Partlow v. Perrin

• Decision Date: 16 November 1977
• Docket Number: No. 7866,7866
• Citation: 379 A.2d 1273,117 N.H. 957
• Parties: Jackie PARTLOW, Sr. v. Everett PERRIN, Warden.
• Court: New Hampshire Supreme Court

Page 1273

379 A.2d 1273

117 N.H. 957

Jackie PARTLOW, Sr. v. Everett PERRIN, Warden.

No. 7866.

Supreme Court of New Hampshire.

Nov. 16, 1977.

Dunn & Hilliard, Concord (Russell F. Hilliard, Concord, orally), for plaintiff.

David H. Souter, Atty. Gen., and Richard B. Michaud, Concord, for defendant.

PER CURIAM.

The issues raised in this petition for a writ of habeas corpus are whether this court's construction of the habitual offender act (RSA 637:11 II b) to include a prior conviction for forgery of a check as a theft of less than $100 (State v. Partlow, 117 N.H. ---, 369 A.2d 221 (1977)) was so unforeseeable as to deny him due process if it is applied to him and whether the statute violates his equal protection rights.

RSA 637:11 II b makes theft a class B felony if "the actor has been twice before convicted of theft of property or services valued at one hundred dollars or less . . . ."

Defendant was convicted of theft of less than one hundred dollars and was sentenced under the above statute as an habitual offender. He argued on appeal to this court that his record did not include the necessary two prior convictions of theft of $100 or less. Included in the record was one such prior conviction and conviction for forgery of a check whereby he obtained less than $100 and a conviction for breaking and larceny wherein he stole less than $100. This court held that the forgery conviction was a theft of less than $100 for the purposes of the statute. State v. Partlow supra. The plaintiff thereafter filed this petition.

RSA 637:11 II b, for the purposes of raising a petty theft conviction to the level of a class B felony, recognizes only prior convictions for theft of less than $100 which provides for misdemeanor punishment only. It does not count prior convictions for theft of amounts in excess of $100 which would subject defendant to felony punishment.

The only rational basis for this distinction that has been advanced or which we can conceive is that one who has committed only petty theft has never been subject to the possibility of punishment of more than one year and that when such a person commits a third such offense society should, as a deterrent, have the opportunity to punish him more severely. Because those convicted of theft of more than $100 had already been subject to the possibility of more severe punishment, the need for an augmented penalty does not exist. This is a rational basis for the statute.

Although "false pretenses" is...