State v. Smith

• Decision Date: 05 February 1971
• Docket Number: No. C,C
• Citation: 279 A.2d 578,6 Conn.Cir.Ct. 553
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Wilbur G. SMITH. r. 14-64028.

Page 578

279 A.2d 578

6 Conn.Cir.Ct. 553

STATE of Connecticut v. Wilbur G. SMITH.

No. Cr. 14-64028.

Circuit Court of Connecticut, Appellate Division.

Argued Jan. 4, 1971.

Decided Feb. 5, 1971.

Joel M. Ellis, Hartford, for appellant (defendant).

Cornelius J. Shea, Pros. Atty., for appellee (state).

PER CURIAM.

In accordance with the stipulation filed by the parties, this case was restored to the docket of this court ¹ for reasons appearing in the stipulation.

The prosecuting attorney and counsel for the defendant having requested and stipulated that this court find reversible error because of the charge by the trial court on the breach of the peace statute (General Statutes § 53-174), and in view of the decision of this court in State v. Anonymous (1971-15), 6 Conn.Cir. 549, 278 A.2d 827, it is ordered that, in the appeal from the Circuit Court in the fourteenth circuit, the judgment be, and hereby is, set aside and a new trial is ordered. See State v. Vena, 155 Conn. 727, 234 A.2d 449.

CASALE, KINMONTH and JACOBS, JJ., participated in this decision.

1 Order on Motion to Restore Case to the Docket and Permit Filing of Assignment of Error.

Per Curiam (June 22, 1970). Following a jury trial in the fourteenth circuit, the defendant was convicted of the crime of breach of the peace and sentenced to thirty days in jail, execution to be suspended after ten days. He filed a timely appeal to the Appellate Division of the Circuit Court and was released on his own recognizance. Thereafter, this court granted the state's motion to dismiss the appeal for the reason that the defendant had failed to file his assignment of erros or move to correct the finding within two weeks, as required by § 987 of the Practice Book. State v. Smith, 6 Conn.Cir. 36, 263 A.2d 276. Thereafter, he filed a motion to reargue the matter, and that motion was denied on January 26, 1970. He obtained a stay of execution which was renewed and which was finally to terminate on May 25, 1970. In at attempt to obtain a renewed right to appeal, he filed a motion to vacate the sentence and resentence. This motion was denied by the trial court on May 21, 1970. An appeal from this ruling was taken on June 3, 1970.

On May 22, 1970, the defendant filed a petition, accompanied by an ex parte application for a stay of execution, in the United States District Court for the district of Connecticut. The stay was granted pending further proceedings and a hearing scheduled. That hearing has now been completed, and a memorandum of decision on petition for a writ of habeas corpus has been made and was filed on June 5, 1970. United States ex rel. Smith v. DiBella, D.C., 314 F.Supp. 446.

In the memorandum of decision, the District Court concluded that 'dismissal of his appeal has denied the petitioner due process of law. Petitioner is entitled to federal habeas corpus relief. To effectuate his right to appeal, a writ shall issue that petitioner shall be discharged from custody unless within twenty (20) days ...