Wyo. R. Crim. P. 35 (2026)

Rule 35. Correction or Reduction of Sentence. (a) Correction. — The court may correct an illegal sentence at any time. Additionally the court may correct, reduce, or modify a sentence within the time and in the manner provided herein for the reduction of sentence. (b) Reduction. — A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within one year after the sentence is imposed or probation is revoked, or within one year after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within one year after entry of any order or judgment of the Wyoming Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. The court may determine the motion with or without a hearing.

Compare. — Rule 35, Fed. Rules Cr. Proc. the court indicated that it had considered the Denial of motion proper. — District court motion and the file in the matter and that it did not err when it denied defendant’s motion was otherwise well advised on the premises for sentence modification or reduction because and defendant made no argument that the

Rule 35 WYOMING COURT RULES 96

district court relied on improper evidence or Written judgment and sentence does not that he had no opportunity to respond to the control over an oral sentence at variance state’s arguments. Burke v. State, 2024 WY 33, with it. Where the transcript of the oral sen- 545 P.3d 440, 2024 Wyo. LEXIS 35 (Wyo. 2024). tence and judgment and the mittimus are un- Motion for modification improperly ambiguous and plain in directing a consecutive, granted. — Where defendant pleaded guilty to not concurrent, sentence, and the written judg- aggravated assault under a plea agreement ment and sentence contains an oversight and that expressly waived his right to file any omission in this respect, it may be properly sentence modification or adjustment motion, corrected by the trial court in a nunc pro tunc and the district court warned that any such judgment and sentence. Lane v. State, 663 P.2d motion would be deemed void on its face, the 175, 1983 Wyo. LEXIS 318 (Wyo. 1983). district court erred in granting defendant’s sub- Where defendant was properly con- sequent motion for sentence modification based victed but sentenced under wrong statute, on post-sentencing developments like mental case was remanded for resentencing pursu- health difficulties and good behavior while in- ant to this rule. Capwell v. State, 686 P.2d 1148, carcerated. State v. Boni, 2026 WY 57, 589 P.3d 1984 Wyo. LEXIS 322 (Wyo. 1984). 1271, 2026 Wyo. LEXIS 65 (Wyo. 2026). Separate crimes in separate cases. — Applicability. — Alleged error asserted by When an individual is convicted for separate defendant, that the trial court used a victim’s crimes in separate cases, the sentencing judge preliminary hearing testimony at trial under a has discretion to determine whether the sen- hearsay exception, was not a claim of illegal tences shall be served consecutively or concur- sentence which could be addressed by a motion rently and there is no presumption of a concur- under this rule. Cardenas v. State, 925 P.2d rent sentencing. Apodaca v. State, 891 P.2d 83, 239, 1996 Wyo. LEXIS 151 (Wyo. 1996). 