State v. S & R Sanitation Services, Inc.

• Decision Date: 17 February 1987
• Citation: 521 A.2d 1017,202 Conn. 300
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. S & R SANITATION SERVICES, INC.

Page 1017

521 A.2d 1017

202 Conn. 300

STATE of Connecticut v. S & R SANITATION SERVICES, INC.

Supreme Court of Connecticut.

Argued Nov. 6, 1986.

Decided Feb. 17, 1987.

John J. Dropick, Asst. State's Atty., with whom was Judith Rossi, Deputy Asst. State's Atty., for appellant (state).

James H. Throwe, East Hartford, for appellee (defendant).

Joseph I. Lieberman, Atty. Gen., and Richard F. Webb, Asst. Atty. Gen., filed a brief as amicus curiae.

Before PETERS, C.J., and HEALEY, SHEA, CALLAHAN and NOVACK, JJ.

ARTHUR H. HEALEY, Justice.

The defendant, S & R Sanitation Services, Inc. (S & R), was charged by substitute information with nine counts of operating without a permit for collection on or about nine dates in August and September, 1983, in violation of General Statutes § 22a-454. ¹ Upon the defendant's timely motion, the trial court dismissed the substitute information. The state has appealed the judgment claiming that the court erred in its conclusions and that the substitute information, therefore, should be reinstated.

Before we may address the merits of the state's claims, it is necessary to resolve an issue involving our subject matter jurisdiction over this appeal. The defendant claims that this appeal by the state is not properly before us because the trial court denied the state permission to appeal. We have jurisdiction to determine our jurisdiction. See, e.g., Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57 n. 7, 459 A.2d 503 (1983); Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 227, 429 A.2d 478 (1980). ²

The background circumstances disclosed by the record relevant to the determination of our jurisdiction include the following. On December 21, 1983, the defendant was charged with one count of the crime of operating without a permit for collection on or about August 24, 1983, in violation of General Statutes § 22a-454. Some time later, the state filed a substitute information charging S & R with nine counts of operating without a permit for collection in violation of General Statutes § 22a-454 on or about nine dates in August and September, 1983. The state maintained that the charges stemmed from the defendant's conduct in collecting a chemical liquid, latex waste from a Windsor Locks corporation, and transporting it to S & R's place of business in South Windsor. The defendant pleaded not guilty on January 18, 1984, and elected a jury trial. At that On February 3, 1984, the defendant filed a motion to dismiss the charges. ⁴ Briefs were filed, and on March 8, 1984, the motion was argued before the court, Noren, J. On May 10, 1984, the trial court filed an eight page memorandum of decision in which it denied the motion to dismiss. In this decision, the court rejected the first claim raised in the motion to dismiss, that the information failed to contain "an allegation of criminality," concluding that the bill of particulars filed subsequent to the motion to dismiss satisfied this requirement. ⁵ The court also rejected the defendant's argument that the state, by electing to proceed in a civil suit through the department of environmental protection, was precluded from pursuing the criminal prosecution under principles of collateral estoppel. The court noted the existence of a factual dispute as to whether the material allegedly transported by the defendant without a permit was "a liquid chemical," the transportation of which was proscribed by the statute. The court opined that the defendant could not demonstrate that the issue it sought to foreclose on the motion to dismiss had necessarily been resolved in the earlier civil proceeding brought against the defendant by the commissioner of environmental protection, which had been disposed of by a stipulated judgment on January 30, 1984. ⁶ After a Thereafter, the defendant filed a motion to reargue the motion to dismiss on two grounds. One ground was directed to the collateral estoppel aspect. There the defendant alleged that it was now admitting that the material involved was "a chemical liquid" under the statute for the purposes of the judgment in the civil case. ⁷ Permission to reargue was granted. After reargument and the filing of a supplemental brief, the court granted the motion to dismiss. In its supplemental memorandum on the motion to dismiss, the court said, inter alia, that during reargument and in the supplemental brief, "the defendant admitted that the material in question here, as in the prior civil action, is liquid chemical, or in the words of the statute, that the latex materials are chemical liquids." It therefore decided that the other requirements for the application of collateral estoppel were met and it granted the motion to dismiss.

time, the defendant filed a motion for a bill of particulars. ³ thorough discussion of collateral estoppel, the court denied the motion.

