State v. Spendolini

• Citation: 189 Conn. 92,454 A.2d 720
• Court: Supreme Court of Connecticut
• Decision Date: 25 January 1983
• Parties: STATE of Connecticut v. Michael SPENDOLINI.

Page 720

454 A.2d 720

189 Conn. 92

STATE of Connecticut v. Michael SPENDOLINI.

Supreme Court of Connecticut.

Argued Dec. 2, 1982.

Decided Jan. 25, 1983.

Harold J. Geragosian, New Britain, with whom, on the brief, was Joseph P. Cianci, New Britain, for appellant (defendant).

Carl Schuman, Asst. State's Atty., with whom were Glenn E. Coe, Asst. State's Atty., and, on the brief, Austin J. McGuigan, Chief State's Atty., and Scott Murphy, Asst. State's Atty., for appellee (State).

Before PETERS, HEALEY, PARSKEY, PICKETT and COVELLO, JJ.

PARSKEY, Associate Justice.

The defendant was charged with the crime of perjury in violation of General Statutes § 53a-156. In this appeal the defendant challenges the court's denial of his motion for accelerated rehabilitation. Although at an earlier stage of these proceedings we denied the state's motion to dismiss the appeal for lack of subject matter jurisdiction, the state has nevertheless pursued the jurisdictional issue in its brief. Upon reexamination we are persuaded that we have no jurisdiction of the subject matter and therefore the appeal must be dismissed.

Appeals to this court may be taken from final judgments or actions of the Superior Court. General Statutes § 51-197a. In a criminal case the imposition of sentence is the final judgment of the court. State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980); State v. Moore, 158 Conn. 461, 463, 262 A.2d 166 (1969). Interlocutory rulings in criminal cases generally are not appealable. United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (denial of motion for speedy trial); Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929) (denial of motion for return of seized property); State v. Grotton, supra (granting state's motion to obtain nontestimonial evidence from the defendant); State v. Asherman, 180 Conn. 141, 429 A.2d 810 (1980) (denial of motion for new trial); State v. Kemp, 124 Conn. 639, 1 A.2d 761 (1938) (permitting defendant to inspect minutes of grand jury); State v. Olds, 171 Conn. 395, 404, 370 A.2d 969 (1976) (orders denying or fixing amount of bail). "This insistence on finality and prohibition of piecemeal review discourage [sic] undue litigiousness and leaden-footed administration of justice, particularly damaging to the conduct of criminal cases." DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962).

We have recognized several narrowly defined exceptions ¹ to this rule of finality. ² These are cases in which an otherwise interlocutory ruling challenged on appeal cannot, if erroneous, later be remedied by suppression of the evidence or reversal of the conviction after trial. In State v. Lloyd, 185 Conn. ---- (43 CLJ 5, p. 10) 440 A.2d 867 (1981), a case involving the trial court's acceptance of the state's entry of a nolle prosequi, we permitted an appeal from the denial of the defendant's motion to dismiss in order to protect the defendant from the possibility of being exposed to repeated initiation and termination of charges where the defendant's rights could not otherwise be vindicated. In State v. Bell, 179 Conn. 98, 425 A.2d 574 (1979), we acknowledged our jurisdiction to review an order denying an application to be adjudicated a youthful offender where to do otherwise might deprive the defendant of his statutory right to a private hearing with sealed records. General Statutes §§ 54-76h, 54-76l, 54-76o. In State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S.Ct. 423, 63 L.Ed.2d 320 (1979), we reviewed an order denying the defendant's motion to dismiss where the claimed ground of dismissal was that the state prosecution placed the defendant in double jeopardy. The common thread running through these exceptions is that the right asserted would be lost, probably irreparably, unless interlocutory review was permitted. See Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977).

General Statutes § 54-56e, ³ establishes a discretionary pretrial diversionary program in certain criminal cases. It suspends criminal prosecution for a stated period of time subject to such conditions as the court shall order. If the defendant satisfactorily completes the probationary period he may then apply to the court for dismissal of the charges lodged against him. The main thrust of the statute is suspension of prosecution. Motions to stay proceedings are interlocutory. Action on such motions is not appealable whether the motion is granted; Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 293-94, 320 A.2d 797 (1973); Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961); or denied. Russell Lumber Co. v. Smith & Co., 82 Conn. 517, 74 A. 949 (1909).

