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.


Let’s dig into the facts to see why Sommer argued for a pre-sentence incarceration credit.  Sommer’s current sentencing woes arise out of a conviction on eleven counts, including burglary, attempted burglary, unlawful mischief, and larceny.  Prior to this conviction, Sommer was convicted of an earlier crime, which required a sentence of a minimum of twelve months and fourteen days and a maximum of eight years in prison.  He served the minimum time required by his first sentence and was serving his “remaining sentence in the community” pursuant to 28 V.S.A. § 723—a law allowing “conditional reentry” into the community for convicted offenders.  During this reentry period he was arrested on the second set of charges.  The court then revoked his “community status” and incarcerated him for thirteen months between arraignment and sentencing for his second set of crimes. 

Sommer relies on the facts that (1) he served his minimum time for his first crime and (2) was released to serve the remainder of his time in the community, in order to argue that the 13 months that he was put back in jail before his second sentencing should be counted as a pre-sentence credit towards the sentencing for his second set of crimes. 

The court responds with a nice try buddy, but no dice:

Under community status, the DOC “extend[s] the limits of the place of confinement of an inmate,” but the inmate is still confined.  28 V.S.A. § 808.  Community status changes only the place of confinement and is not the equivalent of release.  Defendant was still confined when he was arraigned for the crimes that led to his second sentence, and he was moved back to jail because of his own criminal actions. 

Despite being given conditional reentry into the community, Sommer never finished serving his time for his first crime.  Therefore, treating his 13 months back in jail as a credit towards his second sentence would be a double credit.  We all know that it isn’t polite to double dip

1 comment:

  1. Your analysis omits an important point: the second sentence was ordered to run consecutive (from and after, as we say in Mass) to the first sentence. Had the court imposed concurrent sentences, the result would be a bit weirder.

    Why would they court impose concurrent sentences? Well, here in Mass. they do it all the time. If a person's probation or parole is revoked on account of a new offense, the new sentence almost always runs concurrent with the time for the violation. The rationale seems to be that the defendant wouldn't be in jail but for the new offense, so it ought to get a "package deal" sentence.

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