125 Conn. App. 296
Conn. App. Ct.2010Background
- Foote was convicted (plea) to possession of cocaine with intent to sell by a person not drug-dependent after suppression denial; affirmed on appeal.
- Foote filed a habeas petition asserting ineffective assistance; trial concluded August 28, 2008 and judgment was entered March 16, 2009, 200 days later.
- Habeas court noted the judgment violated § 51-183b but concluded no waiver occurred due to lack of objection while silent.
- Foote filed a motion to set aside the judgment nine days after the late judgment; motion denied of April 15, 2009.
- Issue presented: whether Foote’s postdeadline silence constituted waiver of the 120-day requirement; court reversed, holding no waiver occurred.
- Supreme reasoning: a late judgment is voidable, not void; waiver may be inferred from conduct, but here silence before judgment did not demonstrate intent to waive; postjudgment objection was seasonable and compelled new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver from silence after deadline | Foote did not waive § 51-183b by silence | Commissioner argued silence implied consent to delay | Waiver not established; no implied waiver from silence |
| Character of late judgment | Late judgment is voidable, not void | Late judgment valid if waived by conduct | Late judgment voidable; waiver requires conduct showing consent |
| Timeliness of objection | Motion to set aside was seasonable | Silence could have implied waiver | Objection nine days after judgment is seasonable; no waiver from pre- or post-judgment silence |
| Abuse of discretion in denial of motion to set aside | Court abused discretion by denying motion | Waiver supported late judgment validity | Abuse of discretion; judgment reversed and remanded for new trial |
Key Cases Cited
- Waterman v. United Caribbean, Inc., 215 Conn. 688 (1990) (late judgment voidable unless waived; onus on timely objection)
- Spelke v. Shaw, 117 Conn. 639 (1933) (seasonable objection after judgment required to avoid waiver)
- Hurlbutt v. Hatheway, 139 Conn. 258 (1952) (silence may indicate waiver only when a duty to protest exists)
- Bogaert v. Zoning Board of Appeals, 162 Conn. 532 (1972) (waiver may be inferred from conduct; not from mere inaction)
- Dichello v. Holgrath Corp., 49 Conn.App. 339 (1998) (waiver analysis tied to post-judgment conduct and timing)
- Rowe v. Goulet, 89 Conn.App. 836 (2005) (seasonable objection after late judgment; conduct matters)
- O.J. Mann Electric Services, Inc. v. The Village at Kensington Place Ltd. Partnership, 99 Conn.App. 367 (2007) (waiver found when plaintiff submitted brief beyond deadline after notice)
- Connecticut Light & Power Co. v. Costle, 179 Conn. 415 (1980) (duty to protest after late judgment; object seasonably)
- Gordon v. Feldman, 164 Conn. 554 (1973) (statutory delay credibility and waiver considerations; expediency)
- Sanchez v. Prestia, 29 Conn.App. 157 (1992) (illustrates consequences of untimely decisions and remedies)