7-12-303. New trial; motion for post-conviction testing of
DNA; motion contents; sufficiency of allegations, consent to DNA sample; definitions.
(a) As used in this act:
(i) "DNA" means deoxyribonucleic acid;
(ii) "Movant" means the person filing a motion under subsection (c) of this section;
(iii) "This act" means W.S. 7-12-302 through 7-12-315.
(b) Notwithstanding any law or rule of procedure that bars a motion for a new trial as untimely, a convicted person may use the results of a DNA test ordered pursuant to this act as the grounds for filing a motion for a new trial.
(c) A person convicted of a felony offense may, preliminary to the filing of a motion for a new trial, file a motion for post-conviction DNA testing in the district court that entered the judgment of conviction against him if the movant asserts under oath and the motion includes a good faith, particularized factual basis containing the following information:
(i) Why DNA evidence is material to:
(A) The identity of the perpetrator of, or accomplice to, the crime;
(B) A sentence enhancement; or
(C) An aggravating factor alleged in a capital case.
(ii) That evidence is still in existence and is in a condition that allows DNA testing to be conducted;
(iii) That the chain of custody is sufficient to establish that the evidence has not been substituted, contaminated or altered in any material aspect that would prevent reliable DNA testing;
(iv) That the specific evidence to be tested can be identified;
(v) That the type of DNA testing to be conducted is specified;
(vi) That the DNA testing employs a scientific method sufficiently reliable and relevant to be admissible under the Wyoming Rules of Evidence;
(vii) That a theory of defense can be presented, not inconsistent with theories previously asserted at trial, that the requested DNA testing would support;
(viii) That the evidence was not previously subjected to DNA testing, or if the evidence was previously tested one (1) of the following would apply:
(A) The result of the testing was inconclusive;
(B) The evidence was not subjected to the testing that is now requested, and the new testing may resolve an issue not resolved by the prior testing; or
(C) The requested DNA test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice.
(ix) That the evidence that is the subject of the request for testing has the potential to produce new, noncumulative evidence that will establish the movant's actual innocence.
(d) The court may not order DNA testing in cases in which the trial or a plea of guilty or nolo contendere occurred after July 1, 2008 and the person did not request DNA testing or present DNA evidence for strategic or tactical reasons or as a result of a lack of due diligence, unless the failure to exercise due diligence is found to be a result of ineffective assistance of counsel. A person convicted on or before July 1, 2008 shall not be required to make a showing of due diligence under this subsection.
7-12-304. Service of process; response by the state; preservation of evidence.
(a) Notice of the motion filed under W.S. 7-12-303(c) shall be served upon the district attorney in the county in which the conviction occurred and, if applicable, the governmental agency or laboratory holding the evidence sought to be tested.
(b) The district attorney who is served shall within sixty (60) days after receipt of service of a copy of the motion, or within any additional period of time the court allows, answer or otherwise respond to the motion requesting DNA testing.
(c) The district attorney who is served may support the motion requesting DNA testing or oppose the motion with a statement of reasons and may recommend to the court, if any DNA testing is ordered, that a particular type of testing should be conducted, or object to the proposed testing laboratory, or make such other objections, recommendations or requests as will preserve the integrity of the evidence, including, but not limited to, requests for independent testing by the state or procedures in the event that the proposed testing will deplete the DNA sample.
(d) If a motion is filed pursuant to W.S. 7-12-303(c), and the motion asserts the evidence is in the custody of the state or its agents, the court shall order the state to preserve during the pendency of the proceeding all material and relevant evidence in the state's possession or control that could be subjected to DNA testing and analysis. The state shall prepare an inventory of the evidence and shall submit a copy of the inventory to the movant and to the court. If the state determines that the evidence is no longer available, the state shall notify the court and the movant of the loss or destruction of the evidence and explain its loss or destruction. The state shall provide copies of chain of custody documentation or other documents explaining the loss or destruction of the evidence. After a motion is filed under W.S. 7-12-303(c), prosecutors in the case, law enforcement officers and crime laboratory personnel shall cooperate in preserving material and relevant evidence and in determining the sufficiency of the chain of custody of the evidence which may be subject to DNA testing.
7-12-305. Review by the court; hearing on motion, findings; order.
(a) If the court determines that a motion is filed in compliance with the requirements of W.S. 7-12-303(c) and the state has had opportunity to respond to the motion, the court shall set a hearing for not more than ninety (90) days after the date the motion was filed. If the court finds that the motion does not comply with the requirements of W.S. 7-12-303(c), the court may deny the motion without hearing.
(b) The hearing under subsection (a) of this section shall be heard by the judge who conducted the trial that resulted in the movant's conviction unless the judge is unavailable.
(c) The movant and the state may present evidence by sworn and notarized affidavits or by testimony; provided, however, any affidavit shall be served on the opposing party at least fifteen (15) days prior to the hearing.
(d) The movant shall be required to present a prima facie case showing that the evidence supports findings consistent with the facts asserted under W.S. 7-12-303(c) and DNA testing of the specified evidence would, assuming exculpatory results, establish:
(i) The actual innocence of the movant of the offense for which the movant was convicted; or
(ii) In a capital case:
(A) The movant's actual innocence of the charged or uncharged conduct constituting an aggravating circumstance; or
(B) A mitigating circumstance as a result of the DNA testing.
(e) If the court finds that the movant has presented a prima facie case showing that the evidence supports findings consistent with W.S. 7-12-303(c) and the evidence would establish actual innocence, the court may order testing, subject to W.S. 7-12-306.
(a) If the court orders DNA testing pursuant to W.S. 7-12-305(e), the DNA test shall be performed by the Wyoming state crime laboratory unless the movant establishes that the state crime laboratory has a conflict of interest or does not have the capability to perform the necessary testing.
