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State v. Kenvin

Supreme Court of Vermont

October 18, 2013

State of Vermont
v.
Joseph T. Kenvin

Page 455

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Franklin Unit, Criminal Division. Robert A. Mello, J.

James A. Hughes, Franklin County State's Attorney, St. Albans, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.

Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

OPINION

Page 456

Skoglund, J.

[¶ 1] Defendant Joseph Kenvin appeals from a sentencing reconsideration decision by the superior court, reducing the time to serve on his conviction for careless and negligent driving from eleven-to-twelve months to nine-to-twelve months. Defendant contends the trial court erred in: (1) finding him " very negligent" in causing the death of a collision victim, despite the jury's acquittal on the underlying charge of grossly negligent operation, death resulting, and (2) ruling that defendant was not entitled to credit for time served while on restrictive conditions of pretrial release. We affirm defendant's sentence but remand to the trial court to provide credit to defendant for the period between March 10, 2010 and March 22, 2010 during which defendant was subject to a twenty-four hour curfew.

[¶ 2] The facts are as follows. This case arises out of a September 3, 2008 motor vehicle collision in which defendant's pickup truck collided with a motorcycle. The motorcyclist died from injuries sustained in the accident. The State charged defendant with grossly negligent operation, death resulting, under 23 V.S.A. § 1091(b). Following arraignment, the court released defendant on conditions of release.

[¶ 3] In February 2010, a jury acquitted defendant of grossly negligent operation, death resulting, and convicted him of the lesser-included offense of negligent operation, 23 V.S.A. § 1091(a). The court held a sentencing hearing on March 10, 2010. At the hearing, the court found that defendant caused the death of the motorc yclist:

This death was caused because you were a lazy driver. Instead of going up and making a turn where you should have made a turn, you took -- you cut your turn, and you made a lazy turn. There's no question about the fact that you [bear] the sole responsibility for this. This is [as] serious ... careless and negligent driving as you can get.

[¶ 4] The court sentenced defendant to " the maximum [it] could give [defendant]," eleven-to-twelve months to serve. The court also signed two restitution orders. The first order was for the decedent motorcyclist's wife to cover expenses associated with family travel to the funeral, storage costs for the decedent's motorcycle, and a

Page 457

radiology bill from the decedent's hospitalization not covered by insurance. The second order was for the ...


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