State v. Perry, 148-71

Citation131 Vt. 75,300 A.2d 615
Decision Date06 February 1973
Docket NumberNo. 148-71,148-71
PartiesSTATE of Vermont v. Carroll L. PERRY.
CourtUnited States State Supreme Court of Vermont

Robert I. Tepper, State's Atty., and Richard J. Wright, Asst. State's Atty., for the State.

Langrock & Sperry, Middlebury, for defendant.

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

PER CURIAM.

By motion before trial, the respondent in this case asked for a judicial review of the prosecutor's decision that probable cause for prosecution existed. This motion was denied, and no hearing given on that issue. Meanwhile, unable to raise bail, the respondent was held in custody seven months pending trial.

The state justifies the denial of a hearing on the basis of this Court's several holdings that it is constitutionally proper to issue an arrest warrant over the oath of a state's attorney. See e. g. In re Mahoney, 128 Vt. 462, 464-465, 266 A.2d 444 (1970). As we view the matter this case does not challenge that procedure, but raises a different issue.

The question before us is whether or not a respondent has a right to be heard on a motion challenging the existence of probable cause supporting the criminal complaint. It is the view of this Court that he does have such a right, if he timely raises it, as was done here. In re Morris, 126 Vt. 297, 298, 229 A.2d 244 (1967). The challenge is analogous to the hearing routinely granted on motions to suppress evidence allegedly improperly obtained. See State v. Stewart, 129 Vt. 175, 177, 274 A.2d 500 (1971).

This kind of motion represents one of the opportunities to review the judgment of the informing officer referred to in In re Mahoney, supra, 128 Vt. at 464, 266 A.2d 444, and it was error to deny it. Since this shortcoming involves a fundamental right, we will retain jurisdiction of the appeal, but remand so much of the matter as is required for a full evidentiary hearing on the issue of probable cause raised by the respondent's original motion. See Swenson v. Stidham, 409 U.S. 224, 93 S.Ct. 359, 34 L.Ed.2d 431, 436-437 (1972).

It goes without saying that proceedings under the motion testing probable cause must assume circumstances equivalent to those existing and applicable to a hearing at the time of the challenge. The trial court is directed to file findings of fact and conclusions of law in the form provided for in Rule 52(a), V.R.C.P. on the issues raised by the motion, and his decision will be forthwith transmitted here for review as a part of the...

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8 cases
  • Mayer v. Moeykens
    • United States
    • U.S. District Court — District of Vermont
    • July 18, 1973
    ...raises the motion, does have a right to be heard on a motion challenging the existence of probable cause to arrest him. State v. Perry, Vt., 300 A.2d 615 (1973). Though petitioner concedes that he did not seek a probable cause hearing during the time he was detained prior to his trial, he a......
  • State v. Kelly
    • United States
    • Vermont Supreme Court
    • December 4, 1973
    ...before opening statements. Probable cause is required to begin a prosecution, and this may be examined on motion. State v. Perry, 131 Vt. 75, 76, 300 A.2d 615 (1973). The purpose of such a requirement is to assure that persons are not proceeded against criminally without good reason. This i......
  • Mayer v. Moeykens
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 27, 1974
    ...been denied to someone "unable to raise bail" and who had therefore been "held in custody seven months pending trial." State v. Perry, 131 Vt. 75, 76, 300 A.2d 615, (1973). But the Perry decision looks to the question — we think correctly — whether a person may be deprived of his liberty wi......
  • State v. Norton, 84-306
    • United States
    • Vermont Supreme Court
    • June 27, 1986
    ..."must assume circumstances equivalent to those existing and applicable to a hearing at the time of the challenge." State v. Perry, 131 Vt. 75, 77, 300 A.2d 615, 615 (1973). Defendant's argument is based upon subsequently discovered evidence. Therefore, his challenge to the probable cause de......
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