State v. Barrows

State v. Barrows (2001-246); 172 Vt. 596; 776 A.2d 431

[Filed 08-Jun-2001]

[Motion for Reargument Denied 28-Jun-2001]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 01-246

                               MAY TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 1, Windsor Circuit
                                       }
Anthony Barrows	                       }	DOCKET NOS. 1234-8-00; 1522-10-00;
	                               }		    1574-10-00;1701-11-00
                                       }		    & 1702-11-00 WrCr

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


       Defendant Anthony Barrows appeals from the Windsor district court's
  decision denying his  request to be released on conditions after he was
  charged with two violations of his conditions of  probation.  Despite the
  existence of provision prohibiting defendant from contact with the victim
  of a  crime for which he had been convicted, defendant entered the store
  where the victim worked, and  where the crime had been committed.  In
  addition, at approximately 4:30 a.m. the following  morning, defendant was
  stopped by a police officer and subsequently charged with a violation of a 
  curfew condition of his probation.

       The court's decision denying release followed a hearing on defendant's
  motion to review denial  of bail and probable cause pursuant to 13 V.S.A. §
  7554(d)(1).  On appeal, defendant acknowledges  that as a probationer
  charged with violation of probation he has no right to bail or release
  pursuant to  28 V.S.A. § 301(4) ("There shall be no right to bail or
  release.").  He asserts, however, that the court  erred in exercising its
  discretion to deny his request that he be released on conditions.  See
  V.R.Cr.P.  32.1(a)(3) (providing that a "probationer held in custody . . .
  may be released by a judicial officer  pending hearing or appeal")
  (emphasis added). 

       Although defendant is correct that the court has the discretion to
  grant bail or release to a  probationer, it is not required to do so.  The
  issue here is not whether the court abused its discretion  by failing to
  consider factors relevant to conditions of release, see V.R.Cr.P.
  32.1(a)(3) (in  determining conditions of release, the judicial officer
  shall consider the factors set forth in 13 V.S.A.  § 7554(b)), but rather,
  whether the court abused its discretion in determining that defendant was
  not  entitled to be released.

       Any district court order so appealed shall be affirmed if it is
  supported by the proceedings  below. 13. V.S.A. § 7556(b); see also State
  v. Patch, 145 Vt. 344, 353 (1985) ("To support a claim 

 

  of error ther must be a showing that the court failed to exercise its
  discretion, or exercised it for  reasons clearly untenable or to an extent
  clearly unreasonable.").  Defendant directs our attention to  single
  justice entry orders reversing and remanding bail decisions inadequately
  supported by the  record.  See, e.g., State v. Begin, No. 99-148, slip op.
  at 1 (Vt. April 8, 1999) (reversed and  remanded where "no indication in
  the record that a hearing was held or what the factual basis was for  the
  denial of bail").  In the instant case, a hearing was held and a review of
  the proceedings below  present an adequate factual basis for the district
  court's decision.  As noted in its decision, the court  reviewed all of the
  relevant files, and considered the testimony of defendant's sister,
  arguments by  defendant's attorney, and the State's response.  The trial
  court's decision was further informed by  defendant's return to the store
  where the victim of his prior crime was present. Where the statute  creates
  no right to bail in the first instance, it cannot be said that the court's
  decision was clearly  untenable or unreasonable.


       Affirmed.



                                       FOR THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice