In re Duff

ENTRY_ORDER.93-020; 161 Vt. 599; 641 A.2d 020

[Filed 21-Dec-1993]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-020

                             OCTOBER TERM, 1993


 In re John Duff                   }          APPEALED FROM:
                                   }
                                   }
                                   }          Franklin Superior Court
                                   }
                                   }
                                   }          DOCKET NO. S135-91Fc


              In the above entitled cause the Clerk will enter:

      Both the State and petitioner appeal from the superior court's order
 computing the time petitioner must serve based on sentences imposed after
 he pled nolo contendere to second-degree murder and attempted murder.  The
 parties disagree over whether to subtract jail time served from each
 sentence and whether to aggregate the sentences.  Because the court erred in
 reaching its final computation, we reverse.

      Petitioner was sentenced to a term of seventeen to eighteen years for
 second-degree murder, with credit for jail time served, and a consecutive
 term of fourteen to eighteen years for attempted murder, "which will be
 suspended in its entirety . . . again with credit for time served . . . ."
 The parties agree that the time served prior to the imposition of sentence
 was four and one-half years.  Petitioner argues that the sentences should
 first be aggregated, then twice the jail time served should be subtracted
 from the maximum and minimum terms because he was given credit for jail time
 served for each sentence, and finally the suspended sentence should be
 subtracted.  Using this calculation, petitioner arrives at a total of eight
 to nine years to serve, before good time is subtracted.

      We agree with the State that this computation is flawed.  As we have
 recently reiterated, 13 V.S.A. { 7031(b), which requires credit for jail
 time served involving the offense for which the sentence was imposed,
 entitles persons to only a single credit for prior jail time when there are
 sentences to be served consecutively.  State v. Percy, 158 Vt. 410, 421-22,
 612 A.2d 1119, 1127 (1992); In re Perry, 137 Vt. 168, 170-71, 400 A.2d 1013, 1015 (1979).  Petitioner counters that, unlike here, the sentence in Percy
 was not the result of a plea bargain in which the parties agreed upon
 specific terms that were accepted by the court.  We recognize that the
 parties and the court plainly accepted double credit for prior jail time, to
 which, as noted, there is no statutory entitlement.  In effect, what the
 parties agreed to regarding the second offense was a term of nine and one-
 half to thirteen and one-half years -- the stated term of fourteen to
 eighteen years minus the four and one-half years of prior jail time.  Thus,
 if petitioner serves the first sentence and violates probation, an

 

 underlying sentence of only nine and one-half years to thirteen and one-half
 years may be imposed, on the attempted murder charge.

      The trial court accepted the State's argument in part, but it arrived
 at a sentence of "eleven to twelve years to serve."  We cannot see how this
 result can be reached.  The issue in this case concerning aggregation is a
 red herring.  The suspended sentence may be aggregated with the first
 sentence, but only to be then subtracted from the final computation of the
 term of imprisonment.  In sum, petitioner's sentence amounts to twelve and
 one-half to thirteen and one-half years to serve, minus any good time
 calculation, followed by the suspended portion of the consecutive term,
 which is another nine and one-half to thirteen and one-half years.

      Reversed and remanded.






                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

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