author: VOIGT, Justice.

text:
    2002 WY 52
    Ty Charles DAUGHERTY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Ty Charles Daugherty, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
    Nos. 01-13, 01-14.
    Supreme Court of Wyoming.
    April 10, 2002.

      G. Mark Garrison of Garrison & Bronnen-berg, P.C., Cody, WYO, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant - Attorney - General, - Cheyenne, WYO, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[11] Ty Charles Daugherty (appellant) was convicted of two burglaries. He was given a split sentence on the first burglary and sentencing was continued on the second burglary. After his probation was revoked, he was given a four-to-five year sentence on each crime, with the sentences to run concurrently. In these appeals, the appellant attacks the first sentence as violating the split sentencing statute and he attacks the second sentence as violating his right to speedy sentencing.

[12] We affirm the sentence for the first burglary, but vacate the sentence for the second burglary. We further hold that, in the future, district courts utilizing the split sentencing statute must first impose a minimum and maximum sentence as required by statute and court rule, and we overrule previous holdings to the contrary.

ISSUES

1. Whether the sentence imposed by the district court in Case No. [01-13] was illegal?
2. Whether the district court violated [the appellant's] constitutional right to speedy sentencing [in Case No. 01-14]?

FACTS

[13] On June 3, 1996, a felony information was filed charging the appellant with burglary. This case, to which we will refer as the "first burglary," is the basis of Case No. 01-13. On November 22, 1996, a felony information was filed charging the appellant with another burglary. This case, to which we will refer as the "second burglary," is the basis of Case No. Ol-14. On February 12, 1997, a combined hearing was held in the two cases, at which hearing the appellant entered guilty pleas to both burglaries. He was adjudicated guilty of both crimes and a presen-tence investigation was ordered.

[T4] A sentencing hearing was held on June 20, 1997. The district court heard the testimony of witnesses and the arguments of counsel. The presentence investigation report and its recommendations were reviewed. Sentencing options, including incarceration and probation, were discussed. At the end of the hearing, the district court indicated that it had not yet reached a decision and that the matter would be continued. The hearing was then continued until June 26, 1997.

[T5] At the continued hearing, the district court went to considerable length to detail its intentions as to sentencing on both burglaries and to explain to the appellant what those intentions were. Because the district court's intentions included delaying sentencing on the second burglary, the district court explained to the appellant his right to speedy sentencing:

THE COURT: Okay. Mr. Daugherty, the Court is proposing to defer a portion of the sentencing [on the second burglary]; specifically, the portion that would pertain to any prison sentence and fine in that case. You have a right, legally, to a speedy sentencing, and I cannot defer that portion of the sentence unless you are willing to give up that right.
So my question to you and [defense counsel] at this time is whether you are willing now, on the record in open court, and yet today to sign a written waiver of speedy sentencing. [Defense counsel]?
DEFENSE COUNSEL: Your Honor, I did speak with my client about that matter earlier, and I explained to him that he does have a right to proceed to sentencing immediately if he wishes to do so. However, after having that explained to him, it is his wish to waive a speedy sentencing, insofar as the term of incarceration and fine go, indefinitely until the Court resets the matter. And he will do that in writing.
THE COURT: And, Mr. Daugherty, do you concur with what [defense counsel] said?
MR. DAUGHERTY: Yes, sir.
THE COURT: Okay. Then you may remain standing. And I am going to go ahead and impose the [judgment] and sentence of the Court, except for that portion which is being deferred.
First let me say for the record that the Court has given full and extensive consideration to the sentence being proposed in this case. The Court has considered and rejected the possibility of a straight probation order at this time and-well, for many reasons has rejected that possibility.
The Court will, at this time, [on the first burglary] ... impose a split sentence pursuant to the Wyoming statute authorizing split sentencing.
And it is specifically the intention of the Court to use a probationary split sentence, as has been recognized by the Wyoming Supreme Court in recent case law. Accordingly, the Court is requiring that you serve one year in the Park County Jail with credit for time served which is a total of 218 days.
And upon the completion of your term of one year in the Park County Jail, you will then be on probation for a period of five years. There will be a number of conditions with respect to that probation, and I will give those to you in a moment.
woot ok
And I will find that the total amount of your joint and several liability for restitution is $11,559.33. The Court will further order that you are to pay the sum of $1,000 to the Wyoming Crime Victims' Compensation Fund. That amount may be paid in monthly payments when you're released to be on probation, at the rate of $50 per month, beginning with the second full month after your release.
took ock
The Court will not impose a fine [for the first burglary], but certainly reserves the authority to do that [for the second burgla-ryl.

[T6] The district court's intention as to sentencing was further clarified in the written Sentence & Probation Order:

THE COURT HEREBY defers sentencing [for the second burglary] with respect only to any potential fine and period of incarceration, as the Defendant agreed on the record to waive any rights he may have with regard to a speedy disposition in [that casel.
IT IS FURTHER ORDERED that in Case [No. 01-13] and Case [No. 01-14], the Defendant shall pay a surcharge to the Crime Victims Compensation Fund in the total amount of $1,000.00.
IT IS FURTHER ORDERED that [for the first burglary] the Defendant shall be incarcerated in the Park County Detention Center for a period of one (1) year, pursuant to the probationary split sentence statute under Wyoming Statute § 7-13-107(c), with credit for 218 days served. The Defendant shall be granted a furlough to Youth Services International, Inc. at the Defendant's expense upon the following furlough conditions:
seo ok
IT IS FURTHER ORDERED that upon the Defendant's successful completion of the one year program at the Youth Services International, Inc. treatment program [for the first burglary] the Defendant shall, at that time be placed on five (5) years supervised probation under the direction of the Wyoming Department of Corrections, Probation and Parole, upon the following terms and conditions with which the Defendant shall comply(.]

[17] After the sentencing hearing, the appellant was returned to the Park County Jail to continue serving his one-year sentence while awaiting transportation to the Youth Services International facility in Tarkio, Missouri (YST). His sentence was modified on August 21, 1997, to allow his parents to transport him to that facility. The appellant successfully completed the YSI program and his sentence was modified again on August 6, 1998, this time to allow him to be released from that facility upon graduation, even though he had been there a few weeks short of a full year. His release was conditioned upon the probationary terms and conditions contained in the earlier Sentence & Probation Order.

[18] The next significant document in the record is the State's Petition to Revoke Probation, filed September 1, 2000. The appellant was arrested pursuant to a bench warrant and brought back before the district court. He denied the allegations of the petition. His attorney also filed a Motion to Dismiss Probation Revocation in Part; Motion to Dismiss [the Second Burglary] in Whole and Objections to Imposition of Prison Sentencing in Either [Case]. The motion raised two issues: (1) whether the district court, having failed at the outset to impose a prison sentence on the first burglary, could do so now; and (2) whether, despite the appellant's waiver of speedy sentencing for the second burglary, imposing sentence more than three years later violated the appellant's constitutional right to due process.

[19] A hearing on the appellant's motion was held on September 25, 2000. The tran-seript of that hearing details the confusion shared by all involved as to the exact nature of the original sentences in the two cases and the appellant's probationary status, particularly in regard to the second burglary. The appellant took the position that, for the first burglary, he could not now receive a prison sentence, or that, at most, he could only be sentenced to a maximum of five years-the length of his probation-with credit for time served. His second argument was that his right to speedy sentencing now prohibited sentencing for the second burglary. To the contrary, the State took the position that the appellant could be sentenced to any amount of time up to the full statutory ten years for each crime.

[110] The district court ruled that, since the appellant had never been sentenced or placed on probation for the second burglary, the petition to revoke probation should be dismissed as to that crime. On the other hand, the district court held that sentencing on the second burglary was delayed as an accommodation to the appellant, that the appellant had voluntarily waived his right to speedy sentencing, and that "the matter is still open for sentencing...." In regard to the first burglary, the district court denied the motion to dismiss, holding that the appellant could be sentenced to up to a maximum of five years.

[T 11] A separate evidentiary hearing was then set to determine whether probation should be revoked on the first burglary and what sentence should be imposed on the second burglary. That hearing was held on October 2, 2000. At the outset of the hearing, the appellant admitted six of the seven allegations of the revocation petition. After hearing the testimony of the appellant and his probation officer, the district court revoked probation on the first burglary, and then imposed sentences of incarceration for not less than four years and not more than five years on each burglary, to be served concurrently. The appellant was given ered-it for time served of twenty-five months for the first burglary and 218 days for the see-ond burglary. The written Order Revoking Probation and Reimposing Sentence, filed November 2, 2000, indicated that the appellant had reserved his right to appeal the issues now before this Court.

SENTENCING LAW

[112] Sentencing decisions are within the broad discretion of the sentencing court. Smith v. State, 941 P.2d 749, 750 (Wyo.1997). This Court will not disturb a sentence on the ground of sentencing procedures absent a showing by the defendant of an abuse of discretion, procedural conduct prejudicial to him, cireumstances that manifest inherent unfairness and injustice, or conduct that offends the public sense of fair play. Brower v. State, 1 P.3d 1210, 1216 (Wyo.2000). In that regard, the trial judge abuses his discretion if he premises a sentence on a mistaken reading of the law. Cook v. State, 710 P.2d 824, 825 (Wyo.1985).

[113] The discretion of the trial court is also limited by the fact that a sentencing court may only impose those sentences that have been authorized by the legislature. Williams v. State, 949 P.2d 878, 880 (Wyo.1997); Wyo. Stat. Ann. § 6-10-104 (LexisNexis 2001) ("[wlithin the limits pre-seribed by law" the court is "to determine and fix" punishment). As part of that limitation, courts have no inherent right to grant probation. Hicklin v. State, 535 P.2d 743, 752 (Wyo.1975). Probation is a form of sentencing that must be authorized by the legislature. Garton v. State, 910 P.2d 1348, 1354 (Wyo.1996).