(b) If the court orders that the DNA testing under W.S. 7-12-305(e) shall be conducted by a laboratory other than the state crime laboratory, the court shall require that the testing be performed:
(i) Under reasonable conditions designed to protect the state's interests in the integrity of the evidence;
(ii) By a laboratory that:
(A) Meets standards that at minimum comply with the standards of the DNA advisory board established pursuant to 42 U.S.C. 14131; and
(B) Is accredited by the American society of crime laboratory directors accreditation board.
(a) If the DNA evidence being tested under this act has been previously subjected to DNA analysis by either the state or defense prior to the hearing conducted under W.S. 7-12-305, the court may order the state or defense to provide each party and the court with access to the laboratory reports prepared in connection with the DNA analysis, as well as the underlying data and laboratory notes. If DNA or other analysis was previously conducted by either the state or defense without the knowledge of the other party, all information relating to the testing shall be disclosed by the motion filed under W.S. 7-12-303(c) or any response thereto.
(b) The results of any DNA testing ordered under W.S. 7-12-305(e) shall be fully disclosed to the movant, the district attorney, the attorney general and the court. If requested by any party, the court shall order production of the underlying laboratory data and notes or chain of custody documents.
A convicted person is entitled to counsel during a proceeding under this act. Upon request of the person, the court shall appoint counsel for the convicted person if the court determines that the person is needy and the person wishes to submit a motion under W.S. 7-12-303(c). Counsel shall be appointed as provided in W.S. 7-6-104(c)(vii).
(a) The person filing a motion under W.S. 7-12-303(c) shall bear the cost of the DNA testing unless:
(i) The person is serving a sentence of imprisonment;
(ii) The person is needy; and
(iii) The DNA test supports the person's motion.
(b) In the case of a person meeting the criteria specified in paragraphs (a)(i) through (iii) of this section, the costs of testing shall be paid by the state.
(a) If the results of the DNA analysis are inconclusive or show that the movant is the source of the evidence, the court shall deny any motion for a new trial based upon the DNA evidence and shall provide the results to the board of parole.
(b) If the results of the DNA analysis are consistent with assertions contained in the movant's motion, the court shall set the matter for hearing on the motion for a new trial.
(c) Upon the stipulation of both parties or a motion for dismissal of the original charges against the movant by the state in lieu of a retrial, the court shall:
(i) Vacate the movant's conviction consistent with the evidence demonstrating the movant's actual innocence;
(ii) Issue an order of actual innocence and exoneration; and
(iii) Issue an order of expungement.
(d) In the event a retrial is pursued and conducted and the movant is acquitted at the retrial, the court shall:
(i) Issue an order of actual innocence and exoneration; and
(ii) Issue an order of expungement.
Following any motion filed under this act, the district attorney shall provide notice to the victim that the motion has been filed, the time and place for any hearing that may be held as a result of the motion, and the disposition of the motion. For purposes of this section, "victim" means as defined in W.S. 1-40-202(a)(ii).
7-12-312. Rights not waived; refiling of uncharged offenses.
(a) Notwithstanding any other provision of law, the right to file a motion under W.S. 7-12-303(c) shall not be waived. The prohibition against waiver of the right provided under this section applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendere.
(b) If a movant is granted a new trial under this act, any offense that was dismissed or not charged pursuant to a plea agreement that resulted in the conviction that has been set aside as a result of this act may be refiled by the state.
(a) An order granting or denying a motion for DNA testing filed under W.S. 7-12-303(c) shall not be appealable, but may be subject to review only under a writ of review filed by the movant, the district attorney or the attorney general. The petition for a writ of review may be filed no later than twenty (20) days after the court's order granting or denying the motion for DNA testing.
(b) Any party to the action may appeal to the Wyoming supreme court any order granting or denying a motion for a new trial under W.S. 7-12-310(b).
The court shall not be required to entertain a second or subsequent motion under W.S. 7-12-303(c) on behalf of the same movant, except where there is clear and compelling evidence that the evidence sought to be tested was wrongfully withheld from the movant by the state or its agents.
Nothing in this act shall be interpreted to prohibit a convicted person and the state from consenting to and conducting post-conviction DNA testing without filing a motion under W.S. 7-12-303(c). Notwithstanding any other provision of law governing post-conviction relief, if DNA test results are obtained under testing conducted upon consent of the parties and the results are favorable to the convicted person, the convicted person may file, and the court shall adjudicate, a motion for a new trial based on the DNA test results.
(a) As used in this act:
(i) "Bona fide issue of factual innocence" means that the newly discovered evidence presented by the petitioner, if credible, would clearly establish the petitioner's factual innocence;
(ii) "Factual innocence" or "factually innocent" means a person:
(A) Did not engage in the conduct for which he was convicted;
(B) Did not engage in conduct constituting a lesser included or inchoate offense of the crime for which he was convicted; and
(C) Did not commit any other crime arising out of or reasonably connected to the facts supporting the indictment or information upon which he was convicted.
(iii) "Forensic science" is the application of scientific or technical practices to the recognition, collection, analysis and interpretation of evidence for criminal and civil law or regulatory issues;
(iv) "Newly discovered evidence" means evidence that was not available to the petitioner at trial or during the resolution by the trial court of any motion to withdraw a guilty plea or motion for new trial and which is relevant to the determination of the issue of factual innocence, including:
(A) Evidence that was discovered prior to or in the course of any appeal or post-conviction proceedings that served in whole or in part as the basis to vacate or reverse the petitioner's conviction;
(B) Evidence that supports the claims within a petition for post-conviction relief under W.S. 7-14-101 through 7-14-108 that is pending at the time of the court's determination of factual innocence under this act; or
(C) Relevant forensic scientific evidence that was not available at the time of trial or during the resolution by the trial court of any motion to withdraw a guilty plea or motion for new trial, or that undermines forensic evidence presented at trial. Forensic scientific evidence is to be considered as "undermined" if new research or information exists that repudiates:
(I) The foundational validity of the challenged evidence or testimony. "Foundational validity" means the reliability of the method to be repeatable, reproducible and accurate in a scientific setting; or
(II) The applied validity of the method or technique. "Applied validity" means the reliability of the method or technique in practice.
