State v. Roe, 7972

• Decision Date: 30 October 1978
• Docket Number: No. 7972,7972
• Citation: 118 N.H. 690,393 A.2d 553
• Parties: The STATE of New Hampshire v. Richard ROE.
• Court: New Hampshire Supreme Court

Page 553

393 A.2d 553

118 N.H. 690

The STATE of New Hampshire v. Richard ROE.

No. 7972.

Supreme Court of New Hampshire.

Oct. 30, 1978.

Thomas D. Rath, Atty. Gen. (Richard B. McNamara, Asst. Atty. Gen., orally) for the State.

Leonard, Prolman, Gall, Shapiro & Jordan, P. A., Nashua (Joseph F. Gall, Jr., Nashua, orally) for defendant.

BROCK, Justice.

Appeal from orders of the Superior Court (DiClerico, J.) denying, on jurisdictional grounds, defendant's petition to annul record of conviction and defendant's subsequent motion to have sentence imposed on cases that had been marked "Continued for Sentence."

In May 1968, the defendant, then less than 21 years old, pled guilty to five indictments in the Hillsborough County Superior Court. On one indictment, for passing a worthless check of $125., the matter was marked "continued for sentence." The defendant made restitution for the full amount and was placed on probation for two years. The remaining indictments for burglary, breaking and entering, and false pretenses were marked "continued for sentence." No sentence has been imposed on any of these five indictments during the intervening ten years. On March 7, 1977, the defendant, relying upon RSA 651:5 filed a petition seeking annulment of all five convictions.

Following this court's decision of March 31, 1977 in State v. Doe,117 N.H. 259, 372 A.2d 279 (1977) that "continued for sentence" was not a disposition entitling a person to seek annulment of a conviction under RSA 651: 5(I), the defendant moved that all five indictments be brought forward and that some retroactive sentence be imposed so that the petition for annulment would lie. Following a hearing, both the petition and motion were denied in May 1977 and defendant's exceptions were noted. Because the court dismissed the petition relying on State v. Doe, supra, the merits of the petition to annul are not now before us.

With respect to the defendant's motion to have his convictions brought forward for sentencing, the trial court ruled as follows: " Motion denied on the ground that the Court lacks jurisdiction to grant the relief requested for the reason that the statutory limitations for the offenses have run." The statute of limitations relating to criminal offenses, now RSA 625:8, limits only the period during which the State may commence a prosecution and was tolled in the present case when the indictments were returned against the defendant in 1968. We find nothing in our statutes or relevant prior decisions which would support the conclusion that either the expiration of time limitations for prosecutions or the passage of the maximum period of imprisonment provided for particular offenses deprives the court of jurisdiction to bring forward convictions which have been marked "continued for sentence" for imposition of sentence. The practice of marking a case as continued for sentence "enable(s) the court to bring forward the case at a later date if justice so requires, and thereby presumably serve(s) also to restrain the defendant from further criminal conduct." State v. Doe, supra, 117 N.H. at 261, 372 A.2d at 281. In codifying the court's power to continue for sentence, the legislature imposed no time limitations comparable to those for probation and conditional discharges. RSA 504:1; RSA 651:2 V, VI.

We hold that where as here a defendant requests that his case be brought forward for imposition of sentence in order that he may have standing to file a petition for annulment under RSA 651:5, the trial court has jurisdiction to grant the relief requested.

On the facts presented here, however, little purpose would be served by imposing a retroactive sentence merely to render the defendant eligible to...