[T14] Wyoming's statutes governing sentencing are found mainly in Chapter 10 of Title 6 and Chapter 13 of Title 7. Several individual statutes are relevant to the present inquiry. Every sentence for a felony must meet the dictates of Wyo. Stat. Aun. § 7-13-201 (LexisNexis 2001), which requires imposition of a minimum and maximum term. A felony is any erime that may be punished by death or by imprisonment for more than one year. Wyo. Stat. Aun. § 6-10-101 (LexisNexis 2001). The minimum term of imprisonment in a state penal institution, as opposed to a county jail, is not less than one year. Wyo. Stat. Ann. § 6-10-107 (LexisNexis 2001). Wyo. Stat. Ann. § 7-183-802 (LexisNexis 2001) provides the procedures whereby a convicted person may be placed on probation. The specific, detailed provisions guiding probation and parole are found in Articles 4 and 5 of Chapter 18 in Title 7 of the Wyoming Statutes.

[T15] The source of the legislature's power to limit judicial authority as to sentencing is found in the constitutional separation of powers. The legislative branch has the exclusive power to define crimes and to prescribe punishments for those crimes. Billis v. State, 800 P.2d 401, 412-15 (Wyo.1990). Consequently, a court may only impose a sentence of incarceration that falls within the minimum and maximum punish ment prescribed by statute. Williams v. State, 692 P.2d 233, 235 (Wyo.1984). Where there are multiple charges, the court should impose a separate sentence on each count, rather than a consolidated sentence. Elliott v. State, 626 P.2d 1044, 1046 n. 3 (Wyo.1981); Stambaugh v. State, 613 P.2d 1237, 1243 (Wyo.1980).

SPLIT SENTENCING

[116] The clear intent of Wyo. Stat. Ann. §§ 6-10-101 and 6-10-107, when read together, is that felons be imprisoned in state penal institutions, while misdemeanants be imprisoned in county jails. This intent is further reflected in Wyo. Stat. Ann. § 6-10-108 (Lexis 1999), which mentions imprisoning misdemeanants in county jails, and in Wyo. Stat. Ann. § 6-10-109 (LexisNexis 2001), which is captioned "Sentences for felonies," and which defines "state penal institution." Finally, Wyo. Stat. Ann. § 7-183-108 (Michie 1995) directs the sentencing court specifically how to sentence felons to incarceration:

Unless otherwise specifically provided by statute, any person convicted of a felony and sentenced to a term of imprisonment shall be sentenced to the custody and control of the department of corrections to be incarcerated in a state penal institution designated by the department.

[117] The mandate that felons be incarcerated in state penal institutions while misdemeanants be incarcerated in county jails has a concomitant fiscal impact on the state and the individual counties. The state, through the Department of Corrections, funds and maintains the state penal institutions. Wyo. Stat. Ann. § 25-1-104 (Michie 1997). The counties, through their sheriffs, fund and maintain the county jails. Wyo. Stat. Ann. §§ 18-2-108, 18-8-608, 18-6-302 (LexisNexis 2001).

[T 18] In 1984, the Wyoming State Legislature created a method whereby certain felons could be housed in county jails, but at state expense. Wyo. Sess. Laws, ch. 57 (1984). The current incarnation of that law, Wyo. Stat. Ann. § 7-13-107 (LexisNexis 2001), generally referred to as the "split sentencing statute," reads as follows:

(a) Following a defendant's conviction of, or his plea of guilty to any felony, other than a felony punishable by death or life imprisonment, the court may impose any sentence of imprisonment authorized by law and except as provided in subsection (g) of this section, may in addition provide:
(i) That the defendant be confined in the county jail for a period of not more than one (1) year; and
(ii) That the execution of the remainder of the sentence be suspended and the defendant placed on probation.
(b) In placing the defendant on probation under subsection (a) of this section, the court may also:
(i) Impose any fine provided by the statute violated;
(i) Apply the provisions of W.S. 7-13-501 through 7-13-508.
(c) Except as provided in subsection (a) of this section, the court may impose a split sentence of incarceration followed by probation in any felony case including those in which the statute violated specifically provides for a sentence of imprisonment in the state penitentiary.
(d) The court may impose a split sentence as provided by this section at the time a defendant is originally sentenced or at any hearing at which the court modifies or revokes a defendant's probation and at which the defendant is personally present.
(e) The cost of housing convicted felons in the county jail shall be paid by the department of corrections by contract arrangement with the county sheriff. * * *
"oke ok
(h) A defendant sentenced under this section is not eligible for parole and is not subject to good time allowances authorized under W.S. 7-13-420. The sentencing court shall continue to have jurisdiction over the defendant during the entire time he is confined in county jail and thereafter while the defendant is serving his term of probation.
(J) If consecutive terms of confinement in the county jail are ordered pursuant to this section they shall not exceed a period of one (1) year.

[¥19] Proper application of the split sentencing statute is the first issue before this Court. The district court applied the statute as it believed it had been interpreted by this Court. In that regard, there are two particular cases of interest. In 1992, we decided Wilodarczyk v. State, 836 P.2d 279 (Wyo.1992). Raymond Wlodarezyk had been convicted of aggravated assault. The district court imposed a split sentence of nine months in the county jail, to be followed by three years of supervised probation. After he had served the jail term and most of the probationary period, Wlodarezyk's probation was revoked. The district court then sentenced him to prison for a period of five to six years. Id. at 284.

[120] In reversing Wlodarezyk's sentence, this Court identified two types of split sentences that could be imposed under Wyo. Stat. Ann. § 7-18-107:(1) split sentencing involving incarceration in the county jail for a period not to exceed one year with a probationary sentence to follow county jail confinement involving probation granted for the balance of the established sentence (classical split sentence); and (2) split sentencing involving incarceration in the county jail for a period not to exceed one year with a probationary sentence to follow county jail confinement with probation granted for a stated period following jail confinement with sentencing postponed subject to entry if probation is revoked (probationary split sentence). Wlodarczyk, 836 P.2d at 287-88. We then applied the rule of lenity, concluding that Wlodareyzk's sentence was a classical split sentence because it did not reflect an intent to allow complete re-sentencing in the event of probation revocation. Id. at 288. 'We held that, when probation is revoked in a classical split sentence situation, "only the period remaining upon revocation can be enforced by confinement." Id.

[T21] The second case in which this Court interpreted the split sentencing statute was Kidd v. State, 937 P.2d 1334 (Wyo.1997). Kidd's original sentence for aggravated assault was four years of supervised probation, one condition thereof being that he serve ninety days in the county jail. When Kidd's probation was later revoked, the district court sentenced him to serve thirty to eighty-four months in prison. Id. at 18335. Kidd's appeal was resolved just as Wlodarezyk's had been. We concluded that, since the original sentence had not indicated an intent to reserve full sentencing in the event of probation revocation, the rule of lenity required that we find the sentence to be a classical split sentence. The most that Kidd could be sentenced to was the balance of time remaining on his four-year probationary term. Id. at 1336.

[122] Unlike the trial judges in Wlodare-zyk and Kidd, the district judge in the instant case specifically mentioned his intention that the sentence be a "probationary split sentence, as has been recognized by the Wyoming Supreme Court in recent case law." The written Sentence & Probation Order was even more precise:

IT IS FURTHER ORDERED that [for the first burglary] the Defendant shall be incarcerated in the Park County Detention Center for a period of one (1) year, pursuant to the probationary split sentence statute under Wyoming Statute $ 7-13-107(c), with credit for 218 days served. The Defendant shall be granted a furlough to Youth Services International, Inc. at the Defendant's expense upon the following conditions:
goh ook
IT IS FURTHER ORDERED that upon the Defendant's successful completion of the one year program at the Youth Services International, Inc. treatment program, [for the first burglary] the Defendant shall, at that time be placed on five (5) years supervised probation ... [.]

[123] The appellant's sentence for the first burglary clearly and unambiguously was intended to be a probationary split sentence under this Court's then-existing interpretation of the split sentencing statute. Therefore, we have no occasion to interpret the district court's intent and the rule of lenity has no application here. The district court having retained its sentencing authority as to the first burglary, we will affirm the sentence of incarceration for not less than four years and not more than five years imposed upon revocation of the appellant's probation.

[124] The district court correctly applied Wiodarezyk and Kidd. The sentence imposed for the first burglary fell within the statutory limits and there is no indication that the length of the sentence was determined by anything that occurred after the original sentencing date. For these reasons, we have affirmed the sentence. Nevertheless, this case has once again brought to our attention several problems that continue to arise out of the Wlodarezyk and Kidd holdings. We said the following in Wlodarezsyk:

The differences in character between the two types of split sentences define the residual sentencing discretion retained by the district court upon revocation. In the case of the classical split sentence, only the period remaining upon revocation can be enforced by confinement. The probationary split sentence permits the sentencing judge to resentence to any sentence which might have originally been imposed.

Wlodarczyk, 836 P.2d at 288 (emphasis added). We reiterated this proposition in Kidd, 937 P.2d at 1336. Wlodarezyk's original sentence was nine months in jail and three years of probation. No prison sentence initially was imposed. Kidd's original sentence was four years of probation, with ninety days in jail. No prison sentence initially was imposed. We interpreted both sentences, under the statutory language emphasized above, as limiting incarceration upon probation revocation to the probationary period, less time served. Kidd, 937 P.2d at 1336; Wlodarczyk, 836 P.2d at 292. The effect of such an interpretation was to declare that the district court intended the period of probation to equal the period of incarceration.

{125] While the clear imposition of a probationary split sentence for the first burglary has obviated the need for similar interpretation in the instant case, we are still left with the fact that the split sentence was imposed without the district court first imposing a lawful minimum and maximum sentence. Wyo. Stat. Ann. $ 7-13-201 requires minimum and maximum terms:

Except where a term of life is required by law, or as otherwise provided by W.S. 7-13-101, when a person is sentenced for the commission of a felony, the court imposing the sentence shall not fix a definite term of imprisonment, but shall establish a maximum and minimum term within the limits authorized for the statute violated. The maximum term shall not be greater than the maximum provided by law for the statute violated, and the minimum term shall not be less than the minimum provided by law for the statute violated, nor greater than ninety percent (90%) of the maximum term imposed.

W.R.Cr.P. 82(c)(2)(B) contains a similar requirement. In the same vein, the split sentencing statute, itself, provides that the district court may impose a split sentence after imposing any sentence authorized by law. Wyo. Stat. Ann. § 7-18-107(a).

[126] Several split sentencing cases with underlying minimum and maximum term sentences have come before this Court. In none of those cases were we called upon to re-assess the Wilodarezsyk and Kidd holdings that, where no underlying sentence is imposed and there is no clear intent to defer sentencing entirely, we will interpret the probationary period of a split sentence to be the maximum allowable term of confinement. We speak to that point now because the instant case brings the matter once again directly before this Court, and because we are now convinced that Wyo. Stat. Ann. §§ 7-13-107 and 7-13-201 and W.R.Cr.P. 32(c)(2)(B) require the imposition of a minimum and maximum term sentence before split sentencing may be utilized. The holdings of Wlodarezyk and Kidd to the contrary are prospectively overruled, and the distinetion between a classical split sentence and a probationary split sentence is hereby abrogated.

[T27] When imposing a split sentence after the date this opinion is published in the advance sheets of West's Pacific Reporter, the sentencing court must first impose a lawful sentence with a minimum and maximum term. Sentencing courts may not simply impose a jail sentence followed by probation. Neither may they postpone sentencing altogether when imposing a split sentence. We now conclude that, rather than authorizing the latter practice, the intent of Wyo. Stat. Ann. § 7-13-107(c) is simply to clarify that split sentencing is available for all felonies except those punishable by death or life imprisonment, even if the statute violated specifically provides for imprisonment in the penitentiary.

[128] While these conclusions are based primarily on this Court's view of legislative intent, they will also help solve several difficulties left extant by the holdings of Wio-dorezyk and Kidd. This Court will no longer have to interpret the wording of split sentences in an attempt to determine the sentencing court's intent. Further, if the imposition of an underlying sentence cannot be postponed indefinitely, issues of speedy sentencing and vindictive sentencing will be less likely to arise.

SPEEDY SENTENCING

[129] We review speedy sentencing claims under an abuse of discretion standard. Reagan v. State, 14 P.3d 925, 927 (Wyo.2000).

"Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985)."

Reagan, 14 P.3d at 927 (quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)). The specific question now before this Court is whether it was an abuse of discretion for the district court to delay sentencing on the see-ond burglary for three years under the particular cireumstances of this case.

[130] The felony information charging the appellant with the second burglary was filed on November 22, 1996. On January 21, 1997, the appellant filed a Waiver of Speedy Preliminary Hearing Within Ten- or Twenty-Day Time Requirement and Request for Continuance of Preliminary Hearing. On the same date, he waived his right to a preliminary hearing and the case was transferred to the district court. Arraignment in the district court occurred on February 12, 1997. The appellant pled guilty to both the first and second burglary, he was adjudicated guilty of both, and a presentence investigation was ordered.

[131] The evidentiary hearing for sentencing purposes took place on June 20, 1997. Sentence was imposed at a final hearing on June 26, 1997. It was at this latter hearing that the colloquy about speedy sentencing quoted previously herein occurred among the district court, defense counsel, and the appellant. In announcing his desire to defer imposing a prison sentence or fine for the see-ond burglary, the district court informed the appellant specifically that "[ylou have a right, legally, to a speedy sentencing, and I cannot defer that portion of the sentence unless you are willing to give up that right." Defense counsel than informed the district court that he had previously discussed with the appellant his right to speedy sentencing, and that it was the appellant's "wish to waive a speedy sentencing, insofar as the term of incarceration and fine go, indefinitely until the Court resets the matter." The appellant indicated that he agreed with what his attorney had said. The record further reflects that it was the district court's intent to have the appellant submit a written waiver of speedy sentencing. No written waiver was ever filed.

[132] The appellant served his split sentence and was placed on supervised probation. On September 1, 2000, the State filed a petition to revoke probation. After a hearing on the appellant's Motion to Dismiss Probation Revocation in Part; Motion to Dismiss [the Second Burglary] in Whole and Objections to Imposition of Prison Sentencing in Either [Casel, the district court ruled that, since the appellant had never been on probation for the second burglary, the petition should be dismissed in that regard. The district court further ruled, however, that the appellant had voluntarily waived speedy sentencing, that sentencing had been deferred as an accommodation to the appellant so he could attend the YSI program, and that the appellant could still be sentenced for the second burglary. On October 2, 2000, the appellant was sentenced to a term of not less than four years and not more than five years, with credit for 218 days served.

[133] The appellant's current argument that this series of events violated his right to speedy sentencing is two-pronged. First, citing Burkett v. Cunningham, 826 F.2d 1208 (3rd Cir.1987) and Perez v. Sullivan, 793 F.2d 249 (10th Cir.), cert. denied, 479 U.S. 936, 107 S.Ct. 413, 93 L.Ed.2d 364 (1986), he contends that any "unreasonable sentencing delay" violates a defendant's right to due process of law. His primary argument is based upon the following language from Yates v. State, 792 P.2d 187, 191 (Wyo.1990):

We elect to hold that a delay in sentencing in excess of one calendar year from the date guilt is established, either by trial, whether to a jury or to the court, or upon a plea of guilty or nolo contendere, is presumptively unreasonable. A court may not pronounce sentence on a defendant after the expiration of such time, unless the record clearly establishes those facts and cireumstances that excuse the delay, thus making later imposition of the sentence reasonable. The State must bear the burden of establishing those facts and cireum-stances. Our rule with respect to the one-year period is derived in consonance with Rule 36(b), W.R.Cr.P. [now W.R.Cr.P. 35(b) 1, which permits a trial court to reduce a sentence within one year of its imposition. We recognize that one year is an appropriate period of time within which a district court may reconsider the sentence that it has imposed, and it follows that one year also is a reasonable period of time to require the imposition of sentence. While we hold that the delay in excess of one year is presumptively unreasonable, we do not hold that the delay serves to deprive the district court of jurisdiction. Rather, we hold that the delay exceeds the bounds of reason if its occurs beyond that date and, in the interest of fairness, due process of law, and expeditious handling of court matters, a court should be foreclosed from imposing sentence after the one year period of time.

[134] The State responds by arguing that the record does, indeed, reveal "those facts and cireumstances that excuse the delay." The State points to the transcript of the June 20, 1997, hearing, where the appellant, his attorney, his parents, and the probation agent aggressively prevailed upon the district court to allow the appellant to attend the YSI program in Missouri, rather than go to prison. The State then concludes that it was the district court's desire to accommodate this request that led the district court to defer sentencing on the second burglary.

[T35] A close reading of the transcripts from both the June 20, 1997, and the June 26, 1997, hearings, however, reveals no specific statement where the district court indicated that the decision to defer sentencing for the second burglary was based on any desire to accommodate the appellant. Read together, the transcripts of both hearings do suggest that the decision to impose a split sentence and to allow a furlough for the YSI program was made to accommodate that request. But the transcripts of the sentencing hearings do not make clear why the appellant eould not have been sentenced on the second burglary, with supervised probation to include participation in the YSI program.

Three years later, at the hearing on the appellant's Motion to Dismiss Probation Revocation in Part; Motion to Dismiss [the Second Burglary] in Whole and Objections to Imposition of Prison Sentencing in Either [Case], the district court did indicate that its decision to defer sentencing was made as an accommodation to the appellant:

Regarding Case Number [01-14], the Court will further rule that that matter is still open for sentencing, in view of the fact that there was, in open court, on the record, a waiver of speedy sentencing, and Mr. Daugherty was here, he was represented by counsel, he was prevailing on the Court to do that very thing, and it was an accommodation to him so that he could go to the program he was proposing to go to. And the only way the Court was willing to do that was if he waived his right to speedy sentencing, which he did. It's all in the record.

[137] One inference that might be made from this record is that, for some reason, the appellant could not participate in the YSI program if he was under a sentence, even a probationary sentence, for the second burglary. But another inference is that the district court wanted to see whether the appellant succeeded in that program before imposing the second sentence. The existence of that inference leads to the second prong of the appellant's speedy sentencing attack, which is his contention that, while he did waive his right to speedy sentencing, he did not do so voluntarily and knowingly. His argument is encapsulated in the following sentences from his appellate brief:

The District Court accepted Daugherty's purported waiver without advising him of the implications or consequences of such waiver. The lack of notification violated Daugherty's constitutional rights and the violation was especially prejudicial in light of the subsequent developments in this case. Daugherty was ultimately sentenced after the State filed a petition to revoke his probation in Case No. [01-18]. Consequently, the effect of the delay in sentencing was to place Daugherty on probation without advising him of the conditions of that probation or the consequences of failing to comply with the implied conditions. Under these cireumstances, there is simply no question that Daugherty was not aware of the nature of the right he was waiving or the consequences of the waiver.

