37 Conn. App. 228 | Conn. App. Ct. | 1995
The defendant appeals from the judgments of conviction rendered in two separate proceedings. In the first proceeding, the defendant was convicted, following his guilty plea, of larceny in the sixth degree in violation of General Statutes § 53a-125b
With respect to the first proceeding concerning the larceny charges, the relevant facts are as follows. The defendant was arrested for attempting to steal a pair
With respect to the second proceeding involving the charge of burglary in the third degree, the jury reasonably could have found the following facts. On November 15, 1992, Officers Alfred Fernino and Aurelio Rinaldi responded separately to a dispatcher’s report that the burglar alarm of Connecticut Linen Company, located at 439 Homestead Avenue in Hartford, had been activated. Both officers conducted a search outside of the premises, but they found nothing out of the ordinary. After the officers had left, the burglar alarm was again activated. Upon being notified by the dispatcher that the burglar alarm had again been activated, the officers drove to the scene to investigate. Fernino noticed a blue duffel bag placed next to the rear wall of the building and immediately informed Rinaldi by radio. Fernino noticed that the bag contained white towels. He then located another blue duffel bag next to a fence that separated the property from railroad tracks. Fernino found the defendant hiding near the tracks. By this time, Rinaldi had arrived at the rear of the building, and the officers proceeded to arrest the defendant. A search of the defendant produced a screwdriver and a camping knife. After placing the
I
The defendant claims that his right under the fifth amendment to the United States constitution
The trial court sentenced the defendant to a term of three months for the larceny in the sixth degree conviction and then sentenced the defendant to a term of five years on the persistent larceny offender count. Section 53a-125b classifies larceny in the sixth degree as a class C misdemeanor. General Statutes § 53a-40 (h) allows the court to sentence a persistent larceny offender who has committed larceny in the sixth degree to the term of imprisonment authorized for a class D felony by General Statutes § 53a-35. Section 53a-40 (h) provides in relevant part: “When any person has been found to be a persistent larceny offender . . . the court, in lieu of imposing the sentence authorized by section 53a-36 for the crime of which such person
The trial court may sentence the defendant as a persistent larceny offender or on the underlying larceny count, but not both. General Statutes § 53a-40 (c). Practice Book § 935 provides in relevant part: “The judicial authority may at any time correct an illegal sentence . . . .” Accordingly, the defendant may challenge the legality of a sentence at any time, and we have the authority to correct the illegal sentence. State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989); State v. Guckian, 27 Conn. App. 225, 245, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993).
Even though Practice Book § 935 allows this court to correct an illegal sentence, the claim is moot in this case because the sentence has already been corrected. The trial court acting pursuant to an order of the sentence review division
Notwithstanding the correction, the defendant argues that the imposition of the illegal sentence by the trial court violated his constitutional right not to be punished for the same crime twice. That argument is unavailing. Until all avenues for challenging the legality of the defendant’s sentence are exhausted, “jeopardy does not attach . . . .” State v. Langley, 156 Conn. 598, 601, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1969). It
II
The defendant next claims that the judgment of conviction of burglary in the third degree should be set aside because the information fails to charge a cognizable criminal offense in violation of article first, §§ 8 and 9, of the Connecticut constitution.
The long form information filed by the state charging the defendant with burglary in the third degree under General Statutes § 53a-103 (a), omitted the word
Practice Book § 811 allows a defendant to raise a jurisdictional claim that an information is defective.8
Moreover, “[w]hen reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state.” State v. McMurray, supra, 217 Conn. 250; see also Hagner v. United States, 285 U.S. 427, 433, 52 S. Ct. 217, 76 L. Ed. 861 (1932); United States v. Hooker, 841 F.2d
“ ‘The defendant can gain nothing from his present claim without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. State v. Rafanello, 151 Conn. 453, 457, 199 A.2d 13 (1964); State v. Mola, [128 Conn. 407, 410,
Construing the information liberally in favor of the state, it sufficiently apprised the defendant of the nature of the charge and provided sufficient details to prevent any future prosecution on the same charges. The information mentioned the statute that the defendant was charged with having violated and facts essential for the defendant to prepare his defense. A reasonable construction of the information as presented warrants a conclusion that the defendant was informed of the offense of which he was later convicted. Moreover, the defendant has failed to demonstrate that the alleged failure of the state to charge an essential element of the offense prevented him from adequately preparing his defense or caused any prejudicial surprise to his case.