1995 Wyo. LEXIS 35 (Wyo. 1995). While a 365-day sentence was clearly illegal as the maximum for defendant’s third driving Validity of conviction will not be ad- under the influence conviction was six months dressed under this rule. — A motion to under Wyo. Stat. Ann. § 31-5-233(e), the sen- correct an illegal sentence presupposes a valid tence could be corrected pursuant to Wyo. R. conviction and may not be used to re-examine Crim. P. 35. Crosby v. State, 2011 WY 44, 247 errors occurring at trial or other proceedings P.3d 876, 2011 Wyo. LEXIS 46 (Wyo. 2011). prior to the imposition of sentence; therefore, Proceedings prior to sentencing. — issues concerning the validity of a conviction Where defendant did not claim the sentence will not be addressed in the context of a Rule 35 was illegal, only that his understanding of the motion. Evans v. State, 892 P.2d 796, 1995 Wyo. sentence was imperfect, otherwise he would not LEXIS 55 (Wyo. 1995). have entered his guilty plea, his true issue was And case remanded where sentence of not with the sentence but with proceedings incarceration and restitution unlawful. — prior to the imposition of that sentence, and Where a sentence of incarceration and restitu- proceedings prior to the imposition of sentence tion was unlawful under former law, and the are beyond the scope of this rule. Duran v. sentence may have been treated differently if State, 949 P.2d 885, 1997 Wyo. LEXIS 158 the trial court had known that it could not (Wyo. 1997). impose restitution when the defendant was Double jeopardy claim improperly sentenced to incarceration, the case was re- brought. — A motion to vacate or correct manded for resentencing. Bishop v. State, 687 sentence brought under subdivision (a) is not P.2d 242, 1984 Wyo. LEXIS 310 (Wyo. 1984), the proper remedy by which to assert a viola- cert. denied, 469 U.S. 1219, 105 S. Ct. 1203, 84 tion of double jeopardy protections — the L. Ed. 2d 345, 1985 U.S. LEXIS 998 (U.S. proper remedy is through a petition for post- 1985). conviction as provided in § 7-14-101 to § 7-14- Discretion of court. — A motion to correct 108. DeSpain v. State, 865 P.2d 584, 1993 Wyo. an illegal sentence is addressed to the sound LEXIS 185 (Wyo. 1993), abrogated as stated in discretion of the trial court, but if the sentence Tucker v. State, 2015 WY 65, 349 P.3d 987, 2015 is, in fact, illegal, that discretion is limited. Wyo. LEXIS 76 (Wyo. 2015). White v. State, 934 P.2d 745, 1997 Wyo. LEXIS Double jeopardy claims are not cognizable 53 (Wyo. 1997). and can not be entertained upon a motion to Trial court did not err in denying defendant’s correct an illegal sentence, pursuant to this motion for correction of illegal sentence; court rule. Birr v. State, 895 P.2d 43, 1995 Wyo. could not abuse its discretion since defendant LEXIS 67 (Wyo. 1995). failed to present it with any claim of illegality Fixing a new date for execution follow- in his sentence. Mead v. State, 2 P.3d 564, 2000 ing a stay was not a “sentence” within the Wyo. LEXIS 100 (Wyo. 2000). meaning of this rule or § 7-13-905, which pro- District court did not abuse its discretion in vides that the date of execution “shall not be denying defendant’s motion for a sentence re- less than thirty (30) days after the date of the duction. The district court declined to reduce sentence.” Hopkinson v. State, 704 P.2d 1323, defendant’s sentence after giving due consider- 1985 Wyo. LEXIS 542 (Wyo.), cert. denied, 474 ation to that motion in light of the facts of the U.S. 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564, case, not because it believed it was precluded 1985 U.S. LEXIS 4837 (U.S. 1985). from doing so by a plea agreement. Bonney v.

