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State v. Villar

Supreme Court of Vermont

November 22, 2017

State of Vermont
v.
Juan Villar

         On Appeal from Superior Court, Windsor Unit, Criminal Division

          Glenn Barnes, Windsor County Deputy State's Attorney, White River Junction, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, JJ., and Grearson, Supr. J., and Burgess, J. (Ret.), Specially Assigned

          Harold E. Eaton, Jr., J., Specially Assigned (final judgment);

          Theresa S. DiMauro, J. (motion to dismiss)

          REIBER, C.J.

          1. This case addresses whether the government may dismiss an indictment or information pursuant to Vermont Rule of Criminal Procedure 48(a) while the case is pending on appeal. We conclude that it may. Accordingly, we hold that the trial court erred in denying the state's attorney's notice of dismissal. Pursuant to Rule 48(a), we vacate the conviction and dismiss the underlying charges.

         ¶ 2. In 2015, a jury found defendant guilty of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, in violation of 23 V.S.A. § 1201(a)(2). The trial court sentenced defendant to six months to three years, all suspended except for fifteen days to serve, and placed him on probation. Defendant appealed his judgment to this Court in November 2015. Defendant's sentence was not stayed pending appeal.

         ¶ 3. The appeals process was slow. We granted several requests for additional time in which to file briefs, including time for supplemental briefs to address a recently decided U.S. Supreme Court case related to one of defendant's arguments. In August 2016, before the parties completed their briefing, they agreed to a stipulation and plea agreement. On the parties' request, this Court remanded the case to the trial court to consider the agreement, which the trial court denied. The case then returned to this Court. We again granted additional time for briefing, and then we granted another stipulated remand request, this time for dismissal without prejudice pursuant to Vermont Rule of Criminal Procedure 48(a). The trial court denied the notice of dismissal in March 2017 and denied a motion to reconsider in April 2017.

         ¶ 4. In denying the notice of dismissal, the trial court reasoned that Rule 48(a) "does not expressly authorize dismissal . . . outside the timeframe of the prosecution, " and it interpreted "prosecution" to mean pre-appellate proceedings:

Here, the State's "prosecution, " involving numerous proceedings, including the trial of Defendant, sentencing, a violation of probation merits hearing and revocation of probation, has ended. There is, in effect, no prosecution, criminal proceeding, or trial to "terminate."

         Consequently, the court held that Rule 48(a) did not "apply at this point in time."

         ¶ 5. We heard oral arguments in September 2017. By that time, both parties were focused solely on the Rule 48(a) dismissal issue, and they agreed that the trial court had erred in denying the state's attorney's notice of dismissal. Defendant began his oral argument by stating, "The trial court in this case rejected the prosecution's notice of dismissal when there was no rule, no statute, and no case law permitting it to do so, and the parties in this case agree that this is a threshold issue, and that the state should have been permitted to dismiss." The attorney for the State began his argument by stating, "I agree with everything that [defendant's attorney] just stated . . ...


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