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In re Smith

Supreme Court of Vermont
Jun 8, 1984
479 A.2d 152 (Vt. 1984)

Summary

finding no jurisdiction when petitioner moved for relief after completing kidnapping sentence and “failed to allege or demonstrate any collateral consequence stemming from that sentence”

Summary of this case from State v. Hernandez-Galarza

Opinion

No. 83-263

Opinion Filed June 8, 1984

1. Criminal Law — Post-Conviction Relief — Generally

A person who is not incarcerated is nevertheless in custody for purposes of post-conviction review if he or she suffers a significant restraint on personal liberty as a direct result of the challenged conviction. 13 V.S.A. § 7131.

2. Criminal Law — Post-Conviction Relief — Jurisdiction

Not every collateral consequence associated with a conviction will trigger post-conviction review jurisdiction, and a conviction may deny or impinge on privileges that are so trivial that jurisdiction will not be found. 13 V.S.A. § 7131.

3. Criminal Law — Post-Conviction Relief — Jurisdiction

Where petitioner, who had completed his sentence on a kidnapping conviction, failed to allege or demonstrate any collateral consequences stemming from that sentence, he failed to invoke post-conviction relief jurisdiction. 13 V.S.A. §§ 2401, 7131.

Appeal from order granting state's motion to dismiss petition for post-conviction relief. Orange Superior Court, Morrissey, J., presiding. Affirmed.

Andrew B. Crane, Defender General, and Stephen W. Gould, Defender, Correctional Facilities, Montpelier, for Petitioner-Appellant.

John J. Easton, Jr., Attorney General, and Elizabeth Grant Rome, Assistant Attorney General, Montpelier, for Respondent-Appellee.

Present: Billings, C.J., Hill, Underwood, Peck and Gibson, JJ.


The petitioner appeals an order of the Orange Superior Court granting the State's motion to dismiss his petition for post-conviction relief.

In 1971, petitioner pled nolo contendere to one count of kidnapping. 13 V.S.A. § 2401. In 1974, he was sentenced to a term of not less than three nor more than ten years. He completed serving this sentence sometime prior to 1980. He is currently serving a sentence in a federal penal institution for crimes committed subsequent to the kidnapping.

As grounds for this appeal, petitioner asserts: (1) that under Chapter I, Article 10 of the Vermont Constitution, and V.R.Cr.P. 23(a), the trial court was barred from accepting his plea of nolo, and thereby waiving a jury trial to which he was entitled, since kidnapping is an offense punishable by imprisonment; and (2) that the order dismissing his petition is void because the dismissal involved a question of law and the assistant judges, who have no legal training, participated in the hearing and signed the court's order. See State v. Dunkerley, 134 Vt. 523, 365 A.2d 131 (1976).

In order for the petitioner to invoke post-conviction review, he must be "in custody" under the sentence that is asserted to be improper or void. 13 V.S.A. § 7131. We have previously held that an individual need not actually be incarcerated under the conditions of the attacked sentence in order to satisfy the "in custody" requirement of 13 V.S.A. § 7131. See State v. McMann, 133 Vt. 288, 291-92, 336 A.2d 190, 192 (1975); Magoon v. Smith, 130 Vt. 603, 604, 298 A.2d 820, 821 (1972). In In re Stewart, 140 Vt. 351, 438 A.2d 1106 (1981), we held that a person who is not incarcerated is nevertheless in custody for purposes of post-conviction review if he or she suffers a significant restraint on personal liberty as a direct result of the challenged conviction. Id. at 359-61, 438 A.2d at 1109. We noted, however, that not every collateral consequence associated with a conviction will trigger post-conviction jurisdiction, and a conviction may deny or impinge on privileges that are so trivial that jurisdiction will not be found. Id. at 360, 438 A.2d at 1109. In the instant case, the petitioner, who has completed his sentence on the kidnapping conviction, has failed to allege or demonstrate any collateral consequence stemming from that sentence. As a result, the petitioner has failed to invoke jurisdiction pursuant to 13 V.S.A. § 7131.

In view of our disposition of this cause on jurisdictional grounds, we do not reach the issues alleged as error on appeal.

Affirmed.


Summaries of

In re Smith

Supreme Court of Vermont
Jun 8, 1984
479 A.2d 152 (Vt. 1984)

finding no jurisdiction when petitioner moved for relief after completing kidnapping sentence and “failed to allege or demonstrate any collateral consequence stemming from that sentence”

Summary of this case from State v. Hernandez-Galarza

finding no jurisdiction under § 7131 when petitioner moved for relief after completing kidnapping sentence and "failed to allege or demonstrate any collateral consequence stemming from that sentence"

Summary of this case from In re Chandler
Case details for

In re Smith

Case Details

Full title:In re Richard A. Smith

Court:Supreme Court of Vermont

Date published: Jun 8, 1984

Citations

479 A.2d 152 (Vt. 1984)
479 A.2d 152

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