97 RULES OF CRIMINAL PROCEDURE Rule 35

State, 2011 WY 51, 248 P.3d 637, 2011 Wyo. transferred to the Wyoming Department of Cor- LEXIS 54 (Wyo. 2011). rections — a condition that was made clear to District court properly denied defendant’s him at the time of his sentence. While the motion for a sentence reduction because, al- supreme court did not approve of the departure though the district court cited the time limits in from the many sentencing alternatives that its order denying defendant’s motion, there was were available to the district court, appellant’s no indication the court denied defendant’s mo- sentence was not illegal under this section of tion on the basis it found the motion was not the rule. Center v. State, 2011 WY 73, 252 P.3d timely filed, and defendant did not allege any 963, 2010 Wyo. LEXIS 180 (Wyo. 2010). other error in the district court’s ruling. Alford Sentencing court’s failure to state whether v. State, 2017 WY 105, 401 P.3d 902, 2017 Wyo. defendant’s life sentences were to be served LEXIS 108 (Wyo. 2017). concurrently with or consecutively to defen- District court did not abuse its discretion in dant’s parole revocation sentence did not ren- denying defendant’s motion for sentence reduc- der the sentences illegal because it was pre- tion because the district court’s statements sumed the sentences were consecutive. Bird v. regarding the purpose of a motion for sentence State, 2015 WY 108, 356 P.3d 264, 2015 Wyo. reduction and that a sentencing judge was in LEXIS 123 (Wyo. 2015). the best position to decide the motion were not Illegal sentence was corrected on appeal an indication the district court was declining to where it was in the interest of judicial economy rule on his motion, there was no unreasonable to do so. Kahlsdorf v. State, 823 P.2d 1184, 1991 delay in the district court’s ruling, and the Wyo. LEXIS 202 (Wyo. 1991). district court considered his progress while Claim of illegal sentence considered by incarcerated as requested. Buckingham v. appellate court, although not raised be- State, 2023 WY 92, 535 P.3d 887, 2023 Wyo. low. — Although the defendant failed to move LEXIS 94 (Wyo. 2023). the sentencing court for correction of the “ille- Motion after appeal held timely. — Since gal sentence,” and although a motion to correct defendant’s motion for reduction of sentence an illegal sentence is normally for the trial was filed within one year of the order dismiss- court in the first instance, in the interest of ing his appeal of the order revoking his proba- judicial economy, the appellate court consid- tion, the district court had jurisdiction to con- ered the defendant’s claim, that his sentence sider defendant’s motion for sentence was illegal. Price v. State, 716 P.2d 324, 1986 reduction. Tomlin v. State, 2001 WY 121, 35 Wyo. LEXIS 508 (Wyo. 1986) (plurality opinion) P.3d 1255, 2001 Wyo. LEXIS 147 (Wyo. 2001). . Reduction of sentence denied. — District Although defendant did not timely appeal his court did not err in denying defendant’s motion sentence or request its correction, its legality for sentence reduction because the supreme could be considered for the first time on appeal. court was not convinced that he did not have a Endris v. State, 2010 WY 73, 233 P.3d 578, 2010 prior felony conviction for fourth-degree domes- Wyo. LEXIS 76 (Wyo. 2010). tic assault based on the records from the sen- Failure to request a correction of sen- tencing court; and defendant failed to show tence pursuant to subdivision (a) did not bar that the district court actually relied upon the the supreme court from hearing the appeal State’s alleged misrepresentation of his crimi- because appeal was from judgment and sen- nal history when denying his motion for sen- tence. Leger v. State, 855 P.2d 359, 1993 Wyo. tence reduction. Bulisco v. State, 2023 WY 38, LEXIS 117 (Wyo. 1993). 527 P.3d 1265, 2023 Wyo. LEXIS 38 (Wyo. Motion for correction or reduction of 2023). sentence. — A motion to correct an illegal Review of sentencing hearing. — A close sentence under subsection (a) is addressed to review of the sentencing proceeding demon- the sound discretion of the sentencing court. strated that there was no impropriety during Similarly, a motion for reduction of sentence is the sentencing hearing. Ayers v. State, 949 P.2d subject to the sound discretion of the sentenc- 469, 1997 Wyo. LEXIS 165 (Wyo. 1997). ing court. Sweets v. State, 2001 WY 126, 36 P.3d Defendant’s due process rights under the 1130, 2001 Wyo. LEXIS 157 (Wyo. 2001). Fourteenth Amendment were not violated Because an expectation was not a promise or when the district court denied his motion for commitment, the district court’s written ex- sentence reduction under Wyo. R. Crim. P. 35(b) pression of its expectation that defendant’s sen- because defendant failed to establish bias on tence would be reduced did not require the the part of the district court. Leners v. State, court to reduce his sentence after he completed 2022 WY 127, 518 P.3d 686, 2022 Wyo. LEXIS the Youthful Offender Transition Program; the 127 (Wyo. 2022). district court did not limit its later discretion or Sentence not illegal. — Execution of appel- otherwise guarantee defendant that his sen- lant’s sentence was, in essence, conditionally tence would be reduced, and thus the district stayed pending appellant’s admission to the court did not abuse its discretion when it de- alcohol treatment center, and he was granted a nied defendant’s motion for a sentence reduc- furlough for that purpose under this section of tion. Gosselin v. State, 2025 WY 79, 572 P.3d the statute; however, because appellant will- 498, 2025 Wyo. LEXIS 79 (Wyo. 2025). fully refused to conform his behavior to the Motion timely filed. — District court erred expectations of the treatment program, he was in ruling that defendant’s motion for sentence

