State v. MatthewsState v. Matthews
On May 16,1971, the Addison County State’s Attorney issued an information charging the defendant with aiding and abetting armed robbery, in violation of 13 V.S.A. § 605. Defendant was arrested, arraigned and pleaded not guilty. On April 5, 1972, eleven months after the arrest of the defendant, 13 V.S.A. §§ 601-607 were repealed by Public Act No. 222,1971 (1972 Adjourned Sеssion).
On April 25, 1972, defendant lyas tried and convicted as charged and later sentenced to serve not less than three nor
Subsequent to sentencing, defendant filed a Notice of Appeal to this Court. He is presently serving the sentence imposed by the trial court.
It is defendant’s contention that by reason of the repeal of 13 V.S.A. § 605 prior to the date of trial, conviction and sentence, he is entitled to immediаte release. This question turns upon the interpretation of our “saving clause” statute, 1 V.S.A. § 214, which reads:
“214. Effect of amendment or repeal
(a) The amendment or repeal оf an act or of a provision of the Vermont Statutes Annotated shall not revive an act or statutory provision which has been reрealed.
(b) The amendment or repeal of an act or statutory provision, except as provided in subsection (c) of this section, shall not:
(1) Affect the operation of the act or provision prior to the effective date of the amendment or reрeal thereof;
(2) Affect any right, privilege, obligation or liability acquired, accrued or incurred prior to the effective date of the amendment or repeal;
(3) Affect any violation of the act or provision amended or repealed, or any penаlty or forfeiture incurred thereunder, prior to the effective date of the amendment or repeal;
(4) Affect any suit, remedy or prоceeding to enforce or give effect to any right, privilege, obligation or liability acquired, incurred or accrued under the amеnded or repealed provision prior to the effective date of the amendment or repeal; and the suit, remedy or prоceeding may be instituted, prosecuted or continued as if the act or provision had not been repealed or amended.
(c) If the penalty or punishment for any offense is reduced by the amendment of an act or statutory pro vision, the same shall be imposеd in accordance with the act or provision, as amended unless imposed prior to the date of the amendment. — Amended 1969, No. 207 (Adj. Sеss.), § 4, eff. March 24, 1970.”
Vermont, like many jurisdictions, enacted the foregoing type of legislation in the 19th century. At common law, the repeal of а criminal statute abated all prosecutions which had not reached final disposition. To avoid such results, legislatures frequently indicated an intention not to abate pending prosecutions by including in the repealing statute a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated. Whether the legislature passed general provisions to prevent dissolution of pending proceedings or included a saving provision in the repealring law itself, the effect is the same. See generally, Today’s Law and Yesterday’s Crime; Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa. L. Rev. 120, 121-30 (1972); Criminal Law-Retrospective Application of Statute Reducing Penalty, 18 Wayne L. Rev. 1157, 1158 (1972).
Under a saving clause or statute the statutory rights and penalties are determined by thе statute in effect at the time of the occurrence of the facts and may be enforced after repeal if the underlying facts are proved.
Central Vermont Medical Center, Inc.
v.
Town of Plainfield,
The general rule of statutory construction is to effectuate the intent of the legislature.
Villeneuve
v.
Town of Underhill,
In resolving the issue before us attention is directed to § 214(b) (3), which specifies that — “The amendment or repeal of an aсt or statutory provision, except as provided in subsection (c) of this section, shall not:
(3) Affect any violation of the act or provision amended or repealed, or any penalty or forfeiture incurred thereunder, prior to the effective date of the аmendment or repeal;”
The foregoing language covers the situation in the instant case.
Defendant contends that no liability was incurred by him prior to sentence. He claims that “incurred” means, in connection with his “penalty”, the date of sentencing, and that a criminal penalty is only “incurred” at the time of sentencing. We disagree. Criminal liability is incurred when the criminal act is committed. In construing a saving clause statute nearly identical in wording to 1 V.S.A. § 214(b) (3), the Massachusetts Supreme Court in the case of
Patrick
v.
Commissioner of Correction,
“[W]e have decided that a ‘punishment, penalty, or forfeiture’ is ‘incurred’ ... at the time the offense . . . is committed.”
Of like import, see 50 Am.Jur.
Statutes
§ 573;
Bradley
v.
United States,
Defendant’s penalty was “incurred” when he committed the act. This accords with the long established Vermont tradition of “saving”, through a saving clause or statute, all statutory rights and penalties created by a completed set of factual circumstances.
Defendant further contends that the court had nо jurisdiction to sentence him under § 605. He relies on § 214 and especially § 214(c) to support this contention. He urges that § 214, although not specifically stating that a criminal respondent shall not be punished when the violated statute is Repealed, can only be interpreted in that light. In that § 214 (c) provides for a lesser penalty when a statute is amended, he claims that there should be no penalty when such a statute is reрealed.
As we view § 214(b) (3) the violation of any act, or any penalty or forfeiture incurred therefor, remains unaffected by amendment оr repeal unless, as provided by subsection (c), the penalty or punishment is reduced by amendment. Subsection (c) relates only where thе penalty or punishment for any offense is reduced by the amendment of any act or statutory provision, and not to a repealеd statute, such as here.
By the absence of an amendment reducing the penalty or punishment, such as here, we hold that the legislative intеnt of the saving statute, § 214, was to preserve the right of prosecution and sentence in this case, and not to exculpate him by reasоn of the repeal of the criminal statute § 605. The narrow exception contained in subsection (c) does not apply in this casе.
1 V.S.A. § 214 evidences a legislative intent to continue the criminal responsibility and penalty attaching to the forbidden conduct, even though thе statute, § 605, is repealed. No other conclusion can be distilled from a reasonable interpretation of § 214 considered in its entirety, and more particularly § 214(b) (3).
The conviction and sentence of the defendant must be affirmed.
Affirmed.