[138] For a waiver to be valid, there must be " 'an intentional relinquish ment or abandonment of a known right or privilege,' " and the waiver must be knowingly and intelligently made. Nelson v. State, 934 P.2d 1238, 1241 (Wyo.1997) (quoting Van Riper v. State, 882 P.2d 230, 234 (Wyo.1994)). A defendant need not, however, know and understand every possible consequence of this waiver for it to be valid. Solis v. State, 851 P.2d 1296, 1299 (Wyo.1993). Whether a waiver was made voluntarily, knowingly, and intelligently depends upon the surrounding facts and cireumstances. Id.; Mapp v. State, 953 P.2d 140, 144 (Wyo.1998). The state bears the burden of proving by a preponderance of the evidence that a waiver was made knowingly, voluntarily, and intelligently. Solis, 851 P.2d at 1299.

[139] In the instant case, the district court explained to the appellant that: (1) he had a legal right to speedy sentencing; (2) sentencing could not be deferred unless he waived that right; and (3) the part of sentencing that would be deferred would be any prison sentence or fine. In addition, defense counsel informed the district court, in the presence of the appellant, that: (1) counsel previously had spoken with the appellant about his speedy sentencing rights; (2) the appellant wished to waive speedy sentencing as to any prison sentence or fine; and (3) sentencing would be deferred "indefinitely until the Court resets the matter." In response to a question from the district court, the appellant indicated his agreement with what his counsel had said.

[T40] Despite all this information as to the existence of the speedy sentencing right, there is a glaring absence in the record of anything to indicate the appellant was advised what it was that could bring about sentencing on the second burglary. The district court indicated in open court only that it wished to defer sentencing, and did not say for how long or for what reasons. Defense counsel said that the appellant agreed to postpone sentencing "indefinitely until the Court resets the matter." The written Sentence & Probation Order merely defers sentencing based upon the appellant's waiver of speedy sentencing. Nowhere in the record is there any indication that imposition of sentencing for the second burglary would occur as a result of a probation violation under the sentence being served for the first burglary. Yet, the appellant argues, that is exactly what happened in this case. Either that, or he was effectively placed on probation for the second burglary, with the probationary condition being that he not violate his probation for the first burglary. We agree with the appellant that his waiver was not made "knowingly, voluntarily, and intelligently."

[T41] This Court is not willing to countenance an open-ended deferral of sentencing under the cireumstances of this case. In Yates, we adopted a one-year standard of presumptive reasonableness for speedy sentencing, with the state bearing the burden of establishing such facts and circumstances as might excuse a delay beyond one year. Yates, 792 P.2d at 191. Here, sentencing occurred three years after guilt was established. There is nothing in the record to indicate why sentencing did not occur in the interim period. For instance, why was sentence not imposed for the second burglary when the appellant had successfully completed the one-year period of his split sentence for the first burglary? Beyond that, if the imposition of a sentence for the second burglary was meant to be a penalty for violation of probation on the first burglary, or, stated differently, if successful probation on the first burglary was a condition to the continued deferral of sentencing on the second burglary, the appellant was never so informed. Such a lapse implicates the appellant's right to the due process of law in that he had no notice of such consequences. See Solis, 851 P.2d at 1299.

[142] Of equal concern where there has been an unreasonable sentencing delay is the possibility that, when sentencing finally occurs, the sentencing court will consider matters that occurred after sentence should have been imposed, thereby exposing the defendant to a greater punishment. Yates, 792 P.2d at 192. In particular, there is a danger that punishment will be increased because of the conduct that serves as the basis for a later probation revocation. Id.; Reagan, 14 P.3d at 927-28. There is at least an argument that this occurred in the present case, where the appellant was sentenced to a lengthier sentence than had been requested by the State at the original sentencing hearing.

[T 43] In Wlodarczyk, 836 P.2d at 286-87, we identified the seven types of sentences available under the Wyoming statutes: (1) an indeterminate sentence under Wyo. Stat. Ann. § 7-18-201; (2) deferred prosecution under Wyo. Stat. Ann. § 7-13-301; (3) straight probation under Wyo. Stat. Ann. § 7-18-302; (4) probation with suspended imposition of sentence under Wyo. Stat. Ann. § 7-13-302; (5) probation with suspended sentence under Wyo. Stat. Ann. § 7-13-302; (6) classical split sentencing under Wyo. Stat. Ann. § 7-18-107(a); and (7) probationary split sentencing under Wyo. Stat. Ann. § 7-13-107(c). None of these alternatives contemplates the lack of sentencing that occurred with respect to the second burglary in the instant case. The closest would be option (7)-probationary split sentencing-but even that option requires a specific probationary period and a stated condition that sentence be imposed upon probation violation.

[144] W.R.Cr.P. 32(c)(1) contains clear guidance for trial courts wishing to overcome the presumption that a delay in sentencing for over a year is unreasonable: "Sentence shall be imposed without unnecessary delay, the court may, when there is a factor important to the sentencing determination that is not then capable of being resolved, postpone the imposition of sentence for a reasonable time until the factor is capable of being resolved." If sentence is not to be imposed at the time guilt is established or soon thereafter, the trial court must ensure that the record clearly indicates the reason for the delay and the cireumstances under which the matter will be reset for sentencing.

CONCLUSION

[T45] For the first burglary, Case No. 01-183, the appellant was sentenced under Wyo. Stat. Ann. § 7-18-107(c) to a probationary split sentence. Under this Court's then-existing construction of that statute, the district court retained its jurisdiction over the appellant and its full authority to sentence him upon revocation of his probation. The sentence imposed, four to five years, was within the sentencing discretion of the district court, and it is affirmed. We hold, however, that district courts imposing a split sentence in the future must first impose a lawful sentence with minimum and maximum terms of imprisonment. The holdings to the contrary contained in Wlodarczyk, 836 P.2d 279, and Kidd, 937 P.2d 1334, are hereby prospectively overruled.

[146] For the second burglary, Case No. 01-14, sentencing was simply deferred indefinitely, and eventually occurred more than three years after guilt was established. The State has not met its burden of showing that this delay was reasonable or that the appellant's waiver of his right to speedy sentencing was made knowingly, voluntarily, and intelligently. The sentence imposed, four to five years, is vacated, but the judgment of conviction remains.

      . The presentence investigation report and the written Sentence & Probation Order filed on July 10, 1997, made it clear that the restitution amount, $11,559.33, was the total amount owed under both cases and for certain uncharged forgeries.

      . The allegations were: (1) failure to pay the Crime Victims' Compensation Fund surcharge; (2) a breach of peace conviction; (3) an interference with a peace officer conviction; (4) use of cocaine; (5) a marijuana possession conviction; (6) entry into a liquor store and purchase of alcohol; and (7) use of methamphetamine.

      . The appellant denied using cocaine.

      . Wyo. Stat, Ann. § 7-13-107 (LexisNexis 2001), the "split sentencing" statute, will be discussed later herein, as will Wyo. Stat. Ann. § 7-13-108 (Michie 1995).

      . Central to this Court's reasoning in Kidd was our determination that the county jail time could not be a probationary condition because Wyo. Stat. Ann. § 7-13-401(a)(x) (1995) defined "probation" as being "a sentence not involving confinement." Kidd, 937 P.2d at 1336.

      . Justice Thomas identified this interpretive process as a problem nearly a decade ago in his special concurrence in Wlodarczyk, 836 P.2d at 296-97 (Thomas, J., concurring specially).

      . See Buckles v. State, 998 P.2d 927, 929 (Wyo.2000) (eighteen to sixty months, with split sentence of sixty days followed by probation); Pearl v. State, 996 P.2d 688, 688 (Wyo.2000) (one to four years, with split sentence of 120 days in the county jail followed by four years of probation); Henderson v. State, 976 P.2d 203, 206 (Wyo.1999) (four to six years, with split sentence of sixteen days in county jail followed by six years of probation); Snyder v. State, 912 P.2d 1127, 1129 (Wyo.1996) (suspended prison sentence, with split sentence of thirty days in the county jail followed by five years of probation); Roberts v. State, 912 P.2d 1110, 1111 (Wyo.1996) (four to six years, with split sentence of one year in the county jail followed by six years of probation); and Smith v. State, 902 P.2d 1271, 1275 (Wyo.1995) (twenty-four to forty-eight months, with all but sixty days suspended, those sixty days to be served in the county jail, followed by four years of probation}. An additional case, Paugh v. State, 9 P.3d 973, 975 (Wyo.2000), apparently involved a split sentence similar to that in Wloderezyk and Kidd-that is, ninety days in the county jail followed by sixty months of probation, with no specific minimum or maximum prison term-but no issue as to the sentence was raised on appeal.

      . To the contrary, suspending the imposition of sentencing under Wyo. Stat. Ann. § 7-13-302(a)(i) does not violate the principle of Wyo. Stat. Ann. § 7-13-201 because, unlike the split sentencing situation, no sentence is being imposed.

      . While most of Wyoming's felony statutes provide only that violations are "punishable by imprisonment," others specify that imprisonment shall be "in the penitentiary." For example, compare Wyo. Stat. Ann. §§ 6-3-402(c)(i) and 6-4-402(b) (LexisNexis 2001) with Wyo. Stat. Ann. §§ 6-2-105(b) and 6-2-106(b) (LexisNexis 2001).

      . No issue has been raised as to any pre-ar-raignment delays.

      . The State argued for a sentence of two to four years.


source: Caselaw Access Project

license: Public Domain

text:
    2002 WY 53
    Andina Marie STANG, a/k/a Andina Marie Ramsey and Kevin Ramsey, Appellants (Defendants), v. Timothy McVANEY, as Guardian for Shannon McVaney, and Kristopher McVaney, Appellees (Plaintiffs).
    No. 01-107.
    Supreme Court of Wyoming.
    April 10, 2002.

