State v. Morse

• Decision Date: 04 April 1967
• Docket Number: Nos. 1960 and 1961,s. 1960 and 1961
• Citation: 126 Vt. 314,229 A.2d 232
• Parties: STATE of Vermont v. Everett L. MORSE.
• Court: Vermont Supreme Court

Page 232

229 A.2d 232

126 Vt. 314

STATE of Vermont v. Everett L. MORSE.

Nos. 1960 and 1961.

Supreme Court of Vermont.

April 4, 1967.

Joseph C. Palmisano, State's Atty., for the State.

Everett L. Morse, pro se.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

Although parts of this appeal come to this Court by separate procedures, separately docketed, all of the questions raised are challenges to the validity of the petitioner's confinement at the state prison at Windsor, by sentence of the Barre municipal court. Arising, as they do, out of a single set of prosecutions, it is possible and appropriate to dispose of the issues raised in this one opinion.

The petitioner elected to present and argue his own case before this Court. He had had counsel below, whom he had discharged. He is the same party who represented himself in Morse v. Morse, 126 Vt. --, 229 A.2d 228, also argued at this term of Court. The attorney made available to him in that case was present at his side during this argument as well.

The matter began with the arraignment of the petitioner on charges of armed robbery and grand larceny before the Barre municipal court on October 9, 1965. Bail was set, but no plea was taken until two days later when assigned counsel was present. At that time pleas of not guilty and not guilty by reason of insanity were entered. He was committed to Waterbury State Hospital, examined, and found sane.

On October 29, the petitioner again came before the Barre municipal court, together with his counsel, withdrew his not guilty pleas and entered pleas of guilty. The presiding judge, prior to sentencing, asked the probation officer for a pre-sentence report. Since a written report was not then ready, the probation officer responded orally, in open court and in the presence of the petitioner and his counsel. His statements were recorded by the court reporter at the direction of the court. After this report, and statements by petitioner's counsel and the state's attorney, the judge imposed sentence, accepting the two to four year term urged by petitioner's counsel, rather than the four to six year recommendation of the state's attorney.

Some months previously, the legislature had enacted 28 V.S.A. § 1008, which, for the first time, required a written pre-sentence investigation before sentencing in felony cases. In the light of this requirement, the petitioner, with a new attorney, sought post-conviction relief before the Washington County Court. After hearing, outright release was denied, but the sentence was vacated and the petitioner remanded to municipal court for resentencing, following the furnishing of a written pre-sentence investigation.

This proceeding having taken place on April 22, 1966, and the written report having been available since November 5, 1965, a week after the sentencing, new proceedings in municipal court went forward on May 9, 1966. At that time, petitioner, through his counsel, moved to withdraw his pleas of guilty, and claimed the right to a copy of the written pre-sentence investigation. The court ruled against him on both issues, and then imposed the identical sentence originally given, with full credit for time previously served. Notices of appeal were filed from both this and the county court adjudication.

In addition, petitioner, on his own behalf and without counsel, brought a new petition to Washington County Court seeking vacation of the sentence most recently imposed. The three new issues raised by this document are, first, that the remand from county to municipal court was unauthorized and illegal; second, that the resentencing placed the petitioner twice in jeopardy in violation of his constitutional rights; and, lastly, that the original prosecution was irregular and unconstitutional because the complaint was verified only by the state's attorney on his oath of office rather than by a finding of probable cause by a magistrate. The county court refused to vacate the new sentence, and this, too, was appealed by the petitioner.

Going first to the issue of the validity of the original complaint, as verified by the state's attorney, recently declared law of this Court has decided the matter contrary to the position of the petitioner. In re Davis, 126 Vt. --, 224 A.2d 905. Further restatement would serve no purpose. No constitutional infirmity, applicable to the situation of this petitioner, has been shown. In re Morris, 126 Vt. --, 229 A.2d 244.

Nor was the remand from county court to municipal court improper. The significant portion of 13 V.S.A. § 7133, under which the county court was authorized to grant relief, reads:

If the court finds that the judgment was made without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to make the judgment vulnerable to collateral attack, it shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

It must be kept in mind that the difficulty found by the county court was not that there was anything illegal about the sentence imposed, but only that a statutory prerequisite to the procedure of sentencing had been omitted. In effect, a written pre-sentence investigation was to be put into the proceedings in place of the oral report actually made, in order to comply literally with the language of 28 V.S.A. § 1008.

With a plea of guilty on record, procedurally, the hearing on sentence was the only 'trial' or adjudication involved. After vacating the old sentence, the county court could, under the statute, appropriately remand for a rehearing on sentence that would fulfill the requirements of 28 V.S.A. § 1008. With, of course, some variations in procedures, other jurisdictions, including the federal, permit such corrective action. See 22 C.J.S. 'Criminal Law' § 273, p. 706; 21 Am.Jur.2d 'Criminal Law', § 572, p. 539-40.

The prohibition against double jeopardy is not violated by this resentencing. Cases noted in the cited sections of both of the reference works just mentioned express this as the law. Basically, this is no new proceeding, but a continuation of the original matter for purposes of correction. The error was asserted by the petitioner and the matter has been reopened for curative action at his demand. If he could simultaneously claim error and raise the bar of double jeopardy against an appropriate corrective hearing, a respondent claiming and establishing error, qualifying him for a new trial, would then become immune from prosecution on the crimes charged in that case. This would be contrary to the public's interest in evenhanded justice and a perversion of the concept of a trial fair for both those criminally charged and the people of...