Rule 35 WYOMING COURT RULES 98

reduction was untimely because he filed his clearly discretionary. Hodgins v. State, 1 P.3d motion for sentence reduction within two 1259, 2000 Wyo. LEXIS 75 (Wyo. 2000). months of the appellate court’s mandate affirm- Res judicata would bar consideration of de- ing his conviction, but because the district court fendant’s motion to correct an illegal sentence ruled on the merits of the motion rather than because he failed to present his claim on pre- dismissing it for lack of jurisdiction, the error sentence confinement earlier. Cruzen v. State, was harmless. Buckingham v. State, 2023 WY 2023 WY 5, 523 P.3d 301, 2023 Wyo. LEXIS 6 92, 535 P.3d 887, 2023 Wyo. LEXIS 94 (Wyo. (Wyo. 2023). 2023). And decision not disturbed absent Application of “deemed denied” rule. — abused discretion. — The district court has Appellate court assumed jurisdiction over an broad discretion in determining whether to appeal of denial of postconviction relief al- reduce a defendant’s sentence, and the Su- though the district court declined to rule on the preme Court will not disturb its determination motion for over a year; the appeals court ac- absent an abuse of discretion. McFarlane v. knowledged that this rule provides for applica- State, 781 P.2d 931, 1989 Wyo. LEXIS 220 tion of civil procedure rules where there is no (Wyo. 1989). rule of criminal procedure on point, but de- The decision to reduce a sentence, pursuant clined to apply the “deemed denied rule” of to a motion filed in accordance with this rule, W.R.C.P. 6(c)(2). Patrick v. State, 2005 WY 32, lies in the broad discretion of the trial court, and the Supreme Court will not disturb its 108 P.3d 838, 2005 Wyo. LEXIS 35 (Wyo. 2005). decision absent a clear abuse of that discretion. Reduction of sentence within power of Asch v. State, 784 P.2d 235, 1989 Wyo. LEXIS district court. — Where a second sentence 256 (Wyo. 1989). imposed, “not less than three years nor more Appellate court could not review defendant’s than seven years,” was, in effect, a reduction claim that the judgment and sentence entered from that imposed from the bench previously, after he pleaded guilty were illegal due to the “not less than five years nor more than seven, fact that he was not advised that his guilty with three years suspended from top time,” pleas could result in the disqualification of his since defendant was then eligible for parole in right to possess firearms pursuant to federal three years rather than four, such a reduction law because he raised it for the first time on was clearly within the power of the district appeal; moreover, even if the claim had been court. Montez v. State, 573 P.2d 34, 1977 Wyo. raised before the district court, it would have LEXIS 306 (Wyo. 1977). been barred by res judicata because the claim Judgment and sentences which failed to could have been raised on direct appeal and in award credit for presentence incarceration time defendant’s petition for post-conviction relief. were illegal and correction was permitted by a Ridgerunner, LLC v. Meisinger, 2013 WY 31, motion under subdivision (a). Parker v. State, 297 P.3d 121, 2013 Wyo. LEXIS 35 (Wyo. 2013). 882 P.2d 1225, 1994 Wyo. LEXIS 122 (Wyo. Consecutive life sentences for prior and 1994). contemporaneous convictions not uncon- There was no abuse of discretion by trial stitutional. — Defendant’s motion to correct court in denying motion to reduce defendant’s an illegal sentence was properly denied where sentence based merely upon prisoner’s com- the existence of a prior conviction and the mendable conduct while incarcerated. Carrillo existence of a contemporaneous conviction v. State, 895 P.2d 463, 1995 Wyo. LEXIS 79 rested on the same quality of evidence and (Wyo. 1995). neither sort of evidence was required to be Motion for reduction of sentence is ad- determined by a jury under the beyond a rea- dressed to sound discretion of trial court, sonable doubt standard; the trial court did not and the court’s decision is accorded consider- err by imposing consecutive life sentences on able deference. Peper v. State, 776 P.2d 761, defendant. Blakeman v. State, 2005 WY 13, 105 1989 Wyo. LEXIS 169 (Wyo. 1989). P.3d 472, 2005 Wyo. LEXIS 15 (Wyo. 2005). Motion barred by res judicata. — When Articulation of reason. — Trial court was appellant entered his guilty pleas in 2006, he not required to articulate a “just cause” for did not challenge the imposition of consecutive denying defendant’s motion for reduction of sentencing on direct appeal; he did not raise the sentence. Hodgins v. State, 1 P.3d 1259, 2000 issue until his 2009 motion to correct an illegal Wyo. LEXIS 75 (Wyo. 2000). sentence pursuant to Wyo. R. Crim. P. 35(a). District court entitled to deference. — A Because he failed to show good cause why the district court’s resolution of a motion to correct issue was not raised earlier, it was barred by or reduce a sentence is entitled to considerable res judicata. Cooper v. State, 2010 WY 22, 225 deference. Fortin v. State, 622 P.2d 418, 1981 P.3d 1070, 2010 Wyo. LEXIS 24 (Wyo. 2010). Wyo. LEXIS 276 (Wyo. 1981). A trial court has broad discretion in deter- And Supreme Court will not substitute mining whether to modify a defendant’s sen- its views. — On appeal of a motion to correct tence, and the supreme court will not disturb or reduce a sentence, the Supreme Court will its determination absent an abuse of discretion. not substitute its views for those of the district Barela v. State, 936 P.2d 66, 1997 Wyo. LEXIS court unless there is no rational basis for the 64 (Wyo. 1997). district court’s conclusions. Fortin v. State, 622 Language of subdivision (b) of this rule is P.2d 418, 1981 Wyo. LEXIS 276 (Wyo. 1981).

