State v. Wisell

394 A.2d 1144 (1978)

STATE of Vermont v. Agnes M. WISELL

No. 247-77.

Supreme Court of Vermont.

November 3, 1978.

M. Jerome Diamond, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff.

James L. Morse, Defender Gen., Charles S. Martin, App. Defender, David W. Curtis, Acting App. Defender, and Mary Reis, Law Clerk, Montpelier, on brief, for defendant.

Before BARNEY, C. J., and DALEY, LARROW and HILL, JJ.

PER CURIAM.

In this criminal case, the State has moved to dismiss the defendant's appeal because the notice of appeal was not filed within thirty days of entry of judgment. It relies upon our holdings in State v. Cooley, 135 Vt. 409, 377 A.2d 1386 (1977) and State v. Savo, 136 Vt. ___, 388 A.2d 391 (1978).

The written judgment order and sentence below, on a plea of nolo contendere, was entered April 14, 1977. On April 28, defendant filed her motion under V.R.Cr.P. 32(d), to withdraw her plea. This was denied on August 4, and on August 9 she filed her notice of appeal, specifying both the April 14 judgment and the August 4 ruling as the orders appealed from.

On a claim of manifest injustice, a plea withdrawal may be permitted under V.R.Cr.P. 32(d) even after sentence. If made before an appeal is taken, it may be disposed of by the trial court; if not made, or not disposed of, before appeal, such disposition is precluded, unless a remand for disposition is obtained from this Court. See Commonwealth v. Simon, 389 A.2d 151 (Pa. Super.1978).

Whatever the intimations of our language in State v. Cooley, supra, we are of the further view that:

(1) Denial of a motion to withdraw a plea under V.R.Cr.P. 32(d) is "a question of law involved in a judgment of conviction," and therefore an appealable order under 13 V.S.A. § 7401. Cf. Reporter's Notes, V.R. Cr.P. 11(e)(6).

(2) As such, it must be designated in any notice of appeal as the order appealed from. V.R.A.P. 3(d).

In the instant case, the notice of appeal specifies both orders appealed from. As to the April 14 judgment it is out of time, more than thirty days having expired. State v. Savo, supra. As to the August 4 order, it is timely filed.

*1145 Motion to dismiss appeal denied; appellate consideration and argument limited to the order of August 4, 1977.

BILLINGS, J., did not sit.