Opinion
No. 247-77
Opinion Filed November 3, 1978
1. Criminal Law — Plea of Nolo Contendere — Withdrawal
On a claim of manifest injustice, a plea withdrawal may be permitted under rule even after sentence; if made before appeal it may be disposed of by trial court and if not made, or disposed of, prior to appeal, trial court disposition is precluded unless remand for disposition by trial court is obtained from supreme court. V.R.Cr.P. 32(d).
2. Appeal and Error — Notice of Appeal — Necessary Inclusions
Denial of a motion made under rule to withdraw a plea is a question of law involved in a judgment of conviction and therefore an appealable order under statute; as such it must be designated in any notice of appeal as the order appealed from. 13 V.S.A. § 7401; V.R.Cr.P. 32(d); V.R.A.P. 3(d).
3. Appeal and Error — Notice of Appeal — Time
As to April 14 judgment entered on plea of nolo contendere, notice of appeal filed August 9 was out of time, more than 30 days having passed, and the judgment could not be considered on appeal; but appeal was timely as to August 4 order denying April 28 motion to withdraw the plea, and denial of motion to withdraw would be considered, appeal from it being within 30 day limit. 13 V.S.A. § 7401; V.R.Cr.P. 32(d).
Motion by state to dismiss appeal of criminal defendant. District Court, Unit No. 1, Rutland Circuit, McClallen, J., presiding. Motion denied.
M. Jerome Diamond, Attorney General, and Susan R. Harritt, Assistant Attorney General, Montpelier, for Plaintiff.
James L. Morse, Defender General, Charles S. Martin, Appellate Defender, David W. Curtis, Acting Appellate Defender, and Mary Reis, Law Clerk (On the Brief), Montpelier, for Defendant.
Present: Barney, C.J., Daley, Larrow and Hill, JJ.
In this criminal case, the State has moved to dismiss the defendant's appeal because the notice of appeal was not filed within thirty days of entry of judgment. It relies upon our holdings in State v. Cooley, 135 Vt. 409, 377 A.2d 1386 (1977) and State v. Savo, 136 Vt. 330, 388 A.2d 391 (1978).
The written judgment order and sentence below, on a plea of nolo contendere, was entered April 14, 1977. On April 28, defendant filed her motion under V.R.Cr.P. 32(d), to withdraw her plea. This was denied on August 4, and on August 9 she filed her notice of appeal, specifying both the April 14 judgment and the August 4 ruling as the orders appealed from.
On a claim of manifest injustice, a plea withdrawal may be permitted under V.R.Cr.P. 32(d) even after sentence. If made before an appeal is taken, it may be disposed of by the trial court; if not made, or not disposed of, before appeal, such disposition is precluded, unless a remand for disposition is obtained from this Court. See Commonwealth v. Simon, 389 A.2d 151 (Pa. Super. 1978).
Whatever the intimations of our language in State v. Cooley, supra, we are of the further view that:
(1) Denial of a motion to withdraw a plea under V.R.Cr.P. 32(d) is "a question of law involved in a judgment of conviction," and therefore an appealable order under 13 V.S.A. § 7401. Cf. Reporter's Notes, V.R.Cr.P. 11(e)(6).
(2) As such, it must be designated in any notice of appeal as the order appealed from. V.R.A.P. 3(d).
In the instant case, the notice of appeal specifies both orders appealed from. As to the April 14 judgment it is out of time, more than thirty days having expired. State v. Savo, supra. As to the August 4 order, it is timely filed.
Motion to dismiss appeal denied; appellate consideration and argument limited to the order of August 4, 1977.
Billings, J., did not sit.