State v. Spencer Durham ( 2013 )

ENTRY ORDER
SUPREME COURT DOCKET NO. 2013-096
MAY TERM, 2013
State of Vermont } APPEALED FROM:
}
}
v. } Superior Court, Bennington Unit,
} Criminal Division
Spencer Durham }
} DOCKET NO. 1058-10-12 Bncr
In the above-entitled cause, the Clerk will enter:
On February 26, 2013, defendant was convicted by jury of two counts of identity theft,
one count forgery, and one count receiving stolen property. That same day, on the record, the
trial court dismissed an habitual offender penalty enhancement. See 13 V.S.A. § 11. The State
appealed that dismissal before defendant was sentenced. Defendant moves to dismiss the appeal
for lack of jurisdiction.
The State’s right of appeal in criminal cases is limited. “The sole legal authority for
criminal appeals by the prosecution to this Court under [Vermont] Rule [of Appellate Procedure]
4 is provided in 13 V.S.A. § 7403.” State v. Saari, 152 Vt. 510, 513, 568 A.2d 344, 346 (1989).
The State contends it is entitled to bring this appeal pursuant to 13 V.S.A. § 7403(b). Section
7403(b) permits the State to appeal a court’s decision, judgment, or order “dismissing an
indictment or information as to one or more counts.” The habitual offender enhancement is not a
separate offense nor is it charged as an independent count on defendant’s information; rather, it
provides defendant notice of a potential penalty enhancement. See 13 V.S.A. § 11; see also State
v. Ingerson, 2004 VT 36, ¶ 3, 176 Vt. 428, 852 A.2d 567 (clarifying that Vermont's habitual
offender statute provides an enhanced penalty for a defendant's fourth or subsequent felony
conviction, not a “separate or new offense”). Without the court dismissing “an indictment” or
“count” of the information, the State does not have an immediate statutory right of appeal. As
such, we grant defendant’s motion to dismiss for lack of jurisdiction.
As a result of this dismissal, defendant’s requests for an extension of time to file his brief
and his motion for remand are moot.
BY THE COURT:
Paul L. Reiber, Chief Justice
John A. Dooley, Associate Justice
Marilyn S. Skoglund, Associate Justice
Brian L. Burgess, Associate Justice
Beth Robinson, Associate Justice
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