99 RULES OF CRIMINAL PROCEDURE Rule 35

But will accept trier’s findings sup- Ramirez v. State, 800 P.2d 503, 1990 Wyo. ported by evidence. — On appeal of a motion LEXIS 131 (Wyo. 1990). to correct or reduce a sentence, the Supreme Presentence confinement taken into ac- Court must accept the trier’s finding of facts, as count by prison. — The executive department long as they are supported by substantial evi- of government can, and should, award credit for dence from which a reasonable inference may presentence confinements, which simply should be drawn. Fortin v. State, 622 P.2d 418, 1981 be taken into account by the authorities at the Wyo. LEXIS 276 (Wyo. 1981). penitentiary or prison when determining re- Only sentencing alternatives which may lease dates. It would seem that only in the few be considered on a motion for sentence instances in which there is some real dispute reduction are those which would have been about the credit that it would be necessary to proper at the original sentencing. Williams v. insist that the convicted person return to the State, 692 P.2d 233, 1984 Wyo. LEXIS 352 court for obvious relief. Ramirez v. State, 800 (Wyo. 1984). P.2d 503, 1990 Wyo. LEXIS 131 (Wyo. 1990). Presentence confinement. — Presentence Credit for presentence confinement. — confinement is defined as incarceration for in- There was no error in the decision of the court ability and failure to post bond on the offense to deny credit for presentence confinement for which the sentence is entered and does not where the record was clear that defendant was include revoked probation or other confinement not confined solely because of his inability to that would continue to exist without regard for post the bond for the offense of which he was convicted. Rosalez v. State, 955 P.2d 899, 1998 bond posting capabilities. Sweets v. State, 2001 Wyo. LEXIS 46 (Wyo. 1998). WY 126, 36 P.3d 1130, 2001 Wyo. LEXIS 157 Credit for confinement in community (Wyo. 2001). corrections facility. — Appellant inmate was Defendant’s incarceration on a prior convic- improperly denied credit for the time spent at a tion was not presentence confinement and he community corrections facility (CCF) after a was not entitled to presentence credit for his violation of probation because time in a CCF confinement on that conviction when he was constituted official detention under Wyo. Stat. subsequently convicted and sentenced on a new Ann. § 7-18-108(a) and a person in a CCF could charge of delivering a controlled substance. be charged with escape under Wyo. Stat. Ann. Sweets v. State, 2001 WY 126, 36 P.3d 1130, § 7-18-112. Baker v. State, 2011 WY 53, 248 2001 Wyo. LEXIS 157 (Wyo. 2001). P.3d 640, 2011 Wyo. LEXIS 55 (Wyo. 2011). Motion for correction of a sentence under District court properly did not give defendant Wyo. R. Crim. P. 35(a) to allow for 216 days of credit for the 107 days spent at a Michigan presentence incarceration was denied because probation residential center because although defendant had already been given all the credit that program provided services similar to Wyo- he was entitled to; some of the credit had been ming’s Adult Community Corrections program used in a prior drug case, and defendant was (ACC), it was not approved or overseen as an not entitled to credit for confinement that oc- ACC program under Wyoming law, therefore, curred prior to the offense date. Manes v. State, defendant was not in official detention while at 2007 WY 6, 150 P.3d 179, 2007 Wyo. LEXIS 6 the Michigan program and could not be charged (Wyo. 2007). with escape for leaving the facility, unlike if he Maximum sentence modified for pre- had been placed in a Wyoming ACC program. sentence confinement. — Where the defen- Durkin v. State, 2024 WY 101, 556 P.3d 221, dant was sentenced to a term of not less than 2024 Wyo. LEXIS 103 (Wyo. 2024). seven nor more than 10 years, but the record Trial court lacks jurisdiction to reduce demonstrates that he was entitled to a credit previously imposed sentence beneath leg- against his maximum sentence for pre-sen- islatively-mandated minimum term. — tence confinement of 85 days because of his Williams v. State, 692 P.2d 233, 1984 Wyo. indigency, because the maximum term would LEXIS 352 (Wyo. 1984). have exceeded that authorized by the legisla- Jurisdiction to consider motion. — Court ture, and because his retention in custody for had jurisdiction to consider a motion for reduc- purposes of a competency examination did not tion of sentence where the circumstances that justify the denial of the credit, the case was supposedly divested the court of jurisdiction remanded to the district court with the direc- were beyond defendant’s control; he timely filed tion that the defendant’s sentence be modified his motion for reduction, and there was no to encompass a credit of 85 days for pre-sen- indication of an improper purpose for the delay. tence confinement against the maximum 10- Patrick v. State, 2005 WY 32, 108 P.3d 838, year sentence. Lightly v. State, 739 P.2d 1232, 2005 Wyo. LEXIS 35 (Wyo. 2005). 1987 Wyo. LEXIS 475 (Wyo. 1987). District court lacked jurisdiction to consider Failure to credit presentence incarcera- defendant’s challenge to Wyo. Stat. Ann. § 7-13- tion abuse of discretion. — Where the origi- 402(b) in a motion to correct his sentence be- nal sentence failed to credit the defendant with cause the rule did not provide him an avenue presentence incarceration time against his for relief; the constitutionality of § 7-13-402(b) minimum term, it was an illegal sentence, and did not pertain to the validity of defendant’s the refusal of the trial court to correct the sentence because it was an argument directed illegal sentence was an abuse of discretion. at the Board of Parole’s administration of his

