State v. Flagg

STATE_V_FLAGG.92-027; 160 Vt. 141; 624 A.2d 864


[Filed 12-Mar-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-027


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Rutland Circuit

 Mark Flagg                                   December Term, 1992



 Theodore S. Mandeville, Jr., J.

 Marc D. Brierre, Rutland County Deputy State's Attorney, Rutland, for
   plaintiff-appellee

 E.M. Allen, Defender General, and William Nelson and Henry Hinton, Appellate
   Attorneys, Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   Defendant appeals from a denial of his motion to dismiss,
 arguing that new legislation reclassifying his offense as a civil violation,
 rather than a criminal offense, should be applied retroactively under 1
 V.S.A. { 214(c).  We reverse.
      On June 1, 1991, defendant was arrested for operating a motor vehicle
 with a suspended license (DLS) after his suspension period had expired and
 prior to the reinstatement of his license.   On August 22, 1991, defendant
 was charged with violating 23 V.S.A. { 674 as it existed at the time of
 defendant's conduct.  The Legislature had, however, reclassified
 defendant's offense, effective July 1, 1991, from a criminal misdemeanor to
 a civil traffic violation by enacting an amendment to 23 V.S.A. { 674 and a
 new section, 23 V.S.A. { 676.  The penalty for defendant's particular
 conduct was decreased under the new law.  Compare 23 V.S.A. {{
 674(a)(1)(prior to the 1991 amendment)(fine not more than $500 or
 imprisonment not more than thirty days or both for first offense),
 2502(a)(3)(A)(ten points assessed to license) with 23 V.S.A {{ 676 (civil
 traffic violation), 2302(c)(civil penalty of $175), 2502(a)(4)(C)(five
 points assessed to license).
      Defendant's motion to dismiss the criminal charge, on the ground that,
 under 1 V.S.A. { 214(c), only a civil charge could be brought, was denied.
 Defendant pled guilty to violating 23 V.S.A. { 674, as the statute existed
 at the time of his offense, reserving the right to seek review of the denial
 of his motion to dismiss.
      Vermont, like many other states, has a general saving statute designed
 to permit the prosecution of individuals who violate a law that is repealed
 prior to the prosecution and sentencing of their cases.  Under Vermont's
 saving statute, the amendment or repeal of an act shall not, except as pro-
 vided in subsection (c), "[a]ffect any violation of the act . . . amended
 or repealed, . . . prior to the effective date of the amendment or repeal."
 1 V.S.A. { 214(b)(3).  Where, however, an amendment reduces the punishment
 for an offense, Vermont law provides the following ameliorative amendment
 clause, which is an exception to the saving clause:
           If the penalty or punishment for any offense is
         reduced by the amendment of an act or statutory pro-
         vision, the same shall be imposed in accordance with
         the act or provision as amended unless imposed prior to
         the date of the amendment.
         1 V.S.A. { 214(c).
      Defendant argues that because Public Law No. 55 of 1991 reduced the
 penalty that could be imposed for his conduct, the new law should be
 applied retroactively under { 214(c).  We agree.  Section 214(c) applies
 where "the penalty or punishment for any offense is reduced."  1 V.S.A. {
 214(c).  Under the prior law, defendant's conduct constituted an offense
 carrying a penalty for the first offense of a fine of not more than $500 or
 imprisonment of not more than thirty days or both and ten points against his
 driving license.  23 V.S.A. { 674(a)(1)(prior to the 1991 amendment).  Under
 the new law, this same conduct carries a reduced penalty of a maximum fine
 of $175 and five points against his driving license.  23 V.S.A. {{ 676,
 2302(c), 2502(a)(4)(C).  Thus, { 214(c) applies.
      The State argues that the new legislation repealed the criminal
 offense of DLS after the suspension period has expired and prior to
 reinstatement of the license, and, therefore, { 214(c) regarding amendment
 of statutes does not apply.  To support its argument, the State compares the
 language of the prior { 674, which criminalized defendant's conduct, to the
 new { 674, which does not include defendant's conduct as an offense.  The
 new { 676, however, classifies defendant's conduct as a civil violation and
 provides for civil penalties.  Taken as a whole, the 1991 amendment cannot
 be said to have removed all liability for defendant's conduct.
      The State emphasizes the Legislature's choice in the numbering of the
 new laws and contends that the new laws effected a repeal of the prior {
 674.  As we have noted in the past, mere renumbering of a law does not
 indicate a repeal of the prior law; rather, the substance of the prior and
 new laws must be examined to determine whether the new scheme is essentially
 an amendment of the existing scheme.  See Myott v. Myott, 149 Vt. 573, 576,
 547 A.2d 1336, 1338 (1988) ("Although the parties have viewed the post-July
 1, 1986 custody statute as a new law (probably because the codification
 section number was changed from the former law), it is more appropriate to
 view it as an amendment of the existing custody statute.").  As other
 jurisdictions have stated, "Repeals coupled with new enactments are not
 equated at common law with outright repeals."  State v. Nichols, 718 P.2d 1261, 1263 (Idaho Ct. App. 1986).
