State v. ParkerState v. Parker
- Reporters:
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- Before:
- Parskey
Lead Opinion
The defendant was charged in a substitute information1 with the crimes of burglary in the third degree and larceny in the second degree, both class D felonies.2 On October 1, 1981, the court, Fishman, J., granted the defendant’s application for accelerated rehabilitation pursuant to
The general rule as to appealability of trial court decisions is well settled in our state. “Appeals to this court may be taken from final judgments or actions of the Superior Court.
Our initial inquiry focuses on whether the trial court’s denial of the motion to dismiss the charge “terminates a separate and distinct proceeding.” State v. Curcio, supra, 31. A criminal prosecution is a proceeding instituted by the state to obtain punishment against a person charged with and found guilty of a public offense. It embraces not only the accusation, whether by indictment or information, and the determination of guilt or innocence, but also, in the case of a conviction, the imposition of sentence. If the interlocutory ruling is merely a step along the road to final judgment then it does not satisfy the “separate and distinct proceeding” requirement of the first prong of Curcio. State v. Longo, 192 Conn. 85, 89, 469 A.2d 1220 (1984). Obviously a ruling affecting the merits of the controversy would not pass the first part of the Curcio test. The fact, however, that the interlocutory ruling does not implicate the merits of the principal issue at the trial, namely, whether the accused is guilty of the crime charged, does not necessarily render that ruling appeal-able.5 It must appear that the interlocutory ruling will not impact directly on any aspect of the prosecution.
Both an application for accelerated rehabilitation and a motion for dismissal of the charge grounded on a claimed successful completion of the conditions of such rehabilitation impact directly on the prosecution of the crime charged. The former seeks to suspend prosecution during a stated probationary period not to exceed two years while the latter moves to terminate the prose
It is useful to examine the defendant’s claim to interlocutory review in light of the policy considerations underlying the final judgment rule. In Cobbledick v. United States, 309 U.S. 323, 60 S. Ct. 540, 84 L. Ed. 783 (1940), the United States Supreme Court considered the purpose and effect of prohibiting interlocutory appeals in the criminal context. The reason behind “forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy” is to avoid “the obstruction to just claims that would come from permitting the harrassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.” Id., 325. Noting that “[t]hese considerations of policy are especially compelling in the administration of criminal justice,” the court observed that although “[a]n accused is entitled to scrupulous observance of constitutional safeguards. . . encouragement of delay is fatal to the vindication of the criminal law.” Id. Thus, a party will not “be allowed to take to the upper court a ruling where the result of review will be
The overarching principle involved in prosecution of crime is that justice be swift and sure. If the defendant is guilty then he should be brought to book and punished without delay and if he is innocent then the cloud of accusation should be removed as speedily as circumstances permit. Piecemeal appeals are disfavored because the delay resulting therefrom does not serve the public’s interest in swift and certain justice. Allowing an interlocutory appeal from either the denial of an application for accelerated rehabilitation, or the denial of a motion to dismiss the charge pursuant to the rehabilitation statute, would necessarily delay the criminal prosecution pending its outcome to the potential prejudice of either the state or the defendant. Such delay is in direct contravention of the important policies served by the rule against interlocutory review.
The first prong of Curcio not having been satisfied, we next consider whether the right created by the statute would be irreparably lost unless interlocutory review is permitted. State v. Spendolini, supra, 95.
The fact that the order terminating the defendant’s participation in accelerated rehabilitation may have been rendered without a proper notice and hearing has no bearing on the issue of appealability.7 Appealability depends on the nature of the ultimate right sought to be vindicated and the effect of the trial court’s decision on the vindication of this right. Any rights, such as a right to a hearing, which are incidental to the ultimate right, rise or fall with it. A decision otherwise nonappealable before trial does not become subject to interlocutory review merely because it is rendered without a hearing. To hold otherwise would tend to blur the distinction between the generality of nonappealable interlocutory orders and final judgments. It could always be argued, for example, with respect to any interlocutory order, that the hearing at which it was rendered was not conducted in a meaningful manner or at a meaningful time, in which case the challenge to the hearing would become the open sesame for pretrial review of otherwise interlocutory orders. The consequent delays would frustrate criminal prosecutions to the detriment of the public interest.
There is a small class of cases which meets the test of being effectively unreviewable on appeal from a final judgment and which, therefore, is subject to interlocutory review. The paradigmatic case in this group involves the right against double jeopardy. State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979). Because jeopardy attaches at the commencement of trial, to be vindicated at all, a colorable double jeopardy claim must be addressed by way of interlocutory review. No such considerations obtain in the case of an allegedly rehabilitated person claiming to be entitled to a dismissal of the charges. There is a crucial distinc
A claim to a dismissal of the charges based on successful completion of all the conditions imposed under the diversionary program does not fall within that narrow group of claims which meet the test of being effectively unreviewable on appeal from a final judgment.8 Therefore we conclude that interlocutory review of this claim is not proper.
In this opinion Peters, C. J., and Santaniello, J., concurred.
Notes
The defendant was initially charged with larceny in the first degree, a class C felony. Under the accelerated rehabilitation statute,
Public Acts 1982, No. 82-271, § 2, made larceny in the second degree a class C felony.
On October 1, 1981,
The specific circumstances surrounding the trial court’s denial of the defendant’s motion to dismiss the charges are unimportant in view of our decision that this ruling is not reviewable until after final disposition of the case on the merits. In holding that the denial of a motion to dismiss an indictment due to an alleged violation of the defendant’s sixth amendment right to a speedy trial was not entitled to interlocutory review, the United States Supreme Court stated: “ ‘Appeal rights cannot depend on the facts of a particular case.’ Carroll v. United States, 354 U.S. 394, 405 [77 S. Ct. 1332, 1 L. Ed. 2d 1442] (1957). The factual circumstances that underlie a speedy trial claim, however ‘extraordinary,’ cannot establish its independent appealability prior to trial.” United States v. MacDonald, 435 U.S. 850, 857 n.6, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978).
For example, the denial of a motion to dismiss an indictment because the sole evidence against the defendant was allegedly seized in violation of his fourth amendment rights is not appealable before conviction, regardless of the fact that in ruling on the motion, the court is not in the least concerned with the defendant’s guilt but focuses instead on the circumstances surrounding his arrest. See Cogen v. United States, 278 U.S. 221, 49 S. Ct. 118, 73 L. Ed. 275 (1929); see also United States v, MacDonald, 435 U.S. 850, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978) (denial of motion to dismiss on speedy trial grounds not appealable before trial).
In its effect on the main action, accelerated rehabilitation operates to postpone criminal prosecution in much the same way that a motion to stay impacts on a civil case. In Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961), we held that “[a]n order staying proceedings does not terminate the action but merely postpones its disposition. It maybe modified or vacated by the court whenever, in the exercise of a sound discretion, it is considered necessary or proper to do so. . . . It is an interlocutory order.” (Citations omitted.)
By holding that the right asserted by the defendant is not one that “would be lost, probably irreparably, unless interlocutory review was permitted”; State v. Spendolini, 189 Conn. 92, 95, 454 A.2d 720 (1983); we imply no view on the merit of the defendant’s claim or on the more general question of the process due a defendant upon a motion to dismiss charges or to revoke pretrial probation under the accelerated rehabilitation statute. We merely hold that an order denying a motion to dismiss charges or terminating accelerated rehabilitation is not a collateral order that can be appealed prior to trial.
Although the defendant has appealed from the denial of his motion to dismiss rather than from the order terminating accelerated rehabilitation, an appeal from the latter order would yield the same result. Our discussion with respect to the appealability of a denial of a motion to dismiss charges pursuant to the accelerated rehabilitation statute applies with equal force to an appeal from an order terminating the defendant’s participation in the rehabilitation program. This case is to be distinguished from cases involving revocation of post-conviction probation. In those situations, as contrasted with the case before us, the final judgment, namely, the sentence, has already been rendered. In State v. Roberson, 165 Conn. 73, 327 A.2d 556 (1973), we held that an order revoking post-conviction probation was an appealable final judgment. “The inquiry preceding a revocation of probation concerns matters totally independent of the original conviction, the decision of the court marks the final disposition of a judicial proceeding authorized by statute and it is, in effect, a final modification of the sentence which is the judgment of the court in the proceedings against the defendant. We conclude that the order revoking probation and implementing the sentence of confinement with its consequent deprivation of the defendant’s liberty meets the test of a final judgment.” Id., 82.
Dissenting Opinion
joins, dissenting. I conclude that the order appealed from by the defendant is a final judgment, hence appeal-able, in the circumstances of this case. Such a determination is required in this case under the second prong of finality in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), which makes an otherwise interlocutory order appealable “(2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31. I, therefore, do not agree with the dismissal of his appeal.
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In its brief on this appeal, the state candidly concedes, as it must, that “the trial court clearly premised its order revoking the defendant’s probation upon the arrests of the defendant during the probationary period.” (Emphasis added.) As such, the state further concedes “that the court therefore revoked the defendant’s probation upon insufficient grounds.” See State v. Barnes, 37 Conn. Sup. 853, 858, 439 A.2d 456 (1981).
