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State v. Perry

Supreme Court of Vermont

August 29, 2014

State of Vermont
v.
Roger Perry

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, Essex Unit, Criminal Division. Walter M. Morris, Jr., J. (Ret.), Specially Assigned.

Reversed and remanded for amendment of defendant's mittimus in accordance with this opinion.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.[1]

OPINION

Page 937

Robinson, J.

[¶1] Defendant Roger Perry appeals from the trial court's issuance of a mittimus ordering the Department of Corrections (DOC) not to give defendant credit for time served in connection with prior convictions. The State does not challenge defendant's claim that the mittimus violated the parties' plea agreement and created an illegal sentence, but argues that, because defendant has completed the time-to-serve portion of his sentence, this appeal is moot. We reverse, concluding that the appeal is not moot because defendant is still serving the challenged sentence, and that the amended mittimus violates Vermont's sentencing statute, 13 V.S.A. § 7032.

[¶2] The following facts are undisputed. In February 2012, defendant was charged with two counts of burglary, and two counts of larceny in connection with two incidents -- one in December 2010, and one in January 2011.[2] In June 2013, defendant entered into a plea agreement, pleading no contest to the burglary charges in exchange for dismissal of the grand larceny charges. The agreement provided for restitution and concurrent sentences of three to fifteen years, split to serve up to six months. Defendant had, in the meantime, been serving a sentence of confinement for unrelated drug offenses.

[¶3] At the sentencing hearing on the burglary charges in July 2013, the trial court sentenced defendant to a split sentence of three to fifteen years to serve, all suspended except six months, with probation subject to specified conditions. The identical sentences on the two charges were to be served concurrently, but consecutive to the sentence defendant was already serving on unrelated charges. At sentencing, the court indicated that the sentences would " be in execution right

Page 938

now" and that defendant would be taken into custody immediately. The court issued a mittimus ordering DOC to give defendant " [c]redit for time served ...


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