Starr v. State
Annotate this Case
Starr v. State
1991 WY 168
821 P.2d 1299
Case Number: 91-263
Decided: 12/20/1991
Supreme Court of Wyoming
JASON P. STARR, APPELLANT (DEFENDANT),
v.
THE
STATE OF WYOMING, APPELLEE
(PLAINTIFF).
Jason
P. Starr, pro
se.
Joseph
B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Barbara Boyer, Sr.
Asst. Atty. and Larry M. Donovan, Sr. Asst. Attys., Gen., for appellee.
Before URBIGKIT, C.J., and THOMAS, CARDINE,
MACY and GOLDEN, JJ.
PER
CURIAM.
[¶1.] Appellant Jason Starr
seeks review of an order of the district court denying his motion, made pursuant
to W.R.Cr.P. 36, for correction of an illegal sentence. Starr claims his
sentence of life imprisonment for first degree murder should be considered to
merge with his sentence to a term of five to ten years for aggravated assault,
even though the victims of these crimes were two different people. A second
issue arises concerning credit for time served in presentence
incarceration.
[¶2.] The order denying
Starr's motion for correction of sentence was entered on March 26, 1991. Starr
filed his notice of appeal on April 3, 1991. Starr failed to make a designation
of the record or order a transcript and, for those reasons as well as others,
the record was not received by this court until December 5, 1991. The record on
appeal must be docketed with this court not later than forty days after the
notice of appeal is filed. W.R.A.P. 3.02. The record was not timely docketed
with this court and, therefore, we will dismiss the appeal pursuant to W.R.A.P.
1.02. We will, however, treat Starr's appeal as a petition for writ of
certiorari and grant that petition. Starr has asked for appointment of counsel
but, due to the simplicity of the issues presented, we decline to make such
appointment and we will dispose of the issues without requiring briefing or
argument.
[¶3.] Starr filed a motion
for credit for presentence incarceration on February 6, 1986. It was denied by
order entered on October 20, 1987. No appeal was taken. Starr was indigent and,
thus, would be entitled to credit for presentence incarceration under usual
circumstances. Renfro v. State, 785 P.2d 491 (Wyo.
1990). Although Starr did not appeal the denial of his motion to correct his
sentence, because an illegal sentence may be corrected at any time pursuant to
W.R.Cr.P. 36, we opt to direct award of presentence incarceration off both the
minimum five year sentence and the maximum ten year sentence imposed for
aggravated assault. Renfro, 785 P.2d
at 498 (numbered paragraphs 3 and 4). It is important to recognize that Starr
was sentenced to five to ten years for aggravated assault and life for first
degree murder. However, the sentences were made to run consecutively, with the
five to ten year sentence directed to be served before the life sentence. Thus,
Starr should have received credit for presentence
incarceration.
[¶4.] We might have
considered the issue not ripe for adjudication had Starr been required to serve
the life sentence first, and then the five to ten year sentence, since it is
possible no issue could ever have arisen in that regard. Nonetheless, we note
the better practice is to afford credit for time served in presentence
incarceration where a prison term of years is meted out in conjunction with a
life sentence, no matter in what order the sentences are to be served. Starr
sought credit for 153 days of incarceration before sentence. Neither the
district court nor the State disputed that figure and we accept it as accurate
for the limited purpose of awarding credit for time spent in presentence
incarceration as raised in this cause. Starr, of course, will not receive any
credit for time served in presentence incarceration on his life sentence for
murder. By copy of this opinion to the Wyoming State Penitentiary, that
correction should be effected if it has not already been
accomplished.
[¶5.] Only a brief recitation
of the facts is necessary to refute Starr's contention that his crimes should
merge and, hence, he should be required to serve only one sentence. Starr
attacked his "common-law wife" at a race track in Evanston. He shot her in the head five times,
causing her death. He then took several shots at a security guard who was
employed by the race track. Finally, he shot himself in the head but survived.
He was found guilty of murdering his wife. He was also found guilty of
aggravated assault against the security guard. There simply is no question of
double jeopardy because these were two separate and distinct acts of violence
against two separate and distinct human beings. See Duffy v. State, 789 P.2d 821
(Wyo. 1990); Goodman v. State, 601 P.2d 178
(Wyo. 1979); Vigil v. State, 563 P.2d 1344
(Wyo. 1977); Loddy v. State, 502 P.2d 194 (Wyo. 1972), cert.
denied 414 U.S. 1134, 94 S. Ct. 877, 38 L. Ed. 2d 760 (1974).
[¶6.] In conclusion, the
appeal is dismissed and a writ of certiorari granted. We deny the motion to
appoint counsel. We affirm the district court's order denying the motion to
correct an illegal sentence on the basis of merger of offenses. We grant Starr
153 days of credit off both the minimum and maximum of the five to ten year
sentence for aggravated assault. The record shall be returned to the district
court.
[¶7.] Affirmed as herein
modified.
ORDER
DISMISSING APPEAL AND GRANTING PETITION FOR WRIT OF
CERTIORARI
[¶8.] This case came before
the Court upon its own motion in connection with a consideration of the
jurisdiction of this Court to hear the appeal, and the Court, having reviewed
the files and record, finds that the record on appeal was not timely filed in
accordance with W.R.A.P. 3.02. Pursuant to W.R.A.P. 1.02, this court may take
such action as it deems appropriate in order to enforce the Wyoming Rules of
Appellate Procedure. In this instance, we shall dismiss the
appeal.
[¶9.] However, finding that
it is productive of judicial economy to consider the issues raised, we shall
treat the appeal as a petition for writ of certiorari and grant that petition.
It is therefore,
[¶10.] However, finding that it is productive of
judicial economy to consider the issues raised, we shall treat the appeal as a
petition for writ of certiorari and grant that petition. It is
therefore,
[¶11.] ORDERED that the appeal be, and hereby
is, dismissed. Further it is,
[¶12.] ORDERED that a writ of certiorari is
granted for the purpose of reviewing the issues raised in the appeal. Further it
is,
[¶13.] ORDERED that this court will treat the
record currently available to the court as the certified record for purposes of
disposing of the writ. Further it is,
[¶14.] ORDERED that briefing is unnecessary and
having considered the issues raised in this cause, the judgment and sentence is
affirmed subject to the modification for preconfinement sentence as provided in
the opinion and decision of this Court concurrently
rendered.
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