This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Chittenden Unit, Criminal Division. Brian J. Grearson, J.
William H. Sorrell, Attorney General, and David Tartter and John Treadwell, Assistant Attorneys General, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Seth Lipschutz, Prisoners' Rights Office, Montpelier, and Brian LeClair, Pro Se, St. Johnsbury, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
[¶ 1] Defendant appeals the superior court's denial of his motion to modify his sentence. He contends that the court erred in failing to award credit for time served. We reverse the superior court's decision and grant defendant credit against the controlling burglary sentence for the time he spent in jail between arrest and sentencing on the later charges.
[¶ 2] On March 24, 2010, defendant was arrested and charged in Docket Number 1098-3-10 Cncr with one count of burglary. Bail was set at $20,000. Defendant was held for lack of bail from March 24, 2010 until December 30, 2010, when bail was reduced to zero and he was released subject to several conditions of release, including that he follow all conditions set by the Chittenden County Adult Drug Treatment Court (ADTC), to which he had been referred on December 20, 2010. On February 10, 2011, pursuant to the parties' plea agreement, the court accepted defendant's guilty plea to the burglary charge with the understanding that if defendant successfully completed ADTC, he would be
given a sentence of two-to-five years, all suspended with immediate discharge from probation, but if he was terminated from ADTC, the State could seek a sentence of five-to-fifteen years to serve, with defendant free to argue for a lesser sentence.
[¶ 3] On April 2, 2012, while still participating in ADTC, defendant was charged in Docket Number 1129-4-12 Cncr with first-degree unlawful restraint, aggravated operation of a vehicle without the owner's consent, reckless or grossly negligent driving, burglary, and unlawful trespass. Bail was set at $50,000 on the new charges, but was not reset for the 2010 burglary charge. Defendant was held for lack of bail until September 18, 2012, when he was sentenced on the new charges and resentenced on the burglary charge.
[¶ 4] As a result of defendant's incarceration, his participation in ADTC ceased. In a motion dated May 1, 2012 but not filed with the superior court until August 1, 2012, the State sought defendant's termination from ADTC. On August 10, 2012, the court terminated defendant's enrollment in ADTC, triggering sentencing on the predicate burglary offense. On September 18, 2012, as part of a global resolution of the charges he faced, defendant was sentenced to serve three-to-five years for the 2010 burglary ...