State v. Clark

State v. Clark (2002-362); 175 Vt. 506; 825 A.2d 803

2003 VT 29

[Filed 27-Mar-2003]

                                 ENTRY ORDER

                                 2003 VT 29

                      SUPREME COURT DOCKET NO. 2002-362

                              MARCH TERM, 2003

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 3, Franklin Circuit
  Ernest Clark	                       }
                                       }	DOCKET NOS. 71-7-02 Frcs and
                                                            1018-7-02 Frcr

                                                Trial Judge: Charon A. True

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

       ¶  1.  The State appeals the trial court's order dismissing charges
  against defendant at arraignment and during a preliminary civil suspension
  hearing.  The State filed an information and affidavit alleging that
  defendant had operated a motor vehicle on a public highway while under the
  influence of alcohol.  Although an initial finding of probable cause had
  been made by the court pursuant to V.R.Cr.P. 5(c), the court entertained
  defendant's motion, at arraignment, to review that finding and dismiss the
  criminal and civil cases.  Defendant argued that the investigating
  officer's affidavit showed that he did not have reasonable grounds to stop
  defendant.  The State opposed the motion on the ground that the basis for
  the stop was irrelevant to the probable cause determination and that the
  stop issue should be raised and decided in a subsequent hearing.  The court
  withdrew its finding of probable cause and dismissed the information
  without prejudice.  We reverse.

       ¶  2.  As we held in State v. Roya, 169 Vt. 572, 572, 730 A.2d 600, 601 (1999) (mem.), the trial court's review of the information under
  V.R.Cr.P. 5(c) is limited to whether there is probable cause to believe
  that an offense has been committed and that defendant committed it.  If
  probable cause is found, then the information is filed and the case
  commences.  If not, the information is dismissed without prejudice.  In
  Roya we reversed the trial court's dismissal of a case with prejudice
  pursuant to Rule 5(c) because the State is entitled to re-file an
  information after a dismissal for lack of probable cause.  
   
       ¶  3.     Although the dismissal here was without prejudice to
  re-file, it was in error because the trial court went beyond the limited
  Rule 5(c) review and reached the legitimacy of the stop.  Challenges to the
  constitutionality of the stop are raised by subsequent motion under
  V.R.Cr.P. 12(b).  See V.R.Cr.P. 12(b)(3) (motions to suppress evidence on
  the ground that it was illegally obtained).  Such motions must be filed
  within twenty-eight days of arraignment.  V.R.Cr.P. 12(c).  The rule allows
  for notice and hearing to the State so that it may be prepared to defend
  the stop.  Under the trial court's procedure, the State would have to be
  prepared to defend the information at arraignment or suffer dismissal.  In
  view of the orderly procedure provided by the Criminal Rules to raise
  suppression issues, defendant's motion to dismiss for lack of probable
  cause should have been denied.

       ¶  4.  The trial court also dismissed the civil suspension on the
  same grounds.  Although a challenge to the stop is a proper issue in a
  final civil suspension hearing, State v. Lussier, 171 Vt. 19, 23, 757 A.2d 1017, 1020 (2000), the scheduled hearing was a preliminary hearing designed
  to promote discovery related to the issues to be addressed at the final
  hearing.  See V.R.C.P. 80.5(e).  The merits of defendant's challenge should
  not have been decided at that time.  In view of the improper dismissal, the
  statutory time period for completing the civil suspension hearing
  (forty-two days) shall run from the reinstatement of the civil suspension. 
  See 23 V.S.A. § 1205(h).

       Reversed and remanded. 



                                        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