In re Dragon

310 A.2d 26, 131 Vt. 499, 1973 Vt. LEXIS 338

• Court: Supreme Court of Vermont
• Decided: October 2, 1973
• Docket: No. 25-72
• Status: Published

Opinion

Per Curiam.

The defendant was found guilty by the jury of the crime of breach of the peace on August 14, 1969, and sentenced to serve six to twenty-four months in the House of Correction. He appealed his conviction, and the court granted a stay of execution pending appeal. This Court affirmed the judgment in State v. Dragon, 128 Vt. 568, 268 A.2d 913 (1970).

The defendant then filed for post-conviction relief under 13 V.S.A. §§ 7131-7137 alleging that his constitutional rights were violated for that he either was never sentenced or was sentenced in absentia on his conviction.

Upon an examination of the files and records of the case, the court, without hearing, denied defendant’s petition and defendant appealed.

The record conclusively shows, as the court below found, that after his conviction on August 14, 1969, the defendant was present in court with his attorney when sentence was imposed. Upon the affirmance of his conviction by this Court, a new mittimus was issued as a matter of law, service of the prior mittimus having been stayed. This was merely the issuance of a mittimus after disposition on appeal which is not a sentencing procedure.

The necessity for a hearing on defendant’s petition was dispensed with because it was clearly on the record as a matter of law as provided by the statute, 13 V.S.A. § 7133, that his issue had no foundation.

Affirmed.