State v. Campbell, 2014 VT 113 (mem.)
By Andrew Delaney
Those of you that read a lot of SCOV opinions know all about the “rocket docket” opinions. (This is also a sure sign that you need to get out more.) They’re usually written by a three-justice panel and emblazoned across the top there’s a big ol’ warning that reads: “Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.” Yep, it’s in italics too. Now, when I saw that the SCOV had begun this opinion by citing an unpublished memorandum opinion, I had a “gotcha” moment. I looked up the opinion, and lo and behold, it’s a four-justice opinion with the warning conspicuously absent. So there goes my whole goose-gander analogy.
At any rate, Mr. Campbell was on probation, got charged with violating it, and went directly to jail. He did not pass GO; he did not collect $200. He was held without bail. Though his merits hearing on the violation began a few weeks later, it didn’t finish and the continuation of the hearing was scheduled out about a month-and-a-half later. Mr. Campbell filed a motion to review bail in the meantime and the trial court more or less said, “Nope, already explained all that at arraignment. And the motion doesn’t change anything.”
Mr. Campbell appeals. He argues he’s entitled to bail review within 48 hours under the allegedly applicable statute; the State argues that the decision to deny the motion was discretionary and that the SCOV should just look at whether there was an abuse of that discretion.
The SCOV splits the proverbial baby and holds that a defendant held on a probation violation should get a bail-review hearing within five days pursuant to a different subsection of the same statute when it’s read in conjunction with a criminal rule of procedure applying to probation violations, and explicitly incorporating the statute (13 V.S.A. § 7554 and Rule 32.1 for you citation-oriented purists out there).
This is the same conclusion that the SCOV reached in that prior unpublished-sans-warning-language memorandum decision. Truth be told, now that I've spent some more time poking around in the unpublished decisions, that warning may not be quite as ubiquitous as I initially assumed. Looks like we may all want to expand our weekly reading list. I personally know one attorney in the great State of Vermont who summarizes and digests all of these unpublished opinions. He may be onto something.
In the end, the SCOV sends it back for a posthaste bail-review hearing.