(v) "This act" means W.S. 7-12-401 through 7-12-407.
7-12-403. Petition for exoneration based on factual innocence; conduct of proceedings.
(a) A person who has been convicted of a felony offense may petition the district court in the county in which the person was convicted for a hearing to establish that the person is factually innocent of the crime or crimes of which the person was convicted.
(b) The petition shall contain an assertion of factual innocence under oath by the petitioner and shall aver, with supporting affidavits or other credible documents, that:
(i) Newly discovered evidence exists that, if credible, establishes a bona fide issue of factual innocence;
(ii) The specific evidence identified by the petitioner establishes innocence and is material to the case and the determination of factual innocence;
(iii) The material evidence identified by the petitioner is not merely cumulative of evidence that was known, is not reliant solely upon recantation of testimony by a witness against the petitioner and is not merely impeachment evidence;
(iv) When viewed with all other evidence in the case, whether admitted during trial or not, the newly discovered evidence demonstrates that the petitioner is factually innocent; and
(v) Newly discovered evidence claimed in the petition is distinguishable from any claims made in prior petitions.
(c) The court shall review the petition in accordance with the procedures in W.S. 7-12-404, and make a finding whether the petition has satisfied the requirements of subsection (b) of this section. If the court finds the petition does not meet all the requirements of subsection (b) of this section, it shall dismiss the petition without prejudice and send notice of the dismissal to the petitioner, the district attorney, and the attorney general.
(d) The petition shall also contain an averment that:
(i) Neither the petitioner nor the petitioner's counsel knew of the evidence at the time of trial or sentencing or in time to include the evidence in any previously filed post-trial motion or post-conviction petition, and the evidence could not have been discovered by the petitioner or the petitioner's counsel through the exercise of reasonable diligence; or
(ii) A court has found ineffective assistance of counsel for failing to exercise reasonable diligence in uncovering the evidence.
(e) Upon entry of a finding that the petition is sufficient under subsection (b) of this section, the court shall then review the petition to determine if subsection (d) of this section has been satisfied. If the court finds that the requirements of subsection (d) of this section have not been satisfied, it may dismiss the petition without prejudice and give notice to the petitioner, the district attorney and the attorney general of the dismissal, or the court may waive the requirements of subsection (d) if the court finds the petition should proceed to hearing and that there is other evidence that could have been discovered through the exercise of reasonable diligence by the petitioner or the petitioner's counsel at trial, and the other evidence:
(i) Was not discovered by the petitioner or the petitioner's counsel;
(ii) Is material upon the issue of factual innocence; and
(iii) Has never been presented to a court.
(f) A person who has already obtained post-conviction relief that vacated or reversed the person's conviction or sentence may also file a petition under this act in the same manner and form as described above, if no retrial or appeal regarding this offense is pending.
(g) If some or all of the newly discovered evidence alleged in a petition filed under this act is biological evidence subject to DNA testing, the petitioner shall seek DNA testing pursuant to W.S. 7-19-401 through 7-19-406. Separate petitions may be filed simultaneously in the same court.
(h) Except as provided in this act, and unless otherwise inconsistent with the provisions of this act, the petition and all subsequent proceedings shall be governed by the Wyoming Rules of Civil Procedure and the Wyoming Rules of Evidence and shall include the underlying criminal case number.
(j) Once a petition is filed under this section, attorneys for the state, law enforcement officers and crime laboratory personnel shall preserve the evidence that is the subject of the petition and shall preserve information to determine the sufficiency of the chain of custody of the evidence.
7-12-404. Service of process; response by state; review by the court.
(a) A person filing a petition under this act shall serve notice and a copy of the petition upon the office of the district attorney where the conviction was obtained and upon the Wyoming attorney general.
(b) The assigned district judge shall conduct an initial review of the petition. If it is apparent to the court that the petitioner is merely relitigating facts, issues or evidence presented in previous proceedings or presenting issues that appear frivolous or speculative on their face, the court shall dismiss the petition, state the basis for the dismissal and serve notice of dismissal upon the petitioner, the district attorney and the attorney general. If, upon completion of the initial review, the court does not dismiss the petition, it shall order the district attorney to file a response to the petition.
(c) The district attorney shall, within one hundred twenty (120) days after receipt of the court's order requiring a response, or within any additional period of time the court allows, answer or otherwise respond to the petition and serve the same upon the petitioner and the attorney general.
(d) After the time for response by the district attorney has passed, the court shall order a hearing if it finds the petition meets the requirements of W.S. 7-12-403 and finds there is a bona fide and compelling issue of factual innocence regarding the charges of which the petitioner was convicted. No bona fide and compelling issue of factual innocence exists if the petitioner is merely relitigating facts, issues or evidence presented in a previous proceeding or if the petitioner is unable to identify with sufficient specificity the nature and reliability of the newly discovered evidence that establishes the petitioner's factual innocence.
(e) Within thirty (30) days after the date the district attorney responds to the petition, the petitioner may reply. Within thirty (30) days after the time for petitioner to reply has passed, the court shall consider the petition and any response and enter an order either denying the petition or granting a hearing on the petition. The court may not grant a hearing during the period in which criminal proceedings in the matter are pending before any trial or appellate court, unless stipulated to by the parties.
(f) If the court grants a hearing, both the hearing and the final order following the hearing shall occur and be entered within one hundred fifty (150) days after the last day for the petitioner to reply to the district attorney's response to the petition, unless for good cause the court determines additional time is required.
(g) If the court sets a hearing on the petition and evidence is in the custody of the state or its agents, upon request of the petitioner, the court shall order the state to preserve all material and relevant evidence in the state's possession or control during the pendency of the proceeding.
