Smith, In re, 83-263

Decision Date08 June 1984
Docket NumberNo. 83-263,83-263
Citation479 A.2d 152,144 Vt. 494
PartiesIn re Richard A. SMITH.
CourtVermont Supreme Court

Andrew B. Crane, Defender Gen., and Stephen W. Gould, Defender, Correctional Facilities, Montpelier, for petitioner-appellant.

John J. Easton, Jr., Atty. Gen., and Elizabeth Grant Rome, Asst. Atty. Gen., Montpelier, for respondent-appellee.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

BILLINGS, Chief Justice.

The petitioner appeals an order of the Orange Superior Court granting the State's motion to dismiss his petition for post-conviction relief.

In 1971 petitioner pled nolo contendere to one count of kidnapping. 13 V.S.A. § 2401. In 1974, he was sentenced to a term of not less than three nor more than ten years. He completed serving this sentence sometime prior to 1980. He is currently serving a sentence in a federal penal institution for crimes committed subsequent to the kidnapping.

As grounds for this appeal, petitioner asserts: (1) that under Chapter I, Article 10 of the Vermont Constitution, and V.R.Cr.P. 23(a), the trial court was barred from accepting his plea of nolo, and thereby waiving a jury trial to which he was entitled, since kidnapping is an offense punishable by imprisonment; and (2) that the order dismissing his petition is void because the dismissal involved a question of law and the assistant judges, who have no legal training, participated in the hearing and signed the court's order. See State v. Dunkerley, 134 Vt. 523, 365 A.2d 131 (1976).

In order for the petitioner to invoke post-conviction review, he must be "in custody" under the sentence that is asserted to be improper or void. 13 V.S.A. § 7131. We have previously held that an individual need not actually be incarcerated under the conditions of the attacked sentence in order to satisfy the "in custody" requirement of 13 V.S.A. § 7131. See State v. McMann, 133 Vt. 288, 291-92, 336 A.2d 190, 192 (1975); Magoon v. Smith, 130 Vt. 603, 604, 298 A.2d 820, 821 (1972). In In re Stewart, 140 Vt. 351, 438 A.2d 1106 (1981), we held that a person who is not incarcerated is nevertheless in custody for purposes of post-conviction review if he or she suffers a significant restraint on personal liberty as a direct result of the challenged conviction. Id. at 359-61, 438 A.2d at 1109. We noted, however, that not every collateral consequence associated with a conviction will trigger post-conviction jurisdiction, and a conviction may deny or impinge on privileges that are so...

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5 cases
  • State v. Hernandez-Galarza
    • United States
    • Iowa Supreme Court
    • May 22, 2015
    ...in-custody requirement, even when the conviction itself no longer imposes a direct restraint on the petitioner. In re Smith, 144 Vt. 494, 496, 479 A.2d 152, 153 (1984) (finding no jurisdiction when petitioner moved for relief after completing kidnapping sentence and “failed to allege or dem......
  • In re Chandler
    • United States
    • Vermont Supreme Court
    • February 15, 2013
    ...by filing a motion for post-conviction relief after the custodial sentence for that conviction had expired. In re Smith, 144 Vt. 494, 496, 479 A.2d 152, 153 (1984) (finding no jurisdiction under § 7131 when petitioner moved for relief after completing kidnapping sentence and “failed to alle......
  • In re Chandler, 2012-073
    • United States
    • Vermont Supreme Court
    • February 15, 2013
    ...by filing a motion for post-conviction relief after the custodial sentence for that conviction had expired. In re Smith, 144 Vt. 494, 496, 479 A.2d 152, 153 (1984) (finding no jurisdiction under § 7131 when petitioner moved for relief after completing kidnapping sentence and "failed to alle......
  • Liberty, In re, 88-571
    • United States
    • Vermont Supreme Court
    • February 26, 1990
    ...438 A.2d 1106, 1107 (1981). Petitioner need not be actually incarcerated in order to meet the "custody" requirement. In re Smith, 144 Vt. 494, 495, 479 A.2d 152, 153 (1984). Courts considering the question have delineated the following "useful indicia" of custody: the petitioner's conduct m......
  • Request a trial to view additional results

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