Birr v. State

GOLDEN, Chief Justice. Appellant Charles Edward Birr petitioned for rehearing following publication of this court’s original opinion in Birr v. State, 878 P.2d 515 (Wyo.1994). Because Birr contended this court had erred in relying upon Despain v. State, 865 P.2d 584 (Wyo.1993), the court granted the rehearing petition and heard oral argument. A petition for rehearing is limited in scope to errors allegedly committed by this court in its initial determination of the issues raised in a previous appeal. We hold Birr has not sustained his burden of identifying an error committed by the court in relying upon Despain v. State and dismiss the petition. Appellant’s rehearing petition presented these issues: I. Whether the Court erred in relying upon Despain v. State, 865 P.2d 584 (Wyo.1993) and in misstating its holding? II.Whether the Court failed to dispose of the case on the merits in a case properly before it and in disregard of traditional notions of judicial economy? III.Whether the Court’s opinion failed to take into consideration the potential impact of its decision on the law of post conviction relief and habeas corpus? In Despain v. State, this court unanimously determined that double jeopardy claims were not cognizable and could not be entertained upon a motion to correct an illegal sentence, pursuant to Wyo.R.CRIM.P. 35. Despain, 865 P.2d at 586. In Birr, this court relied on Despain and ruled that Birr’s iden [44] tical Rule 85 motion based on a double jeopardy claim was properly denied. Birr, 878 P.2d at 516. Birr’s present claim of error can be briefly summarized as contending that the federal courts permit a double jeopardy claim under either the federal rule or in an action for post-conviction relief. This practice, however, is not legally required of this court while the rule of Despain does preclude this court from considering double jeopardy challenges upon a Rule 35 motion to correct an illegal sentence. Dismissed.