      Fred W. Phifer, Wheatland, WY., Representing Appellants.
    Kendal R. Hoopes of Yonkee & Toner, Sheridan, WY., Representing Appellees.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[11] The First Interstate Bank of Sheridan (the Bank) filed an interpleader action on December 7, 2000, to determine the ownership of a payable on death certificate of deposit (CD). Mike Keeler (Keeler), the CD's purchaser, had named his great niece and nephew, Shannon and Kristopher McVa-ney (the appellees), as payees under the CD. Keeler committed suicide on November 4, 2000. An undated letter purportedly written by Keeler changing the names of the payable on death payees to Andina Marie Stang and Kevin Ivan Ramsey (the appellants) arrived at the Bank two days after Keeler's death. The McVaneys, Stang, and Ramsey all claim ownership of the CD. Stang and Ramsey appeal the district court's granting of the appellees' motion for summary judgment. We affirm.

ISSUES

[12] The appellants state the issues as:

1. Was the delivery of the request for change of beneficiary on the Certificate of Deposit complete when it was mailed with the original Certificate of Deposit one day prior to the owner of the CD committing suicide and was received by First Interstate Bank of Sheridan on the first business day after it was mailed?
2. Did the trial court err in granting Appellees' Motion for Summary Judgment?
3. Did the trial court err in awarding the Certificate of Deposit to the Appellees?
4. Did the depositor and owner of the Time Certificate of Deposit, Mike Keeler, have the right and the authority to change the "Payable on Death" names at any time during his lifetime?

The appellees present the following issues:

1. Whether Shannon and Kristopher McVaney, who were the payable-on-death payees on the certificate of deposit at the time of death of Mike Keeler, are the owners of the funds represented by the certificate of deposit.
Whether the request for a change of the payable-on-death payees on the certificate of deposit was effective in changing the terms of the account when it was not received by First Interstate Bank until after the death of Mike Keeler.
8. Whether Mike Keeler's request for a change of the payable-on-death payees constitutes an inter vivos gift or a gift causa mortis.

FACTS

[13] The Bank filed an interpleader action in the District Court of the Fourth Judicial District to determine the ownership of approximately $30,000.00 held as a CD by the Bank. The action named Shannon McVa-ney, Kristopher McVaney, Andina Marie Stang, and Kevin Ivan Ramsey as defendants. Because Shannon MceVaney was a minor, the district court appointed her father, Timothy McVaney, as her guardian for purposes of the lawsuit.

[T4] Keeler had obtained a CD at the Bank of Commerce, now First Interstate Bank, on May 10, 1982. At that time, Keeler named his sister, Velta Schaefer, as the payable on death beneficiary. On December 3, 1998, Keeler gave the Bank written instructions to reissue the CD making it payable on death to the appellees. The Bank complied with those instructions.

[15] The relevant facts in this case are not complex. Keeler met Stang, a waitress, at the Breakfast Inn restaurant in Wheat-land where he went for breakfast every day at 5:00 a.m. They became friends. When he failed to show for breakfast one morning, Stang went to check on him. He was ill, and she rushed him to a hospital. Stang began taking care of Keeler on a daily basis starting in February 1995. She took him to doctors' appointments, picked up his prescriptions, took him to the hospital, took him shopping, cleaned his house, did his laundry, cooked him dinner, and occasionally made him breakfast. Stang also provided home health care pursuant to his doctors' and nurses' instructions. - Stang received no compensation for her services during the first four years she cared for Keeler. The last two years before his death, she received between $600.00 and $700.00 per month, depending upon the amount Keeler could afford.

[16] During August 2000, Keeler allegedly requested that Stang prepare a letter to the Bank to change the payable on death beneficiaries from the McVaneys to Stang and her husband, Kevin Ramsey. Stang stated in an affidavit that she did not write the letter because she did not want to cause problems between Keeler and his family. Stang further stated in her affidavit that on November 3, 2000, Keeler insisted that Stang write the letter, and insisted that she take him to the post office that day to mail it. The next day, Keeler, age 77, shot and killed himself.

[17] Two days after his death, on November 6, 2000, the Bank received an undated typed letter purportedly from Keeler, directing the Bank to change the payable on death beneficiaries from the MceVaneys to Stang and Ramsey. Without knowledge of Keeler's death, the Bank issued a new CD naming Stang and Ramsey as the payable on death beneficiaries. Stang notified the Bank of Keeler's death on November 10, 2000. Because there were multiple claims to the CD, the Bank filed an Interpleader Complaint to determine ownership of the CD.

[T8] The McVaneys answered the Inter-pleader Complaint and filed a eross-claim against Stang and Ramsey on January 11, 2001. The cross-claim alleged that the McVaneys were the rightful owners of the CD. Stang and Ramsey filed an answer to the cross-claim and also brought a cross-claim against the McVaneys. Both cross-claims sought the district court's determination of the CD's ownership. The district court dismissed the Bank from the action without prejudice on May 3, 2001. The district court then realigned the parties; McVa-neys as plaintiffs, Stang and Ramsey as defendants.

DISCUSSION

[19] The appellants' first issue is whether delivery of the letter requesting the change in beneficiary was completed when it, along with the original CD, was mailed to the Bank. The appellants argue that delivery was effective when Keeler placed the written request with the original CD in a properly addressed envelope, with correct postage, and placed it in the mail. The appellants assert that this created a gift causa mortis, and title to the CD passed to the appellants upon Keeler's death.

[T10] CDs are inherently contractual, and if they are non-negotiable, as in the instant case, they are to be construed in light of general contract law principles. Rose v. Rose, 849 P.2d 1321, 1324-25 (Wyo.1993). A change in title to a CD in effect terminates the existing account and replaces it with a new one. Washington County Mercantile Bank v. Kennedy, 855 S.W.2d 520, 523 (Mo.App.1993). Therefore, changing the payable on death beneficiaries from the McVaneys to the appellants would have terminated the existing account and created a new contract between the parties. Keeler's request to alter the terms of the CD was an offer for a new contract, which the Bank had yet to accept at the time of Keeler's death.

[111] In contract law, the mailbox rule provides that unless otherwise agreed to or provided by law, an offer is accepted when the acceptance is properly addressed and placed in the mail. Liquorama, Inc. v. American Nat. Bank and Trust Co. of Chicago, 86 Ill.App.3d 974, 41 Ill.Dec. 951, 408 N.E.2d 373, 375 (1980); Black's Law Dictionary 964 (7th ed.1999). In the situation before this Court, the mailbox rule would apply not to Keeler's letter, but to the Bank's response, if such had been mailed. Keeler mailed an offer to the Bank. A new contract could not be created until acceptance by the Bank.

[T12] We do not believe that a gift causa mortis was created. A gift causa mortis is effected if the following conditions are met: "There must be a clear and manifest intention of the owner to give, a subject capable of passing by delivery, and an actual delivery at the time, in contemplation of death." Hecht v. Shaffer, 15 Wyo. 34, 85 P. 1056, 1057 (1906). The burden of proving a gift causa mortis is on the alleged donee, and it must be shown by clear and convincing evidence. Where the donee is not a relative, positive and unequivocal proof is necessary. In re King's Estate, 49 Wyo. 453, 57 P.2d 675, 678 (1986). This Court has stated:

[I]t does not follow that gifts cause mortis can be made more easily than the other gifts, for an additional compensating requirement becomes necessary in connection with the former not found in connection of the latter, and that is the showing that the gift was made in contemplation of death, so as to lend credibility to the making of the gift.

Begovich v. Kruljac, 38 Wyo. 365, 267 P. 426, 430 (1928).

[T18] Whether Stang and Ramsey sustained their burden of proof was for the district court to determine. We will not reverse such a finding unless it was manifestly against the weight of the evidence. Produit v. Produit, 2001 WY 128, ¶ 18, 35 P.3d 1240, 1245 (Wyo.2001). Other than the fact that he killed himself the next day, there is nothing in the record of the instant case to indicate that Keeler's "gift" of the CD to the appellants, if such it was meant to be, was made in contemplation of death. The first indication that Keeler was thinking about suicide occurred on November 4, 2000, the day after the letter was written. Stang stated in her affidavit:

At approx. 10:45 when I got to Mike's [the decedent] house he had his gun in his hand, I told him to put the gun away. He told me the pain wouldn't stop and I asked him to please take the pain pill like Dr. Thalkin told him to do, I broke his perco-cet in half and gave him one half to take. I asked Mike again to put the gun away and I told him that I would leave if he didn't. Mike ignored me and I turned to leave and he shot himself.

[T14] With nothing more in the record, the district court could reasonably conclude that there was no contemplation of death on November 3, 2000, meaning that this element of a gift cause mortis was not sufficiently proved. Unless all of the elements of a gift causa mortis are met, the gift fails.

[115] The next issue raised by the appellants is whether the district court erred in granting the appellees' motion for summary judgment. Summary judgment motions are determined under the following language from W.R.C.P. 56(c):

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

[116] The purpose of summary judgment is to eliminate the necessity of formal trials where only questions of law are involved. Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo.1997). The initial burden is upon the movant to demonstrate that there is no genuine issue of material fact. Hronek v. St. Joseph's Children's Home, 866 P.2d 1305, 1307 (Wyo.1994). A fact is material if proof of that fact would have the effect of establishing or refuting an essential element of the cause of action or a defense. Id. If a prima facie showing is made that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law, the burden then shifts to the party opposing the motion to present specific facts showing that a genuine issue of material fact exists. Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo.1987).

