State v. Murray, 91-390

• Decision Date: 04 September 1992
• Docket Number: No. 91-390,91-390
• Parties: STATE of Vermont v. Betty MURRAY.
• Court: Vermont Supreme Court

Page 135

617 A.2d 135

159 Vt. 198

STATE of Vermont v. Betty MURRAY.

No. 91-390.

Supreme Court of Vermont.

Sept. 4, 1992.

Dan M. Davis, Windham County State's Atty., Christopher C. Moll, Deputy State's Atty., and R. Jennings Cantrel, Legal Intern, Brattleboro, for plaintiff-appellee.

E.M. Allen, Defender Gen., and Anna E. Saxman, Appellate Atty., Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Defendant appeals a trial court decision extending the terms of her deferred-sentence agreement after the period of the deferral had passed but before the five-year limit on deferred sentences contained in 13 V.S.A. § 7041(a) had expired. We reverse.

Defendant pled no contest in district court on October 15, 1987, to a charge of welfare fraud. On that same day she and the State entered into a deferred-sentence agreement, which was approved by the court. Pursuant to the agreement the court deferred imposition of sentence for three years, from "the 15th day of October, 1987, to the 15th day of October, 1990," and placed defendant on probation "until further order of the Court." The agreement provided that during the period that it was in effect the defendant agreed to abide by a number of conditions. Among the conditions, defendant was required to pay restitution in an amount later determined to be approximately $3,000. The agreement further stated, "It is understood by the defendant ... that if the conditions of this ... agreement are violated, the Court shall impose sentence. Upon fulfillment of the terms of probation and of this deferred sentence agreement, the Court shall strike the adjudication of guilt and discharge the defendant."

On February 19, 1991, four months after the period of sentence deferral agreed to and ordered had expired, the Department of Corrections petitioned the court to discharge defendant from her probation, ¹ and sought the court's guidance with respect to a large portion of the restitution that remained unpaid. After submission of memoranda and a hearing on the issue, the court held that it retained jurisdiction over defendant because she had not been formally discharged from probation and the five-year limit for imposition of sentence set forth in 13 V.S.A. § 7041(a) had not expired. The court also ruled that defendant would remain on probation.

On appeal, defendant claims that the court erred in extending her period of probation beyond the three years contemplated in the deferred sentence agreement, and in penalizing her for failing to make full restitution payments without making findings as to her ability to pay. Because we agree that, without provision of notice to defendant of her violation of probation during its term, the court was without authority to extend defendant's probation after it had expired, we need not reach the second issue.

The statute under which the court proceeded in imposing a deferred sentence provides in relevant part:

(a) Upon an adjudication of guilt ..., the court may defer sentencing and place the respondent on probation upon such terms and conditions as it may require if a written agreement concerning the deferring of sentence is entered into between the state's attorney and the respondent and filed with the clerk of the court.... Thereafter the court may impose sentence at any time within five years from and after the date of entry of deferment.

(b) Upon violation of the terms of probation or of the deferred sentence agreement, the court shall impose sentence. Upon fulfillment of the terms of probation and of the deferred sentence agreement, the court shall strike the adjudication of guilt and discharge the respondent....

13 V.S.A. § 7041. There is no description in the statute of the nature of the probation imposed. That subject is covered in 28 V.S.A. §§ 201-305. Although the regulatory provisions in Title 28 are normally used for post-sentence probation, see 28 V.S.A. § 205, they apply equally to probation imposed as part of a deferred sentence. See A. Campbell, Law of Sentencing § 11, at 52-53 (1978) (whether the court has suspended a sentence or has suspended the imposition of sentence, the rationale and effect of probation are the same); Neal v. United States, 571 A.2d 222, 226 (D.C.App.1990) (under similar D.C. statutory scheme, general provisions on probation apply to probation under a deferred sentence). In fact, our rule of statutory construction that statutes dealing with the same subject matter be read in pari materia would command that result. ² See Nash v. Warren Zoning Board of Adjustment, 153 Vt. 108, 112-13, 569 A.2d 447, 450 (1989) (general procedural requirements of zoning appeals apply to conditional use cases although the authority for conditional uses is in a separate statute).