(h) Upon motion, the court may order forensic testing of any available evidence.
(j) If the court orders forensic testing under subsection
(h) of this section, the testing shall be performed by the Wyoming state crime laboratory unless the movant establishes that the state crime laboratory has a conflict of interest or does not have the capability to perform the necessary testing.
(k) If the court orders that forensic testing under subsection (h) of this section shall be conducted by a laboratory other than the Wyoming state crime laboratory, the court shall require that the testing be performed by a laboratory that is accredited by the American society of crime laboratory directors accreditation board, ANSI-ASQ national accreditation board or a successor accrediting body.
(m) The movant shall bear the cost of forensic testing ordered under subsection (h) of this section unless the court determines the movant is needy and the forensic testing supports the movant's petition for exoneration, in which case the court shall order the state to bear the cost of the forensic testing.
(n) If the parties stipulate the evidence establishes the petitioner is factually innocent, the court may find the petitioner is factually innocent without holding a hearing. If the state will not stipulate the evidence establishes the petitioner is factually innocent, no determination of factual innocence may be made by the court without first holding a hearing.
(o) Upon stipulation of the parties or the state's motion for dismissal of the original charges against the petitioner, the court shall vacate the petitioner's conviction, issue an order of factual innocence and exoneration and order expungement of the records of the original conviction.
(p) If, after a hearing, the court determines that the petitioner has proven his factual innocence by clear and convincing evidence, the court shall issue an order of factual innocence and exoneration and shall order expungement of the records of the original conviction.
The court may appoint counsel for a petitioner upon a determination that the petition is not subject to summary dismissal and the petitioner is needy. Counsel shall be appointed as provided in W.S. 7-6-104(c)(vii).
Following any petition filed under W.S. 7-12-403, the district attorney shall make reasonable efforts to provide notice to the victim that the petition has been filed, the time and place for any hearing that may be held as a result of the petition and the disposition of the petition. For purposes of this section, "victim" means as defined in W.S. 1-40-202(a)(ii).
7-13-101. Sentencing of minors to boys' school upon first conviction of felony; term; parole.
(a) Upon his first conviction of a felony, any male offender under the age of eighteen (18) years may be sentenced to imprisonment in the Wyoming boys' school.
(b) In imposing a sentence under this section the court shall not fix a definite or minimum term of confinement in the boys' school but shall fix a maximum term which shall not exceed the maximum term provided for the statute violated.
(c) The department of family services may at any time grant to a person sentenced under this section a parole from the boys' school even though the person has not served a fixed minimum sentence.
7-13-103. Notice of sentence; transportation to institution; maintenance of prisoner in county jail.
(a) If a person is sentenced to the custody of the department of corrections to serve a term of imprisonment in a state penal institution, the sheriff shall notify the department of corrections and the warden of the Wyoming medium correctional institution or the Wyoming women's center.
(b) Except as provided in subsection (c) of this section, the director of the department of corrections shall arrange for the transportation of the person to a state penal institution, at state expense, within ten (10) days after notification by the sheriff that the judgment and sentence has been signed by the judge. The court shall notify the sheriff immediately upon signing of the sentence by the judge. Except as provided in subsection (c) of this section, prior to being transported to the institution the prisoner shall be maintained in the county jail at the expense of the county.
(c) Upon agreement of the sheriff and the director of the department of corrections, the prisoner may be maintained at the county jail at an agreed per diem rate to be paid by the department for an additional period of not more than thirty (30) days after expiration of the ten (10) days provided by subsection (b) of this section. The department shall pay for any medical treatment of the prisoner, other than for conditions demanding immediate medical attention which can be treated at the county jail and other than medical treatment for which the county is liable under W.S. 18-6-303(c)(i), which is provided after the judgment and sentence is signed by the judge. Except for emergency medical treatment, no treatment which is the responsibility of the department under this subsection shall be provided without the prior approval of the department.
(d) The sheriff shall furnish the department of corrections and the warden of the Wyoming state penitentiary or the Wyoming women's center with a copy of the judgment and sentence imposed.
The department of corrections shall keep a complete record of the background and current status of all prisoners sentenced and confined in any state penal institution. The administrator of the institution where a prisoner is incarcerated, the division of criminal investigation, and the clerk of court and sheriff of the county from which the prisoner is committed shall, at the request of the department or the board of parole, furnish any information in their possession relating to the prisoner or the offense committed.
7-13-105. Certificate of restoration of rights; procedure
for restoration in general; procedure for restoration of voting rights for nonviolent felonies; filing requirements.
(a) Subject to subsections (h) and (j) of this section, upon receipt of a written application, the governor may issue to a person convicted of a felony a certificate which restores the rights lost pursuant to W.S. 6-10-106 when:
(i) His term of sentence expires; or
(ii) He satisfactorily completes a probation period.
(b) Subject to subsections (h) and (j) of this section, the department of corrections shall issue a certificate of restoration of voting rights as provided in this subsection and subsection (c) of this section. Upon issuance of a certificate, voting rights lost pursuant to W.S. 6-10-106 shall be deemed restored. The department of corrections shall automatically issue a person convicted of a nonviolent felony or nonviolent felonies arising out of the same occurrence or related course of events a certificate of restoration of voting rights if:
(i) The person has not been convicted of any other felony other than convictions arising out of the same occurrence or related course of events for which restoration of rights is certified; and
(ii) The person has completed all of his sentence, including probation or parole, and before conviction the person had the right to vote or would have had the right to vote upon attaining the age of eighteen (18) years.
(iii) Repealed by Laws 2017, ch. 189, § 2.
(c) The department of corrections shall issue a certificate of restoration of voting rights to eligible persons as follows:
(i) For persons convicted of a nonviolent felony or nonviolent felonies under the laws of the state of Wyoming arising out of the same occurrence or related course of events who completed their sentence before January 1, 2010, the department shall require receipt of a written request on a form prescribed by the department and issue each eligible person a certificate of restoration of voting rights following a determination that the person has completed his sentence, including probation and parole. The department shall not require an application for restoration before issuing a certificate to eligible persons who complete their sentence on and after January 1, 2010;
(ii) For persons convicted of a nonviolent felony or nonviolent felonies under the laws of another state arising out of the same occurrence or related course of events, the department shall issue each eligible person a certificate of restoration of voting rights upon receipt of a written request on a form prescribed by the department and following a determination that the person has completed his sentence, including probation and parole.
(d) The department of correction's determination that a person is ineligible for a certificate of restoration of rights under subsections (b), (c) or (f) of this section is a final action of the agency subject to judicial review. The clerk of the district court and the division of criminal investigation shall cooperate with the department of corrections in providing information necessary for determining a person's eligibility to receive a certificate of restoration of rights. The department of corrections shall notify the secretary of state when any person's voting rights have been restored. The department of corrections shall submit the certificate of restoration of voting rights to the clerk of the district court in which the person was convicted and the clerk shall file the certificate in the criminal case in which the conviction was entered.
(e) As used in this section:
(i) "Same occurrence or related course of events" means the same transaction or occurrence or a series of events closely related in time or location;
(ii) "Violent felony" means as defined by W.S. 6-1-104(a)(xii), including offenses committed in another state which if committed in this state would constitute a violent felony under W.S. 6-1-104(a)(xii). "Nonviolent felony" includes all felony offenses not otherwise defined as violent felonies.
(f) Subject to subsections (h) and (j) of this section, all other rights a person has lost pursuant to W.S. 6-10-106 shall be restored five (5) years after the person has completed their sentence, including applicable periods of probation or parole. A person shall only be eligible for restoration of their rights under this subsection if the person has not been convicted of any other felony other than convictions arising out of the same occurrence or related course of events for which restoration of rights is to be certified. The date on which all rights are restored under this subsection shall be noted on a certificate issued by the department which shall be the same certificate issued under subsections (b) and (c) of this section if the certificate is issued on or after July 1, 2023, or a separate certificate issued upon receipt of a written request on a form prescribed by the department for a person eligible for restoration of rights under this subsection prior to July 1, 2023. A conviction for a new felony upon the issuance of any certificate under this section shall render the certificate void in accordance with subsection (h) of this section.
(g) When a certificate of restoration of rights is issued pursuant to subsections (a) or (f) of this section, the department of corrections shall:
(i) Notify the federal bureau of alcohol, tobacco, firearms and explosives;
(ii) File a copy of the certificate with the secretary of state;
(iii) Notify the division of criminal investigation.
(h) Upon conviction of a new felony under the laws of the state of Wyoming, the laws of another state or federal law on or after the date a certificate of restoration of rights is issued under this section, the certificate shall automatically be void and all rights that were deemed restored by the certificate shall no longer be deemed restored.
(j) A person shall only be eligible for a certificate of restoration of rights under this section as follows:
(i) Under subsection (a) of this section if the person was convicted of a felony under the laws of the state of Wyoming or another state;
(ii) For purposes of the restoration of rights to possess a firearm, under subsection (f) of this section if the person was convicted of a nonviolent felony or nonviolent felonies arising out of the same occurrence or related course of events under the laws of the state of Wyoming;
(iii) Under subsections (b) and (c) of this section if the person was convicted of a nonviolent felony or nonviolent felonies arising out of the same occurrence or related course of events under the laws of the state of Wyoming or another state.
7-13-106. Transfer of citizen or national of foreign country.
The governor may act on behalf of the state to consent to the transfer of a citizen or national of a foreign country pursuant to a treaty between the United States and the foreign country of which the person is a citizen or national.
7-13-107. Split sentence of incarceration in county jail
followed by probation; civil liability of county officers and employees.
(a) Following a defendant's conviction of, or his plea of guilty to any felony, other than a felony punishable by death or life imprisonment, the court may impose any sentence of imprisonment authorized by law and except as provided in subsection (g) of this section, may in addition provide:
(i) That the defendant be confined in the county jail for a period of not more than one (1) year; and
(ii) That the execution of the remainder of the sentence be suspended and the defendant placed on probation.
(b) In placing the defendant on probation under subsection
(a) of this section, the court may also:
(i) Impose any fine provided by the statute violated;
(ii) Apply the provisions of W.S. 7-13-501 through 7-13-503.
(c) Except as provided in subsection (a) of this section, the court may impose a split sentence of incarceration followed by probation in any felony case including those in which the statute violated specifically provides for a sentence of imprisonment in the state penitentiary.
(d) The court may impose a split sentence as provided by this section at the time a defendant is originally sentenced or at any hearing at which the court modifies or revokes a defendant's probation and at which the defendant is personally present.
(e) The cost of housing convicted felons in the county jail shall be paid by the department of corrections by contract arrangement with the county sheriff. Costs shall include shelter, food, clothing, and necessary medical, dental and hospital care. Subject to legislative appropriation, the department of corrections may contract with county sheriffs to house felons sentenced under this section in county jail.
(f) If any civil action is brought against any sheriff, his under sheriff, deputy, agent or employee, by reason of acts committed or allegedly committed in the performance of necessary duties in connection with the housing and care of the convicted felons, the state shall indemnify and hold harmless the officers, agents or employees from all civil liability incurred or adjudged except punitive damage awards. Upon request, the state shall provide legal counsel at state expense to assist in the defense of any action referred to in this subsection.
(g) No person convicted of a felony may be sentenced to the county jail under this section unless:
(i) The judge, after consultation with the sheriff, determines that adequate facilities are available and that the jail is not overcrowded; and
(ii) Funding exists to pay the cost of placement, in that:
(A) The legislature has specifically appropriated funds to pay for such placements and unencumbered appropriated funds are available for the proposed placement; or
(B) The county agrees to pay the costs of placement if sufficient funds are not available from state appropriations.
