¶ 15. dissenting. Today, the Court holds that a “notice” of a prosecutor’s intent to request a sentence enhancement under 13 V.S.A. § 11, introducing a mere possibility that a defendant will face a life sentence following a conviction, is enough to reverse our normal presumption that an accused should remain at liberty pending trial. Such a holding undermines the presumption of innocence for those who stand accused of crimes and greatly expands the category of cases in which the presumption of release is reversed, a category we have explicitly noted should be narrow. For this reason, I respectfully dissent.
¶ 16. Defendant here was charged with five offenses: (1) false personation; (2) lewd and lascivious conduct; (3) dispensing regulated drugs to a minor; (4) contributing to the delinquency of a minor; and (5) furnishing alcohol to a minor. The first three of these offenses are felonies and the latter two are misdemeanors. None of these offenses carry with it a maximum penalty of more than ten years. Defendant was arraigned on May 6, 2009 at which time he was ordered to be held without bail. He has been in *491custody since that time.4 Following a hearing conducted on December 30, 2009, the trial court denied defendant’s request for review of his bail. The court noted that “[although none of the offenses [defendant] is currently charged with are, by themselves, punishable by life imprisonment, because of his number of prior felony convictions, 13 V.S.A. § 11 is applicable; and any one of the felony charges against him does implicate the prospect of life imprisonment.”
¶ 17. Having determined that the presumption of incarceration in § 7553 applied, the court noted that the nature of the offenses for which defendant is charged “represents a degree of compulsive conduct and antisocial conduct which necessitates strict control over the Defendant to ensure public safety.” The court, however, stated that it did “not believe the risk of flight is strong because of defendant’s ties to the community, his limited income and health problems, as well as his long history of generally willing participation in the criminal justice system which ultimately incarcerated him.” Instead, the court concluded that “there remains a moderate risk of flight. . . . because of the potential life sentence as well as Defendant’s statement to [a detective] that he ‘could not go back to jail.’ ” On appeal, defendant argues that the trial court erred by applying the presumption of incarceration found in 13 V.S.A. § 7553.
¶ 18. The bail provision of the Vermont Constitution provides, in part:
Excessive bail shall not be exacted for bailable offenses. All persons shall be bailable by sufficient sureties, except as follows: (1) A person accused of an offense punishable by death or life imprisonment may be held without bail when the evidence of guilt is great.
Vt. Const, ch. II, § 40. As this Court emphasized in State v. Sauve, Vermont’s bail provision is more expansive than its federal counterpart and “explicitly guarantees bail as a matter of right to defendants not charged with offenses punishable by death or life imprisonment.” 159 Vt. 566, 571, 621 A.2d 1296, 1299 (1993). Thus, we noted in Sauve that “[o]ur constitutional values require that liberty is and must remain the norm and detention prior to trial *492or without trial is the carefully limited exception.” Id. at 573, 621 A.2d at 1300-01 (quotation omitted). In State v. Blackmer, we repeated that denial of bail is appropriate in only “very limited and special circumstances where the State’s interest is legitimate and compelling.” 160 Vt. 451, 456, 631 A.2d 1134, 1137 (1993). We clarified, however, that “for the small group of serious crimes where the maximum punishment is life imprisonment and where the evidence against defendant is such that there is no constitutional right to bail,” the presumption normally attaching to bail determinations “is switched so that the norm is incarceration and not release.” Id. at 463, 458, 631 A.2d at 1142, 1139.
¶ 19. With these constitutional protections in mind, I cannot agree that the State’s “notice” of its intent to request an enhanced sentence under 13 V.S.A. § 11 satisfies the requirement of 13 V.S.A. § 7553 that a defendant be “charged” with an offense subject to a life sentence. See id. § 7553 (“A person charged with an offense punishable by life imprisonment when the evidence of guilt is great may be held without bail. If the evidence of guilt is not great, the person shall be bailable in accordance with section 7554 of this title.” (emphasis added)).
