State v. Higgins

Annotate this Case
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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                          Nos. 87-060 and 87-451


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Daniel Higgins                               Unit No. 1, Windham Circuit

                                             January Term, 1991


Robert Grussing III, J.

Dan Davis, Windham County State's Attorney, Brattleboro, and Gary Kessler
   and Pamela Hall Johnson, Department of State's Attorneys, Montpelier, for
   plaintiff-appellee

Michael Rose, St. Albans, for defendant-appellant


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


     MORSE, J.   The sole issue we address in this appeal is whether the
trial court misinterpreted our remand in State v. Higgins, 147 Vt. 506, 519 A.2d 1164 (1986).  We find that our remand was not followed and accordingly
reverse and remand.
     In 1984, defendant pled nolo contendere to one count of lewd and
lascivious conduct with a minor and was given a deferred sentence of five
years by Judge Grussing.  He subsequently was charged with violating
conditions of his probation, was found by Judge Hudson to have violated
three of those conditions, and was sentenced to one-to-five years, with
three months to serve.  He appealed, and this Court struck two of the three
probation violations for insufficient evidence.  The case was remanded with
instructions: "This Court cannot know what sentence might have been imposed
by the sentencing judge for a single violation of probation, rather than the
three violations found by the trial court.  We therefore remand for
resentencing."  Id. at 508, 519 A.2d  at 1166.
     On remand, the case was assigned to Judge Grussing, who resentenced
defendant to one-to-four years, with one year to serve.  Defendant now
appeals receiving a greater sentence for his original conviction based on
only one probation violation than he previously received based on three,
asserting that this result is contrary to our remand.
     This is not a case where the "original conviction has, at the
defendant's behest, been wholly nullified and the slate wiped clean."
North Carolina v. Pearce, 395 U.S. 711, 721 (1969).  Our remand was narrow.
We did not remand for a new trial.  We remanded solely for a consideration
of what the original sentence would have been "by the sentencing judge"
given "a single violation of probation, rather than the three violations."
Judge Grussing did not limit his consideration to our narrow remand.  It is
axiomatic that on remand the trial court is constrained to follow "our
specific directions as interpreted in light of the opinion."  Coty v. Ramsey
Assoc, Inc., ___ Vt. ___, ___, 573 A.2d 694, 696 (1990).  When a case is
remanded, our decision is "the law of that case on the points presented
throughout all the subsequent proceedings."  Id.  The law-of-the-case
doctrine applies in criminal as well as civil proceedings.  See, e.g., State
v. Hunt, 150 Vt. 483, 491, 555 A.2d 369, 374 (1988).
     By referring to "the sentencing judge," we focused on what sentence
Judge Hudson, as "the sentencing judge," would have imposed "for a single
violation," not what a sentencing judge might impose without consideration
of what transpired before the appeal.  As it happened, Judge Grussing, who
had imposed the original sentence, was also assigned the case on remand, and
he clearly viewed defendant's violation as a more serious breach than Judge
Hudson did.  Had our mandate been less restrictive, the scope of Judge
Grussing's discretion could have been different.  Our mandate, however,
contemplated a sentence on remand that would not exceed the one that had
been imposed prior to the appeal.  Consequently, it was error for Judge
Grussing to sentence defendant to more than three months to serve.
     Reversed and remanded.
                                        FOR THE COURT:



                                        Associate Justice