(h) A defendant sentenced under this section is not eligible for parole and is not subject to good time allowances authorized under W.S. 7-13-420. The sentencing court shall continue to have jurisdiction over the defendant during the entire time he is confined in county jail and thereafter while the defendant is serving his term of probation.
(j) If consecutive terms of confinement in the county jail are ordered pursuant to this section they shall not exceed a period of one (1) year.
7-13-108. Sentence to custody of department of corrections.
(a) Unless otherwise specifically provided by statute, any person convicted of a felony and sentenced to a term of imprisonment shall be sentenced to the custody and control of the department of corrections to be incarcerated in a state penal institution or other facility under contract or agreement with the department pursuant to W.S. 25-1-105(e), as directed by the department.
(b) Any contract entered into under W.S. 25-1-105(e) shall be approved as to form and content by the Wyoming attorney general.
(a) In addition to any other punishment prescribed by law, the sentencing court may require a person sentenced to confinement in county jail, for any offense, to pay the jail facility the costs of room and board for each day of incarceration, both before and after conviction. The costs for room and board for each day of incarceration shall be an amount equal to the actual cost of the services as determined by the county sheriff. The cost of the services shall be paid to all jail facilities where the inmate may have been held before and after conviction. The costs shall not be assessed if:
(i) The court finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay; or
(ii) In the judgment of the court, the costs would impose a manifest hardship on the inmate, or the property of the inmate is needed for the maintenance and support of the inmate's family.
(b) An order to pay room and board costs under this section shall be included as a special order in the judgment of conviction. To satisfy the order, the clerk of the sentencing court, upon request of the sheriff or prosecuting attorney, may issue execution against any assets of the defendant including wages subject to attachment, in the same manner as in a civil action.
(c) Willful failure or refusal to pay costs ordered under this section is punishable as contempt of court.
(d) Any costs paid by a person under this section shall be deposited in the county general fund to help defray the costs the jail facility incurred in providing room and board to the person.
Except where a term of life is required by law, or as otherwise provided by W.S. 7-13-101, when a person is sentenced for the commission of a felony, the court imposing the sentence shall not fix a definite term of imprisonment but shall establish a maximum and minimum term within the limits authorized for the statute violated. The maximum term shall not be greater than the maximum provided by law for the statute violated, and the minimum term shall not be less than the minimum provided by law for the statute violated, nor greater than ninety percent (90%) of the maximum term imposed.
7-13-301. Placing person found guilty, but not convicted, on probation.
(a) If a person who has not previously been convicted of any felony is charged with or is found guilty of or pleads guilty or no contest to any misdemeanor except any second or subsequent violation of W.S. 31-5-233 or any similar provision of law, or any second or subsequent violation of W.S. 6-2-510(a) or 6-2-511(a) or any similar provision of law, or any felony except murder, sexual assault in the first or second degree, grooming of a minor for a sexual offense, aggravated assault and battery or arson in the first or second degree, the court may, with the consent of the defendant and the state and without entering a judgment of guilt or conviction, defer further proceedings and place the person on probation for a term not to exceed thirty-six (36) months upon terms and conditions set by the court. The terms of probation shall include that he:
(i) Report to the court not less than twice in each year at times and places fixed in the order;
(ii) Conduct himself in a law-abiding manner;
(iii) Not leave the state without the consent of the court;
(iv) Conform his conduct to any other terms of probation the court finds proper; and
(v) Pay restitution to each victim in accordance with W.S. 7-9-101 and 7-9-103 through 7-9-115.
(b) If the court finds the person has fulfilled the terms of probation and that his rehabilitation has been attained to the satisfaction of the court, the court may at the end of thirty-six (36) months, or at any time after the expiration of one (1) year from the date of the original probation, discharge the person and dismiss the proceedings against him.
(c) If the defendant violates a term or condition of probation at any time before final discharge, the court may:
(i) Enter an adjudication of guilt and conviction and proceed to impose sentence upon the defendant if he previously pled guilty to or was found guilty of the original charge for which probation was granted under this section; or
(ii) Order that the trial of the original charge proceed if the defendant has not previously pled or been found guilty.
(d) Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for any purpose.
(e) There shall be only one (1) discharge and dismissal under this section or under any similar section of the probationary statutes of any other jurisdiction.
(f) This section shall not apply to any person holding any class of commercial driver's license pursuant to W.S. 31-7-304(a)(i), nor to the driver of any commercial motor vehicle as defined by W.S. 31-7-102(a)(viii), who is charged with any offense specified in W.S. 31-7-305.
suspension of imposition or execution of sentence; imposition of fine; maximum length of probation term.
(a) After conviction, plea of no contest or plea of guilty for any offense, except crimes punishable by death or life imprisonment, and following entry of the judgment of conviction, the court may:
(i) Suspend the imposition or execution of sentence and place the defendant on supervised or unsupervised probation; or
(ii) Impose a fine applicable to the offense and place the defendant on supervised or unsupervised probation.
(b) Unless otherwise authorized by law, no term of probation imposed shall exceed the maximum term of imprisonment allowed by law. Any term of probation imposed under this section for a felony offense shall in no case exceed thirty-six (36) months, except that the judge may impose a term of probation that is not greater than the maximum term of imprisonment authorized by law for the offense for good cause shown upon the record and after considering public safety, rehabilitation, deterrence and any other goals of sentencing.
7-13-303. Investigation preceding probation or suspension of sentence.
(a) When directed by the court, the district attorney, a probation and parole agent as defined in W.S. 7-13-401 or, in the case of a minor, a counselor as defined by W.S. 5-3-501(a)(ii) or the department of family services shall investigate and report to the court in writing:
(i) The circumstances of the offense;
(ii) The criminal record, social history and present conditions of the defendant;
(iii) If practicable, the findings of a physical and mental examination of the defendant;
(iv) If practicable, statements from the victim;
(v) A summary of the impact of the offense on the victim;
(vi) The results of a validated risk and need assessment.
