State v. Carlson
| Decision Date | 02 December 1975 |
| Docket Number | No. 65-74,65-74 |
| Citation | 349 A.2d 237,133 Vt. 562 |
| Parties | STATE of Vermont v. Wayne CARLSON. |
| Court | Vermont Supreme Court |
Michael J. Sheehan, Windsor County State's Atty. and William J. Donahue, Windsor County Deputy State's Atty., White River Junction, for plaintiff.
Edward R. Kiel, Springfield, for defendant.
Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.
The defendant, Wayne Carlson, was convicted of the crime of escape (13 V.S.A. § 1501(a)(1)) by jury verdict after a trial held on January 30-31, 1974. Judgment was entered on the verdict, and from it the defendant appeals to this Court.
The defendant, a Canadian citizen, was first confined in the correctional facility at Burlington, Vermont, upon a federal detainer by the Department of Immigration, for illegal entry into the United States. While at the Burlington Correctional Center, the defendant was charged with assault, escape, and aggravated assault as a result of an attempted escape in which the defendant was alleged to have been involved. The defendant was then transferred by the Department of Corrections to the State Correctional Center at Windsor, Vermont, for safekeeping, in accordance with 28 V.S.A. § 702. During his confinement at the Windsor Correctional Center the defendant escaped, but three days later he was apprehended by New Hampshire authorities and returned to Windsor.
The State concedes that the defendant was neither given notice of, nor a hearing on, the transfer from the Burlington Correctional Center to the one at Windsor.
The defendant, in two pretrial motions, questioned the legality of his custody at Windsor, claiming that his due process rights were violated and that, therefore, he was not in custody at the time of his alleged escape from Windsor. Both motions were denied.
The defendant's first claim is that he was in unlawful custody when he was incarcerated at the Windsor correctional facility. He does not attack, as we understand it, the lawfulness of his original incarceration in the Burlington Correctional Center. In essence, the defendant is saying that he was entitled to notice and hearing before he was transferred from one correctional institution to another, and, because of this claimed procedural lack, he was not in lawful custody at the time he escaped from the Windsor Center.
Vermont, like many states, permits the Commissioner of the Department of Corrections to transfer an inmate to any of the correctional facilities, with certain exceptions relative to children. The Commissioner has the authority to transfer a person, under arrest and charged with an offense, from one correctional facility to another if he determines that such person cannot be properly or safely kept at the original facility. 28 V.S.A. § 702(a), (b). Nothing in our statutes requires that notice and hearing be provided to the person so transferred. We are aware that the various federal jurisdictions have come to different conclusions on the right of a transferee to a hearing.
There were various lawful means by which the defendant could have raised the question of whether his detention at the Windsor Correctional Center was lawful. But escape was not such a method.
The basic postulate that we are governed by rule of law requires that we recognize its authority, and recognize likewise our duty to challenge its application by resort to proper judicial proceedings, not self-help. In re Provencher, 127 Vt. 558, 562, 255 A.2d 180, 183 (1969).
We believe it to be fundamental that those who are under a court order may not challenge that order by violating it. Walker v. City of Birmingham, 388 U.S. 307, 320, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). We find no error in the trial court's not accepting the defense of unlawful confinement at the time he was charged with violation of 13 V.S.A. § 1501(a)(1) (escape statute). Nor do we find error in the trial court's denial of the defendant's motions to dismiss and for acquittal, which were advanced on the same ground.
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State v. Kasper
...the prosecutor's comment was retaliatory; it therefore was within the scope of rebuttal. See V.R.Cr.P. 29.1; State v. Carlson, 133 Vt. 562, 564-65, 349 A.2d 237, 239 (1975). The appellant bears the burden of demonstrating that the trial court abused its discretion by denying his motion for ......
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State v. Peters, 409-80
...to challenge its application by resort to proper judicial proceedings, not self-help. Id. at 562, 255 A.2d at 183. In State v. Carlson, 133 Vt. 562, 349 A.2d 237 (1975), we again recognized the fundamental principle that "those who are under a court order may not challenge that order by vio......
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State v. Mott
...telling him. We do not generally allow a person who is under a court order to challenge it by violating it. See State v. Carlson, 133 Vt. 562, 564, 349 A.2d 237, 238 (1975). Moreover, defendant's arguments involve a collateral attack on the abuse prevention order. Although collateral attack......
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In re Carpenter
...("We do not generally allow a person who is under a court order to challenge it by violating it."); see also State v. Carlson, 133 Vt. 562, 563-64, 349 A.2d 237, 238 (1975) (barring defendant from challenging lawfulness of his detention in context of criminal prosecution for escape).¶ 14. A......