Monday, June 27, 2011

No Double Dipping Allowed

By Jeffrey Thomson

State v. Sommer, 2011 VT 59

When determining the length of a convict’s prison sentence, Vermont law requires the court to apply credit for time spent in custody awaiting trial.  This requirement is clearly set out in 13 V.S.A. § 7031(b),

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which the person is received at the correctional facility for service of the sentence. The court shall give the person credit toward service of his or her sentence for any days spent in custody in connection with the offense for which sentence was imposed.

However, this type of pre-sentence credit does not apply if the individual is already serving a sentence for a previous conviction.  In essence, you cannot use §7031(b) to have the time spent serving your first sentence applied towards your second sentence.  Common sense . . . right?  Perhaps not, because this is exactly what Mr. Sommer tries to accomplish in today’s case.

Friday, June 17, 2011

Excepting the Dead

In re Guite, 2011 VT 58.

Imagine this.  You are looking for the perfect home for your family.  After scouring the state, you finally find the perfect parcel to build your dream.  There is one hitch.  The site where your family’s dream house should go—the spot where the sun and mountains coalesce into a backdrop that would make Frederick Church blush—is also the site of an old cemetery. 

But you are a dreamer, a dreamer with capital.  So you go ahead and purchase the land and lay in plans to build.  But first you have to remove the cemetery.  This should not be a big deal.  The last burial was before 1853.  Who is going to care about some bodies in the ground?  We are talking about a killer building site.  Or as your construction foreman might say, “Whadda they care?  They ain’t using the view.”

Splitting Heirs

By Michael Tarrant

In re Estate of Phillip Lovell, 2011 VT 61

Ah yes, the classic tale of father makes will, father gives son power of attorney, son executes self-serving transfer of property, and family cries foul. 

Make the son creepy and add one Mystery Machine and a talking dog with a speech impediment and you basically have an episode of Scooby Doo.

Friday, June 10, 2011

Drugs, Sex, and ‘Rock’ and Roll: Part Two

State v. Faham, 2011 VT 55 (mem.)

So here’s the thing. 

Lying on top of a woman and threatening to kill her unless she has sex with you is attempted sexual assault.  Just in case anybody was unclear on that.

Monday, June 6, 2011

Rural Rashomon

State v. Charbonneau, 2011 VT 57

For Plato the idea of truth was an absolute that we, as mere shadows, could only approximate and mimic in varying degrees.  Nowhere is this truer than in court when multiple witnesses testify to the same event.  For even the simplest of questions (“Where was the car parked?”), you will in any ordinary trial get a variety of answers (“in the driveway”; “on the street”; “there was no car”).  It is not that witnesses are lying, covering up, or even misremembering, but it is just the reality that each of us perceives and catalogues events in different ways.  Our memories are subject to all sorts of accidental and purposeful manipulations.

Sunday, June 5, 2011

Cover Me

Southwick v. City of Rutland, 2011 VT 53

The factual story behind today’s case is not a tragedy on par with Hamlet or the Iceman Cometh.  It is, in fact, a straightforward narrative that may be dispatched in one sentence: girl attends a swim meet, falls off a piece of playground equipment, and suffers a terrible injury. 

That tale, however, is not really the subject of the SCOV’s decision or its competing analyses.  Rather, this accident and the resulting injuries are just catalysts for the larger events at issue and the broader tragedy that we might title The Well-Meaning Association That Did Not Read Its Contract Carefully. 

Swift Justice

State v. Macedo Soares, 2011 VT 56 (mem.)

We’d like to offer a handshake to the defendant who took a $140 speeding ticket all the way to the SCOV.  It’s another one of those cases that law students sit around and daydream about, because after all, “It’s just not fair, man.”  But alas, the SCOV puts the brakes on this creative constitutional challenge, and Vermont’s traffic-court regime will live to see another disgruntled speeder.

Saturday, June 4, 2011

Failure to Preserve

In re Estate of Orville Tucker, 2011 VT 54 (mem.)

This case could have come straight out of your law school Estates textbook:  Daughter becomes legal guardian of testator; shortly after daughter assumes the guardianship, she sets testator up with an appointment with an attorney; at said appointment, which daughter drives him to, testator changes his will in a manner that heavily favors daughter; testator dies (don’t worry, no suspicious circumstances surrounding the death); and the will is contested in probate court by the other heirs. 

Of Benefits and Burdens.

Tibbetts v. Michaelides, 2011 VT 52 (mem.).

In today’s case, the SCOV interprets another deed restriction, this one found in a 1977 deed from Ms. Lydia Lowell to Mr. J. Peter Trono, for five acres on Bartlett’s Bay.  The larger parcel, 4.97 of the five acres, lays across the road from a 0.3-acre parcel.  Ms. Lowell retained substantial property surrounding the five-acre parcel and included several restrictions, including that “no more than five single-family houses shall be constructed upon the lands hereby conveyed.”  In addition to the development limit, the 1977 deed retained “certain ‘rights in favor others,’” specifically: a footpath and use of the footpath to reach Lake Champlain to swim and mess about in boats.  “Believe me, my young friend, there is nothing—absolute nothing—half so much worth doing as simply messing about in boats.”

Not Necessarily a Sale

Smalley v. Stowe Mountain Club, 2011 VT 51

Does a mere inter-corporate capital transfer among affiliated entities constitute an actual sale of property, triggering a deed’s restrictive covenant that applies when land is “sold or conveyed?”  As with every legal question, it depends.    

In today’s case, the SCOV looked into the shuffling of property between Stowe Mountain Club, LLC, Mount Mansfield Company, and Spruce Peak Realty, LLC, all of which are wholly owned or controlled by their parent corporation American International Group (AIG).