State v. Michael B.State v. Michael B.
- Reporters:
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- Before:
- Brock
The defendant, Michael B., pleaded guilty in superior court on August 13, 1981, to a charge of felony arson and was given a one-year suspended sentence. It is unclear to this court whether the sentence also included a conditional discharge. One year later, the defendant filed a petition to annul his record of conviction and sentence. He appeals from an order of the Superior Court (Goode, J.), denying his petition.
We hold that the defendant, under the provisions of
The trial judge sentenced the defendant to “one year in the House of Correction, suspended during the defendant’s good behavior and on the condition that he continue his counseling by Dr. Samuel B. Hagner, of Dover, for one year or for such shorter duration as Dr. Hagner shall decide. Conditional discharge if merited.”
The defendant’s argument on appeal is based in large part upon an assumption that the sentence incorporated a “one-year conditional discharge.” Not only did the court impose no such sentence, but it had no authority to impose a one-year conditional discharge under the applicable statute, which expressly provides that “[t]he *592period of a conditional discharge shall be 3 years for a felony and one year for a misdemeanor or violation.”
Thus, even if a “conditional discharge” were part of his sentence, the defendant would not be eligible to apply for an order to annul his record of conviction and sentence until August 13, 1984, because the statute does not permit a person “sentenced to ... conditional discharge” to apply for such an order until “the termination of the sentence.”
The only possible exception to this statutory rule is the provision that “[djuring any period of conditional discharge the court may, upon its own motion or on petition of the defendant, discharge the defendant unconditionally if the conduct of the defendant warrants it.”
We need not decide whether
First, the discussion above makes it clear that the defendant’s rights under paragraph I could be no greater than his rights under paragraph III of the statute. That section permits “a person under twenty-one years of age at the time of his criminal act,” which the defendant was, to apply for an order to annul his record three years after his “release,” which in this case was the date of sentencing, provided that during that period he “has been convicted of no other offense except a traffic offense.”
Second, it is unclear whether a sentence of conditional discharge was imposed in this case. While such a conclusion may be supported by the language quoted above, the sentencing judge did not clearly specify the conditions that would control the defendant’s right to a discharge after three years, as appears to be contemplated by
“[a]t the conclusion of the sentencing proceeding, a defendant and the society which brought him to court must know in plain and certain terms what punishment has been exacted by the court as well as the extent to which the *593court retained discretion to impose punishment at a later date and under what conditions the sentence may be modified.”
Stapleford v. Perrin, 122 N.H. 1083, 1087, 453 A.2d 1304, 1306 (1982); see United States v. Daugherty, 269 U.S. 360, 363 (1926). Accordingly, we remand the case to the superior court for a rehearing by the original sentencing judge on the matter of conditional discharge alone.
Because we hold that the defendant has no present right to petition for an annulment of his record, we need not address any issues raised by the superior court’s dismissal of his petition on the merits, or by the court’s failure to schedule a hearing on the petition, as would normally be required by Superior Court Rule 108. We note in passing that hearing of such petitions by the original sentencing judge,’ whenever practicable, would prevent much duplication of effort and reduce the possibility of error.
Remanded.
All concurred.