      Instead of relying on the numbering of the new enactment in deciding
 whether it is an amendment, the court must determine whether the new
 enactment "carr[ies] forward the essential provisions of the old statute,
 preserving its viability," and whether the new enactment expresses the
 legislative intent to continue to treat the conduct as "culpable conduct,
 warranting punishment."  Id.  In the instant case, the conduct of driving
 with a suspended license after the suspension period has ended and prior to
 the reinstatement of the license continues to be treated as culpable con-
 duct.  The differences are that the conduct is now treated as a civil
 violation, rather than a criminal offense, and the penalties are reduced.
 Because the penalty for defendant's conduct has been reduced, the plain
 language of { 214(c) requires retroactive application of the reduced
 penalty.
      The State's argument that the decriminalization of defendant's offense
 precludes the application of { 214(c) has no merit.  The State provides no
 case law to support its contention.  Instead, the State points out that most
 of the cases upon which defendant relies concern the mitigation of
 punishment for continued criminal liability.  There are, however, several
 cases allowing retroactive application of new laws that reclassify
 particular conduct and thereby lessen the penalty for the conduct.  See,
 e.g., In re Estrada, 408 P.2d 948, 950-51, 48 Cal. Rptr. 172, 175 (1965)
 (reclassifying escape into two categories, punishable by different
 penalties); People v. Behlog, 543 N.E.2d 69, 72, 544 N.Y.S.2d 804, 807
 (1989) (reclassifying conduct from a felony to a misdemeanor).
      Moreover, there is case law supporting the retroactive application of
 new laws that decriminalize conduct.  See, e.g., People v. Oliver, 134 N.E.2d 197, 202, 151 N.Y.S.2d 367, 374 (1956) (reclassifying offenses
 committed by individuals between the ages of twelve and fourteen from
 criminal to juvenile offenses, thereby reducing the penalty and changing the
 legal forum); cf. United States v. Blue Sea Line, 553 F.2d 445, 446, (5th
 Cir. 1977) (reclassification of federal offense from criminal to civil
 offense applied immediately to pending cases because procedural and remedial
 in nature); United States v. Mechem, 509 F.2d 1193, 1194-96 (10th Cir. 1975)
 (same).  The fact that the new enactment accomplished more than a mere
 reduction of punishment, in that it reclassifies the offense as a civil
 violation, "does not affect its character as a legislative mitigation of
 punishment." (FN1) People v. Oliver, 134 N.E.2d  at 202, 151 N.Y.S.2d  at 374.
      The purpose of { 214(b)(3) and { 214(c) is to ensure that an accused is
 not relieved of liability due to a repeal of a statute, while at the same
 time ensuring that outdated, harsh penalties are not imposed after the
 Legislature has deemed them no longer necessary or appropriate.  Our
 criminal system is not built on the principle of punishment for punishment's
 sake; thus, no purpose is served by imposing such punishment.  See id. at
 202, 151 N.Y.S.2d  at 373-74.  The policy behind the saving clause and its
 ameliorative exception is best served by applying the new laws retroactively
 to defendant's conduct.  Defendant continues to be subject to punishment for
 his conduct, which is prohibited under the new 23 V.S.A. { 676, and thus the
 legislative intent of reducing the penalty will be carried out.
      Defendant is correct that the reduced penalty applies; however, the
 case is before us on appeal from the denial of a motion to dismiss the
 criminal charge brought in district court.  Such a dismissal would not
 result in defendant automatically receiving the reduced penalty.  The
 Legislature clearly intended, however, that the reduced penalty be
 accompanied by a reduced burden of proof on the State and summary procedures
 in traffic court.  Consequently, the motion to dismiss is granted with leave
 for the State to file a civil traffic complaint within thirty days.
      The order denying defendant's motion to dismiss is reversed, the
 conditional plea agreement is vacated, and the complaint is dismissed, with
 leave to file a civil complaint within 30 days.

                                         FOR THE COURT:




                                         Chief Justice



FN1.    Neither does the reclassification bar the filing, under 23 V.S.A. {
 676, of a civil traffic violation for defendant's pre-enactment conduct.
 The changes in the law are procedural changes:  a lessened burden of proof
 and new summary procedures in the new forum, Traffic Court.  A statutory
 change that is primarily procedural and remedial applies immediately.  See,
 e.g., United States v. Blue Sea Line, 553 F.2d  at 450 (new civil
 enforcement scheme had immediate applicability despite shift of forum from
 criminal proceedings in district court to administrative proceedings with a
 lowered burden of proof); United States v. Mechem, 509 F.2d  at 1195-96
 (reclassification of class of offenders as juveniles applicable immediately
 because statutory change provided a separate system for treatment of such
 juveniles and was predominantly procedural and remedial); Turner v. United
 States, 410 F.2d 837, 839, 841-42 (5th Cir. 1969) (new law applied to
 appellant's pending case despite the fact that procedural change withdrew
 right to hearing prior to ruling of an appeals board).