Weedman v. State , 1990 Wyo. LEXIS 66 ( 1990 )

CARDINE, Chief Justice.

Appellant pled guilty to charges of burglary and first degree sexual assault. He was sentenced to twelve to thirty-five years for the sexual assault and three to eight years for the burglary, with the sentences to run concurrently. Appellant received credit against the minimum sentence for the 170 days of time served prior to sentencing on the sexual assault conviction. He now asks that we modify the sentence to give credit for time served against the maximum of both sentences and to give credit against the minimum burglary sentence.

This issue is controlled by our recent decision in Renfro v. State, 785 P.2d 491 (Wyo. 1990). In that case we retroactively eliminated the trial court’s discretion to deny credit for presentence confinement in all cases where the defendant is indigent. 785 P.2d at 498. A defendant is considered indigent for the purposes of applying Renfro if he is incarcerated due to inability to post bond on the offense which results in the sentence. 785 P.2d at 498 n. 8. The record reflects that appellant in this case was unable to post bond and was incarcerated upon the charges which resulted in the sentences at issue here. Accordingly, he was indigent as defined in Renfro and is automatically entitled to credit against both the minimum and maximum sentences. 785 P.2d at 498.

The Renfro decision does not directly address the precise question here presented, which is the application of credit when unequal concurrent sentences are imposed. The State argues that applying credit against the shorter burglary sentence would have no effect because appellant must serve the longer minimum sentence for the sexual assault in any event. While in the majority of cases this would be correct, it is possible that circumstances could arise where the longer sentence would not be served, such as commutation or pardon. To ensure that credit is consistently granted, we hold that credit should be granted against the minimum and maximum term of each concurrent sentence.

Remanded for entry of judgment consistent with this opinion.

THOMAS, J., dissenting.