State v. Blondin
Annotate this Case
STATE_V_BLONDIN.94-048; 164 Vt 55; 665 A.2d 587
[Filed 28-Jul-1995]
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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 94-048
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Caledonia Circuit
Gerald W. Blondin January Term, 1995
David Suntag, J.
Robert Butterfield, Caledonia County Deputy State's Attorney, St. Johnsbury,
and John W. Kessler, Assistant Attorney General, Montpelier, for
plaintiff-appellee
Robert Appel, Defender General, and William A. Nelson, Appellate Defender,
Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J. Petitioner appeals the district court's ruling that he is
not entitled to presentence credit for time served because he had already
received credit for that time toward a prior sentence. We affirm.
On June 27, 1993, while on parole in connection with a 1969
second-degree murder conviction, petitioner was arrested for simple assault
and unlawful mischief. The new charges also constituted parole violations,
which triggered revocation proceedings that were
initiated that same day. Petitioner was arraigned on the new charges on June
29, but failed to post the required bond; accordingly, a mittimus issued for
his pretrial detention. On July 20, 1993, petitioner's parole was revoked
and he was given credit toward his paroled sentence for the time he spent in
custody following his June arrest. On December 13, 1993, petitioner was
convicted of simple assault and acquitted of unlawful mischief. On January
5, 1994, he was sentenced to eleven-to-twelve months to be served
consecutively to the paroled sentence. Petitioner requested credit for the
six months he spent in custody serving the underlying sentence before his
sentencing on the assault conviction. The trial court denied any credit and
petitioner appealed.
Petitioner argues that the plain meaning of 13 V.S.A. 7031(b) and the
case law construing the statute require that he be given credit for the six
months he spent in jail before he was sentenced on the simple assault
conviction, notwithstanding that (1) he received credit toward his underlying
murder sentence for the three weeks he spent in jail before his parole was
revoked, and (2) for the other five months, he was serving the underlying
sentence. In short, defendant seeks double credit for the six months he
spent in jail between June 1993 and January 1994 -- credit toward both his
underlying sentence and his new sentence -- even though the district court
determined that the sentences should be served consecutively.
We decline to grant the double credit defendant seeks, which would, in
effect, make the underlying and new sentences concurrent for the six-month
period. See Emerson v. State, 498 N.E.2d 1301, 1302-03 (Ind. Ct. App. 1986)
(if defendant were granted presentence credit against sentence imposed for
escape in addition to credit for sentence being served
at time of escape, effect would be to impose concurrent sentence for portion
of escape sentence, despite fact that sentences were imposed consecutively).
The plain meaning of 13 V.S.A. 7031(b) does not require that parole
violators who are jailed and do not make bail on new charges be given double
credit for time served before imposition of either the new or the underlying
sentence, whichever comes later, even if the sentences are imposed
consecutively. Such an irrational result would be contrary to the view of
the vast majority of courts construing virtually identical statutes in
similar situations. More importantly, it would undermine the trial court's
ability to impose consecutive sentences, and would provide incentives for
both defendants and the State to try to manipulate the timing of judicial
proceedings so as to shorten or lengthen the ultimate sentence served.
Such absurd consequences need not follow from 7031(b), which requires
that credit be given "for any days spent in custody in connection with the
offense for which sentence was imposed." Section 7031(b) does not address the
circumstances present in this case and does not specifically authorize double
credit for jail time. On many occasions, we have held that our overriding
goal is to construe a statute according to the legislature's purpose and
intent, and that we are not confined to a literal reading of the statute if
applying its plain language would conflict with its purpose or lead to
unjust, absurd, or irrational consequences.(FN1) E.g., State v. Forcier, ___
Vt. ___, ___, 643 A.2d 1200, 1202 (1994); State v. Therrien, 161 Vt. 26, 31,
633 A.2d 272, 275 (1993); State v. Papazoni, 159 Vt. 578, 580-81,
622 A.2d 501, 503 (1993); State v. Caron, 155 Vt. 492, 513, 586 A.2d 1127,
1139 (1990). As we have stated before, the purpose of 7031(b) is to
ensure that offenders unable to make bail do not serve a longer sentence than
more affluent defendants who are able to make bail and avoid pretrial
incarceration. In re Perry, 137 Vt. 168, 170, 400 A.2d 1013, 1015 (1979).
Giving defendant double credit under the present circumstances would do
nothing to further that purpose, notwithstanding his claims to the contrary.
