State v. Randy F. Therrien, 282 A.3d 1175

In January 2008 Therrien pleaded guilty to possession of stolen property; the plea contemplated a separate restitution hearing.
Restitution proceedings occurred over three days in May and June 2008; defendant participated by phone earlier and counsel appeared at the June 16 hearing, but neither defendant nor counsel was present for the June 27, 2008, hearing.
The State presented victim testimony and exhibits; the court entered a restitution judgment for $11,023 (plus a separate $500 order to another victim not at issue).
In November 2020 Therrien moved to vacate the restitution order arguing constitutional due-process violations (presence and counsel) and procedural defects; he did not invoke Rule 35 below.
The trial court denied relief as untimely under V.R.Cr.P. 35(b)’s 90‑day limit and Rule 45(b)(2); the court alternatively rejected ineffective-assistance/abuse-of-discretion claims.
On appeal the Vermont Supreme Court affirmed the timeliness ruling, held the 90‑day limit cannot be extended, and remanded solely to correct a stipulated computational error (double-counting of a three‑wheel ATV) under Rule 36.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court had discretion to consider a motion to correct a sentence imposed in an illegal manner filed more than 90 days after sentencing	State: Rule 35(b)’s 90‑day limit applies and the motion is untimely; Rule 45 forbids extensions	Therrien: the 90‑day limit is not mandatory or jurisdictional; Rule 2/fairness should allow relief for justifiable delay	Held: The Rules’ plain text and Rule 45(b)(2) make the 90‑day limit inflexible; court lacked discretion to consider the late motion; affirm dismissal as untimely
Whether holding the June 27, 2008 restitution hearing without defendant or counsel violated due process / required vacatur	State: defendant had notice and participated earlier; no basis to reopen after long delay	Therrien: he was disconnected while calling in, had no counsel at final hearing, and only learned of the order after release; constitutional rights were violated	Held: Court did not reach the merits because the claim was time‑barred; alternative lower‑court findings (no ineffective assistance) were noted but appellate decision rests on timeliness
Whether the restitution order contained a clerical/computational error and must be corrected	Parties (stipulated): June 27 order double‑counted the ATV’s value	N/A	Held: Remanded to the criminal division to correct the computational error under V.R.Cr.P. 36

State v. Desjardins, 479 A.2d 160 (Vt. 1984) (interpreting Rule 35 timing and the requirement that the 90‑day period attaches to filing or court action)
Carlisle v. United States, 517 U.S. 416 (U.S. 1996) (Rule 45 cannot be circumvented by invoking Rule 2; untimely criminal post‑verdict motions are not saved by general-purpose interpretive rules)
State v. Amidon, 967 A.2d 1126 (Vt. 2008) (procedural‑rule interpretation reviewed de novo)
State v. Oscarson, 898 A.2d 123 (Vt. 2006) (standard of review for sentence‑reconsideration motions)
State v. Stearns, 260 A.3d 368 (Vt. 2021) (describing Rule 35’s equitable purpose to permit sentencing reconsideration within a restricted time window)