However, a challenge to the amount of restitution determined at sentencing must be made then or within the time permitted by the rules after sentencing, or the amount is fixed as res judicata, not subject to attack at a probation revocation hearing. Badura v. State, 832 P.2d 1390, 1393 (Wyo. 1992). Any challenge by Daniels concerning the restitution amount was waived by agreeing to a plan of restitution containing a specific figure owed and monthly payments and by making the required payments under the plan.
Even if the county court judgment is void, the judgment is res judicata and a collateral attack here is impermissible. 1B J. Moore Moore's Federal Practice ยถ 0.405[4.-1] (2d ed. 1995); Badura v. State, 832 P.2d 1390, 1393 (Wyo. 1992). Mr. Merritt next argues that the criminal restitution ordered by the county court is dischargeable. Restitution ordered as part of a state court criminal judgment is generally not dischargeable under ยง 523(a)(7) which states that a debtor is not discharged from any debt "to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss[.
However, he failed to make any payments in any amount after June 7, 2004, despite his continued employment with the family's business until its closure and his employment with Clear Channel Communications. Mr. Ramsdell's failure to apply any of the funds available to him toward his restitution supports the district court's finding that he willfully failed to pay. See, e.g., Badura v. State, 832 P.2d 1390, 1393 (Wyo. 1992) (finding appellant's failure to pay anything toward restitution was willful and a legitimate reason for revoking probation). [ยถ 26] Relying on Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983), Mr. Ramsdell also claims that his due process rights were violated because the district court did not consider alternatives to imprisonment.
The trial court's discretion will be reviewed on the basis of that statutory law. Aldridge, 956 P.2d at 343 (citing Badura v. State, 832 P.2d 1390, 1391 (Wyo. 1992)). Wyo. Stat. Ann. ยง 7-9-105 (LexisNexis 2001) provides that a trial court must consider several factors when making a plan of restitution.
Wyo. Stat. ยงยง 7-9-101 through 7-9-115 (1997). Badura v. State, 832 P.2d 1390, 1391 (Wyo. 1992). Our review comes with the caveat that the amount of restitution ordered by a trial court must be challenged on appeal, lest it become fixed as res judicata.
It is here that Mapp was provided an opportunity to demonstrate that his termination from the CAC program was no fault of his own, and, therefore, his violation of a condition of his probation should not result in revocation. Dickson v. State, 903 P.2d 1019, 1023 (Wyo. 1995); Badura v. State, 832 P.2d 1390, 1392 (Wyo. 1992). Mapp erroneously contends that due process obligated the district court to conduct a balancing test prior to admitting hearsay evidence at this stage of the determination.
In Wyoming, once the State has established the failure of a probationer to pay restitution as ordered by the court, the probationer must establish any defense to revocation based on his alleged inability to pay. Badura v. State, 832 P.2d 1390 (Wyo. 1992). Dickson testified he was financially unable to make the restitution payments.
We have held that "[t]he defendant must challenge the amount of restitution determined at sentencing * * * or the amount is fixed as res judicata, not subject to attack at a probation revocation hearing." Badura v. State, 832 P.2d 1390, 1393 (Wyo. 1992) (citing Sanderson v. State, 649 P.2d 677, 679 (Wyo. 1982)). According to testimony at the 1992 probation revocation hearing, on March 10, 1987, the state and appellant's counsel signed an agreement stipulating the total amount of restitution to be paid at $135,000.