Federal and state courts reviewing almost identical statutes in
analogous situations have not felt constrained by the plain-meaning rule to
award double credit toward consecutively imposed sentences. Section 7031(b)
is modeled after a virtually identical federal statute that was enacted in
response to two United States Supreme Court opinions mandating credit for
presentence jail time. Compare 13 V.S.A. 7031(b) ("The court shall give
the person credit toward service of his sentence for any days spent in
custody in connection with the offense for which sentence was imposed.") with
18 U.S.C. 3568 ("The Attorney General shall give any such person credit
toward service of his sentence for any days spent in custody in connection
with the offense or acts for which sentence was imposed.").(FN2) The federal
courts have unanimously refused to allow double credit under 3568 in
situations similar to the one presented here. See State v. Boettcher, 423 N.W.2d 533, 536-37 (Wis. 1988) ("federal courts have been unanimous in
concluding that, in the case
of consecutive sentences, there is no requirement that there be a time credit
against more than one sentence"; "federal courts are firm and unanimous that
there shall be no dual credit for the same presentence time served").
For example, in Doyle v. Elsea, 658 F.2d 512 (7th Cir. 1981), a parolee
was arrested and jailed on the charge of interstate transportation of forged
travelers' checks. A week later, a parole violation warrant was issued
against the defendant; as a result of the warrant, the bondsman refused to
bail him out, and he was unable to raise the full amount of bail in cash. He
remained incarcerated for four months before he was convicted and sentenced
for the new offense in 1978. Some time after the conviction, the parole
violation warrant was lodged as a detainer against the defendant. Two years
later, his parole was revoked, and he sought credit toward his underlying
sentence for the four months he spent in jail before being convicted on the
new offense.(FN3) The district court granted the request, reasoning that his
pretrial custody was "in connection with" his parole violation. In
overruling the district court, the Seventh Circuit held as follows:
Doyle would have this court . . . hold that such credit must be
granted without regard to whether the credit was also applied
to the arrest-related sentence. Such a rule would disregard the
practical realities of the case before us. We therefore decline
to adopt it.
As a practical matter, Doyle spent four months in pretrial
custody for two reasons: because he was accused of committing
a crime, and because he was accused of violating his parole. It
seems obvious -- and not particularly unusual -- that he was in
pretrial custody "in connection with" both the violator term and
the 1978 sentence. Therefore, under section 3568, he is entitled
to receive credit for the pretrial custody. That is not to say that
he is entitled to double credit. It simply means that he is
entitled to have the total amount of time he must spend in
prison under his two sentences reduced by the amount of time
he spent in pretrial custody.
There is no dispute that Doyle received credit on his 1978
sentence for the full period he spent in pretrial custody.
Because the parole violator term was ordered to run
consecutively to the 1978 sentence, the effect of applying the
credit to the 1978 sentence was to reduce the total amount of
time Doyle must actually spend in prison by four months. That,
and no more, is what Doyle is due under section 3568.
Id. at 515 (emphasis added); see Wolcott v. Norton, 365 F. Supp. 138, 140 (D.
Conn. 1973) (Congress did not intend 3568 to credit state pretrial
detention time toward state sentence and again toward underlying federal
sentence imposed due to parole violation; other courts faced with similar
claims have declined to award double credit); Echeandia v. United States
Attorney General, 339 F. Supp. 272, 273 (S.D.N.Y. 1972) (accord).
Courts in other jurisdictions that have statutes modeled after 3568
have also refused to grant double credit in situations like the one presented
here. For example, construing a statute nearly identical to ours in relevant
part, the Wisconsin Supreme Court reversed a court of appeal's ruling giving
double credit under similar circumstances. Boettcher, 423 N.W.2d at 534. In
that case, a probationer was arrested on a probation-hold warrant for being
in possession of a handgun. The court noted that it was unclear whether the
probationer was taken into custody for the crime of being a felon in
possession of a handgun or for violating conditions of probation, but assumed
for purposes of argument that he was being held for both of those reasons.
Id. at 534 n.1. The probationer spent ten days
in jail before being released from custody on the firearms charge on a
signature bond; however, he remained in custody under the probation hold.