Except in double jeopardy cases; Abney v. United States, supra, 659-60, 97 S.Ct. at 2040-41; a defendant does not enjoy a "right not to be tried." See United States v. MacDonald, supra, 860 n. 7, 98 S.Ct. at 1552 n. 7. Nor does the accelerated rehabilitation statute create such a right. ⁴ Unlike the situation in State v. Bell, supra, no privacy rights are implicated in the diversionary program. The motion seeking accelerated rehabilitation whether made by the state or the defendant is heard in open court. Nor is access to the program irreparably lost if the defendant should be tried and convicted. See State v. Lavorgna, 37 Conn.Sup. 767, 437 A.2d 131 (1981). Because this case does not come within the narrow confines of existing exceptions to the finality rule for appeal and because no cogent reason has been shown for enlarging the criteria so as to cover accelerated rehabilitation cases, we lack jurisdiction to hear the appeal.

The appeal is dismissed.

In this opinion PICKETT and COVELLO, JJ., concurred.

PETERS, Associate Justice (dissenting).

Because I believe that the conclusion this court reaches today is inconsistent with the rule of State v. Bell, 179 Conn. 98, 425 A.2d 574 (1979), I dissent.

In State v. Bell, as the majority opinion states, we acknowledged our jurisdiction to review an order denying an application to be adjudicated a youthful offender pursuant to General Statutes §§ 54-76h, 54-76l, and 54-76o. We there applied to a statutorily-created right the undisputed principle that interlocutory review, although disfavored, is available if an error in a challenged interlocutory ruling cannot be remedied by subsequent reversal of a conviction after trial. In Bell, the unremediable risk of error arose out of a youthful offender's statutory right to a private hearing with sealed records. "Subsequent criminal proceedings, no matter what the eventual outcome, cannot regain for the defendant the privacy lost through the denial of his application and consequent public trial." State v. Bell, supra, 179 Conn. at 99, 425 A.2d 574.

The statute establishing accelerated pretrial rehabilitation, General Statutes § 54-56e, concededly implicates no privacy rights. Instead, it offers, to qualified defendants, "a pretrial program" under which a qualified defendant "shall be released to the custody of the office of adult probation ... under such conditions as the court shall order .... If such defendant satisfactorily completes his period of probation, he may apply for dismissal of the charges against him and the court, on finding such satisfactory completion, shall dismiss such charges." As I read this statute, eligible defendants are given two separate and distinct rights: the right to a pretrial suspension of criminal proceedings and the right to dismissal of criminal charges upon successful completion of the stipulated period of probation. Although access to a probationary resolution of criminal charges can be restored after an erroneous conviction, I do not understand how access to pretrial suspension can ever be regained.

The majority opinion concludes that the accelerated rehabilitation statute, unlike the constitutional privilege against double jeopardy, does not create "a right not to be tried." I take it that the majority does not deny the legislature the power to create such a right. We are then left with a question of statutory interpretation: having the power to do so, did the legislature, when it enacted the accelerated rehabilitation program, create a conditional right not to be tried? I believe that a program whose very purpose is a pretrial suspension of prosecution necessarily creates such a right. For that reason, I find distinguishable cases such as Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 293-94, 320 A.2d 797 (1973) and Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961), where we held interlocutory and unreviewable stays ancillary on the one hand to summary process proceedings and on the other to arbitration proceedings.

Nor am I persuaded that Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821 (1910), compels a different result. Heike determined only that Congress, in enacting the federal immunity statute, intended to create a shield from successful prosecution rather than a defense to prosecution itself. Nothing in Heike precludes a state legislature from evidencing a different and more sweeping intent. Furthermore, the purposes served by the federal immunity statute and the state accelerated rehabilitation program are clearly distinguishable. Whereas the federal statute is designed to encourage witnesses to cooperate with the judicial process, and necessarily entails some exposure to legal proceedings, the state statute is intended to bypass prosecutorial proceedings and to keep accelerated rehabilitation cases off the docket altogether. 16 H.R.Proc., Pt. 11, 1973 Sess., p. 5713. Finally, Heike's precedential vitality is undermined, at least in part, by its reliance on rulings forbidding pretrial review of adjudication of double jeopardy claims. Heike v. United States, supra, 217 U.S. at 432, 433, 30 S.Ct. at 542-43. These rulings have been rejected by Abney...