State. v. Leach

State. v. Leach (2002-227); 175 Vt. 620; 833 A.2d 1260

2003 VT 66

[Filed 29-Aug-2003]

                                 ENTRY ORDER

                                 2003 VT 66

                      SUPREME COURT DOCKET NO. 2002-227

                              APRIL TERM, 2003

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 1, Windsor Circuit
  Tyler Leach	                       }
                                       }	DOCKET NO. 1591-10-00 Wrcr

                                                Trial Judge: Paul F. Hudson

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

       ¶  1.  Defendant Tyler Leach appeals from the trial court's order
  denying his motion to reconsider his motion to dismiss.  Defendant argues
  that the trial court lacked jurisdiction over him because his probation had
  expired.  We affirm.

       ¶  2.  In September 2000, defendant led police on a lengthy car
  chase that resulted in substantial damage to the pursuing officer's
  vehicle.  The parties agreed that defendant would serve a six-month
  deferred sentence, with the condition that defendant's sentence could be
  extended to allow him time to pay restitution, if restitution was ordered. 
  Defense counsel explained that this condition was designed to prevent
  defendant from having his deferred sentence revoked if he could not afford
  to pay restitution.

       ¶  3.  On April 2, 2001, defendant pled guilty to one count of
  attempting to elude a police officer.  The court accepted the parties' plea
  agreement, and sentenced defendant to a six-month deferred sentence with
  administrative probation.  The deferred sentence agreement provided that
  defendant "shall pay restitution, if ordered by the court after hearing,
  and may extend duration of deferred sentence to reflect time needed to pay
  restitution if ordered to pay same."

       ¶  4.  On May 2, 2001, the court held a restitution hearing.  The
  State presented evidence that defendant caused over four thousand dollars
  of damage to the pursuing officer's vehicle.  Although defendant had been
  notified to appear, he did not do so, and the court continued the hearing
  until May 18, 2001.  On that date, defendant testified that he was
  unemployed, financially insolvent, and a single parent to three young
  children.  He stated that he was trying to start his own business, and did
  not know how much income it would generate in the future.  In light of
  this, the court stated that it would "simply leave an order in the file
  that [we'll] check back with you in six months or so, see how things are
  going and take it from there." 
   
       ¶  5.  On July 12, 2001, the court concluded in a written opinion
  that the State had suffered $4370.23 in damages.  The court found that
  defendant "will have the ability to pay restitution; but at present he does
  not have an ability to pay."  Because the court could not establish a
  present method of payment, it ordered the case set for further proceedings
  in six months.  Defendant did not appeal this order.

       ¶  6.  In September 2001, the court notified defendant that it had
  set a second restitution hearing for February 12, 2002.  On January 18,
  2002, defendant filed a motion to dismiss, arguing that the court lacked
  jurisdiction over him.  Defendant asserted that his probationary term had
  expired because the court had not ordered him to pay restitution within his
  original probation term, nor had any probation violation proceedings been
  initiated against him.  After a hearing, the court denied defendant's
  motion.  In a written opinion, the court explained that its July 2001 order
  had established defendant's restitution obligation and extended defendant's
  deferred sentence.  The court found that defendant had agreed to this
  extension by failing to object to the court's order.  Defendant filed a
  motion to reconsider, which the court denied after a hearing.  This appeal
  followed. 

       ¶  7.  On appeal, defendant contends that the trial court should
  have dismissed the proceedings against him for lack of jurisdiction.  He
  argues that, because he agreed to a fixed probation term, the court could
  not extend his probation unless revocation or modification proceedings had
  been initiated against him during his original probation term.  He asserts
  that his probation was not extended because the court failed to issue a
  restitution order within his original probation term.  Even assuming that
  the court's July 2001 order extended his deferred sentence, defendant
  argues, the court failed to hold a second hearing within the six-month
  period specified in its order.  Defendant relies on State v. White, 150 Vt.
  132, 549 A.2d 1069 (1988), and State v. Murray, 159 Vt. 198, 617 A.2d 135
  (1992) for support.