His probation was revoked and the underlying sentence imposed three months
later. Two days after revocation of his probation, he pled no contest to the
firearms charge. The trial court refused to allow any credit for
preconviction custody toward the firearms sentence. The court of appeals
ruled that he should receive credit for the ten days he was held on both the
new charge and the probation-violation warrant. The supreme court reversed,
holding that double credit was inappropriate under the statute. Id. at 534.
According to the court,
custody credits should be applied in a mathematically linear
fashion. The total time in custody should be credited on a day-
for-day basis against the total days imposed in the consecutive
sentences. For ease in calculation and clarity in respect to
subsequent exercise of court discretion, the credits should be
applied to the sentence that is first imposed.
Id. at 539 (emphasis added); see Endell v. Johnson, 738 P.2d 769, 771 (Alaska
Ct. App. 1987) (construing "in connection with" statute, court refused to
award double credit toward new sentence imposed consecutively to underlying
sentence reinstated after probation violation); State v. Whitney, 768 P.2d 638, 649 (Ariz. 1988) (defendant not entitled to double credit against
consecutively imposed sentences for parole violation and new offense); Mills
v. Commonwealth, 723 S.W.2d 859, 860-61 (Ky. Ct. App. 1986) (accord). But see
State v. Ramzy, 649 P.2d 504, 506 (N.M. Ct. App. 1982) (defendant who failed
to make bail on new offense committed while he was free on appeal bond was
entitled to credit toward new sentence for jail time spent while serving term
for underlying sentence following revocation of appeal bond).
Some courts have gone even further, holding that once either the
underlying sentence
or the sentence for the new offense is imposed, no double credit is allowed
for jail time served before imposition of the second sentence, even if the
sentences are imposed concurrently. See Shelvy v. Whitfield, 718 F.2d 441,
446 (D.C. Cir. 1983) (defendant "is entitled to presentence credit only for
days of incarceration during which he was not serving any sentence"); Ali v.
District of Columbia, 612 A.2d 228, 229-30 (D.C. 1992) (it is generally
accepted that preconviction credit on new charge ceases at time parole
violation warrant is executed; because defendant received credit against
underlying conviction, he was not entitled to credit against new offense
after execution of warrant). In Shelvy, the court reached its decision based
on the language of 3568 and Congress's consistently expressed intent to
grant defendants credit only for confinement before and during trial, not for
postsentence custody. Shelvy, 718 F.2d at 444, 446; cf. Wolcott, 365 F. Supp.
at 140 (no basis for concluding that Congress intended 3568 to provide
credit against defendant's underlying federal sentence for time spent in jail
after defendant began serving state sentence for offense that led to
revocation of federal parole). According to the court, it would be
artificial to hold that time spent in jail for one sentence is still "in
connection with" other charges not yet adjudicated. Shelvy, 718 F.2d at 444.
In our view, this position is unacceptable for the same reasons that
double credit is inappropriate when sentences are imposed consecutively -- it
is illogical and unfair, and it would undermine the trial court's control
over sentencing. See State v. Carson, 393 N.W.2d 382, 384 (Minn. Ct. App.
1986) (trial court imposed concurrent sentences for probation violation and
for new offense that led to revocation of probation; denial of credit against
either sentence for time spent in jail before imposition of second sentence
would impose de
facto consecutive sentence to extent that there was any delay in revoking
probation and executing underlying sentence). If we were to adopt the
position taken in Shelvy and Ali, the length of a defendant's ultimate
sentence would turn on when the underlying and new sentences were imposed,
which would be subject to the parties' manipulation and to irrelevant factors
such as whether the defendant pled guilty or demanded a jury trial. See
State v. Dulski, 363 N.W.2d 307, 310 (Minn. 1985).
Accordingly, we hold that when a defendant is incarcerated based on
conduct that leads both to revocation of probation or parole and to
conviction on new charges, the time spent in jail before the second sentence
is imposed should be credited toward only the first sentence if the second
sentence is imposed consecutively, but toward both sentences if the second
sentence is imposed concurrently. See id. at 309 (in determining whether to
give double credit for period of incarceration between imposition of
sentences, "crucial factor" is whether sentences are to be served
concurrently or consecutively); see also Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986) (accord). We realize that this holding will probably not be
the final word from this Court in a complex area of the law that often
requires case- by-case analysis, but it is a fair and straightforward
benchmark that gives the trial court, rather than the parties, control over
sentencing.
