State v. Carey

• Decision Date: 09 June 1992
• Docket Number: No. 14361,14361
• Citation: 222 Conn. 299,610 A.2d 1147
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Thurlow CAREY.

Page 1147

610 A.2d 1147

222 Conn. 299

STATE of Connecticut v. Thurlow CAREY.

No. 14361.

Supreme Court of Connecticut.

Argued March 26, 1992.

Decided June 9, 1992.

Timothy J. Sugrue, Asst. State's Atty., with whom, on the brief, was John M. Bailey, State's Atty., for appellant (state).

Sarah Slade, Certified Legal Intern, with whom were Todd D. Fernow, Timothy H. Everett and, on the brief, Brian J. Kornbrath, Hartford, for appellee (defendant).

Before PETERS, C.J., and GLASS, BORDEN, BERDON and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Associate Justice.

The principal issue in this appeal is whether noncompliance with Practice Book § 943, ¹ governing probation revocation proceedings, deprives the trial court of subject matter jurisdiction. The state appeals from the judgment of the Appellate Court reversing the judgment of the trial court and remanding the case to the trial court with direction to dismiss the proceedings. 25 Conn.App. 421, 594 A.2d 1011 (1991). We reverse.

The record reveals the following facts. On July 21, 1988, the defendant, Thurlow Carey, pleaded guilty to and was found guilty of assault in the third degree in violation of General Statutes § 53a-61. The trial court, Barry, J., imposed a ninety day suspended sentence and one year of probation. The order of probation included a special condition that the defendant have no contact with Kimberly Byrd, the victim of the assault for which he had been convicted.

During the probationary period, the defendant was arrested twice for allegedly assaulting Byrd. On February 28, 1989, the defendant's probation officer, Sharon Rome, filed a motion pursuant to Practice Book § 943 requesting the court to revoke probation on the ground that the "new conviction ² constitutes a violation of his probation." On July 11, 1989, Rome, through probation officer Barbara D'Onofrio, filed a second motion for revocation of probation on the ground of "subsequent arrests."

On July 17, 1989, the trial court held a hearing on the July 11, 1989 motion for revocation of probation. The defendant did not question the propriety of a revocation proceeding commenced by motion pursuant to § 943. The court, Norko, J., found that the defendant had violated the conditions of his probation. The court revoked the defendant's probation and committed him to the custody of the commissioner of correction to serve the suspended portion of his original sentence.

The defendant appealed from the trial court's judgment to the Appellate Court, arguing that (1) the evidence at the hearing was insufficient to sustain the revocation decision; (2) he was denied his right to confront witnesses; and (3) the hearing violated his right to due process. At oral argument, the Appellate Court, noting that the probation revocation proceeding should not have been commenced by motion pursuant to § 943, questioned sua sponte whether noncompliance with that section deprived the trial court of subject matter jurisdiction. The Appellate Court granted a continuance to allow the parties to file supplemental briefs.

The Appellate Court reversed the judgment of the trial court. State v. Carey, 25 Conn.App. 421, 594 A.2d 1011 (1991). The court held that the way in which the probation revocation proceeding had been commenced did not comply with § 943 because a motion to revoke probation is authorized only when "the revocation is based upon a conviction for a new offense and ... the defendant is before the court pursuant to that conviction." Id. at 424, 594 A.2d 1011. Because the defendant had not been convicted of either of the two alleged assaults, the court held that the failure to comply with the Practice Book deprived the trial court of subject matter jurisdiction, and ordered the judgment reversed and the probation revocation proceeding dismissed. Id. at 427-28, 594 A.2d 1011.

We granted certification to appeal limited to two issues: "(1) Did the failure of the state to comply with Practice Book § 943 with respect to initiating this proceeding for revocation of the defendant's probation deprive the trial court of subject matter jurisdiction? (2) Did the defendant waive such noncompliance by failing to raise this procedural defect in the trial court?" State v. Carey, 220 Conn. 912, 597 A.2d 336 (1991). ³

The state agrees that the revocation proceeding commenced against the defendant did not comply with § 943. The state argues, however, that this noncompliance did not divest the trial court of subject matter jurisdiction to decide whether to revoke the defendant's probation. The state contends that the failure to follow the Practice Book affected personal jurisdiction, and that the defendant had waived his right to contest the court's personal jurisdiction by failing to raise the issue at the probation revocation hearing.

The defendant argues that the Appellate Court correctly concluded that § 943 grants the trial court subject matter jurisdiction to adjudicate probation revocation proceedings, and that, therefore, the failure to follow the proper procedure divested the trial court of that jurisdiction. The defendant advances three arguments to support his position that § 943 implicates the court's subject matter jurisdiction: (1) probation revocation is penal in nature; (2) probation revocation is separate from the criminal prosecution, thus necessitating a new basis for subject matter jurisdiction; and (3) § 943 implements constitutional and statutory rights.

Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11. "A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it." Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979). " 'Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.' " Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 73, 540 A.2d 59 (1988) (Shea, J., concurring), quoting C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). Article fifth, § 1 of the Connecticut constitution proclaims that "[t]he powers and jurisdiction of the courts shall be defined by law," and General Statutes § 51-164s provides that: "[t]he superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute...."

A court may raise the issue of its subject matter jurisdiction sua sponte and must dismiss the case if it finds subject matter jurisdiction to be lacking. Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989). "[O]nce the question of lack of jurisdiction of a court is raised, '[it] must be disposed of no matter in what form it is presented' ... and the court must 'fully resolve it before proceeding further with the case.' " (Citations omitted.) Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988). The question of whether the court has such jurisdiction, however, must be " 'informed by the established principle that every presumption is to be indulged in favor of jurisdiction.' " Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991).

The Superior Court hearing a criminal matter acquires subject matter jurisdiction from its authority as "a constitutional court of unlimited jurisdiction. Conn. Const., art. 5, § 1." State v. Stallings, 154 Conn. 272, 278, 224 A.2d 718 (1966). The Superior Court's authority in a criminal case becomes established by the "proper presentment of the information ... which is essential to initiate a criminal proceeding." Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967). In State v. Chin Lung, 106 Conn. 701, 720, 139 A. 91 (1927), we stated, "[u]pon the return to the Superior Court of the indictment [or information] against the accused, it obtained the sole and original jurisdiction of the charge therein made...." There is no doubt that the court may order probation and take it away. General Statutes §§ 53a-29 through 53a-34. Because "[r]evocation is a continuing consequence of the original conviction from which probation was granted"; State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988); and the inherent authority to convict and sentence a defendant flows from the authority to adjudicate a criminal cause of action, the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information. See also Liistro v. Robinson, 170 Conn. 116, 128, 365 A.2d 109 (1976) ("A probationer is subject to judicial control and 'the court may modify or enlarge' the conditions of probation.").

The Appellate Court concluded that § 943 affected the trial court's subject matter jurisdiction. It started from the premise that the rules of construction that govern statutes are equally applicable to Practice Book rules. State v. Carey, supra, 25 Conn.App. at 426, 594 A.2d 1011. The court also reasoned that unless statutory procedures are strictly followed, the matter is subject to dismissal. Id. at 426-27, 594 A.2d 1011. The court concluded that the state's failure to comply strictly with § 943 deprived the trial court of subject matter jurisdiction and remanded the case for dismissal. Id. at 428, 594 A.2d 1011.

Although the proper procedure is the filing of a motion for revocation of probation pursuant to the provisions of the Practice Book, we do not agree that § 943 implicates the court's subject matter jurisdiction. When deciding whether to revoke probation, the Superior Court does not need to reestablish its authority over a criminal case that is already properly before it.

The defendant's arguments do not...