[117] Where a party has made a prima facie showing in favor of summary judgment, it takes more than " 'a scintilla of evidence in support of the [other party's] position ... to defeat a properly supported motion for summary judgment." " Moncrief v. Williston Basin Interstate Pipeline Co., 880 F.Supp. 1495, 1505 (D.Wyo.1995), aff'd in part, rev'd in part, and remanded on other grounds, 174 F.3d 1150 (10th Cir.1999) (quoting Moya v. United States, 35 F.3d 501, 503 (10th Cir.1994)). "A party must affirmatively set forth material facts in opposition to a motion for summary judgment. He cannot rely only on his allegations and pleadings." Hyatt v. Big Horn School Dist. No. 4, 636 P.2d 525, 530 (Wyo.1981). Pleading allegations do not create an issue as against a motion for summary judgment supported by affidavits. W.R.C.P. 56(e); Vipont Min. Co. v. Uranium Research & Development Co., 376 P.2d 868, 870 (Wyo.1962).

[T18] Upon hearing the respective summary judgment arguments of counsel and upon review of the record, the district court found that there was no genuine issue as to any material fact and that the appellees were entitled to judgment as a matter of law. The appellants argue that there are genuine issues of fact concerning ownership, intent, and delivery of the CD. There is no doubt that Keeler owned the CD, and during his lifetime he could change the beneficiaries, as he did from his sister to the McVaneys in 1998, with written notification to the Bank. It is well established in contract law, on the other hand, that the death of either party before acceptance is communicated causes an offer to lapse. 17 C.J.S. Contracts § 65(c) at 527-28 (1999); First Home Sov. Bank, FSB v. Nernberg, 436 Pa.Super. 377, 648 A.2d 9, 15 (1994). In the instant case, while it might have been Keel-er's intent to change the names of the beneficiaries, the offer to do so had not even been received by the Bank, so the Bank had certainly not communicated its acceptance of the offer, and the offer lapsed upon Keeler's death on November 4, 2000.

[119] The appellants rely on the mailbox rule to argue that the offer was effectively delivered when it was mailed. We earlier discussed the mailbox rule, and need not address it again. However, even if this constituted effective delivery, as a matter of law, the purported request to change the payable on death beneficiaries to the appellants is not enforceable because it was received by the Bank after Keeler's death. Uniform - Multiple-Person - Accounts Act § 183(a), 8B U.L.A. 22-23 (2001) (emphasis added). An account may be altered " 'by written order given by a party to the financial institution to change the form of the account' ... The request must be signed by a party and received by the bank during a party's lifetime." In re Conservatorship of Gobernatz, 603 N.W.2d 357, 360 (Minn.App.1999) (quoting Minn.Stat. § 524.6-205). We agree with the district court that summary Judgment was appropriate and the funds represented by the CD should be awarded to the appellees. |

A party may alter the terms of the account by a notice signed by the party and given to the financial institution to change the terms of the account or to stop or vary payment under the terms of the account. To be effective, the notice must be received by the financial institution during the party's lifetime.

CONCLUSION

[120] Under the contract existing between Keeler and the Bank, ownership of the CD vested in the appellees upon Keeler's death. That contract was not amended by Keeler's unilateral action prior to his death. Further, there was insufficient proof that Keeler's conduct was in contemplation of death, so the elements of a gift causa mortis were not proven. The decision of the district court is affirmed.

      . The appellants have not argued that this was an inter vivos gift, so that theory will not be addressed.

      . - In large part, this is the same issue that has just been addressed. Because the appellants treat the matter as two separate issues, we will do likewise.


text:
    2002 WY 54
    Gloria J. CAPSHAW and Judy G. Capshaw, a/k/a JUDY G. Roesler, Appellants (Defendants), v. E. Tim SCHIECK; Diane E. Schieck; John D. Kerns; Allyson A. Kerns; and Rocky Mountain Cementers, Inc., Appellees (Plaintiffs).
    No. 01-35.
    Supreme Court of Wyoming.
    April 10, 2002.

      Georg Jensen of the Law Offices of Georg Jensen, Cheyenne, WY, Representing Appellants.
    David A. Drell of Vlastos, Brooks, Henley & Drell, P.C., Casper, WY, Representing Appellees.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] Gloria J. Capshaw and Judy G. Capshaw (the sellers) sold all of the shares in Rocky Mountain Cementers, Inc. (the corporation), a Wyoming corporation, to E. Tim Schieck, Diane E. Schieck, John D. Kerns, and Allyson A. Kerns (the buyers) on March 2, 1996. The buyers chose to purchase the corporation, rather than its assets, based on the corporation's July 31, 1994, tax return that showed a net operating loss (NOL) carry forward of $208,614.00. The Internal Revenue Service (IRS) audited the corporation in 1998 for the 1994-1995 tax year. Based on this audit, the IRS disallowed certain deductions, which reduced the NOL carry forward. The buyers requested indemnification from the sellers under the indemnification clause of the Stock Purchase Agreement for any damages resulting from the NOL carry forward reduction. When the sellers refused to indemnify the buyers, this lawsuit followed. The trial court conducted a trial in May 2000, and awarded the buyers judgment against the sellers in the amount of $32,160.75. The sellers appealed. We affirm, but remand for entry of a judgment consistent herewith.

ISSUES

[12] We will address the issues as they have been stated by the sellers as appellants:

1. May the court allow testimony regarding future profits without foundation, based on conjecture and speculation over the objection of the appellants for lack of foundation and best evidence?
2. May the court award a judgment for damages against the defendants based in part on losses claimed due to the filing of an incorrect or fraudulent tax return by the plaintiffs?
3. May the court award judgment for future damages for loss of future tax benefits when the plaintiffs] put on no evidence regarding the amount of any future taxable income?

FACTS

[13] The buyers entered into a Stock Purchase Agreement with the sellers on February 20, 1996. Closing occurred on March 2, 1996, at which time the stock certificates were transferred to the buyers. The sellers sold all their stock in the corporation to the buyers for $250,000.00. Prior to the sale, the buyers inspected the corporation's financial records. The corporation's July 31, 1994, tax return reflected a NOL carry forward of $203,614.00. When the sellers confirmed that the corporation had the NOL carry forward, the buyers chose to purchase the corporation rather than its assets.

[14] The Stock Purchase Agreement provided, among other things:

1. PURCHASE PRICE.
The total purchase price for the sale and purchase of the stock and outstanding interests of Sellers in Rocky Mountain shall be Two Hundred Fifty Thousand Dollars ($250,000). The parties agree that this purchase price is tied to the financial condition of Rock Mountain as of January 31, 1996 as reflected by the financial records as of that date....
*to ok
5. REPRESENTATIONS AND WARRANTIES,
Sellers represent and warrant as follows:
shok ok
D. All books and records of the corporation have been supplied to the Purchasers for the purpose of entering into this transaction and said books and records are true and accurate. The financial statements which have been provided to Purchasers are true and accurate and fairly represent the financial condition and operation of the corporation....
# ot ock
6. INDEMNITY.
Sellers shall indemnify the Purchasers and hold Purchasers harmless from and against any loss or damage occasioned by any act of the corporation, its officers, directors and stockholders, including attorney's fees and costs related to the same prior to March 1, 1996.

[15] In 1997, the IRS audited the corporation. It determined that improper classifications of payments had been made by the sellers prior to the February 20, 1996, Stock Purchase Agreement, and additional tax, interest, and penalties were owed that amounted to $7,713.66. The buyers paid this amount, and requested indemnification from the sellers. The sellers made full payment to the buyers on November 5, 1997.

[16] In April 1998, the IRS informed the buyers that it was conducting another audit of the corporation. As a result of the audit, the IRS disallowed many of the deductions made in the corporation's July 31, 1994, tax return, which disallowance reduced the NOL carry forward. The corporation's accountant testified at the trial that the deductions were disallowed because there were no supporting documents in the corporation's financial ree-ords to justify them.

[T7] On April 21, 1998, the buyers requested that the sellers reimburse them for any damages sustained as a result of the NOL carry forward reduction. The sellers refused, and the buyers initiated this lawsuit on March 23, 1999. The buyers' Motion for Summary Judgment was heard at a final pretrial conference on May 19, 2000. The trial court found no genuine issue of material fact on the issue of indemnification, and granted partial summary judgment in favor of the buyers, finding the sellers liable for their breach of the agreement for indemnification of the tax logs. The trial court found genuine issues of material fact remained regarding the amount of damages due to the buyers, the buyers' duty to mitigate damages, and the sellers' counterclaims.

[181 The trial court conducted a trial on damages on May 30 and 31, 2000. A Final Order and Judgment filed October 9, 2000, granted the buyers judgment against the sellers in the amount of $82,160.75. The sellers appealed the Final Order and Judgment.

