State v. Hale, 49-78
| Decision Date | 03 April 1979 |
| Docket Number | No. 49-78,49-78 |
| Citation | 137 Vt. 162,400 A.2d 996 |
| Parties | STATE of Vermont v. Robert HALE. |
| Court | Vermont Supreme Court |
Michael J. Sheehan, Windsor County State's Atty., White River Junction, for plaintiff.
James L. Morse, Defender Gen., Charles S. Martin and William A. Nelson, App. Defenders, and Jacqueline Coates, Legal Assistant, On Brief, Montpelier, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
The defendant is contesting the revocation of his probation. The State alleges that he breached the condition of his probation agreement that states, "You shall not be convicted of another offense."
The facts are not in dispute. On September 20, 1977, the defendant was placed on probation under a suspended sentence after pleading guilty to daytime breaking and entering. His probation conditions included the one already quoted. On December 1, 1977, he pleaded guilty to criminal trespass for acts committed on September 12, 1977, before he was subject to the probation agreement. On this plea he was fined, also receiving a suspended sentence of imprisonment and was given probation.
On December 13, 1977, based on the above events, he was charged with violating the terms of his agreement by being convicted of another offense during his probation. There is no claim of any misconduct during this time. The defendant's motion to dismiss the complaint was denied and he was found in violation, resulting in the revocation contested here. He has been ordered to serve part of his original sentence.
The State concedes that the crimes involved in the revocation were committed prior to the defendant being placed on probation. Its argument is simply that the plain language of the condition was breached.
This particular condition is the only one made mandatory by the statute, 28 V.S.A. § 252. The State argues that it contains no language requiring that the conviction be for acts done after the imposition of probation, and therefore that the action of the lower court must be sustained. Although this argument is literally correct, its consequence is that a defendant in the circumstance of this probationer has, prior to entering the probation agreement, already put compliance beyond his control without any act of any kind of his during the probationary period. In effect, once he is charged with preprobationary criminal conduct, his continuance on probation depends entirely on the activities of the prosecutor. By the theory advanced by the State, probation could be terminated by the successful prosecution of this outstanding crime during probation. The same result would follow if there were a criminal charge outstanding not disposed of under the sentencing at which probation was assigned. The prosecutor could then, at his option, bring the charge forward to end probation.
In point of fact this is both a view of probationary requirements contrary to its announced purpose and a superfluous prosecutory advantage. As to the purposes of probation it has many times been categorized as...
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State Of Vt. v. Bohannon
...556, 558 (1993) (noting that conditions included in probation order formed contract between probationer and court); State v. Hale, 137 Vt. 162, 164, 400 A.2d 996, 998 (1979) (noting that purpose of probation is “to provide the opportunity for a defendant to voluntarily condition his behavio......
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State v. Bubar
...revocation proceeding. Compliance with probation terms may not be put beyond the probationer's control. See State v. Hale, 137 Vt. 162, 164, 400 A.2d 996, 997-98 (1979) (conviction of offense committed prior to being placed on probation cannot constitute breach of probation condition). Alth......
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State v. Anderson
...“to voluntarily condition his behavior according to the requirements of the law and to test his ability to do so.” State v. Hale, 137 Vt. 162, 164, 400 A.2d 996, 998 (1979) (citing 28 V.S.A. § 252 ; ABA Standards, Probation § 1.2 (1970)). “As such it is prospective, based on a promise of fu......
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State v. Bushey
...defendant's probation for violation of this condition based on defendant's conviction of the New York offense. See State v. Hale, 137 Vt. 162, 164, 400 A.2d 996, 998 (1979) (revocation of probation should be reserved for behavior that breaches its conditions after the probationary agreement......