The state then moved for permission to appeal. ⁸ The state based its motion on General Statutes § 54-96 ⁹ and State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977). ¹⁰ The state thereafter filed a "Motion for Further Articulation" with the trial court requesting further articulation of the legal basis for applying collateral estoppel, the factual basis for its conclusion that "the other requirements for the application of collateral estoppel [were] met," the basis for the conclusion "that any issues have been resolved in the defendant's favor in prior litigation" and "[w]hether the court has concluded that any issues were fully and fairly litigated when only a stipulated judgment has entered, and the basis for that conclusion." The court, in a four page memorandum of decision, dated January 15, 1985, denied the motion to appeal and granted the motion for further articulation. In its articulation, the court said: "It is the understanding of this Court that the factual allegations which were the subject of that related civil matter are the same as those which form the basis of the charges in the instant criminal action." ¹¹

On February 16, 1985, the state filed, pursuant to Practice Book § 3107 (now § 4053), a "Motion for Review" in the Appellate Court. In this motion, the state "move[d] for review and reversal of the decision of the trial court denying it permission "The right to an appeal is not a constitutional one." Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965). "There is ... no commonlaw right of appeal by the state in criminal matters. ... The right of the state to appeal in criminal cases is granted only by statute." ¹³ State v. Falzone, 171 Conn. 417, 417-18, 370 A.2d 988 (1976); see State v. Audet, 170 Conn. 337, 340, 365 A.2d 1082 (1976); State v. Carabetta, 106 Conn. 114, 115, 137 A. 394 (1927). "As we noted in State v. Carabetta, [supra, 119, 137 A. 394]: ' "Statutes authorizing an appeal in a criminal case must be strictly followed." 17 Corpus Juris, 14; State v. Caplan, 85 Conn. 618, 84 Atl. 280 [1912].' The conditions of the statute must therefore be met to have a valid appeal." State v. Audet, supra. "The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. [Id., 170 Conn. at 342, 365 A.2d 1082]; Kennedy v. Walker, 135 Conn. 262, 266, 63 A.2d 589 [ (1948) ], aff'd, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715 (1948 [1949]." State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983).

                to appeal from its decision granting the defendant's motion to dismiss the above-captioned case."   On March 26, 1985, the Appellate Court directed that the motion for review and the relief requested therein be granted.   Pursuant [202 Conn. 307] to Practice Book § 3004A (now § 4023), the case was transferred to this court on May 28, 1985. 12
                

In this case, the right of appeal exists only by virtue of General Statutes § 54-96. That statute provides, in part, that appeals "may be taken by the state, with the permission of the presiding judge." (Emphasis added.) The words of a statute are to be given their commonly approved meaning, unless a contrary intent is expressed. General Statutes § 1-1; State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982). The term "permission" as used in § 54-96 needs no judicial gloss to demonstrate that it means the obtaining of consent and authority of the court; no automatic right to appeal is conferred upon the state. The statutory language unmistakably confers upon the trial court the choice of granting or withholding the appeal privilege depending upon the circumstances of each case. It is apparent from the permissive language of the statute that the legislature did not intend that permission to appeal be granted in every case in which it is sought.

We have recently said: "The provision that permission from the ... judge be obtained was a limitation on the right of appeal granted the state.... This condition is generally considered to be a prerequisite to appeal by the state.... However, as the dominant intention of the legislature was to extend the right of appeal to the state, the limitation placed upon that right is one which must be so exercised as to avoid abuse and unreasonable consequences." State v. Avcollie, supra, 174 Conn. at 109-10, 384 A.2d 315. The permission of the trial judge is a condition which is a "prerequisite" to the existence of the state's right of appeal in a criminal matter under § 54-96. State v. Avcollie, supra, 109, 384 A.2d 315. It follows, therefore, that without that permission there is no viable appeal unless the court's denial of permission is " 'so unreasonable as to constitute an abuse of discretion.' " Id., 110, 384 A.2d 315.

This case reaches us in an unusual posture. As already noted, the Appellate Court granted the state's motion for review and the relief requested therein; its order The defendant argues that the Appellate Court erred in...