State v. Messier
State v. Messier
Opinion of the Court
Defendant appeals the Franklin County Superior Court’s denial of his motion to reduce sentence, made under the provisions of 13 V.S.A. § 7042. We vacate the court’s order on jurisdictional grounds.
Defendant raises two issues on appeal. First, he notes that his motion was heard by the presiding judge sitting alone, and he argues that the proceedings were jurisdictionally void because assistant judges were available. Second, he contends that the trial court erred in denying the motion without making findings or including a statement of reasons for the denial.
In 1982, defendant was convicted, following trial by jury, of two counts of sexual assault and one count of lewd and lascivious conduct with a child. The trial was held before a presiding judge and
Section 112(a) of Title 4 V.S.A. provides: “The superior court shall consist of one presiding judge and two assistant judges, if available.” Only in the event that neither assistant judge is “available” to participate in the proceedings may “the court. . . consist of the presiding judge alone.” 4 V.S.A. § 112(c). Thus, upon review, unless the record indicates on its face that both assistant judges were unavailable, this Court will find the proceedings to have been jurisdictionally void. See Behn v. Northeast Appraisal Co., 145 Vt. 101, 106-07, 483 A.2d 604, 607-08 (1984); Vermont Union School District No. 21 v. H.P. Cummings Construction Co., 143 Vt. 416, 422, 469 A.2d 742, 746 (1983).
We hold that the lower court here was without jurisdiction to consider defendant’s motion for a reduction of sentence. The presiding judge’s determination of unavailability did not go far enough. Implicit in his reasoning was the assumption that, once the assistant judges sitting on a particular case have retired, no other assistant judges can become “available” for further hearings on that matter. However, we find no statutory or other authority for this proposition,
Defendant also argues that, on remand, the hearing on his motion should be conducted before a different presiding judge “[t]o ensure no inadvertent prejudice.” But this is not a case where improper materials were considered by the sentencing judge, and no danger of prejudice has been demonstrated. Cf. State v. Williams, 137 Vt. 360, 364-65, 406 A.2d 375, 377 (1979). Therefore, it would be inappropriate to require hearing by a different presiding judge on remand.
Because of our disposition of the matter, we do not reach defendant’s second argument.
Order vacated and cause remanded.
As the State notes, Vermont law incorporates a strong preference that sentencing be conducted by the judge or judges who sit at trial. See State v. Manning, 141 Vt. 192, 196-99, 446 A.2d 775, 777 (1982). However, this preference must yield to practical considerations where linked to jurisdictional requirements.
Reference
- Full Case Name
- State of Vermont v. Larry Messier
- Status
- Published