Birr v. State

I dissent. The majority rejects Birr’s petition for rehearing on the strength of DeSpain v. State, 865 P.2d 584 (Wyo.1993). In DeSpain, this court held:

DeSpain’s double jeopardy claim should have been asserted through a petition for post-conviction relief brought pursuant to Wyo.Stat. §§ 7-14-101 to -108, and invoking Wyo.R.Crim.P. 35(a) by a motion for correction of an illegal sentence was an inefficacious method of seeking relief.

DeSpain, 865 P.2d at 589 (emphasis added).

I would overrule DeSpain because it is based on non-binding authority and cites federal precedent as supportive of its…