The defendant argues that the jury may have been misled by the alleged defective information during deliberations. The trial court in this case, however, instructed the jury as to the state’s burden to prove beyond a reasonable doubt that the defendant had entered or remained in the building unlawfully in order for them to find the defendant guilty of burglary in the third degree. The defendant has not challenged in any manner the trial judge’s instructions to the jury; therefore, those instructions are presumed to have been correct. State v. Coleman, 167 Conn. 260, 268, 355 A.2d
Furthermore, the defendant did not request a bill of particulars to gain additional information about the state’s case. In Connecticut, “ ‘it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.’ ” State v. Vincent, supra, 194 Conn. 205, quoting State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); State v. Sumner, supra, 178 Conn. 167; see also State v. Davis, 141 Conn. 319, 320-21, 106 A.2d 159 (1954). The defendant’s failure to request a bill of particulars combined with the fact that the information provided the applicable statutory section and other details of the offense charged makes the required showing of prejudice impossible here. See State v. Vincent, supra, 205. “The defendant’s claim of error merely raises the spectre of prejudice, and we have held such a showing legally insufficient upon which to challenge an information.” Id., 205 n.12.
The defendant also contends that the conviction should be reversed because the trial court lacked jurisdiction due to the allegedly defective information under article first, § 8, of the Connecticut constitution. Our Supreme Court has not determined whether a trial
The defendant argues further that his right to personal liberty guaranteed by article first, § 9, of the Connecticut constitution has been violated and, therefore, his conviction of third degree burglary should be set aside. The defendant has not shown that he was in any way prejudiced by the omission of the word unlawfully, moreover, the defendant has not argued that he did not receive a fair trial. The state’s evidence presented at trial was compelling, and, on the basis of that evidence, the jury could have concluded beyond a reasonable doubt that the defendant was guilty. Moreover, the defendant fails to provide any decisional law that would support his assertion that article first, § 9, provides a remedy in case of a defective information.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-125b (a) provides: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”
General Statutes § 53a-40 (c) provides: “A persistent larceny offender is a person who (1) stands convicted of larceny in the third degree in violation of the provisions of section 53a-124 in effect prior to October 1,1982, or larceny in the fourth, fifth or sixth degree and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny.”
General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”
The defendant was also convicted on one count of possession of burglar’s tools in violation of General Statutes § 53a-106, and one count of larceny in the fifth degree in violation of General Statutes § 53a-125a in this proceeding. The defendant makes no claims with respect to these convictions.
The convictions in the two separate proceedings were consolidated for sentencing. The defendant also received the following sentences with respect to the second proceeding: burglary in the third degree, three years; larceny in the fifth degree, three months; possession of burglar tools, one year. All sentences were ordered to run consecutively. The total effective sentence from both proceedings was nine years and six months.
The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”
On January 25,1994, the sentence review division addressed the claim of illegality. The division ordered the total effective sentence reduced to seven and one-half years.
Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation . . . .”
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
The long form information charging the defendant with third degree burglary states: “The undersigned Assistant State’s Attorney accuses Cornell Mitchell of the crime of BURGLARY IN THE THIRD DEGREE and further alleges that at or near 439 Homestead Avenue, Hartford, Connecticut, at approximately 9 p.m., on or about November 15,1992, the said Cornell Mitchell entered a building with the intent to commit a crime therein in violation of Connecticut General Statutes § 53a-103.”
Practice Book § 811 provides in pertinent part: “[D]efenses and objections alleging lack of jurisdiction over the offense charged or failure of the indictment or information to charge an offense may be raised . . . at any time during the pendency of the proceedings.”
It is well established that article first, § 8, is the appropriate avenue to address a claim of a defective information. State v. McMurray, supra, 217 Conn. 248-49; State v. Cates, supra, 202 Conn. 624-25.