State v. Williams

EO.91-611; 160 Vt. 615; 627 A.2d 1254


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 91-611

                             FEBRUARY TERM, 1993


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 2, Chittenden Circuit
                                   }
 Robert Williams                   }
                                   }          DOCKET NO. 3950-9-91CnCr


              In the above entitled cause the Clerk will enter:

      Defendant appeals from a conviction of driving with a suspended
 license (DLS) in violation of 23 V.S.A. { 674.  He argues that he was
 charged, tried, and convicted under the wrong statute.  We reverse the
 conviction and remand the case for imposition of judgment on the lesser
 included offense and for resentencing.

      Prior to its amendment in 1991, { 674 set forth maximum fines and terms
 of imprisonment, based on the number of prior offenses, for operating a
 motor vehicle with a suspended license.  The reason for the underlying
 suspension was not relevant.  Effective July 1, 1991, the Legislature
 amended the former { 674 by creating two separate sections, {{ 674 and 676.
 Among other changes, the amended { 674 made DLS subject to criminal
 penalties only when the underlying suspension resulted from a violation of
 certain enumerated statutory sections.  If the underlying suspension was
 "for any reason" other than a violation of the sections listed in amended {
 674(a), an operator commits a civil traffic violation under { 676 and is
 subject only to civil penalties.  Thus, under the amended statute, the
 reason for the underlying suspension determines whether the offender will be
 subject to criminal or civil penalties.

      The alleged violation took place on August 1, 1991, one month after the
 amended { 674 took effect.  The information stated that defendant operated a
 motor vehicle while his license was suspended in violation of { 674 but it
 did not state the reason for the underlying suspension.  The information
 also noted six prior DLS convictions and a maximum penalty that mirrored the
 maximum penalty permitted under the former { 674 for a fourth or subsequent
 offense.  Defendant's motion in limine, which sought to exclude all testi-
 mony concerning prior DLS convictions and the reason for the suspension in
 effect on August 1, 1991, was granted.  Defense counsel stated to the court
 on the record that the parties had agreed to stipulate that defendant was
 under suspension on August 1, 1991, and that he had more than four prior
 DLS convictions, all of which were valid.  The stipulation did not identify
 the reason for any of the previous suspensions.  No evidence was presented
 at trial regarding the reason defendant's license was under suspension on
 August 1, 1991, and the court's jury charge made no mention of the reason
 for the underlying suspension.  Apparently, both parties and the court
 proceeded as if defendant were being charged under the former { 674.  The
 jury found defendant guilty, and the court sentenced him to a term of 30 to
 60 days imprisonment, which was stayed pending appeal.

      Defendant may argue for the first time on appeal that the information
 was fatally defective.  State v. Bradley, 145 Vt. 492, 494, 494 A.2d 129,
 131 (1985).  In determining the sufficiency of the information under Chapter
 I, Article 10 of the Vermont Constitution and the Sixth Amendment of the
 United States Constitution, we consider whether the charging document
 sufficiently informed the defendant of the basis and nature of the charge so
 as to enable him to prepare his defense.  State v. Towne, ___ Vt. ___, ___,
 615 A.2d 484, 497 (1992); State v. Roy, 151 Vt. 17, 28-29, 557 A.2d 884, 891
 (1989); State v. Hurley, 150 Vt. 165, 171, 552 A.2d 382, 386 (1988) (defend-
 ant must show how preparation or presentation of defense was hampered in
 some significant way by omission in information).  Thus, the key inquiry is
 whether it is fair to require the defendant to defend on the basis of the
 charge as stated in the particular information.

      We conclude that the conviction cannot stand.  Although our recent
 cases have adopted a "common sense approach" in determining the sufficiency
 of an information, State v. DeLaBruere, 154 Vt. 237, 276, 577 A.2d 254, 275
 (1990), an information that omits an essential element of the offense
 generally cannot serve as the basis of a conviction.  State v. Kreth, 150
 Vt. 406, 408, 553 A.2d 554, 555 (1988).  Here, the amended statute makes the
 reason for the underlying suspension an essential element of a { 674 vio-
 lation.  See Bradley, 145 Vt. at 495, 494 A.2d  at 132 (essential fact
 affecting degree of punishment must be alleged in information).  While
 defendant sought to exclude any testimony concerning the reason for the
 suspension that was in effect on August 1, 1991, the information did not
 apprise defendant of the fact that the reason for the suspension was an
 element of the crime.  Therefore, defendant had no opportunity to present
 any potential defense concerning the basis of the suspension, and any facts
 regarding the underlying suspension are not part of the record on appeal.
 Given these circumstances, we can hardly conclude that defendant was not
 prejudiced in preparing his defense.  Cf. Roy, 151 Vt. at 28, 557 A.2d  at
 891 (absence of implied intent element in information did not prejudice the
 defendant in preparing his defense because his own testimony showed he acted
 with requisite intent).

      Nor can we uphold the sentence based on { 674(b), which provides that
 persons who have violated "section 676" on two or more prior occasions are
 subject to the penalties set forth in { 674(a).  See McGovern v. Department
 of Motor Vehicles, 139 Vt. 169, 171, 423 A.2d 489, 490 (1980) (where statute
 permitted revocation of driver's license for life upon fourth or subsequent
 violation of "section 1201," State could not suspend the defendant's license
 for life based on convictions under prior statute).

      Because the information and evidence were sufficient to make out a
 civil traffic violation under { 676, we remand the matter for imposition of
 judgment under { 676 and for resentencing.  See State v. Bradley, 145 Vt. at
 496, 494 A.2d  at 132; State v. Manning, 136 Vt. 436, 441-42, 392 A.2d 409,
 412 (1978) (where information failed to charge aggravating circumstance,
 Court on appeal entered judgment on lesser-included offense).

      The conviction is reversed and the matter is remanded for imposition
 of judgment under { 676 and for resentencing.


------------------------------------------------------------------------------
                             Concurring
                              
      MORSE, J., concurring.   I concur in the result solely because
 V.R.Cr.P. 12, as interpreted, requires a reversal.  The rule allowing review
 of the sufficiency of an information for the first time on appeal, State v.
 Bradley, 145 Vt. 492, 494, 494 A.2d 129, 131 (1985), is predicated on
 V.R.Cr.P. 12(b)(2), which states:

             Any . . . objection . . . may be raised before trial
           by motion.  Unless otherwise ordered for cause . . . ,
           the following must be raised prior to trial if then
           known to the party: . . . [O]bjections based on defects
           in the . . . information (other than that it fails to .
           . . charge an offense, which objection[] shall be
           noticed by the court at any time during the pendency of
           the proceeding). . . .

 The wisdom for this rule is dubious.  We rarely grant relief on review
 unless the error prejudices defendant.  In this case, prejudice is most
 likely absent, given the circumstances and defendant's failure on appeal to
 reveal whether any existed.

      I believe V.R.Cr.P. 12(b)(2)'s parenthetical caveat allowing defects in
 the information to be raised "at any time" should be dropped from our crim-
 inal practice as unnecessarily technical.  The standards for plain error,
 including the need for a showing of prejudice, are sufficient.


                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
  [ ] Publish
                                    _______________________________________
  [ ] Do Not Publish                Denise R. Johnson, Associate Justice