Our decision in State v. Longo, 192 Conn. 85, 469 A.2d 1220 (1984), represents the most recent fine tuning of State v. Curcio, supra. In speaking to the second prong of the Curcio test, we said, inter alia: “In order to satisfy the second prong of the Curcio test, the defendant must do more than show that the trial court’s decision threatens him with irreparable harm. The defendant must show that that decision threatens to abrogate a right that he or she then holds.” (Emphasis in original.) State v. Longo, supra, 91. The Longo majority opined that the dissent, Healey, J., “misses the point” when it “implies” that the majority “changes the focus of the finality test so that focus unduly centers
The matter came before the court not because the state cited the defendant for failing to discharge his part of the bargain but because he had filed his motion of dismissal. Although he had apparently been arrested over a month earlier there is nothing in this record to show that the state, because of that arrest, even considered, let alone affirmatively tried, revoking his
Moreover, it defies reality to say this defendant’s right is not threatened irreparably. As a concept, “irreparability” must be viewed realistically. The term “irreparable” “connotes the inability to make good, to repair, to retrieve or to atone for.” Murray v. Egan, 28 Conn. Sup. 204, 208, 256 A.2d 844 (1969); 48A C.J.S., Irreparable, p. 229. In the present case, the defendant had the right to a dismissal of the charges. Instead, the majority would have him first face prosecution, trial, and possible conviction; and only then would the defendant have the right to maintain an appeal to this court finally seeking appropriate relief, i.e., a ruling that the trial court’s refusal to dismiss the underlying charges on September 30,1983, was erroneous and that he therefore never should have been tried at all.
This defendant is not like the defendant in State v. Bell, 179 Conn. 98, 425 A.2d 574 (1979), or in State v. Spendolini, 189 Conn. 92, 454 A.2d 720 (1983), where both appeals were sought from the trial court’s denial of being permitted to enter the youthful offender program as in Bell and from being permitted to enter the accelerated rehabilitation program as in Spendolini.
Therefore, I dissent.
While the record is not clear as to the nature of the restitution ordered at the outset, the prosecutor did inform the court on September 30,1983, that “restitution of three hundred dollars [has] been made.”
At the September 30, 1983 “hearing” the prosecutor said he did not have any record of the defendant’s latest arrest.
The court observed that “further involvement with the law” was what the “form” said, apparently referring to a condition of probation.
One court has opined that: “A footnote is as important a part of an opinion as the matter contained in the body of the opinion and has like binding force and effect.” Melancon v. Walt Disney Productions, 127 Cal. App. 2d 213, 214 n.2, 273 P.2d 560 (1954), citing 21 C.J.S., Courts § 221, p. 407 n.3.
The majority’s attempted insulation from consideration of the circumstances involved in this particular order in determining its appealability is not persuasive. State v. Parker, 194 Conn. 650, 652 n.4, 485 A.2d 139 (1984). Citing United States v. MacDonald, 435 U.S. 850, 857 n.6, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978), and Carroll v. United States, 354 U.S. 394, 405, 77 S. Ct. 1332,1 L. Ed. 2d 1442 (1957), the majority attempts to portray the final judgment rule as a doctrine in which the “specific circumstances” are irrelevant and “unimportant” thereto. In MacDonald, a speedy trial claim was held to be a nonappealable interlocutory order in the federal system. The MacDonald court rested its decision on the premise that resolution of speedy trial claims asserted under Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), requires “a careful assessment of the particular facts of the case” and would be “best considered only after the relevant facts have been developed at trial.” United States v. MacDonald, supra, 858. By contrast, in this case all the facts required for deciding the appeal before us have been presented for our consideration; the develop ment of a trial record is unnecessary to evaluate fully the defendant’s claim that the denial of his motion to dismiss was improper in this case. MacDonald is, therefore, inapposite.
Reliance on Carroll v. United States by the majority is particularly unconvincing in light of our decision in State v. Ross, 189 Conn. 42, 454 A.2d 266 (1983). Carroll involved a government appeal from a pretrial order suppressing certain evidence. The holding in Carroll that the suppression order was not appealable rested on the policy that appeals by the government in criminal cases “are something unusual, exceptional, not favored.” Carroll v. United States, supra, 400. In Ross, supra, however, we ruled that under appropriate circumstances the state could maintain such an appeal. Finally, fairly read, the quotation from Carroll that appealability does not “depend on the facts of a particular case” is taken well out of context. That statement in Carroll related only to the effect of the dismissal of the government’s appeal, not to the Carroll court’s analysis of whether an order was in fact appealable. Carroll v. United States, supra, 405.
Dissenting Opinion
with whom