State v. Tucker

595 A.2d 832, 219 Conn. 752, 1991 Conn. LEXIS 373
Supreme Court of Connecticut·Decided July 30, 1991·No. 14265·Published·Cited by 14 cases

Opinion

Glass, J.

This is the state’s appeal from the trial court’s orders granting the application of the defendant, Chester Eugene Tucker, for accelerated rehabilitation (AR) pursuant to General Statutes § 54-56e,1 and [754] thereafter dismissing the criminal charge that the state had lodged against him. We conclude that under the unique circumstances of this case, neither of the court’s orders were so unreasonable as to constitute an abuse of discretion. Accordingly, we affirm.

The material facts are undisputed. On May 1, 1990, the defendant was arrested and charged with the crime of sale of narcotics in violation of General Statutes § 21a-278 (b).2 The defendant subsequently filed an [755] application for AR pursuant to § 54-56e. At the July 13, 1990 hearing on the application, the state described the circumstances attendant to the alleged crime, and defense counsel notified the court that approximately two weeks prior to his arrest, the defendant had enlisted in the United States Navy. The court, over the state’s objection, granted the defendant’s application and imposed a two year period of probation. After defense counsel explained that the Navy would not accept a recruit on probation, the court further ordered the defendant’s probation specially conditioned upon his appearance in court with his Navy recruiter five days later, ready to enter the Navy. The court notified the parties that it would at that time entertain a motion to dismiss the charge against the defendant if he complied with the special condition.

At the July 18,1990 hearing, the defendant appeared in court with his recruiter, ready, as both he and his recruiter informed the court, to enter the Navy. When the recruiter declared that the Navy would reject the defendant if the dismissal of the charge were conditioned upon his entering the Navy, the court explained that the special condition of the defendant’s probation was that he appear in court, with his recruiter, ready to enter the Navy. The court then found that the defendant had complied with the special condition and dismissed the charge. On July 27,1990, the defendant entered the Navy. The defendant was on active duty in the Middle East on the USS Guadalcanal at the time of oral argument in this case.

On the date of the dismissal of the charge against the defendant, the state moved for permission to appeal pursuant to General Statutes § 54-96.3 The trial court [756] granted the motion on July 27, 1990, and the state appealed to the Appellate Court on August 8,1990. We transferred the appeal to this court in accordance with Practice Book § 4023.

On appeal, the state attacks the trial court’s orders:

(1) granting the defendant’s application for AR; and

(2) dismissing the charge against him.4

I

In connection with its claim that the court should not have granted the defendant’s application for AR, the state advances two alternative contentions, each grounded on the following language of § 54-56e5: “There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime . . . not of a serious nature. ” (Emphasis added.) The state initially contends that because § 21a-278 (b),6 subject to certain exceptions inapplicable here, mandates the imposition [757] of a nonsuspendable minimum sentence upon a defendant convicted under the statute, the unclassified felony of sale of narcotics is per se a crime “of a serious nature” within the meaning of § 54-56e, and therefore, that the legislature intended that a defendant charged with this crime be denied eligibility for AR. Alternatively, the state contends that a defendant accused of violating § 21a-278 (b) is automatically ineligible for AR unless the defendant sustains what the state considers a statutorily mandated burden to demonstrate that the crime, in light of its surrounding circumstances, was not “of a serious nature.” General Statutes § 54-56e. We are not persuaded by either of the state’s contentions.

While the nonsuspendable mandatory minimum sentence that may be imposed upon a defendant convicted under § 21a-278 (b) may indicate that the legislature considered the sale of narcotics a serious offense, § 54-56e itself is wholly devoid of any language suggesting that the legislature intended that such a defendant be per se denied the opportunity to apply for AR. Furthermore, § 54-56e specifically provides that “[t]his section shall not be applicable to any person charged with a violation of section 14-227a, 53a-56b or 53a-60d, or to any person accused of a family violence crime as defined in section 46b-38a who (1) is eligible for the pretrial family violence education program established under section 46b-38c, or (2) has previously had the pretrial family violence education program invoked in his behalf.” We infer from the express designation of the offenses to which § 54-56e does not apply that the legislature intended only defendants charged with the designated offenses to be excluded, per se, from the application of the statute. See White Oak Corporation v. Department of Transportation, 217 Conn. 281, 301, 585 A.2d 1199 (1991) (expressio unius est exclusio alterius). In [758] view of the absence of a specific legislative directive to the contrary, therefore, we conclude that a defendant charged with the sale of narcotics under § 21a-278 (b) is not per se ineligible for AR under § 54-56e.7

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State v. Tucker, 595 A.2d 832, 219 Conn. 752, 1991 Conn. LEXIS 373 (Colo. 1991).

595 A.2d 832 (State v. Tucker) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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