State v. Ely

State v. Ely  (98-451); 168 Vt. 614; 724 A.2d 443

[Filed 9-Oct-1998]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-451

                            SEPTEMBER TERM, 1998


State of Vermont                      }       APPEALED FROM:
                                      }
                                      }
     v.                               }       District Court of Vermont
                                      }       Unit No. 3, Caledonia Circuit
Shawn Allen Ely                       }
                                      }       DOCKET NO. 1074-12-95Cacr


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

       Appellant Wanda Allard, a material witness in this criminal
  proceeding, is presently incarcerated due to her inability to post the
  $50,000 cash bail set by the district court to secure her appearance at
  trial.  She invokes 13 V.S.A. § 7556(b) to seek review of the district
  court's bail determination.  I conclude that this matter is not within the
  single-justice jurisdiction established by § 7556.

       By its terms, § 7556(b) applies to "a person [who] is detained after a
  court denies a motion under subsection (a) of this section (FN1) or when
  conditions of release have been imposed or amended by the judge of the
  court having original jurisdiction over the offense charged."  This 
  plainly contemplates appeals to a single justice of this court only of
  determinations under 13 V.S.A. § 7554, which applies exclusively to "[a]ny
  person charged with an offense" that is not covered by the more restrictive
  provisions in 13 V.S.A. §§ 7553 and 7553a (relating to felonies punishable
  by life imprisonment or involving violence against another person).  In
  contrast, the statute authorizing the detention at issue in this proceeding
  appears not in Chapter 229 of Title 13, covering bail, but in Chapter 203
  of Title 13, containing exclusively provisions relating to witnesses in
  criminal proceedings.  See 13 V.S.A. § 6605 (when witness "refuses" to
  enter into recognizance with surety" specified by court, "he may be
  committed to jail . . . on a warrant of the court or magistrate making the
  order, and there detained until such time as his attendance to testify is
  required.").

       In her written memorandum, appellant concedes that section 7556 does
  not explicitly authorize appeals relating to the detention of witnesses as
  opposed to defendants, but she contends that a failure to exercise
  single-justice jurisdiction in this case would lead to absurd or irrational
  results in contravention of the oft-stated maxim against so construing
  legislative enactments.  See Braun v. Board of Dental Examiners, ___ Vt.
  ___, ___, 702 A.2d 124, 128 (1997).  The single-justice jurisdiction
  authorized by § 7556(b) operates in derogation of the rule codified at 4
  V.S.A. § 2 that the Supreme Court as a whole has "exclusive jurisdiction"
  of all

 

  appeals from judgments, rulings and orders of the state's trial  courts
  "unless otherwise provided by law."  Even assuming it is absurd or
  irrational to permit single-justice bail appeals relating to defendants but
  not to material witnesses, when the legislature creates an exception to a
  statutory scheme, "no other  exceptions will be implied, in the absence of
  evidence of a contrary legislative intent."  Vermont Development Credit
  Corp v.  Kitchel, 149 Vt. 421, 424-25, 544 A.2d 1165, 1167 (1988) (citation
  omitted).

       I believe, however, that appellant is entitled to some recourse
  against an illegal bail order. Because the order was issued by a judge who
  is sitting in both district and superior court, I doubt that exhaustion of
  a remedy in superior court would be appropriate.  Accordingly, I conclude
  that the bail order is reviewable by the full court under V.R.A.P. 21(b)
  and refer it for full court review under that rule.  Should the full court
  determine that I am in error and that single-justice review is possible, I
  refer the merits to the "entire supreme court for  hearing" pursuant to 13
  V.S.A. § 7556(b).

       Single justice review denied.  The challenge to appellant's bail is
  referred to the full court for consideration  under V.R.A.P. 21(b) or,
  alternatively, pursuant to 13 V.S.A. § 7556(b).






                               FOR THE COURT:



                               _______________________________________
                               John A. Dooley, Associate Justice




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                                  Footnotes


FN1.   Subsection (a) authorizes the court with original jurisdiction
  over the matter to amend the bail determined in the first instance, on
  motion of a defendant, to modify a such a determination when made by a
  judge of another court other than the Supreme Court.  13 V.S.A. § 7556(a). 
  This is obviously not an appeal of a subsection (a) bail determination
  because appellant is a witness and not a defendant and because she was
  detained directly by the court with original jurisdiction.