THE EVIDENTIARY RECORD

[19] The damages trial was not reported, so no transcript is available. Instead, the parties have, pursuant to W.R.A.P. 3.03, submitted a Statement of Proceedings. Because the nature and extent of the trial evidence is fundamental to this appeal, we will quote nearly verbatim the relevant portions of the Statement of Proceedings:

5. That Neal M. Johnson, CPA, the Plaintiff Rocky Mountain Cementers, Inc.'s accountant, testified that the Internal Revenue Service disallowed the following deductions from the Corporation's Form 1120 for the tax year ending July 31, 1995.
Mr. Johnson testified that the basis for the disallowance of such deductions was the lack of any supporting documents for such deductions in the Corporation's financial records.
6. Neal Johnson, CPA testified that Rocky Mountain Cementers, Inc's 1996 tax return for the year ending July 31, 1997 reflected profit income of $88,346. That as the Corporation's accountant, he utilized $88,346 of the net operating loss carry forward to offset said income. Mr. Johnson testified that the 1997 tax return for the Corporation for the year ending July 31, 1998 reflected income of $176,692 of which he was only able [to] utilize $5,702 of net operating loss deduction due to the adjustments made by the Internal Revenue Service.
7. That the Plaintiffs' expert, Richard Shamley, CPA, testified that the reduction of the loss carry forward resulted in a tax loss of $50,086. This testimony was based upon the manner in which the Plaintiff Rocky Mountain Cementers, Inc.'s prior accountant, Neal Johnson, CPA, had prepared the July 31, 1997 and July 31, 1998 tax returns.... In eross-examination, Mr. Shamley admitted that he would not have prepared the returns in the same manner and that he would have prepared the returns in accordance with the restrictions under IRC § 382 (26 U.S.C.S. 382) and he knew of no way in this case that the requirements of § 382 could be avoided. Mr. Shamley further testified that in reviewing the tax returns of the Corporation, that such returns showed that Rocky Mountain Cementers, Inc. had shown a profit three out of four years since the Stock Purchase Agreement. That the year the Corporation did show a loss, there was considerable equipment purchased. That based on the past profits, he would anticipate future profits for the Corporation wherein a net operating loss carry forward could be utilized.
[8.] That E. Tim Schieck and John D. Kerns, the president and vice president of Rocky Mountain Cementers, Inc., respectively testified that they fully expected the Corporation to make a profit in the future. That both testified for the current year, the Corporation had a net profit of approximately $110,000. As a result, both testified that they believed that the Corporation had been damaged to the extent of approximately $50,000. This testimony was allowed over the defendants'] objections as to foundation. On cross examination Mr. [Schieck] admitted that the company had filed an amended tax return in conjunction with the July 31, 1999 tax return, which reflected an operating loss of $67,829.00. ... The subsequent admission of trial exhibit E, reflected an actual tax refund of $26,259.00.
9. That both expert witnesses, Richard Shamley, CPA, and Dennis Howard, CPA, testified that $ 382 of the Internal Revenue Code applied to the plaintiff-tax payer in this case. Mr. Howard testified regarding the operative part of the IRC Section which applied to this case and recited the mechanical application of the statute to the facts of this case and testified that applying § 382 of the Internal Revenue Code to the sale resulted in a limitation of the amount of the loss carry forward which could be used in each year. Mr. Howard testified that the amount of such limitation was $14,125 per year, pro-rated in the first year to $5,885.... Dennis Howard testified further that applying the limitations on the amount of loss carryforward which could be claimed to the actual tax returns, after the $160,633 adjustment to the loss carry forward was deducted, that since the time of the sale there was no net change in any tax consequences to the plaintiff-taxpayer through the July 31, 1999 tax year, and that of the $42,981 remaining loss carryforward, that $8,846 of such loss remained to be used in FYE July 31, 2000, if there was any net income.... Mr. Howard further testified that and the court found that if the total of $14,125 in loss carryfor-ward could be used against FYE 7-31-00 income the future loss for such year would be $662.51. Both experts testified that unless the company has taxable income in the future there would be no future damages.
10. That the Plaintiff Diane E. Schieck, the treasurer for the Corporation, testified that she handled the day-to-day bookkeeping activities for the Corporation. Ms. Schieck testified that as of April 30, 2000, the Corporation had income of approximately $110,000. She further testified that she anticipated additional income through the end of the Corporation's tax year. Such testimony was allowed over the defendants' objection to foundation and best evidence.
11. That the Defendants' expert, Dennis Howard, CPA testified regarding the maximum damages which could be sustained based upon the Plaintiff Rocky Mountain Cementers, Inc. generating at least $14,125 of net taxable income in every year from the year 2001 through 2010. Mr. Howard testified that based upon the historical average tax rate calculated by him and the use of 9% for the capitalization rate for determination of the present value of the MAXIMUM future losses, Mr. Howard calculated the MAXIMUM future damages at $11,438.80. Mr. Howard also testified that the present value of the MAXIMUM future damages would only be ... $8,680.98 if a capitalization rate of 15% were to be used.

CONTRACT DAMAGES

[T10] In an action for breach of contract, the damages awarded are designed to put the plaintiff in the same position as if the contract had been performed, less proper deductions. JBC of Wyoming Corp. v. City of Cheyenme, 843 P.2d 1190, 1195 (Wyo.1992). The plaintiff has the burden of producing sufficient evidence to prove his damages. Wagon Wheel Village, Inc. v. Harris, 993 P.2d 323, 325 (Wyo.1999). " Damages must be proven with a reasonable degree of certainty, and a court may not resort to speculation or conjecture in determining the proper amount to award."" Sannerud v. Brantz, 879 P.2d 341, 345 (Wyo.1994) (quoting Cottonwood Valley Ranch, Inc. v. Roberts, 874 P.2d 897, 899 (Wyo.1994)).

DISCUSSION

May the court allow testimony regarding future - profits - without - foundation, based on conjecture and speculation over the objection of the appellants for lack of foundation and best evidence?

[T11] The sellers' primary argument is that the trial court erred by allowing the testimony of the buyers and the buyers' CPA regarding the amount of the corporation's future profits. The sellers contend that the trial court should have sustained their objections under W.R.E. 701, for lack of foundation, and under W.R.E. 1002, for lack of best evidence, as no documentation regarding the books and records of the corporation were offered into evidence to support the witnesses' speculations.

[112] The Statement of Proceedings indicates that two certified public accountants testified as experts for the buyers and sellers at trial. The Statement of Proceedings does not specify whether the buyers who testified did so as expert witnesses. With nothing more in the record, we assume that they testified as lay witnesses. W.R.E. 701 states:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

This Court has stated that "[lt was the intent of the framers of the Rules of Evidence to considerably relax the prohibition against receipt of opinion testimony both by expert and lay witnesses. Generally, the rules should be liberally construed to allow the admission of such evidence." McCabe v. R.A. Manning Const. Co., Inc., 674 P.2d 699, 705 (Wy.1983).

[T13] The question of allowing or excluding evidence is a question for the trial court to decide. Brockett v. Prater, 675 P.2d 638, 641 (Wyo.1984). A trial court's ruling will not be overturned without a clear showing of an abuse of discretion. Id. In determining whether there has been an abuse of discretion, " 'the ultimate issue is whether or not the court could reasonably conclude as it did"" Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998) (quoting Gaines v. Doby, 794 P.2d 566, 570 (Wyo.1990)). The burden is on the appellant to show such abuse. Blake v. State, 933 P.2d 474, 477 (Wyo.1997).

{114] Without a transcript, it is impossible to determine what foundation may have been laid for the challenged testimony. However, some foundation for the opinions is contained in the Statement of Proceedings. Therefore, we accept the trial court's findings as to the admissibility of this evidence. Salt River Enterprises, Inc. v. Heiner, 663 P.2d 518, 520 (Wyo.1983). We cannot say that it was an abuse of discretion for the trial court to have admitted the buyers' lay opinions as to future profits.

[115] The sellers also contend that this testimony violated W.R.E. 1002. W.R.E. 1002 states: "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute." W.R.E. 1001 defines writings and recordings as consisting of "letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation[.]" (Emphasis added.)

[T 16] There is nothing in the trial court's findings or in the Statement of Proceedings to suggest that the buyers' testimony was given to prove the contents of a writing. Rather, the testimony was offered as opinions on the likelihood of future profits. W.R.E. 1002 does not apply to such testimony, so it was not error for the trial court to overrule the sellers' objection.

[117] The sellers' statement of this first issue is limited to the admission of testimony regarding future profits of the corporation. In their appellate brief, however, the sellers also contend that it was error for the trial court to allow Neal Johnson, the corporation's accountant, to testify that the NOL carry forward reduction amount was $160,633.00. Their major concern is that Neal Johnson's statement as to the amount of the reduction is reflected in the one documentary piece of evidence produced by the buyers. This was a copy of the revised audit report made by the IRS, which itemized the adjustments made to income. The amount came to $160,633.00, to which the IRS then deducted a previous NOL of $84,370.00, to arrive at a total adjustment for year ending July 31, 1995, of $76,263.00. This value equaled the corporation's taxable income for the year, a loss of $76,263.00, so the corrected income was $0.00, and no taxes were due. This evidence, not the evidence concerning future profits, is the primary focus of the sellers' W.R.E. 1002 argument-the best evidence of the NOL carry forward reduction would be the IRS audit report.

[118] Onee again, the limitations inherent in having a statement of the proceedings, rather than a transcript, make it impossible to determine the exact basis for the trial court's evidentiary rulings. Some information may be discerned from the known facts. For instance, Neal Johnson was not giving an opinion as an expert witness; rather, he was testifying as a fact witness-the corporation's accountant. Further, his testimony detailed the nine separate expenses that had been disallowed by the IRS, including the separate amount for each expense. While we know from the scant record that the sellers objected to this testimony on the basis of foundation and the best evidence rule, we do not know what foundation may have been laid, nor what writings, if any, may have been utilized to produce the individual numbers, nor do we know why the trial court overruled the objections. What is most odd, given the nature of an objection under W.R.E. 1002, is the fact that the IRS examination report detailing the $160,633.00 NOL reduction had been received into evidence as Plaintiffs' Exhibit 13. It is hard to comprehend a best evidence objection under these cireum-stances. The sellers have not met their burden of showing that the trial court abused its discretion in admitting this testimony.

May the court award a judgment for damages against the defendants based in part on losses claimed due to the filing of an incorrect or fraudulent tax return of the plaintiffs?

