25 Conn. App. 235 | Conn. App. Ct. | 1991
The state appeals
The facts necessary to a resolution of this appeal may be briefly summarized as follows. The defendant was charged with crimes against three different minor victims in a single information supplemented by a bill of particulars containing six counts. In the first count, he was charged with a violation of General Statutes § 53-21,
On July 19,1988, an application for accelerated rehabilitation made pursuant to General Statutes § 54-56e was denied by the trial court. A new application for accelerated rehabilitation was filed and was granted by the trial court on November 22, 1988. On November 20, 1990, the trial court was advised that the defendant had satisfactorily completed his period of probation and the trial court accordingly dismissed the case. This appeal then followed with the permission of the trial court.
As a preliminary matter, the defendant asserts that this court lacks subject matter jurisdiction. He posits that the decision of the trial court granting the defendant’s application for accelerated rehabilitation was a final judgment from which an appeal should have been taken, and, as a consequence, the state’s appeal is untimely. We disagree.
Interlocutory orders and rulings of the Superior Court may be final judgments for purposes of appeal in two circumstances: “(1) [W]here the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).
“The second test for finality, where the order on appeal so concludes the rights of the parties that further proceedings cannot affect them, focuses not on the proceeding involved, but on the potential harm to the appellant’s rights. A presentence order will be deemed final for purposes of appeal 'only if it involves a claimed right “the legal and practical value of which would be destroyed if it were not vindicated before trial.” ’ ” Id., 33-34. The granting of a motion for accelerated rehabilitation satisfies neither prong of Curdo.
Clearly, an application for accelerated rehabilitation is not a separate and distinct proceeding. See State v. Spendolini, 189 Conn. 92, 95, 454 A.2d 720 (1983). General Statutes § 54-56e has been described as having as its main thrust suspension of prosecution, and such motions, like motions to stay proceedings, are interlocutory in character and are not appealable whether granted or denied. State v. Spendolini, supra, 96 (hold
We conclude that the right of the state to appeal did not ripen until the dismissal of the charges and that we do have subject matter jurisdiction. See State v. Southard, 191 Conn. 506, 512, 467 A.2d 920 (1983).
II
The state asserts that the trial court improperly granted the defendant’s motion for accelerated rehabilitation because (1) the defendant was charged with the commission of a number of crimes alleged to have been committed against three separate victims, and (2) the crimes charged were of a serious nature. We agree with the state that the trial court improperly concluded that these charges constituted “a crime” within the meaning of General Statutes § 54-56e, and thus acted improvidently in granting the defendant’s application for accelerated rehabilitation.
The granting or denial of an application for accelerated rehabilitation implicates the exercise of discretion by the trial court. State v. Satti, 2 Conn. App. 219, 224, 477 A.2d 144 (1984). The exercise of legal discretion imparts something more than the granting to the trial court of the right to have leeway in decision making. State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). Rather, the exercise of legal discretion requires that it be exercised “ ‘ “ ‘in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” ’ ” State v. Corchado, 200 Conn. 453, 464, 512 A.2d 183 (1986).
The trial court abused its discretion in granting the defendant’s application for accelerated rehabilitation. Obviously, the term “abuse of discretion” does not imply a bad motive or wrong purpose but simply means that the ruling made by the trial court appears to us to have been made on untenable legal grounds. State v. Schroff, 198 Conn. 405, 413, 503 A.2d 167 (1986).
As we have previously noted, General Statutes § 54-56e provides for a pretrial program for accelerated rehabilitation “of persons accused of a crime.” The phrase, “a crime,” “means a single criminal act or transaction, out of which one or more criminal charges might arise.” State v. Tyler, 6 Conn. App. 505, 510, 506 A.2d 562 (1986). In the context of the accelerated rehabilitation statute, the question of whether multiple charges describe “a crime” must begin with an analysis of the facts and circumstances underlying the charges against the defendant. Id. The criteria to determine whether multiple charges constitute “a crime” is whether the charges arose out of the same act or transaction. Id.
Here, the defendant was charged in the information as supplemented by the bill of particulars with three
The charges involve three separate victims of separate crimes without any temporal continuity or clear connection among them other than each separate sexual assault or risk of injury alleged involved claims of sexual misconduct with the -victims. Multiple acts of sexual assault, even against the same victim, constitute separate crimes for each such act. State v. Frazier, 185 Conn. 211, 229, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). Each assault against each victim constituted a discrete offense, separately punishable under our law. The same rationale applies with equal force to the crime of risk of injury, that is, each claim of risk of injury against each victim constituted a separate and distinct crime. State v. Snook, 210 Conn. 244, 261-62, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).
“ ‘A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. . . .’ ” State v. Madera, 198 Conn. 92, 110, 503
We conclude that, because there is neither a temporal continuity nor a clear connection among the acts claimed to have been committed, and, because each such claimed act of misconduct against each victim constitutes a separate crime, the defendant was charged with more than one single criminal act or transaction as defined by State v. Tyler, supra. Thus, the defendant was ineligible for the accelerated rehabilitation program. The trial court, therefore, abused its discretion by granting the defendant’s application.
Because of our resolution of the multiple crimes issue, we need not address the state’s claim that the crimes charged are crimes of a serious nature under the accelerated rehabilitation statute.
The judgment dismissing the information is set aside and the case is remanded for further proceedings in accordance with the law.
In this opinion the other judges concurred.
General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”
General Statutes § 54-56e provides in pertinent part: “There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed, which crime or violation is not of a serious nature. The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state’s attorney or prosecuting attorney with respect to an accused who, the court believes, will probably not offend in the future and who has no previous record of conviction of a crime or of a violation of section 14-196, subsection (c) of section 14-215, section 14-222a, subsection (a) of section 14-224 or section 14-227a and who states under oath in open court under the penalties of perjury that he has never had such program invoked in his behalf, provided the defendant shall agree thereto and provided notice has been given by the accused, on a form approved by rule of court, to the victim or victims of such crime or motor vehicle violation, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. . . . Unless good cause
General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed
General Statutes § 53a-71 provides in pertinent part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”
General Statutes § 53a-71 provides in pertinent part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is . . . (4) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare