State v. Breault

ENTRY_ORDER.94-149; 162 Vt. 625; 649 A.2d 515

[Filed 06-Sep-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 94-149

                               MAY TERM, 1994


 State of Vermont                  }     APPEALED FROM:
                                   }
                                   }
      v.                           }     District Court of Vermont,
                                   }     Unit No. 3, Washington Circuit
                                   }
 Raynel E. Breault                 }
                                   }     DOCKET NO. 1119-12-93WnCr



              In the above entitled cause the Clerk will enter:

      In December 1993, a 77-year-old Montpelier woman was sexually assaulted
 at knifepoint by a young male.  Defendant Breault was arrested by Montpelier
 police when he returned to the victim's apartment to retrieve his wallet.
 He confessed to the assault after being informed of his Miranda rights in
 the presence of his mother.  At the time of the incident, Breault was
 sixteen years old and in the custody of the Vermont Department of Social and
 Rehabilitation Services.  He was charged in district court with aggravated
 sexual assault and burglary.

      At a status conference held on January 24, 1994, defendant's counsel
 announced her intention to file a motion to transfer the matter to juvenile
 court.  The state's attorney indicated to the court that he would oppose the
 transfer motion.  The court gave defendant seven days to file the motion and
 ordered the State to file a written opposition after receipt of relevant
 information from defendant.

      On January 31, defendant's attorney filed the motion to transfer.  The
 State did not respond to the motion.  On February 14, the court granted
 defendant's motion to transfer the case to juvenile court, noting that the
 "State apparently [has] no objections."  Later that day, the State filed a
 motion to reconsider the transfer, stating it did object to the transfer.

      On February 16, a status conference was held to discuss the State's
 motion to reconsider.  At this conference the court indicated it had
 transferred the matter to juvenile court on the misunderstanding that the
 State did not oppose the motion to transfer.  The court stated that the
 State would be given an opportunity to oppose the transfer motion and
 specifically stated that it was "not going to default" the State.

 

      Nevertheless, on February 22, the court denied the State's motion to
 reconsider.  The court ruled that when it transferred the case to juvenile
 court it had divested itself of jurisdiction and therefore no longer had
 authority to reconsider.  The court did acknowledge, however, that the
 transfer was based upon its misunderstanding and stated that the transfer
 "should never have occurred by default."

      On February 28, the State moved in the trial court for permission to
 appeal.  The court construed the motion to be an appeal of the transfer
 order and ruled it was time barred.  This Court granted the State's motion
 to appeal on March 25, and proceedings in juvenile court have been stayed
 pending resolution of this appeal.  The State argues that (1) its appeal is
 not time barred; (2) the court had the authority to reconsider the transfer
 to juvenile court; (3) the court failed to exercise discretion required in
 transfer motions; and (4) a different judge should preside on remand.  We
 reverse and remand for reconsideration of the transfer motion.

      The appeal is not time barred.  In light of the court's representations
 to the parties at the February 16 status conference, the appeal period had
 not yet begun to run.  That is, on the basis of the court's representations,
 it would be unreasonable to now fault the State for failing to appeal  the
 February 11 transfer order prior to the court's denial of the motion to
 reconsider.  We find that the appeal period did not begin to run until the
 February 22 denial of the State's motion to reconsider.  The State filed a
 motion to appeal the February 22 decision on February 28, within the seven-
 day time frame allowed under V.R.A.P. 5(b)(1).

      The court had the authority to reconsider the transfer of the matter to
 juvenile court.  The transfer was based upon a mistaken assumption that the
 State did not oppose it.  In State v. Duval, 156 Vt. 122, 589 A.2d 321
 (1991), the trial court refused to honor a "no incarceration" decision made
 at the defendant's arraignment when it became aware of recent, undisclosed
 DUI convictions.  We held that the court was properly exercising its
 inherent authority to correct mistakes caused by incomplete information, and
 the court was correct in treating the case as it should have from the out-
 set.  Id. at 128, 589 A.2d  at 325.  Strong policy reasons support the trial
 court's authority to correct this type of mistake.  It prevents enforcement
 of unintended judgments and eliminates the necessity of appeal when this
 type of mistake occurs.  See In re Waite, 140 Vt. 628, 630, 443 A.2d 462,
 463 (1982) (enforcement of unintended judgment is unacceptable).  Here, the
 trial court should simply have corrected the mistaken transfer by retaining
 jurisdiction when it realized the transfer had been based on a
 misunderstanding and then treating the case as it would have had the
 mistaken transfer not occurred.

      The court did not exercise the discretion required in transfer motions
 when it failed to conduct a hearing and issue appropriate findings of fact.
 See State v. Powers, 136 Vt. 167, 169, 385 A.2d 1067, 1068 (1978) (sound
 judicial discretion required when transferring cases to juvenile court).
 The trial court exercised no discretion here.  See State v. Willis, 145 Vt.
 459, 467-68, 494 A.2d 108, 112 (1985) (failure to exercise discretion, when
 called for, constitutes an abuse of discretion).

 

      Finally, the State argues that, on remand, a different judge should
 preside to avoid any possibility of prejudice.  Contrary rulings alone, no
 matter how numerous or erroneous, are not sufficient to show prejudice to
 justify disqualification.  Ball v. Melsur Corp., ___ Vt. ___, ___, 633 A.2d 705, 713 (1993).  The State must show that the circumstances are such that a
 "`perfectly honest and competent judge would in fact be unable to afford a
 litigant such an absolutely impartial trial as the law intends and
 requires.'"  Leonard v. Willcox, 101 Vt. 195, 216, 142 A. 762, 771 (1928)
 (quoting Powers v. Commonwealth, 70 S.W. 644, 651 (Ky. 1902)). The State has
 made no such showing to support its request to disqualify Judge Fisher.

      Reversed and remanded.





                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
 [ ]  Publish
                                    _______________________________________
 [ ]  Do Not Publish                Denise R. Johnson, Associate Justice