Rule 35 WYOMING COURT RULES 100

sentence. Sides v. State, 2021 WY 42, 483 P.3d a legal or medical opinion. Leners v. State, 2022 128, 2021 Wyo. LEXIS 49 (Wyo. 2021). WY 127, 518 P.3d 686, 2022 Wyo. LEXIS 127 Court may reduce sentence of incar- (Wyo. 2022). ceration to probation after defendant has Factors considered by court. — Trial served only two and one-half months of his court did not err in denying defendant’s motion sentence of five to eight years for aggravated for sentence reduction under Wyo. R. Crim. P. burglary. State v. Knapp, 739 P.2d 1229, 1987 35, as defendant’s behavior of remaining disci- Wyo. LEXIS 473 (Wyo. 1987). pline-free, pursuing work and educational op- Reimposition of sentence after proba- portunities, and accepting responsibility for his tion revoked. — It is within the district actions did not alone provide a basis for rever- court’s discretion to consider a motion for sen- sal of the trial court’s decision. Harper v. State, tence reduction filed 120 days (now one year) 2023 WY 49, 529 P.3d 1071, 2023 Wyo. LEXIS from the imposition of sentence, which includes 48 (Wyo. 2023). the reimposition of sentence following a proba- District court not required to elaborate tion revocation. Nelson v. State, 733 P.2d 1034, on reasons for denying motion. — In an 1987 Wyo. LEXIS 410 (Wyo. 1987). action for possession and delivery of metham- District judge had no jurisdiction to re- phetamine, the district court did not abuse its duce death sentence, supported by suffi- discretion when it did not elaborate on its cient evidence, to life imprisonment under reasons for denying defendant’s Wyo. R. Crim. this rule, because to have done so would have P. 35(b), motion for sentence reduction because been in direct conflict with the legislative man- neither the Addicted Offender Accountability date of § 6-2-102 (presentence hearing for mur- Act nor Rule 35(b) required the district court to der). Hopkinson v. State, 704 P.2d 1323, 1985 explain that alternative treatments were con- Wyo. LEXIS 542 (Wyo.), cert. denied, 474 U.S. sidered. Hurtado v. State, 2023 WY 63, 531 P.3d 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564, 1985 306, 2023 Wyo. LEXIS 64 (Wyo. 2023). U.S. LEXIS 4837 (U.S. 1985). Restitution order not illegal. — Order to It is not abuse of discretion to deny pay $93,966 in restitution after pleading guilty motion for sentence reduction despite to first and third degree arson was not illegal demonstration of commendable behavior where evidence showed that the trial court made to the district court. Montez v. State, 592 properly advised defendant prior to acceptance P.2d 1153, 1979 Wyo. LEXIS 392 (Wyo. 1979). of his guilty plea of his potential restitution Defendant was not entitled to probation obligation and where specific finding of defen- time credit when resentenced in proba- dant’s ability to pay was not required. Whitten tion revocation proceeding. — District v. State, 2005 WY 55, 110 P.3d 892, 2005 Wyo. court correctly concluded defendant was not LEXIS 63 (Wyo. 2005). entitled to credit for time he spent on probation Multiple motions within time period al- when he was resentenced in a probation revo- lowed. — This rule does not prohibit the filing cation proceeding because his time on proba- and considering more than one motion if done tion and in treatment could not be considered within the 120-day (now one-year) limitation. presentence confinement as there was no indi- Nelson v. State, 733 P.2d 1034, 1987 Wyo. cation that his probation, or his time in treat- LEXIS 410 (Wyo. 1987). ment or in Treatment Court as conditions of Issues decided may not be relitigated. — that probation, would subject him to a charge of Where the issue relating to the imposition of a escape from detention if he left either program. second increased sentence was raised in defen- Stevenson v. State, 2023 WY 99, 537 P.3d 328, dant’s direct appeal from conviction and there 2023 Wyo. LEXIS 101 (Wyo. 2023). considered and decided, the question is gov- Failure to reduce sentence not abuse of erned by the doctrine of the law of the case, and discretion. — Court did not abuse its discre- the availability of relief under this rule, as is tion in failing to accept the prosecution’s rec- true of all other post-conviction relief mecha- ommendation for a lesser sentence when it nisms, does not permit a defendant to revitalize revoked the defendant’s probation and reim- and relitigate the issue. Montez v. State, 592 posed upon him the original sentence which P.2d 1153, 1979 Wyo. LEXIS 392 (Wyo. 1979). was within the statutorily prescribed limits. A motion to correct an illegal sentence does Mower v. State, 750 P.2d 679, 1988 Wyo. LEXIS not permit a defendant to relitigate an issue 15 (Wyo. 1988), reh’g denied, 1988 Wyo. LEXIS which has already been considered and de- 50 (Wyo. Mar. 18, 1988). cided. Brown v. State, 894 P.2d 597, 1995 Wyo. District court did not abuse its discretion LEXIS 62 (Wyo. 1995). when it denied defendant’s motion for sentence Any issues not previously decided are barred reduction because his claims of factual inno- by § 7-14-103 or are not properly matters for cence were barred by res judicata, his Eighth consideration under a Rule 35(a) motion. Amendment claim could not be cured by a Brown v. State, 894 P.2d 597, 1995 Wyo. LEXIS sentence reduction motion, many of defendant’s 62 (Wyo. 1995). arguments had been raised and considered at Motion to correct an illegal sentence is sentencing, and the affidavits of defendant’s not available for an attack on the validity wife and mother-in-law supporting a sentence of a conviction. — A motion to correct an reduction did not constitute expert testimony illegal sentence presupposes a valid conviction as neither witness had the qualifications to give and may not be used to re-examine errors

101 RULES OF CRIMINAL PROCEDURE Rule 35

occurring at trial or other proceedings prior to Proper to deny sentence reduction the imposition of sentence; therefore, issues where no abuse of discretion in original concerning the validity of a conviction will not sentence. — There was no abuse of discretion be addressed in the context of a Rule 35 motion. in the imposition of the original sentence of Bird v. State, 2002 WY 14, 39 P.3d 430, 2002 two-to-five years on each of two counts of third- Wyo. LEXIS 14 (Wyo. 2002). degree sexual assault, to be served consecu- Res judicata. — Issue of illegality of sen- tively, upon a defendant who forced an 11-year- tence could have been raised in defendant’s old victim to have sex with him over a period of earlier appeal from order revoking his proba- years and who showed only situational re- tion and sentencing him to incarceration, and morse. Given this fact, and the fact that no therefore his subsequent motion for correction error of law was committed, there was no of illegal sentence was barred by doctrine of res justification for the appellate court to interfere judicata. Mead v. State, 2 P.3d 564, 2000 Wyo. with the trial court’s discretion in denying a LEXIS 100 (Wyo. 2000). motion to reduce sentence. Peterson v. State, On direct appeal, defendant’s argument cen- 706 P.2d 276, 1985 Wyo. LEXIS 630 (Wyo. tered around defendant’s status as a habitual 1985). criminal, and its effect on defendant’s sen- District court loses jurisdiction after tences, and although in defendant’s motion to time period. — A district court loses jurisdic- correct an illegal sentence, defendant’s argu- tion of a criminal case 120 days (now one year) ment differed slightly from that presented on following the date of the judgment and sen- direct appeal, the distinction was insufficient to tence and, thus, may not consider a motion to avoid the application of res judicata; further, reduce a sentence filed after that time period. defendant offered no showing of why the issues Stewart v. State, 654 P.2d 727, 1982 Wyo. raised in the current appeal could not have LEXIS 420 (Wyo. 1982) (decided prior to 1987 been raised in defendant’s direct appeal, and amendment) . absent such a showing defendant’s claims were District court without jurisdiction to barred by the doctrine of res judicata. Lacey v. hear appeal. — Except where there has been a State, 2003 WY 148, 79 P.3d 493, 2003 Wyo. remand following an appeal in a criminal case, LEXIS 179 (Wyo. 2003). or where one of the statutes or rules, Wyo. Stat. Defendant raised his double jeopardy claim Ann. § 1-27-101 et seq., Wyo. Stat. Ann. § 7- for the first time in his motion to correct an 14-101 through 7-14-108, or W.R.Cr.P. 35, oth- illegal sentence, but he could have raised his erwise expressly permits a district court to claim in a direct appeal and did not present any continue to assert jurisdiction over that crimi- particulars in support of his good cause argu- nal case, no authority exists for the court to act ment for not doing so; res judicata precludes in the case, and thus the district court was review of his claim. Bernard v. State, 2025 WY without jurisdiction to consider defendant’s mo- 66, 570 P.3d 416, 2025 Wyo. LEXIS 66 (Wyo. tion to withdraw his guilty plea where the 2025). motion was filed over five years after entry of Relief not available following guilty his plea and over five years after his sentence plea. — Relief under subdivision (a) of this rule was imposed. Barela v. State, 2002 WY 143, 55 was not available to defendant seeking to at- P.3d 11, 2002 Wyo. LEXIS 168 (Wyo. 