State v. Moquin, 178-75.
| Decision Date | 01 February 1977 |
| Docket Number | No. 178-75.,178-75. |
| Citation | 369 A.2d 1371 |
| Parties | STATE of Vermont v. Daniel MOQUIN. |
| Court | Vermont Supreme Court |
Francis X. Murray, Chittenden County State's Atty., and Michael Goldsmith, Deputy State's Atty., Burlington, for plaintiff.
James L. Morse, Defender General, and Charles S. Martin, Appellate Defender, Montpelier, for defendant.
Before BARNEY, C. J., DALEY, LARROW and BILLINGS, JJ., and SMITH, J. (Ret.), Specially Assigned.
This is a case like that discussed in State v. Kozikowski, 369 A.2d 1369, and State v. Lawrence, 369 A.2d 1368, also decided at this term of Court. It involves the failure to provide a transcript for a year and a half after the timely filing of a notice of appeal and a request for a transcript. The defendant has moved to vacate the conviction.
This defendant was convicted of attempted rape on June 2, 1975, and sentenced to three to ten years. This sentence was to run concurrently with a zero to three-year sentence imposed on December 21, 1973, for breaking and entering and with a ninety-day to one-year sentence for simple assault effective February 2, 1975. The sentences on these previous convictions have now been served, leaving only the attempted rape sentence on a conviction not yet given appellate review. The transcript has now been filed.
On December 21, 1976, the defendant filed a motion to be released on bail pending the hearing of his appeal, which was heard on December 23, 1976, and denied. The prospect of a renewed application for bail remains deliberately available.
Although the defendant is in execution and not entitled to bail as a constitutional right, State v. Woodmansee, 132 Vt. 558, 326 A.2d 172 (1974); State v. Lawrence, 133 Vt. 330, 331, 340 A.2d 67 (1975), valid concern for his right to appellate review requires that such review not be inordinately delayed. In the event of eventual discharge, all time served entirely under the improper conviction is an unsupported penalty, and, perhaps more to the point, delay of appellate review beyond the minimum appropriate incarceration, including "good time," is an additional penalty. When such a situation seems imminent, freedom under bond may appear to be the most appropriate device to prevent an unfair penalty, if the appeal cannot be sufficiently expedited. Concern must be had, of course, to assure that the defendant had no responsibility for the delay.
As was noted in the cases of State v. Lawrence, supra, 369 A.2d 1368 and State v. Kozikowski, supra, 369 A.2d 1369, there is a responsibility on this Court to see to the provision of the required transcript. The provision of transcripts is a function of the appellate process. To insure its proper operation, it will be necessary to require that requests for transcribed testimony be put in an order of priority. The rights of an imprisoned person, not free on bail, whose care has had no review, call for early transcription.
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S.B.L., In re
...to provide a transcript of the proceedings for which one can be prepared. See V.R.A.P. 10(b). As we noted in State v. Moquin, 135 Vt. 94, 96, 369 A.2d 1371, 1372-73 (1977): The function of appellate ... review is not one of searching a record to find grounds to argue to this Court. It is to......
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State v. Sage, 92-204
... ... Bransford, 806 F.2d at 86; see State v. Moquin, 135 Vt. 94, 96, 369 A.2d 1371, 1372-73 (1977) (per curiam) ("The function of appellate or post conviction review is not one of searching a record to ... ...
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State v. Kozikowski, 151-75.
...with varying aspects of a single problem. Other facets are involved in the cases of State v. Lawrence, Vt., 369 A.2d 1368, and State v. Moquin, Vt., 369 A.2d 1371, all argued at the October Term, 1976, and handed down with this The present proceeding involves a trial by court for possession......