Moreover, this holding is consistent with most of our prior cases on
custody credit. In related contexts, this Court has refused to give double
credit toward consecutive sentences. For example, in Perry, we rejected the
defendant's contention that 7031(b) required compounding of jail time
credit for consecutive sentences, pointing out that the purpose of the
statute was not to award double credit, but rather to assure that an
individual
is not subjected to imprisonment solely because of indigency. 137 Vt. at
170-71, 400 A.2d at 1015. We reaffirmed this reasoning in State v. Percy,
158 Vt. 410, 421-22, 612 A.2d 1119, 1127 (1992), where we held that only a
single credit for pretrial jail time should be allowed toward four
consecutively imposed sentences.
Although both Perry and Percy are factually distinguishable from the
present case, a literal reading of 7031(b) would have required the
opposite result in both cases. In Percy, the pretrial custody was, without
doubt, "in connection with" each of the four offenses for which the defendant
was convicted and sentenced, and thus quadruple credits would have been due
under a literal reading of the statute. Indeed, in a similar case, the
Connecticut Supreme Court felt compelled to award credit against each of
several consecutively imposed sentences because of its prior holding in
Mancinone v. Warden, 294 A.2d 564, 568 (Conn. 1972). See Delevieleuse v.
Manson, 439 A.2d 1055, 1058 (Conn. 1981) (although concurrent sentences had
been imposed in Mancinone, custody credit statute does not distinguish
between concurrent and consecutive sentences; therefore, plain meaning
required that double credit be awarded).(FN4) In short, the plain meaning of
7031(b) does not compel reversal here any more than it did in Percy.
Nor does the plain meaning of 7031(b) require reversal here any more
than it did in State v. Coe, 150 Vt. 448, 554 A.2d 656 (1988). In that case,
the defendant was arrested for assault in New York while he was on probation
in Vermont. A Vermont arrest warrant on the probation violation was obtained
approximately halfway through the defendant's six-
month New York sentence, and he was returned to Vermont after completing that
sentence. Two months later, his probation was revoked, and the underlying
sentence was reinstated. We affirmed the trial court's refusal to give
defendant credit toward the reinstated sentence for time served in New York.
Rejecting the defendant's argument that the time he served in New York was
"in connection with" the offense for which his probation was revoked, we held
that a Vermont defendant seeking presentence credit for jail time in another
jurisdiction had to show that the custody resulted solely from the Vermont
detainer. Id. at 452, 554 A.2d at 659. A plain-meaning analysis similar to
the one espoused by defendant would have precluded this logical holding.
To bolster his argument, defendant relies primarily on two Vermont
cases, In re Lampman, 135 Vt. 226, 373 A.2d 547 (1977) and In re Zera, 137
Vt. 421, 406 A.2d 396 (1979). Although Lampman contains language favorable
to defendant's position, it involved concurrently imposed sentences;
therefore, it is distinguishable from the present case, and its result is
consistent with our holding today. Further, both Lampman and Zera were
escape cases in which this Court relied on stipulations from the parties
stating that confinement was more restrictive than it had been before the
defendants escaped.
In Zera, the defendant refused to accept release on personal
recognizance after being arrested for failing to return from furlough. He
pled guilty to escape and, four months after his arrest, was sentenced to a
term to be served consecutively with the sentence he had been serving. The
trial court refused to give the defendant credit for three months he spent in
jail between his arraignment on the escape charge and his commitment for
observation to evaluate his sanity. This Court reversed that decision based
on the plain meaning of
7031(b), as well as the following reasoning:
The parties have stipulated that, as a matter of policy in
Vermont, inmates posing a threat to the security of the
institution are confined in areas separate and apart from the
regular programs of the institution; that such inmates are not
eligible for furlough, work-release, passes, or outside supervised
work crews; and further that, subsequent to the petitioner's
nonacceptance of release on personal recognizance, this policy
was applied to him. The fact that the petitioner was subjected
to more restrictive conditions of confinement following his
arraignment on the escape charge provides additional support
for our holding that the petitioner's incarceration was "in
connection with the offense charged" within the meaning of 13
V.S.A. 7031(b). This refutes the conclusion of the superior
court that the time the petitioner spent in custody was "for
other reasons." The record clearly reveals that the more
restrictive conditions were imposed because the petitioner had
escaped, the very incident for which he was arraigned, and in
connection with which personal recognizance was offered and
refused. On this record, the petitioner's custody was in
connection with the offense charged.
Zera, 137 Vt. at 424-25, 406 A.2d at 398 (emphasis added).