2002). tack voluntariness of his guilty plea, and thus Court may reduce sentence beyond time the validity of his conviction. Smith v. State, period. — The trial court had a “reasonable” 969 P.2d 1136, 1998 Wyo. LEXIS 189 (Wyo. amount of time to rule on a timely motion for 1998). sentence reduction, even if the motion had not No abuse of discretion to exclude expert been decided within 120 days (now one year) testimony regarding mental condition. — from the date of entry of the sentence. Arland v. A trial court did not abuse its discretion in State, 788 P.2d 1125, 1990 Wyo. LEXIS 32 refusing to allow defendant to provide expert (Wyo. 1990). testimony concerning his mental condition in Double jeopardy remedy appropriate sentence modification hearings; defendant under § 7-14-101. — A motion under subsec- failed to explain how expert testimony that tion (a) of this rule is not the proper remedy by might provide a different diagnosis could or which to assert a violation of double jeopardy should result in a reduction of his sentence. protections. Upon exhaustion of the right to Barela v. State, 936 P.2d 66, 1997 Wyo. LEXIS directly appeal from conviction, post-conviction 64 (Wyo. 1997). relief provided through §§ 7-14-101 through Hearing permitted during appeal prepa- 7-14-108 is the only proper method of gaining ration. — A trial judge is permitted to conduct relief on a double jeopardy claim. Birr v. State, a hearing under this rule while defendant is in 878 P.2d 515, 1994 Wyo. LEXIS 87 (Wyo. 1994). the process of preparing an appeal. Jones v. Claims alleging a violation of double jeopardy State, 602 P.2d 378, 1979 Wyo. LEXIS 482 are not cognizable under the language of this (Wyo. 1979). rule. Instead, such challenges must be brought This rule makes no provision for fur- as a petition for post-conviction relief under nishing transcript to defendant prelimi- §§ 7-14-101 and 7-14-108. Parker v. State, 882 nary to the application for reduction. Escobedo P.2d 1225, 1994 Wyo. LEXIS 122 (Wyo. 1994). v. State, 601 P.2d 1028, 1979 Wyo. LEXIS 499 Physical inability to complete program (Wyo. 1979). did not justify sentencing change. — Al-

Rule 36 WYOMING COURT RULES 102

though defendant had entered a plea agree- scope of section. — The manner in which the ment which recommended him for the Wyo- executive department of government is direct- ming Youthful Offender Program, his inability ing the service of defendant’s sentences cannot to participate in the program due to a physical be addressed pursuant to a motion under this impairment did not violate the doctrines of section. Apodaca v. State, 891 P.2d 83, 1995 equal protection and separation of powers and Wyo. LEXIS 35 (Wyo. 1995). did not entitle the district court to correct his Because the Wyoming legislature has del- sentence. The defendant’s plea was not induced egated the power to revoke parole to an execu- by false promises and the error alleged did not tive agency and divested the courts of any such fall within the narrow definition of illegal sen- power, a prisoner whose parole has been re- tences; therefore, the warden’s refusal to accept voked cannot challenge the Wyoming board of him in the program because of his physical injury was rationally related to a legitimate parole’s decision by filing a motion pursuant to governmental interest and was supportable. this rule in Wyoming district court to correct an Ellett v. State, 883 P.2d 940, 1994 Wyo. LEXIS illegal sentence. Hamill v. Ferguson, 937 F. 120 (Wyo. 1994). Supp. 1517, 1996 U.S. Dist. LEXIS 17115 (D. Executive department actions beyond Wyo. 1996).