In Re Morris

Supreme Court of Vermont

In Re Morris

229 A.2d 244, 126 Vt. 297, 1967 Vt. LEXIS 187

CourtSupreme Court of Vermont

DecidedApril 4, 1967

Docket1966

StatusPublished

Cited by10 cases

This text of 229 A.2d 244 (In Re Morris) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Morris, 229 A.2d 244, 126 Vt. 297, 1967 Vt. LEXIS 187 (Vt. 1967).

Pincite

Opinion

Per Curiam.

The petitioner, advised by counsel, entered a plea of guilty to charges of grand larceny and burglary. He was sentenced to the state’s prison at Windsor, where he now is. He has applied for post conviction relief on the grounds that he was prosecuted on an information issued by the state’s attorney on his oath of office alone. This, he says, violates both Chapter I, Article II, of the Vermont Constitution, and the Fourth Amendment of the United States Constitution. It is his position that compliance requires that there be an accompanying affidavit, or a showing before a magistrate, demonstrating that facts are present constituting probable cause to charge a respondent. The lower court denied relief, and he is here on appeal.

This issue has already been resolved against the petitioner by In re Davis, 126 Vt. 142, 224 A.2d 905. The fact that preferable procedures may exist cannot turn this Court aside from its duty to say whether or not the one at issue meets constitutional standards. We must test for validity, not merit.

*298 Moreover, this is an issue that must be timely raised. If it is to be charged that the grounds were insufficient to support the complaint, the question must be presented and preserved in the court trying the charge. State v. Intoxicating Liquor, 106 Vt. 340, 341, 175 Atl. 8. This is not accomplished by a mere plea of guilty to the accusation.

Judgment affirmed.

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Per Curiam.

The petitioner, advised by counsel, entered a plea of guilty to charges of grand larceny and burglary. He was sentenced to the state’s prison at Windsor, where he now is. He has applied for post conviction relief on the grounds that he was prosecuted on an information issued by the state’s attorney on his oath of office alone. This, he says, violates both Chapter I, Article II, of the Vermont Constitution, and the Fourth Amendment of the United States Constitution. It is his position that compliance requires that there be an accompanying affidavit, or a showing before a magistrate, demonstrating that facts are present constituting probable cause to charge a respondent. The lower court denied relief, and he is here on appeal.

This issue has already been resolved against the petitioner by In re Davis, 126 Vt. 142, 224 A.2d 905. The fact that preferable procedures may exist cannot turn this Court aside from its duty to say whether or not the one at issue meets constitutional standards. We must test for validity, not merit.

*298 Moreover, this is an issue that must be timely raised. If it is to be charged that the grounds were insufficient to support the complaint, the question must be presented and preserved in the court trying the charge. State v. Intoxicating Liquor, 106 Vt. 340, 341, 175 Atl. 8. This is not accomplished by a mere plea of guilty to the accusation.

Judgment affirmed.

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Bluebook (online)

229 A.2d 244, 126 Vt. 297, 1967 Vt. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-morris-vt-1967.

Opinion

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