In the present case, in contrast, defendant made no showing whatsoever
that his failure to post bail on the assault charge resulted in more
restrictive confinement than what would have been imposed upon revocation of
his parole had he made bail on the assault charge. Undoubtedly, defendant
did not post bail simply because it would not have resulted in his being
freed from custody. We decline to reward those defendants who do not post
bail in such circumstances by granting them double credit for jail time
between imposition of the first and second sentence. See Endell, 738 P.2d at
771 (rejecting double credit to probationer under similar circumstances,
court noted that those who posted bail but continued to be held on another
charge would actually be penalized for doing so).
On appeal, defendant can point out only that his status as a detainee
pending
prosecution required permission of the court and the prosecuting attorney
before he could be allowed access to furlough and work-release programs. See
28 V.S.A. 759(b). He does not argue that he sought, or was denied, such
permission, or that he would have received such privileges had he made bail
on the new charges. Thus, Zera is distinguishable from the present case. In
any event, we overrule Zera to the extent it is inconsistent with today's
holding. See, e.g., State v. Weaver, 762 P.2d 1361, 1364-65 (Ariz. Ct. App.
1988) (crediting both underlying sentence and consecutive sentence for escape
with same presentence incarceration gives double credit and is therefore
improper); Jorgensen v. State, 559 N.E.2d 616, 618 (Ind. Ct. App. 1990)
(because defendant was serving murder sentence at same time she was awaiting
sentence for escape, any credit for that time would have been double credit
to which she was not entitled under statute). We affirm the trial court's
refusal to grant defendant double credit for time served before he was
sentenced on his assault conviction.
Affirmed.
FOR THE COURT:
______________________________
Associate Justice
-----------------------------------------------------------------------------
Footnotes
FN1. We recognize that penal statutes generally are construed favorably to
the accused, State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (1989);
however, 13 V.S.A. 7031 is primarily administrative in nature and not
truly penal because it neither defines an offense nor prescribes a
punishment. See Endell v. Johnson, 738 P.2d 769, 771 n.1 (Alaska Ct. App.
1987).
FN2. 18 U.S.C. 3568 has since been amended and renumbered to 18 U.S.C.
3585(b). The statute no longer contains the "in connection with" language,
but rather mandates credit for detention time served "as a result of the
offense for which the sentence was imposed." The change in language has had
no effect with respect to the issue considered here. Indeed, the amended
statute expressly adopted prior federal cases disallowing double credit. See
State v. Morrick, 432 N.W.2d 654, 657 n.2 (Wis. Ct. App. 1988).
FN3. Apparently, the defendant in Doyle did not request double credit for
time served following his conviction on the new offense. Such a request, as
discussed infra, would probably have been denied by the federal district
court even if it had imposed concurrent sentences.
FN4. The Connecticut legislature changed its presentence statute in direct
response to the Mancinone decision. Payton v. Albert, 547 A.2d 1, 4 (Conn.
1988).
-----------------------------------------------------------------------------
Dissenting
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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 94-048
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Caledonia Circuit
Gerald W. Blondin January Term, 1995
David Suntag, J.
Robert Butterfield, Caledonia County Deputy State's Attorney, St. Johnsbury,
and John W. Kessler, Assistant Attorney General, Montpelier, for
plaintiff-appellee
Robert Appel, Defender General, and William A. Nelson, Appellate Defender,
Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
ALLEN, C.J., dissenting. I dissent from today's holding because I
believe the plain meaning of 13 V.S.A. 7031(b) requires the trial court to
credit defendant for days spent in detention in connection with the second
offense.
I do not agree with the majority's assertion that its holding is
consistent with our prior cases. We have applied the plain meaning of
7031(b) to all of our presentence credit determinations for nearly two
decades. See, e.g., In re Lampman, 135 Vt. 226, 228, 373 A.2d 547, 548
(1977) (credit allowed for time in question, even though part of previous
sentence was also "spent in custody in connection with the [subsequent]
escape charge"). We relied on the plain meaning of 7031(b)
notwithstanding much of the federal case law now cited by the majority. But
today the majority has taken it upon itself to effectively redraft the
statute in an effort to reach what it believes is a more reasonable result.
