State v. Boyer, 83-003

Decision Date06 April 1984
Docket NumberNo. 83-003,83-003
Citation144 Vt. 393,481 A.2d 15
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Gregory R. BOYER.

Deborah O. Frankel, Chittenden County Deputy State's Atty., and James Carroll, Law Clerk, Burlington, on the brief, for plaintiff-appellee.

McNamara & Fitzpatrick, Inc., Burlington, for defendant-appellant.



Defendant appeals from a review of his sentence by the Chittenden District Court, which resulted in a new sentence imposing increased jail time. 13 V.S.A. § 7042(b).

Following pleas of nolo contendere on September 13, 1983, the court convicted the defendant of careless and negligent operation of a motor vehicle, 23 V.S.A. § 1091(a), and of attempting to elude a police officer, 23 V.S.A. § 1133. On the same day, he received a suspended sentence, except for fifteen days, and a fine of $250 for these two offenses.

On September 14, 1983, one day after sentencing, the State moved for reconsideration of the sentence under 13 V.S.A. § 7042(b), which provides:

(b) A state's attorney or the attorney general, within seven days of the imposition of a sentence, may file with the sentencing judge a motion to increase, reduce or otherwise modify the sentence. This motion shall set forth reasons why the sentence should be altered. After hearing, the court may confirm, increase, reduce or otherwise modify the sentence.

The State and the court were unaware at the time of sentencing that a prior conviction of defendant for driving under the influence had resulted in a fatality.

Before the hearing on the State's motion, defendant began serving his sentence; he served four consecutive weekends before he was eventually resentenced. The revised sentence required sixty to ninety days to serve on one count and four to six months to serve on the other. The sentences were to be served concurrently. The fine was revised to $350.

On appeal, the defendant argues (1) that the trial court had no authority or jurisdiction to increase his sentence once he had begun serving it; and (2) that the resentencing violated the double jeopardy clause of the Fifth Amendment to the United States Constitution. We find no error and affirm.

In support of his first argument, defendant relies on State v. Harbaugh, 132 Vt. 569, 326 A.2d 821 (1974), and In re Shequin, 131 Vt. 111, 300 A.2d 536 (1973). As the State correctly points out, however, those cases are not controlling in the instant case. Shequin involved a collateral attack on sentences under Vermont's post-conviction relief statute, 13 V.S.A. §§ 7131-7137, and Harbaugh involved a reduction in sentence apparently on the court's own motion. This case involves a review of sentence under 13 V.S.A. § 7042(b). At the time of both Harbaugh and Shequin, § 7042(b) was not in effect, nor was there any general legislative authority to review sentences. This very point was noted in both Harbaugh, supra, 132 Vt. at 580, 326 A.2d at 827, and Shequin, supra, 131 Vt. at 117, 300 A.2d at 539. Thus, those cases are not controlling.

At oral argument, both parties agreed that a ruling by a trial court under § 7042(b) is discretionary. We are convinced that there was no abuse of discretion when the court increased defendant's sentence after a hearing...

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3 cases
  • State v. Duval
    • United States
    • Vermont Supreme Court
    • 15 Febrero 1991
    ...of not being incarcerated, he cannot now be compelled to waive his double jeopardy right against harsher punishment. In State v. Boyer, 144 Vt. 393, 481 A.2d 15 (1984), we reviewed a double jeopardy claim challenging the validity of an increased sentence imposed under 13 V.S.A. § 7042(b). D......
  • Palmer v. Furlan
    • United States
    • Vermont Supreme Court
    • 21 Junio 2019
    ...131 Vt. 111, 118, 300 A.2d 536, 540 (1973), superseded in other respects by statute and rule as recognized in State v. Boyer, 144 Vt. 393, 481 A.2d 15 (1984) (per curiam). Because the stipulation does not provide the basis for the necessary findings under § 7133, the court lacked the abilit......
  • State v. Rice
    • United States
    • Vermont Supreme Court
    • 17 Agosto 1984
    ...Supreme Court decision of United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), we held in State v. Boyer, 144 Vt. 393, 481 A.2d 15 (1984), that the trial court on motion of the State had jurisdiction under § 7042(b) to increase the defendant's initial sentence a......

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