[119] This issue is founded in the testimony of the buyers' expert, Richard Sham-ley, CPA. Mr. Shamley estimated the buyers' tax loss at $50,086.00. He admitted, however, that this estimate was based upon the corporation's 1997 and 1998 tax returns, which were not completed in accordance with IRC § 382. The sellers' expert, Dennis Howard, CPA, agreed that the tax returns did not follow the Internal Revenue Code. Nevertheless, the trial court utilized the $50,086.00 figure in determining the buyers' damages. That is the error now alleged.

[120] The sellers' expert, using the same $160,633.00 NOL carry forward reduction relied upon by the buyers' expert, but using what he considered to be the correct IRS procedures, calculated the buyers' damages to be $12,101.31. The trial court found that both opinions were "based upon valid and thoughtful accounting approaches to the projection of any loss attributable to the reduction of the said net operating loss carry forward of Rocky Mountain Cementers, and therefore, should be given equal consideration." The trial court then averaged the two computations, awarding damages in the amount of $31,098.65.

[T21]l We agree with the sellers that this computation was in error. When evaluating the validity of a trial court's judgment, we consider only the evidence and inferences favorable to the party for whom the judgment was rendered. Sun Land & Cattle Co. v. Brown, 394 P.2d 387, 389 (Wyo.1964). When this Court does not have a properly authenticated transcript before it, it must accept the trial court's findings of fact upon which it bases any decisions regarding evidentiary issues. Salt River Enterprises, Inc., 663 P.2d at 520. On the other hand, "[t]he factual findings of a judge are subject to a broader scope of review than a jury verdict, and the appellate court may examine all of the properly admissible evidence in the record." R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo.1999).

[T22] The trial court found that, "Itlhe reduction in the net operating loss carry forward of Rocky Mountain Cementers resulting from the Internal Revenue Service audit directly and proximately caused a loss to the Schiecks/Kerns and Rocky Mountain Cementers." It went on to find that, "[the testimonies of E. Tim Schieck and John D. Kerns, the President and Vice President/Treasurer of Rocky Mountain Cementers respectively, reflect the Schiecks/Kerns' calculation of their loss to be approximately $50,000, based upon a reduction in the net operating loss carry forward of approximately $160,000." The trial court concluded:

Competent and persuasive evidence was presented at trial to establish that the Schiecks/Kerns and Rocky Mountain Cementers have proven by a preponderance of the evidence that they suffered a loss as a result of the reduction of the net operating carry forward represented to be available to Rocky Mountain Cementers in its 1994 U.S. Corporation Income Tax Return for the tax year beginning August 1, 1994, ending July 31, 1995; that the Capshaws expressly agreed to indemnify the Schiecks/Kerns and Rocky Mountain Cementers from "any loss or damage occasioned by any act of the corporation, its officers, directors and shareholders"; and that accordingly, the Capshaws are liable to the Schiecks/Kerns and Rocky Mountain Cementers for a reasonable value to be attributed to the loss sustained by the reduction of the net operating loss carry forward....

(Emphasis in original.)

[123] There was sufficient evidence in the record that allowed the trial court to conclude as it did as to future profits. The buyers' CPA expert testified that the corporation's tax returns showed a profit for three of the last four years. He further testified that the one year showing a loss was due to extensive equipment purchase. Based on this past performance, the CPA expert expected the corporation to be profitable in the future. The corporate officers provided similar testimony. It was reasonable for the trial court to conclude that the corporation would have future profits, and that it would suffer a loss as a result of the NOL carry forward reduction.

[124] It was not reasonable, however, to accept the buyers' expert's damage computation where even the buyers' expert agreed that the computation was based on an improper application of the Internal Revenue Code by the corporate accountant. IRC § 382 states, in part:

(a) General rule-The amount of the taxable income of any new loss corporation for any post-change year which may be offset by pre-change losses shall not exceed the section 382 limitation for such year.
(b) Section 382 limitation.-For purposes of this section-
(1) In general. as otherwise provided in this section, the section 382 limitation for any post-change year is an amount equal to
(A) the value of the old loss corporation, multiplied by
(B) the long-term tax-exempt rate.
"eom ock
(e) Cole ie
(1) In general.-Except as otherwise provided in this subsection, the value of the old loss corporation is the value of the stock of such corporation....

26 U.S.C.A. § 382 (1988).

[125] Applying the above to the instant case, the value of the corporation equals the value of the stock, which is $250,000.00. If this amount is multiplied by the long-term tax exempt rate of 5.65% for 1996, the maximum amount of NOL carry forward that could be utilized in a tax year would be $14,125.00, prorated in the first year (1996 tax return) to $5,885.00. For each successive year, the exemption amount would be $14,125.00.

[126] For the 1996 tax year ending July 31, 1997, the corporation's accountant improperly applied a NOL carry forward amount of $88,346.00 rather than the prorated amount of $5,885.00 as allowed by the federal government. The buyers' CPA expert testified that the reduction of the NOL carry forward resulted in a tax loss of $50,086.00. This testimony was based upon the manner in which the corporation's accountant prepared the 1996 and 1997 tax returns. Because the corporation accountant's methods were incorrect (for the 1996 tax return he should have applied a NOL carry forward of $5,885.00 not $88,346.00, and for the 1997 return, he should have applied $14,125.00 rather than $5,702.00), the CPA expert's calculations of $50,086.00 cannot be accurate. We find that the trial court erred in concluding that the CPA expert's accounting methods and calculations were correct, and his analysis should not have been utilized in calculating the damage award. The balance of the evidence leads to the conclusion that the opinion of the sellers' expert-that, assuming $160,633.00 as the NOL carry forward reduction, the buyers' loss would be $12,101.31-is correct. The judgment must be reduced to that amount.

May the court award judgment for future damages for loss of future tax benefits when the plaintiff{s] put on no evidence regarding the amount of any future taxable income?

[T27] This is a sufficiency of the evidence issue. In such case, we do not substitute ourselves for the trial court as a finder of fact; instead, we defer to the trial court's findings unless they are unsupported by the record or erroneous as a matter of law. Kendrick v. Barker, 2001 WY 2, ¶ 12, 15 P.3d 734, 738-39 (Wyo.2001). We assume that the evidence of the prevailing party is true, and give to it every favorable inference. Id. at 788. We do not consider the contrary evidence. Town of Wheatland v. Bellis Farms, Inc., 806 P.2d 281, 284 (Wyo.1991) (quoting Sun Ridge Development, Inc. v. City of Cheyenne, 787 P.2d 583, 589 (Wyo.1990)). The findings of the trial court are affirmed if there is any evidence to support them. Bowker v. Bowker, 795 P.2d 1215, 1218 (Wyo.1990); Pine Creek Canal No. 1 v. Stadler, 685 P.2d 13, 19 (Wy.1984).

[128] At the risk of being redundant, we will state yet again that a W.R.E. 3.03 statement of the proceedings is not as helpful as a transcript when evaluating evi-dentiary issues. And, pursuant to Salt River Enterprises, Inc., 663 P.2d at 520, we must once again give greater deference to the trial court's determinations. In so doing, we find that the Statement of Proceedings contains sufficient evidence to substantiate the trial court's conclusion that the corporation will have sufficient future profits to sustain damage by virtue of the NOL carry forward reduction. Specifically, according to the Statement of Proceedings, Neal Johnson testified that the corporation's 1996 tax return reflected "profit income" of $88,346.00. He further testified that the 1997 tax return showed income of $176,692.00. The president and vice-president of the corporation testified that, for the current year, the corporation had a profit of $110,000.00, and that they "fully expected the Corporation to make a profit in the future." The corporate treasurer's testimony confirmed the current income of $110,000.00, and she also testified that additional income through the end of the year was anticipated. The buyers' expert testified that the corporation had made a profit in three of the four years since the purchase and that, in the one year showing a loss, there was considerable equipment purchased. He also testified that, based on past profits, he would expect future profits sufficient to utilize a NOL carry forward. This testimony, taken together, was sufficient to support the finding that the corporation would make profits in the future.

CONCLUSION

[129] The trial court did not abuse its discretion in admitting testimony as to future profits and use of the NOL carry forward. In addition, there was sufficient evidence of future profits to sustain a judgment in favor of the sellers. The trial court erred, however, in relying upon the opinion of the buyers' expert in determining the amount of damages, where even that expert agreed that his opinion was based upon an incorrect tax return computation. The evidence supports a damage award of $12,101.31. This case is remanded to the trial court for entry of a judgment in that amount in favor of the buyers.

      . A net operating loss is the excess of allowable deductions over gross income computed under the law in effect for the loss year. 2002 Master Tax Guide 11176 at 347 (CCH 2001). Under Internal Revenue Code (IRC) § 382, a corporation may use a specified amount of the loss to offset income for a given year, thereby reducing the corporation's taxes for that year. Generally, losses can be carried back for two years preceding the loss and carried forward for twenty years following the loss. Losses occurring prior to August 6, 1997, could be carried back for three years and carried forward for fifteen years. 2002 Master Tax Guide, supra, 11179 at 348.

      . The trial court found the amount of the reduction to be $160,633.00. That finding is one of the issues in this appeal.

      . Federal long-term, tax exempt rate (highest of January, February, or March 1996). 4 Standard Fed. Tax Rep., Net Operating Loss Deduction, TT 12,002-12,014 (CCH 2002).

      . The corporation's tax year is from August 1 to July 31. Therefore, for the first year, the prorated exemption would be for five months, August through December. To arrive at $5,885.00, multiply 5/12 times the yearly exemption of $14,125.00.

      . This case is remanded to the trial court for modification rather than recalculation of the damages, as the trial court has already concluded that $12,101.31 is a valid assessment of damages.