(b) Unless the court directs otherwise, no defendant charged with a felony or misdemeanor shall be placed on probation, placed in an intensive supervision program established under W.S. 7-13-1102 or released under suspension of sentence until the report of the investigation under this section is presented to and considered by the court. If the defendant is sentenced to the custody of the department of corrections to serve a term of incarceration in a state penal institution, a copy of the report of the investigation if completed shall be sent to the department of corrections at the time of sentencing. The clerk of court shall forward copies of the report, if completed, to the department of corrections, together with copies of all orders entered by the court.
(c) The court may, in its discretion, dispense with the investigation and preparation of a report required by this section or may limit the scope of the investigation and report to circumstances and conditions the court deems relevant to its sentencing determination.
7-13-304. Imposition or modification of conditions; performance of work by defendant.
(a) The court may impose, and at any time modify, any condition of probation or suspension of sentence. The court may not impose new custodial restrictions on liberty unless in response to a compliance violation, a new violation of law or absconding from supervision and only after providing notice and a hearing if required under W.S. 7-13-1803.
(b) As a condition of any probation, the court, subject to W.S. 7-16-101 through 7-16-104, may order the defendant to perform work for a period not exceeding the maximum probation period.
(c) As a condition of probation or suspension of sentence, the court may require a defendant who is a minor to successfully complete a juvenile service program offered under the Community Juvenile Services Act.
(d) As a condition of probation or suspension of sentence, the court may require a defendant to complete successfully a court supervised treatment program qualified under W.S. 5-12-101 through 5-12-118, a 24/7 sobriety program under W.S. 7-13-1701 through 7-13-1710, or both.
(e) As a condition of probation or suspension of sentence for a person convicted of an offense under W.S. 6-4-304, the court may require a defendant to complete successfully a sex offender treatment program.
7-13-305. Determination, continuance or extension; revocation proceedings.
(a) The period of probation or suspension of sentence under W.S. 7-13-302 shall be determined by the court and may be reduced, continued or extended. Any term of probation including any continuations or extensions shall not exceed the maximum term of probation authorized under W.S. 7 13 302(b), except that the judge may impose a term of probation that is not greater than the maximum term of imprisonment authorized by law for the offense for good cause shown upon the record and after considering public safety, rehabilitation, deterrence and any other goals of sentencing. In determining the period of probation or a modification of an existing probation, the court may consider, but is not limited to the following factors:
(i) Whether the defendant has stable employment;
(ii) Whether the defendant has positive community support;
(iii) Whether the defendant has positive familial support;
(iv) Whether the defendant has reasonably attended to spousal or parental responsibilities and whether the terms of probation assist or hinder the defendant in discharging those responsibilities;
(v) Whether the defendant has made progress in affirmatively addressing any alcohol or substance abuse issues. For the purposes of this paragraph, relapse alone does not prevent the court from determining the defendant has made progress in addressing his alcohol or substance use issues;
(vi) The nature and seriousness of the underlying crime;
(vii) The risk posed by the defendant to the community;
(viii) The risk of reoffense as determined by a validated risk assessment tool utilized by the department of corrections.
(b) Upon the satisfactory fulfillment of the conditions of suspension of sentence or probation under W.S. 7-13-302 the court shall enter an order discharging the defendant.
(c) For a violation of a condition of probation occurring during the probationary period, revocation proceedings may be commenced at any time during the period of suspension of sentence or probation under W.S. 7-13-302, or within thirty (30) days thereafter, in which case the court may issue a warrant and cause the defendant to be arrested. If after hearing the court determines that the defendant violated any of the terms of probation or suspension of sentence, the court may proceed to deal with the case as if no suspension of sentence or probation had been ordered.
(d) The time for commencing revocation proceedings shall be automatically extended for any period of time in which the probationer is incarcerated outside this state during the probationary period for the conviction of an offense which is a violation of the conditions of probation, unless the probationer has made a valid request for final disposition under the interstate agreement on detainers, W.S. 7-15-101 through 7-15-105.
When imposing a fine and also placing the defendant on probation, the district judge may permit the fine to be paid in installments over a reasonable period of time.
Nothing in W.S. 7-13-301 through 7-13-306 shall be construed to authorize the court to expunge the record of a person charged with or convicted of a criminal offense.
7-13-401. Definitions; creation of board; officers; compensation; hearing panels; meetings.
(a) As used in W.S. 7-13-401 through 7-13-424:
(i) "Board" means the state board of parole;
(ii) "Conditional release" means any form of release by an institution or by a court, other than parole or probation, which is subject to conditions imposed by the institution or court, but excludes release on bail;
(iii) "Conditional releasee" means an individual granted conditional release by an institution or court;
(iv) "Department" means the department of corrections;
(v) "Director" means the director of the department of corrections;
(vi) "Institution" includes the Wyoming state penitentiary, state penitentiary farms and camps, Wyoming women's center, Wyoming state hospital and any other state penal institution including a correctional facility operated by a private entity pursuant to W.S. 7-22-102;
(vii) "Parole" means permission to leave the confines of the institution in which a person is confined under specified conditions, but does not operate as a discharge of the person;
(viii) "Parolee" means a prisoner or an inmate of an institution who has been granted parole;
(ix) "Peace officer" means as defined by W.S. 7-2-101;
(x) "Probation" means a sentence not involving confinement which imposes conditions and retains authority in the sentencing court to modify the conditions of the sentence or to resentence the offender if he violates the conditions;
(xi) "Probationer" means a defendant granted probation by the sentencing court;
(xii) "Executive director" means the executive director of the board;
(xiii) "Field services administrator" means the administrator for the department of corrections division of field services;
(xiv) "Probation and parole agent" means an employee of the department of corrections, division of field services, who supervises a parolee or probationer;
(xv) "Compliance violation" means a violation of a condition of probation, parole or conditional release but shall not include:
(A) An arrest for a new misdemeanor or felony offense; or
(B) Absconding from supervision, which includes the defendant, probationer or parolee deliberately making his whereabouts unknown to his probation and parole agent, the department or court or failing to report for the purpose of avoiding supervision, where reasonable efforts by the probation and parole agent to locate the defendant, probationer or parolee have been unsuccessful.