To justify abandoning our precedent, the majority imagines a "logical
extreme" in which a defendant receives quadruple credit for sentences to be
consecutively served. Ironically, this Court has already entertained such a
hypothetical in Percy, 158 Vt. 410, 421, 612 A.2d 1119, 1127 (1992). In
Percy, we eschewed an over-literal interpretation and instead applied the
plain meaning and achieved a principled result consistent with the statute's
legislative purpose. Specifically, we rejected Percy's argument that he
receive credit for forty years rather than ten years, because the purpose of
7031(b) was to provide equal sentencing treatment for persons who could
not raise bail.(FN1) Id. at 422, 612 A.2d at 1127. We concluded that where
sentences are imposed consecutively, credit shall be applied toward one but
not all subsequent sentences. Id. at 421-22, 612 A.2d at 1127.
Significantly, Percy received a single credit toward one of the four
subsequent charges for time he also served against his first conviction.
The majority's reliance on Zera's dictum as additional justification to
stray from the plain meaning is equally unpersuasive. Zera's discussion of
stricter release conditions supported the Court's application of the plain
meaning by pointing out that the more restrictive conditions demonstrated
that Zera was serving time in connection with the escape charge. State v.
Zera, 137 Vt. 421, 424-25, 406 A.2d 396, 398 (1979).
I also disagree with the majority's alternative construction because it
does nothing to further the legislative purpose of 7031(b). See Marden v.
Walton, 142 Vt. 204, 207, 455 A.2d 321, 322 (1982) (this Court should
construe statute to effectuate legislative intent). The purpose of
7031(b) is to ensure that offenders unable to make bail serve a sentence no
longer than more affluent defendants who are free on bail before a
conviction. In re Perry, 137 Vt. 168, 170, 400 A.2d 1013, 1015 (1979). As
we explained, the proper limiting factor of
7031(b) is whether the time served is "in connection with" the offense for
which credit is sought. Marden, 142 Vt. at 207, 455 A.2d at 322.
Under the revised construction, if the conduct that leads to revocation
of parole also leads to a conviction on new charges, defendant is allowed
credit only toward the paroled sentence. The controlling inquiry is now
whether parole is ultimately revoked, not whether defendant is detained
because he could not afford bail. "`If [the legislature] had wished to
exclude from the operation of the statutes those who would not be released
from custody even if they posted bail that exception could easily have been
spelled out.'" In re Lampman, 135 Vt. at 229, 373 A.2d at 548 (quoting
Mancinone v. Warden, 294 A.2d 564, 568 (Conn. 1972)).
The statute plainly requires the court to give presentence credit for
"any days spent in custody in connection with the offense for which the
sentence was imposed." 13 V.S.A. 7031(b). The statute does not proscribe
credit for time served concurrently with another sentence or pending parole
revocation hearings. See People v. Simpson, 174 Cal. Rptr. 790, 793 (Cal.
Ct. App. 1981) (plain meaning of presentence credit statute provides no
exceptions and permits credit for presentence detention notwithstanding
parole board's simultaneous credits). We should not read such exceptions
into the statute.(FN2) See Marden, 142 Vt. at 207, 455 A.2d at 322 (court
may not by judicial interpretation expand the language or plain meaning of
statute). Our obligation is to enforce the statute according to its terms.
Revising the purpose and effect of 7031(b) is the Legislature's
responsibility. The majority's suggestion that without revising our
interpretation of 7031(b), the parties would be enticed into manipulating
the timing of judicial proceedings is pure conjecture. In addition, I do not
see how the application of the plain meaning restricts the trial court's
control over sentencing. Establishing sentencing guidelines is the
Legislature's province; implementing them is the judiciary's domain.
Because defendant's pretrial detention was imposed in connection with the
new charges, the trial court decision denying defendant credit for time spent
in jail in connection with the assault charge should be reversed.
By:
_______________________________________
Chief Justice
-----------------------------------------------------------------------------
Footnotes
FN1. Percy was convicted of sexual assault and received an
eighteen-to-twenty-year sentence in his first trial. At a second trial for
crimes committed while he was awaiting his first trial, Percy was convicted
and given four additional sentences totalling forty-two to sixty years.
These subsequent sentences were to be served consecutively to the first
sentence. We affirmed the trial court award of ten-years' credit towards
Percy's subsequent sentences for time spent in custody prior to the second
trial.
FN2. Notably, had the parole board authorized defendant's release pending
revocation hearings, 28 V.S.A. 551(e), his pretrial detention would have
required credit towards the subsequent offense.
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