Opinion
Opinion Filed February 27, 1967
Appeal and Error. Criminal Law.
1. Failure to obtain recorded permission from trial court to bring up to Supreme Court the questions to be decided results in a failure to confer jurisdiction on Supreme Court necessary to deal with the case.
2. Even though jurisdiction may have been conferred on Supreme Court in a case not involving a final judgment, by the obtaining of recorded permission from lower court to bring questions to be decided to Supreme Court, latter may refuse to accept attempted certification if appealing party fails to obtain from certifying court a signed statement of questions to be presented for review. Supreme Court Rules, Rule 2A.
3. In discretion of Supreme Court, if an advance answer to questions presented relating to a case that had not reached final judgment below would appear to benefit the course of the litigation, the Court might, alternatively, enlarge the rule requiring a signed statement of questions to be presented for review, after which a properly formulated and authenticated statement of the questions for decision could be filed out of time. Supreme Court Rules, Rule 2A.
4. Statutory authority for presiding judge to settle the extent of transcript required to be furnished on appeal has implicit in it the right of all sides to be heard on the question, if they wish, and even then the parties are not prohibited from furnishing, at their own expense, additional parts of the testimony if they see fit. 12 V.S.A. §§ 2386, 2390; 13 V.S.A. § 7402; Supreme Court Rules, Rules 4A, 7, subd. 5.
5. On appeal by State from a not guilty verdict, in which question to be resolved was not framed satisfactorily for review, Supreme Court would enlarge its rule relating to such appeals and State would be given fifteen days from date of entry of judgment to file with Clerk of General Term a proper certification of question to be decided in Supreme Court; otherwise prevailing party's motion to dismiss would be granted. Supreme Court Rules, Rule 2A.
Appeal by State before final judgment with respect to a not guilty verdict. District Court, Chittenden County, Costello, J. presiding. A statement of the questions presented for review was not obtained from the certifying court. State given 15 days to file a certification of questions to be decided, otherwise motion to dismiss would be granted.
David Jenkins, Burlington City Grand Juror, for the State.
Joseph Wool for defendant.
February Term, 1967
Present: Holden, C.J., Shangraw, Barney, Smith and Keyser, JJ.
The procedures for bringing questions to this Court before final judgment continue to plague practitioners. There are two steps. The first is to obtain recorded permission from the court concerned to bring up to this Court the questions to be decided. Failure to do this means a failure to confer the jurisdiction necessary to deal with the case at all, here, at that point. LaDuke Est. v. LaDuke, 126 Vt. 27, 220 A.2d 474; Roy v. Roy, 123 Vt. 92, 182 A.2d 337.
The second step, required by Rule 2A of the Supreme Court, 12 V.S.A. App I R2A, is to obtain from the certifying court a signed statement of the questions to be presented here for review. Even though jurisdiction may have been conferred by step one, if the statement of questions is lacking, this Court may refuse to accept the attempted certification. Davis v. Albany Discount, 125 Vt. 330, 331, 215 A.2d 519. However, in its discretion, if an advance answer to the questions would appear to benefit the course of the litigation, the Court may, alternatively, enlarge the rule. A properly formulated and authenticated statement of the questions for decision may then be filed out of time. Interlocutory entries, allowing this to be accomplished, have been issued from time to time by this Court. Putney v. Brookline, 126 Vt. 194, 225 A.2d 388, 392; compare In re Crescent Beach Asso., 125 Vt. 321, 324, 215 A.2d 502.
This is an appeal by the State from a not guilty verdict. It claims the trial court, in its charge, misinterpreted statutory law. Permission to come to this Court was properly established, but the question to be resolved was not framed satisfactorily for review, being far too general, for one thing. Since, in such circumstances, the State can obtain review only by a process of certification, 12 V.S.A. § 2386, 13 V.S.A. § 7403, State v. Benjamin, 124 Vt. 20, 21, 196 A.2d 507, an opportunity to repair the form of the question to be considered is appropriate.
A secondary issue, not a basis for dismissal, related to the provision of a partial transcript. So that there may be no question, we point out that the statutory authority for the presiding judge to settle the extent of the transcript required to be furnished, 12 V.S.A. § 2390, has implicit in it the right of both sides to be heard on the question, if they wish. Even then, such an order does not prohibit parties from furnishing, at their own expense, additional parts of the testimony, if they see fit. It merely decides, initially, the amount of transcript constituting allowable cost, and the extent of the transcript representing completion of the required record for appeal purposes. Supreme Court Rule 4A, 12 V.S.A. App I, R 4A; Supreme Court Rule 7(5), 12 V.S.A. App I, R 7(5).
Rule 2A of the Supreme Court is enlarged and the appellant has fifteen days from the date of this entry to file with the Clerk of the General Term a proper certification of the question to be decided in this Court, or the appellee's motion to dismiss will be granted.