(b) There is created the state board of parole which consists of seven (7) members appointed by the governor with the advice and consent of the senate, in accordance with W.S. 28-12-101 through 28-12-103. Not more than seventy-five percent (75%) of the members shall be of the same political party. Members of the board shall be appointed for six (6) year terms. The governor may remove any board member as provided in W.S. 9-1-202.
(c) Annually at the first meeting of the board, the members shall elect from their number a chairman and vice-chairman. Any vacancy caused by death, resignation or disqualification of a member of the board shall be filled by the governor for the remainder of the unexpired term of the member. Any vacancy occurring between sessions of the legislature may be filled by the governor in accordance with W.S. 28-12-101(b).
(d) When engaged in the performance of their duties, members of the board shall receive salary in the amount paid to members of the Wyoming legislature and travel expenses and per diem in the same manner and amount as employees of the state.
(e) The board shall meet at least quarterly to conduct the business specified in subsection (f) of this section. Except as otherwise provided by subsection (f) of this section, four (4) members constitute a quorum. All matters shall be decided by a majority vote of those in attendance. The board may meet as often as necessary for the administration and conduct of its other business.
(f) Three (3) or more members of the board may constitute a hearing panel empowered to review applications for parole, grant paroles or revoke paroles. Fewer than three (3) members of the board, as may be provided by rule of the board, may withdraw or revoke good time, restore or reinstate good time, make recommendations to the governor to grant commutations of sentences and review inmate matters, other than the grant or denial of parole, brought before the board. A decision by a majority of the members of a panel under this subsection is the decision of the board.
(g) The board may employ an executive director who shall serve at the pleasure of the board as provided by appropriation of the legislature. The executive director and other staff members shall perform duties as may be assigned by the board.
7-13-402. General powers and duties of board; eligibility for parole; immunity.
(a) The board may grant a parole to any person imprisoned in any institution under sentence, except a sentence of life imprisonment without parole or a life sentence, ordered by any district court of this state, provided the person has served the minimum term pronounced by the trial court less good time, if any, granted under rules promulgated pursuant to W.S. 7-13-420. The board may also grant parole to a person serving a sentence for an offense committed before the person reached the age of eighteen (18) years of age as provided in W.S. 6-10-301(c).
(b) A prisoner is not eligible for parole on a sentence if, while serving that sentence, he has:
(i) Made an assault with a deadly weapon upon any officer, employee or inmate of any institution; or
(ii) Escaped, attempted to escape or assisted others to escape from any institution.
(c) In granting a parole the board shall fix terms and conditions it deems proper to govern the conduct of the parolee while the parole is in effect. The terms and conditions may be special in each case or they may be prescribed by general rules and regulations of the board, or both.
(d) No person granted a parole shall be released from an institution until he has signed an agreement that he will comply with the terms and conditions under which he has been released and abide by the laws of the state. In addition, no person shall be granted a parole until the board makes a reasonable effort to notify victims who have registered to receive notification pursuant to W.S. 1-40-204(d) of the hearing and provides a reasonable opportunity for the victims to provide written comments to the board relative to the parole.
(e) The board may adopt reasonable rules and regulations necessary to carry out the functions assigned to the board by W.S. 7-13-401 through 7-13-424 including rules relating to:
(i) The conduct of proceedings, meetings, hearings and interviews;
(ii) The general conditions under which parole may be granted and revoked;
(iii) Parole applications and procedures, including the selection of hearing panels as provided by W.S. 7-13-401(f);
(iv) Repealed by Laws 1992, ch. 25, § 4.
(v) Procedures to allow victims opportunity to comment on parole applications; and
(vi) Notification to victims of the pending release of prisoners.
(f) The promulgation of substantive rules by the board, the conduct of its hearings and its final decisions are specifically exempt from all provisions of the Wyoming Administrative Procedure Act including the provisions for judicial review under W.S. 16-3-114 and 16-3-115. The board's rules and regulations shall be filed in the office of the secretary of state.
(g) Notwithstanding the Wyoming Governmental Claims Act, the board and its members are immune from any liability, either as a board or individually, for any actions, inactions or omissions by the board or any member thereof, pursuant to W.S. 7-13-401 through 7-13-424.
(h) Repealed by Laws 2015, ch. 163, § 2.
(j) The board may order the arrest and return to the custody of the department of any parolee who has absconded from supervision, been charged with or convicted of a crime while on parole or committed an alleged violation of parole for which probable cause has been established through a hearing, or waiver thereof, pursuant to W.S. 7-13-408. The written order of the board shall be sufficient warrant for any peace officer to return a parolee to custody. All peace officers shall execute any order of the board issued under this subsection. A parolee taken into custody under the order of the board is not subject to release on bail.
7-13-403. Custody of parolee; return upon violation.
(a) A parolee is in the legal custody and under the control of the board and may be returned to the custody of the department for violation of a condition of his parole.
(b) Unless otherwise ordered by the board or when the parole violator is ordered to complete a sanction under W.S. 7-13-1801 through 7-13-1803, a parole violator shall be returned to the custody of the department to serve the remainder of the original sentence.
(c) The board shall consider imposing a sanction under W.S. 7-13-1801 through 7-13-1803 before ordering a parole violator to be returned to the custody of the department to serve the remainder of the original sentence.