State v. Draper

State v. Draper  (97-055); 167 Vt. 636; 712 A.2d 894

[Filed 15-Apr-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-055

                             FEBRUARY TERM, 1998


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont
                                }     Unit 3, Franklin Circuit
Brian Draper                    }
                                }     DOCKET NO. 1748-11-92 Frcr


               In the above-entitled cause, the Clerk will enter:

       Defendant appeals from the trial court's sentence imposed after
  defendant admitted he had violated conditions of his probation.  Defendant
  was on probation as a result of a plea agreement resolving three
  misdemeanor charges for possession of marijuana, passing a bad check, and
  violating conditions of release.  Defendant had a fourth charge of
  burglary, to which he had pleaded guilty and served the non-suspended
  portion of the sentence, but he was on probation at the time of the plea
  agreement on the three new charges.  The parties agree that all four
  sentences, including the burglary sentence, were to be served concurrently;
  however, after defendant violated probation, the trial court severed the
  bad check charge sentence and continued defendant on probation, apparently
  in an effort to preserve an order of restitution.  The court revoked
  defendant's probation on the other three charges and defendant was
  incarcerated.  The result, defendant claims, is that the trial court
  unlawfully altered his sentence under 13 V.S.A. 7042, and
  unconstitutionally subjected him to a harsher punishment, in violation of
  the Double Jeopardy Clause of the Fifth Amendment to the United States
  Constitution.  We agree that the trial court was without authority to alter
  the sentence and strike the bad check charge.  In view of our disposition,
  it is unnecessary to reach defendant's double jeopardy claim.

       Although the written plea agreement is silent as to whether the
  burglary charge was to run concurrently with the three misdemeanor charges,
  the State admitted at oral argument, and the record supports, that all four
  sentences were, in fact, to run concurrently.  Therefore, we reject the
  State's argument that we should ignore the agreement on public policy
  grounds and consider the sentences to be consecutive.  Instead, we consider
  whether the trial court had any authority to increase defendant's sentence
  once the plea agreement was accepted by the court.

       The trial court's authority to alter a sentence, whether to increase
  or reduce it, is limited by 13 V.S.A. § 7042.  The relevant portion of the
  statute provides, in subsection b, that a state's attorney or attorney
  general may file a motion with the sentencing judge to increase, reduce or
  otherwise modify the sentence, but the motion must be filed within seven
  days of the imposition of sentence.  Sentence was imposed on June 11, 1996. 
  On January 23, 1997, the court revoked probation on three charges and
  continued defendant on the bad check charge.  The effect of the order was
  to alter defendant's sentence on one charge from concurrent to consecutive,
  to be served after defendant was released from incarceration on the other
  three charges.  Under 13 V.S.A. § 7042, the trial court was without
  authority to do so.

       Moreover, the trial court was constrained by the original sentence
  even after defendant's admission of a violation of probation.  Under 28
  V.S.A. § 304, the court was entitled, in its

 

  discretion, to revoke probation and require the probationer to serve the
  sentence which was suspended, to continue probation, or to alter the
  conditions of probation.  See State v. Therrien, 140 Vt. 625, 627-28, 442
  A.2d 1299, 1301 (1982).  Because defendant was serving four concurrent
  sentences, the trial court's modification of the sentence was improper.

       The order severing defendant's sentence in Docket No. 448-4-96 Frcr,
  Passing a Bad Check, is stricken and defendant shall receive credit on
  448-4-96 for time served in connection with his revoked sentences.


                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice