Appeal from Superior Court, Windsor Unit, Criminal Division
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
E. Eaton, Jr., J., Specially Assigned (final judgment);
Theresa S. DiMauro, J. (motion to dismiss)
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
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
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
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 . . ...