State v. St. Francis

STATE_V_ST_FRANCIS.92-341; 160 Vt. 352; 628 A.2d 556


 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. 92-341


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Franklin Circuit

 Robert A. St. Francis                        May Term, 1993



 Edward J. Cashman, J.

 Howard W. Stalnaker and James A. Hughes, Franklin County Deputy State's
    Attorneys, St. Albans, for plaintiff-appellee

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



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



      MORSE, J.   This appeal raises the following question: May probation be
 revoked based on conduct that occurred after a defendant begins serving a
 split sentence but before starting the probationary period?  We hold that
 the law permits revocation in this case and affirm.
      Defendant was convicted of sexual assault on a minor and sentenced on
 August 26, 1991 to a term of fourteen months to six years, all suspended
 except for fourteen months.  On the same day defendant was sentenced, a
 probation order issued, placing him "on probation in the care and custody of
 the Commissioner of Corrections until further notice" with conditions, one
 of which was that he "not engage in threatening, violent or assaultive
 behavior."  Defendant signed the order.  He began serving his sentence on
 September 3, 1991.  He was furloughed in February 1992 and remained in that
 status under the authority of the Department of Corrections' field
 supervision unit until June 11, 1992.  The following day, June 12, he signed
 a "Probation Supervision Contract."
      On June 17, 1992, defendant's probation officer filed a complaint
 asserting that defendant had violated one of the conditions of probation by
 making unwanted sexual advances on a number of occasions toward his cousin.
 The woman complained about incidents that occurred between the date
 defendant was sentenced and the date he began serving his sentence, between
 the date he was furloughed and the date he began the probationary period,
 and after the probationary period commenced.
      Probation was revoked based primarily on an incident that occurred on
 May 31, 1992, before, according to defendant, the probationary period began.
 Defendant contends that his probation cannot be revoked for conduct that
 took place on that date because the plain language of the probation statute
 does not allow it and because he had not signed the probation contract at
 that point.  We reject both arguments.
      Defendant's statutory argument is based primarily on the term
 "probation" being defined as "a procedure under which a respondent, found
 guilty of a crime . . . is released by the court, without confinement,
 subject to conditions imposed by the court and subject to the supervision of
 the commissioner." 28 V.S.A. { 201 (emphasis added).  This definition,
 however, is not intended to limit the period in which probation can be
 revoked.  Indeed, { 201 provides that the definition applies "[w]henever
 used in this chapter, unless a different meaning plainly is required."  Id.
 (emphasis added).
      Other sections of the probation statute suggest that the court has the
 power to revoke probation from the date of sentencing.  For example, at the
 time a probationer is placed in custody, the court must provide to the
 Commissioner of the Department of Corrections a probation warrant setting
 forth, among other things, the conditions of release.  28 V.S.A. { 203(a).
 The warrant "shall be sufficient authority for the apprehension and
 detention of the probationer by the commissioner . . . at any time or
 place."  Id. { 203(c).  Further, the court may issue a warrant for the
 arrest of a probationer, or a probation officer may arrest a probationer
 without a warrant "[a]t any time before the discharge of the probationer or
 the termination of the probation period."  Id. { 301.
      We join the overwhelming majority of federal and state courts in
 holding that probation may be revoked for acts committed by a defendant
 after imposition of the sentence but before commencement of the probationary
 term.  See, e.g., United States v. Daly, 839 F.2d 598, 601 (9th Cir. 1988)
 (district court could revoke probation for conduct occurring while
 defendant was released on bond pending appeal); United States v. Yancey,
 827 F.2d 83, 84-5, 88 (7th Cir. 1987) (probation revoked for acts committed
 while defendant was in prison); State v. Padilla, 744 P.2d 548, 549-50 (N.M.
 Ct. App. 1987) (although probationary period had not commenced, district
 court could revoke probation of defendant who failed to return from work
 release program); State v. Jacques, 554 A.2d 193, 194 (R.I. 1989)
 ("prevailing view is that probation may be revoked by a court before a
 defendant completes serving his sentence and begins his probationary
 period").  See generally Annotation, Power of Court to Revoke Probation for
 Acts Committed After Imposition of Sentence but Prior to Commencement of
 Probation Term, 22 A.L.R. 4th 755, 757 (1983) (virtually all federal and
 state courts have concluded that probation may be revoked for acts committed
 between sentencing and beginning of probationary term).  This holding is
 consistent with our probation statute, as noted.
      Moreover, it makes sense.  A court's decision to suspend all or part of
 a sentence is conditioned on the assumption that the defendant will refrain
 from certain behavior.  Thus, from the time the conditions are imposed at
 sentencing, the defendant is on notice to conform his conduct to those
 conditions, and at any time thereafter the court may impose the underlying
 sentence based on the defendant's failure to do so.  See United States v.
 Veatch, 792 F.2d 48, 52 (3d Cir. 1986) ("The need for the power to revoke is
 perhaps more acute when the additional offense occurs so soon after
 imposition of a sentence than it would be when the infraction occurs years
 later."); United States v. Ross, 503 F.2d 940, 943 (5th Cir. 1974) ("Sound
 policy requires that courts should be able to revoke probation for a
 defendant's offense committed before the sentence commences; an immediate
 return to criminal activity is more reprehensible than one which occurs at a
 later date.").  Here, the court used its discretion to suspend most of
 defendant's sentence subject to certain conditions.  Those conditions were
 included in the probation order issued at sentencing, which constituted the
 contract between the probationer and the court.  See State v. Whitchurch,
 155 Vt. 134, 139, 577 A.2d 690, 693 (1990).  Despite that contract,
 defendant chose to ignore the conditions.  The fact that he committed the
 offending acts before beginning the probationary period of the split
 sentence does not absolve him of responsibility for having violated those
 conditions.
      Affirmed.

                               FOR THE COURT:

                               ______________________________________________
                               Associate Justice