Hough, In re, No. 82-238

Docket NºNo. 82-238
Citation458 A.2d 1134, 143 Vt. 15
Case DateApril 05, 1983

Page 1134

458 A.2d 1134
143 Vt. 15
In re Norman HOUGH.
No. 82-238.
Supreme Court of Vermont.
April 5, 1983.

Page 1135

[143 Vt. 16] Stephen W. Gould, Defender, Correctional Facilities, Montpelier, for petitioner-appellee.

John J. Easton, Jr., Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Jesse Bugbee, Law Clerk (On the Brief), Montpelier, for respondent-appellant.

Before [143 Vt. 15] BILLINGS, C.J., HILL, UNDERWOOD and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.

[143 Vt. 16] BILLINGS, Chief Justice.

The factual circumstances giving rise to this appeal involve a confusing series of sentences imposed on petitioner-appellee by the Rutland and Windsor District Courts, as well as a post-conviction order by the Windsor Superior Court amending those sentences. As the facts are somewhat complex and are not in dispute, a brief summary will suffice: within the space of six months, appellee was convicted of two separate felonies and two misdemeanors, and the latter two [143 Vt. 17] misdemeanor convictions resulted in the revocation of probation imposed on the first felony. The sequence of these sentences was later altered by stipulations and the superior court's order. The State appeals one portion of that order, claiming that it improperly denied the Windsor District Court the discretion, granted by 13 V.S.A. § 7032(a), to set the sentence for the second felony conviction consecutive to the prior split sentence and probation. Thus, the narrow issue on appeal is whether a sentencing court may impose a sentence consecutive to a prior split sentence and probation.

This Court has long since recognized the common law authority of courts to impose consecutive sentences. The leading case in this area is In re Sargood, 86 Vt. 130, 83 A. 718 (1912), holding that the statutory provision then in effect authorizing consecutive sentences was merely declaratory of the common law. Id. at 135-36, 83 A. at 721 (discussing P.S. 2362 (1906)). Section 7032(a) now governs consecutive sentences, and reads as follows:

If a person who has been sentenced to a term or terms of imprisonment is convicted of another offense punishable by imprisonment before he has been discharged from the former sentence or sentences, the court may sentence him to an additional term of imprisonment and shall specify whether this additional term shall be served concurrent with or consecutive to the prior sentence or sentences. (emphasis added).

The State argues that this statute creates three criteria which must be satisfied before the court can impose consecutive sentences, and that all three were met when appellee was sentenced by the district court on the second felony conviction. The first criterion is that the offender must already have been sentenced to a term or terms of imprisonment. Here, appellee had already received split sentences of two to five years suspended, seventy days to serve, for his first felony. The second criterion is that he must commit another crime punishable by imprisonment. Here, appellee's commission of the second felony constituted such a crime.

The third criterion imposed by the statute is that this subsequent conviction must occur before the defendant has [143 Vt. 18] been "discharged"...

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7 practice notes
  • State v. Saari, Nos. 86-511
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 15, 1989
    ...is plain and unambiguous, we are required to enforce it according to its terms, without resort to statutory construction." In re Hough, 143 Vt. 15, 19, 458 A.2d 1134, 1136 (1983). The language of 23 V.S.A. § 674(c) and 13 V.S.A. § 1028(a)(1) and, therefore, the limits of the court's discret......
  • State v. Oliver, No. 87-512
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 16, 1989
    ...at 141, 425 A.2d at 94. Penal statutes, on the other hand, are to be strictly construed in a manner favorable to the accused. In re Hough, 143 Vt. 15, 19, 458 A.2d 1134, 1136 (1983); State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981). "The rule of strict construction of criminal ......
  • State v. Fuller, No. 95-534.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 11, 1998
    ...is plain and unambiguous, we are required to enforce it according to its terms, without resort to statutory construction." In re Hough, 143 Vt. 15, 19, 458 A.2d 1134, 1136 (1983). The statute distinctly provides that a person commits an aggravated sexual assault when the victim is subjected......
  • State v. Coe, Nos. 87-537
    • United States
    • September 30, 1988
    ...first time on direct appeal due to the mandatory requirement of [the presentence credit statute]...."). 2 Defendant also cites In re Hough, 143 Vt. 15, 458 A.2d 1134 (1983), and 13 V.S.A. § 7032(a) for the proposition that the district court was required to order that his reimposed Vermont ......
  • Request a trial to view additional results
7 cases
  • State v. Saari, Nos. 86-511
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 15, 1989
    ...is plain and unambiguous, we are required to enforce it according to its terms, without resort to statutory construction." In re Hough, 143 Vt. 15, 19, 458 A.2d 1134, 1136 (1983). The language of 23 V.S.A. § 674(c) and 13 V.S.A. § 1028(a)(1) and, therefore, the limits of the court's discret......
  • State v. Oliver, No. 87-512
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 16, 1989
    ...at 141, 425 A.2d at 94. Penal statutes, on the other hand, are to be strictly construed in a manner favorable to the accused. In re Hough, 143 Vt. 15, 19, 458 A.2d 1134, 1136 (1983); State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981). "The rule of strict construction of criminal ......
  • State v. Fuller, No. 95-534.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 11, 1998
    ...is plain and unambiguous, we are required to enforce it according to its terms, without resort to statutory construction." In re Hough, 143 Vt. 15, 19, 458 A.2d 1134, 1136 (1983). The statute distinctly provides that a person commits an aggravated sexual assault when the victim is subjected......
  • State v. Coe, Nos. 87-537
    • United States
    • September 30, 1988
    ...first time on direct appeal due to the mandatory requirement of [the presentence credit statute]...."). 2 Defendant also cites In re Hough, 143 Vt. 15, 458 A.2d 1134 (1983), and 13 V.S.A. § 7032(a) for the proposition that the district court was required to order that his reimposed Vermont ......
  • Request a trial to view additional results

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