking to modify his probation conditions to allow him to have contact with his children and to discharge him from probation. DeMillard I, 2008 WY 93, ¶ 6, 190 P.3d at 129. The district court denied these motions and Mr. DeMillard appealed. The sole issue on appeal was whether Mr. DeMillard had a right to be present at the probation modification hearing. We affirmed the district court's decision, concluding that because Mr. DeMillard's motions were not part of his criminal prosecution, he was not entitled to be present. Id. at ¶ 16, at 131.

[¶5] The State sought to revoke Mr. DeMillard's probation four times. DeMillard II, 2013 WY 99, ¶ ¶ 3-6, 308 P.3d at 827-28. The State filed its last petition to revoke on April 6, 2011. Id. at ¶ 6, at 828. Finding that Mr. DeMillard had violated the terms of his probation, the district court revoked probation, imposed the ...


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