Stewart v. Smith

Supreme Court of Vermont

Stewart v. Smith

274 A.2d 504, 129 Vt. 182, 1971 Vt. LEXIS 242

CourtSupreme Court of Vermont

DecidedFebruary 9, 1971

Docket142-69

StatusPublished

Cited by2 cases

This text of 274 A.2d 504 (Stewart v. Smith) 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

Stewart v. Smith, 274 A.2d 504, 129 Vt. 182, 1971 Vt. LEXIS 242 (Vt. 1971).

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Opinions

Barney, J.

In response to a petition from the respondent, the Windsor County Court set aside the original sentence imposed on conviction of a violation of 18 V.S.A. § 4224(d), a felony. That sentence called for a term of 15 to 19 months in the house of correction, and a $2000 fine, or an additional 2000 days in lieu thereof. The county court ruled that the sentence was in excess of the maximum permitted by law, and ordered resentencing. The original sentence was imposed July 16, 1969. On October 9, 1969, the respondent was re-sentenced, by a different judge, to a term in the state’s prison of 23 to 24 months, with a credit against both the maximum and minimum terms , of the time served from the commitment on the first sentence to the imposition of the new sentence. This sentence runs consecutively with the sentence for parole violation presently being served, which, at the time of resentencing, had about 24 months to run.

It is, as the respondent points out, a violation of the Fifth Amendment guarantee against double jeopardy to fail to give credit for punishment already endured. North Carolina v. Pearce, 395 U.S. 711, 718, 23 L.Ed.2d 656, 665, 89 S.Ct. 2072 (1969). In this case, the record of the proceeding shows that the required credit was given.

However, to prevent this giving of credit from being an empty gesture, the Pearce case also requires that there be no increase in the penalty on resentencing, unless the judge’s reasons affirmatively appear. There is no constitutional barrier against an increase in a sentence, but it must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing, and not on retaliatory or vindictive motivations. North Carolina v. Pearce, supra, 395 U.S. at 725-26. An appellant cannot, therefore, be penalized for exercising his right to seek review of procedures involved in his conviction and sentencing.

However, here, the respondent’s contention is based on a faulty premise. As he stated himself at the time of his [184]*184resentencing, his first sentence carried a maximum possibility of seven years. The resentencing reduced that maximum to 24 months, which was further reduced by the credit for time served. The ground for attacking the first sentence was that it exceeded the statutory limit for the offense of two years of imprisonment. Since the present sentence does not, it is not, certainly, an increase.

Judgment affirmed.

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Barney, J.

In response to a petition from the respondent, the Windsor County Court set aside the original sentence imposed on conviction of a violation of 18 V.S.A. § 4224(d), a felony. That sentence called for a term of 15 to 19 months in the house of correction, and a $2000 fine, or an additional 2000 days in lieu thereof. The county court ruled that the sentence was in excess of the maximum permitted by law, and ordered resentencing. The original sentence was imposed July 16, 1969. On October 9, 1969, the respondent was re-sentenced, by a different judge, to a term in the state’s prison of 23 to 24 months, with a credit against both the maximum and minimum terms , of the time served from the commitment on the first sentence to the imposition of the new sentence. This sentence runs consecutively with the sentence for parole violation presently being served, which, at the time of resentencing, had about 24 months to run.

It is, as the respondent points out, a violation of the Fifth Amendment guarantee against double jeopardy to fail to give credit for punishment already endured. North Carolina v. Pearce, 395 U.S. 711, 718, 23 L.Ed.2d 656, 665, 89 S.Ct. 2072 (1969). In this case, the record of the proceeding shows that the required credit was given.

However, to prevent this giving of credit from being an empty gesture, the Pearce case also requires that there be no increase in the penalty on resentencing, unless the judge’s reasons affirmatively appear. There is no constitutional barrier against an increase in a sentence, but it must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing, and not on retaliatory or vindictive motivations. North Carolina v. Pearce, supra, 395 U.S. at 725-26. An appellant cannot, therefore, be penalized for exercising his right to seek review of procedures involved in his conviction and sentencing.

However, here, the respondent’s contention is based on a faulty premise. As he stated himself at the time of his [184]*184resentencing, his first sentence carried a maximum possibility of seven years. The resentencing reduced that maximum to 24 months, which was further reduced by the credit for time served. The ground for attacking the first sentence was that it exceeded the statutory limit for the offense of two years of imprisonment. Since the present sentence does not, it is not, certainly, an increase.

Judgment affirmed.

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Bluebook (online)

274 A.2d 504, 129 Vt. 182, 1971 Vt. LEXIS 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-smith-vt-1971.

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