A number of statutes in Title 28 are relevant to this case. 28 V.S.A. § 255 provides that when probation terminates or a probationer is discharged early pursuant to § 251, the "probationer shall be relieved of any obligations imposed by the order of the court and shall have satisfied his sentence for the crime." Section 251 authorizes the court to terminate the probation early "if such termination is warranted by the conduct of the offender and the ends of justice." The power of the court or probation officer to arrest or summons a probationer to answer charges that probation should be revoked is limited to the period "before the discharge of the probationer or the termination of the period of probation." 28 V.S.A. § 301.

We have considered the application of these statutes where the court sentences a convicted defendant to a fixed term of probation and an attempt is made to revoke probation after the term has expired because of a violation that occurred within the probationary term. See State v. White, 150 Vt. 132, 549 A.2d 1069 (1988). In White, we held that the court ordinarily loses jurisdiction to revoke or modify probation when the probation term ends, unless revocation or modification proceedings have been initiated prior to its expiration. Id. at 134-35, 549 A.2d at 1071. The circumstances in White were virtually identical to those here--that is, the court acted after the expiration of a probationary term to extend it to enforce defendant's obligation to pay. We held that the extension was unlawful because the court had lost jurisdiction over the probationer on the expiration of the term. Id. The only relevant difference between this case and White is that the probation term in this case is part of a deferred-sentence agreement. Deciding whether this distinction makes a difference requires us to examine the rationale for White, the circumstances presented by a deferred sentence, and the particular deferred-sentence agreement in this case.

White is based on the statutes set forth above as well as 28 V.S.A. § 205, which requires that a sentence of probation be "for such time as [the court] may prescribe." Drawing on the relevant statutes, we recognized " 'the vital significance of the fixed period of probation to probationers.' " 150 Vt. at 134, 549 A.2d at 1071 (quoting United States v. Strada, 503 F.2d 1081, 1084 (8th Cir.1974)). When placed on probation, a defendant is told, in effect, that after living up to the conditions of probation for the required period the defendant becomes free. Id.

We also noted in White that the State has "the right--and several procedural methods"--to collect the amount of restitution the defendant continued to owe despite the termination of probation. Id. at 135, 549 A.2d at 1072. As in this case, the circumstances in White were created by poor drafting of the probation agreement that failed to turn the lump sum fine amount into a periodic payment responsibility. Id. We noted that proper drafting could avoid the problem in the future.

The State emphasizes the differences in the statutory provisions between deferred-sentence probation and post-sentence probation. Thus, it relies on the absence of a probationary time limit in 13 V.S.A. § 7041, the authorization to impose sentence "at any time within five years," and the specific statement that the adjudication of guilt is stricken only when defendant fulfills the terms of probation.

For two reasons, we find these arguments misdirected. First, as discussed above, the provisions governing probation in Title 28 apply to deferred-sentence probation where there is no conflict with the specific provisions of § 7041. Thus, 28 V.S.A. § 255 applies here to supply the term limit not expressly stated in § 7041. When the probation term has ended, the probationer is "relieved of any obligations imposed by the order of the court." 28 V.S.A. § 255.

The controlling effect of § 255 is consistent with a proper interpretation of the five-year time limit in § 7041(a). That statute contemplates that the terms and conditions of probation will be agreed to between the State and the defendant, subject to the approval of the court. Thus, a defendant may bargain with the State for certain terms and conditions prior to entering into the agreement. To read the statute as in all cases granting the court revocation or modification power for five years from sentence deferral would deny the defendant and the State the opportunity to negotiate over the term that may well be most important to them, the duration of the probation obligation. It is more consistent with the wording of the statute and the overall statutory scheme to interpret the five-year provision as an outer limit on the length of the probationary obligation that can be ordered by the court. See Jett v. Leverette, 162 W.Va. 140, 144, 247 S.E.2d 469, 471 (1978) (similar statute applicable to post-sentence probation sets a maximum of five years on probationary period; court can impose shorter duration but loses jurisdiction after the shorter period expires). This interpretation has two effects. It limits the duration for which a court may defer...