Capellen v. State

¶1specially concurring, in which VOIGT, C.J., joins.

¶2[¶ 31] I agree with the majority’s determination that no error occurred at sentencing and that the original sentence should be affirmed. I write separately because I cannot ignore a serious procedural infirmity encompassed in this appeal.

¶3[¶ 32] The majority opinion states that, while this appeal was pending, the district court granted a motion by Capellen to reduce his original 8- to 12-year prison sentence. The existence of the district court’s sentence reduction order is problematic.2 This Court simply cannot disregard the order because, if it is allowed to stand, it supersedes the sentencing order before the Court on appeal. The end result would be that the appeal would be moot and should be dismissed. If, on the other hand, the district court lacked jurisdiction to reduce Capellen’s sentence, then its order is void and of no effect, and this Court can address the merits of this appeal.

¶4[¶ 33] Rule 6.01(b) of the Wyoming Rules of Appellate Procedure states that this Court “acquire[s] jurisdiction over the matters appealed when the case is docketed” and “the trial court retains jurisdiction over all matters and proceedings not the subject of the appeal.” This Court has construed this rule to mean that a district court retains jurisdiction to conduct proceedings and decide issues that would not affect the issues on appeal or the outcome of the appeal while the appeal is pending in this Court. Jacobs v. Jacobs, 895 P.2d 441, 444 (Wyo.1995); Moore v. Moore, 809 P.2d 255, 257-58 (Wyo.1991). The sole issue in this appeal concerns the validity of the 8- to 12-year sentence. Capellen’s sen-*1085tenee reduction motion involved a matter that is the subject of this appeal. According to W.R.A.P. 6.01(b), the district court did not have jurisdiction to decide that motion after Capellen’s appeal was docketed in this Court.3

¶5[¶ 34] Because I believe the district court lacked jurisdiction to grant Capellen’s motion for a sentence reduction, the sentence reduction order is void. This Court is, therefore, correct in considering the merits of this appeal. However, along with, affirming Capel-len’s original sentence, this Court should make clear that the sentence reduction order is void and Capellen’s original sentencing order of 8 to 12 years controls.