Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2016-187
NOVEMBER TERM, 2016
State of Vermont } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
v. } Criminal Division
}
}
Tyler James Raymond } DOCKET NO. 196-1-15 Cncr
Trial Judge: James R. Crucitti
In the above-entitled cause, the Clerk will enter:
Defendant appeals from a superior court order denying a motion for reconsideration of an
order denying his request for reduction of sentence. We dismiss the appeal as untimely filed.
The material facts may be succinctly stated. In January 2015, defendant was charged with
grossly negligent operation of a motor vehicle with death resulting in violation of 13 V.S.A.
§ 1091(b). In August 2015, defendant entered into a plea agreement in which he agreed to enter a
plea of guilty for which he would serve a sentence of eighteen months to five years with credit for
time served. The agreement was signed by defendant and his attorney. The court accepted the
plea at a change-of-plea hearing in August 2015 and scheduled the matter for sentencing the
following month. A sentencing memorandum submitted by counsel on defendant’s behalf
advocated that the court “should impose the agreed-to sentence.” At the sentencing hearing on
September 11, 2015, the court imposed the agreed-upon sentence.
On December 10, 2015, defendant filed a pro se motion for reconsideration and reduction
of sentence under Vermont Rule of Criminal Procedure 35(b), which provides that “[t]he court, on
its own initiative or on motion of the defendant, may reduce a sentence within 90 days after the
sentence is imposed, or within 90 days after entry of any order or judgment of the Supreme Court
upholding a judgment of conviction.” The motion was filed just within the 90-day time limit under
the Rule. Attached to the motion was a four-page letter from defendant to the court describing in
detail the accident that resulted in the charge, defendant’s personal background and relationship
with the victim, who was his girlfriend at the time, his emotional upset at the time he entered the
plea, and his “shock at being under lock and key.” The State filed an opposition to the motion.
On January 12, 2016, the court issued an order denying the motion. The court noted that
the sentence imposed was consistent with the one that defendant had agreed to in the plea
agreement and explained that the court had already “considered all the factors raised by the
defendant in his motion at the time of sentencing.”
Several months later, in April, 2016, defendant filed a pro se motion for reconsideration of
the January 12, 2016, order denying the motion for reduction of sentence. The State opposed the
motion, noting that it was not authorized under Rule 35, which requires that any motion for
reduction of sentence be filed within ninety days after sentence is imposed. Case file The court
denied the motion in a brief entry order, stating that the court had previously considered and
rejected defendant’s request for sentence reduction. This appeal followed.
We conclude that the appeal is untimely and therefore must be dismissed for lack of
jurisdiction. As discussed, the court entered judgment denying defendant’s motion for reduction
of sentence on January 12, 2016. Any appeal from that order was required to be filed within thirty
days, or February 11, 2016, which plainly did not occur here. See V.R.A.P. 4(a) (providing that
notice of appeal “must be filed within 30 days after entry of the judgment or order appealed from”).
Although motions for reconsideration are occasionally addressed by the trial courts, nothing in the
rules authorizes such motions, which—as this case shows—would otherwise effectively expand
the time for seeking a reduction of sentence well beyond the ninety days allowed from imposition
of sentence or judgment on appeal.
Accordingly, because defendant’s notice of appeal from the judgment denying his request
for reduction of sentence under V.R.Cr.P. 35(b) was untimely, this Court lacks jurisdiction to
consider it, and the matter must be dismissed. See In re Stevens, 149 Vt. 199, 200 (1987) (holding
that this Court lacks jurisdiction to consider untimely appeal).
Appeal dismissed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Harold E. Eaton, Jr., Associate Justice
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