State v. Therrien, 246-81
| Decision Date | 02 February 1982 |
| Docket Number | No. 246-81,246-81 |
| Citation | 442 A.2d 1299,140 Vt. 625 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Myrton Arthur THERRIEN. |
Gregory W. McNaughton, Washington County State's Atty., and Marc Brierre, Law Clerk (on the brief), Montpelier, for plaintiff.
Martin & Paolini, Barre, for defendant.
Before BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.
The defendant was convicted of grand larceny on a plea of guilty on October 26, 1979, and was then sentenced to a term of imprisonment of not less than one year nor more than four years, all suspended except nine months. On serving nine months he was placed on probation. On February 24, 1981, he was found in violation of probation and was ordered to serve his original sentence of one to four years with credit for time served. On May 5, 1981, pursuant to 13 V.S.A. § 7042, defendant filed a motion for reconsideration of sentence. The trial court dismissed the motion because it was filed more than ninety days after October 26, 1979, the date of the original sentencing. The defendant appeals alleging that the ninety-day limit runs from February 24, 1981, the date that the original sentence was actually put into execution, and therefore the motion was timely.
13 V.S.A. § 7042 provides as follows:
Any court imposing a sentence under the authority of this title, within 90 days of the imposition of that sentence, or within 90 days after entry of any order or judgment of the supreme court upholding a judgment of conviction, may upon its own initiative or motion of the defendant, reduce the sentence.
The sole issue here is whether under the statute the sentence is considered to be imposed at the time of the original sentencing or at the time the defendant is found in violation of probation.
The defendant's position overlooks the fact that Vermont law distinguishes between imposition of a sentence and execution of it. 28 V.S.A. § 203(a) requires that the probation warrant must contain "the date and place of trial and sentence (and) the sentence imposed." In re Parker, 107 Vt. 463, 181 A. 106 (1935), held that Id at 475, 181 A. at 111 (quoting Fuller v. State, 122 Ala. 32, 38, 26 So. 146, 147 (1899)) (emphasis added).
Moreover, the defendant's interpretation is not supportable when the pertinent statutes on probation and 13 V.S.A. § 7042 are read together. Permitting a 13 V.S.A. § 7042 motion after the revocation hearing will unnecessarily burden the revocation proceeding and unjustifiably give the defendant yet another chance to attack his original sentence.
A defendant has many opportunities to challenge his sentence and bring mitigating circumstances to the attention of the authorities: first, at his original sentencing hearing from which he may appeal; second, at a ...
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