       ¶  8.  We find defendant's arguments unavailing.  A deferred
  sentence agreement "is a form of contract subject to the normal rules for
  construction of contracts."  Murray, 159 Vt. at 205, 617 A.2d  at 139 
  (internal citation omitted).  "Where the language of the agreement is
  clear, the intention and understanding of the parties must be taken to be
  that which their agreement declares."  Lamoille Grain Co., Inc. v. St.
  Johnsbury & Lamoille County R.R., 135 Vt. 5, 8, 369 A.2d 1389, 1390 (1976). 
  In this case, defendant agreed to a conditional, rather than fixed, term of
  probation; he agreed that his deferred sentence could be extended to allow
  him time to pay restitution, if restitution was ordered.  Restitution was
  ordered in July 2001 when the court determined, without objection, that
  defendant owed the State $4370.23.  The only remaining issue was when
  defendant could pay, given his financial situation.  The court's order
  triggered the conditional provision of defendant's deferred sentence
  agreement, and extended his deferred sentence until he would be able to
  satisfy his restitution obligation.

       ¶  9.  Defendant's reliance on White, 150 Vt. 132, 549 A.2d 1069,
  and Murray, 159 Vt. 198, 617 A.2d 135, is misplaced.  In White, we
  explained that a probationer is automatically discharged from probation
  upon the expiration of a prescribed period of probation.  White, 150 Vt. at
  133-34, 549 A.2d  at 1070-71.  Consequently, the trial court lacks
  jurisdiction to revoke or modify probation based on a complaint filed after
  the expiration of a fixed probation term.  Id. at 134, 549 A.2d  at 1071. 
  Similarly, in Murray, we concluded that the trial court could not extend a
  defendant's period of probation beyond that contemplated in a deferred
  sentence agreement.  Murray, 159 Vt. at 199, 617 A.2d   at 136.  In that
  case, defendant agreed to a three year term of probation.  Four months
  after the expiration of her deferred sentence agreement, the court ordered
  her probation extended until restitution was fully paid.  We explained that
  the court could not extend defendant's probation unless it had notified her
  of her violation during her probation term.  Id. at 200, 617 A.2d  at 200. 
   
       ¶  10.  In both White and Murray, defendants agreed to fixed
  probationary terms.  In both cases, we emphasized the "vital significance
  of the fixed period of probation to probationers."  White, 150 Vt. at 134,
  549 A.2d  at 1071 (internal quotation marks and citation omitted); Murray,
  159 Vt. at 202, 617 A.2d  at 138 (internal quotation marks and citations
  omitted).  We explained that, "[w]hen placed on probation, a defendant is
  told, in effect, that after living up to the conditions of probation for
  the required period the defendant becomes free."  Murray, 159 Vt. at 202,
  617 A.2d  at 138; see also, White, 150 Vt. at 134, 549 A.2d  at 1071.     

       ¶  11.  Unlike the defendants in White and Murray, defendant here did
  not agree to a fixed term of probation with the expectation that he would
  be "free" at its expiration.  Instead, defendant was "clearly informed"
  that his sentence could be extended to allow him time to pay restitution. 
  Murray, 159 Vt. at 205, 617 A.2d  at 139.  We reject defendant's argument
  that the conditions of his probation were so unclear that compliance with
  its terms was outside his control.  Consistent with his deferred sentence
  agreement, the court found defendant liable for $4,370.23 within his
  original probation term.  The court's order triggered the conditional
  provision in defendant's agreement, and extended defendant's probation
  until restitution was paid.  Thus, the trial court retained jurisdiction
  over defendant, and it properly denied his motion to reconsider his motion
  to dismiss.  We note that the law now requires probationers to satisfy
  their restitution obligations before they can be discharged from probation. 
  See 13 V.S.A. §§ 7041(b); 7043(l) (amended 2001, No. 134 (Adj. Sess.), §§
  2, 3).

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.) 
                                       Specially Assigned