¶ 20. Here, defendant was not “charged” with being a habitual offender, nor could he have been; the habitual offender statute defines no crime.5 Instead, § 11 is a penalty enhancement statute that is triggered only upon conviction. See State v. Ingerson, 2004 VT 36, ¶ 3, 176 Vt. 428, 852 A.2d 567 (concluding that habitual offender statute “does not . . . define a separate or new offense,” but instead “provides an enhanced penalty for repeat offenders”).6
*493¶ 21. The obvious distinction between a charge and a notice infuses, at the very least, a degree of ambiguity into the statutory scheme. Application of the rule of lenity, therefore, requires resolution of this ambiguity in favor of defendant here. See State v. LaBounty, 2005 VT 124, ¶ 4, 179 Vt. 199, 892 A.2d 203 (“In interpreting a criminal statute, the rule of lenity requires us to resolve any ambiguity in favor of the defendant.”); State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (1989) (“Penal statutes . . . are to be strictly construed in a manner favorable to the accused.”); see also United States v. Singleton, 182 F.3d 7, 13 n.12 (D.C. Cir. 1999) (citing Reno v. Koray, 515 U.S. 50, 64-65 (1995)) (applying rule of lenity to both penalty provisions in criminal statutes as well as bail proceedings). The purpose underlying the rule of lenity is grounded in due process; a citizen must have adequate notice of what sort of conduct may give rise to criminal sanction. Here, the problem is not that defendant had inadequate notice that he faced a possible life sentence for a fourth felony offense. Instead, the problem is that because of the ambiguity in the relationship between § 11 and § 7553, defendant had no way of knowing which bail review statute, and which presumption, would be applied to his case. I would thus interpret § 7553 narrowly, such that the reversal of the presumption is triggered only when a defendant is charged with a crime that by itself carries with it the possibility of life imprisonment.7
*494¶ 22. Moreover, even if I were to credit the majority’s argument that the relevant charge under § 7553 refers to one of the three felonies that appeared on the information, the relationship between these charges, the notice of the intention to seek the sentencing enhancement, and the possibility of a life sentence is simply too attenuated to trigger reversal of the presumption that a defendant should be released. Indeed, the enhanced penalty provision of the habitual offender statute becomes an option available to the sentencing judge only upon a defendant’s conviction of a fourth felony and after a jury has found the defendant guilty of the predicate three convictions beyond a reasonable doubt. 13 V.S.A. § 11; Ingerson, 2004 VT 36, ¶ 6. The fact that § 11 is triggered only upon conviction is strong evidence that it was not meant to turn every fourth felony charge into a life offense for purposes of reversing the presumption of release with regard to a bail determination — a reversal we noted should be limited to only a “small group of serious crimes.” Blackmer, 160 Vt. at 463, 631 A.2d at 1142.8
¶23. The facts here very clearly indicate the importance of where the burden is placed in bail appeal proceedings. Though defendant indeed has a rather lengthy criminal record, evidence was also presented at his bail hearing that defendant is sixty years old, is diabetic and suffers lasting complications from an earlier brain injury; he is unemployed and receives Social Security *495disability; and he has significant family ties to Springfield, Vermont. Indeed, the trial court found that this constellation of facts indicated that there existed only a moderate risk of flight. Had the normal presumption of release applied and the State been shouldered with the burden to make its case that incarceration was necessary to assure the appearance of defendant and to protect the public, it very likely would have been unable to do so. I would, therefore, remand to the trial court for consideration of defendant’s bail appeal under 13 V.S.A. § 7554.
¶ 24. I am authorized to state that Justice Skoglund joins in this dissent.It is not dear from the record why defendant’s bail appeal hearing did not occur until December 30, 2009.
13 V.S.A. § 11 states the following:
A person who, after having been three times convicted within this state of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which, if committed within this state, would be felonious, commits a felony other than murder within this state, may be sentenced upon conviction of such fourth or subsequent offense to imprisonment up to and including life.
Other courts have similarly concluded that penalty enhancements attached to separately enacted habitual offender statutes do not automatically transform an underlying charge to a life offense for purposes of criminal procedure requirements. See Smellie v. State, 720 So. 2d 1131, 1132 (Fla. Dist. Ct. App. 1998) (concluding that “the State’s filing of its notice of intent to seek an habitual offender sentence enhancement prior to trial does not serve to increase the number of peremptory challenges a defendant would otherwise be permitted based *493on the offense charged” and interpreting reference to the “offense charged” in the peremptory challenge law “to pertain to the statutory maximum for the charged offense without the habitual offender enhancement” (quotation omitted)); State v. Morishige, 652 P.2d 1119, 1124 (Haw. 1982) (concluding that the defendant was entitled to only three peremptory challenges rather than the twelve required if the offense is punishable by life imprisonment because even though the defendant was subject to a penalty enhancement under a habitual offender provision, the penalty referenced in the peremptory challenge rule referred to the charged offense, not the extended term provision for a multiple offender); State v. Johnson, 996 So. 2d 1235, 1238 (La. Ct. App. 2008) (concluding that grand jury indictment, which is required for prosecution of a capital crime or a crime punishable by life imprisonment, “is not required to institute a habitual offender proceeding, even if the effect of the adjudication would be a life sentence”); People v. Mitchell, No. 265290, 2006 WL 3077521, at *2 (Mich. Ct. App. Oct. 31, 2006) (per curiam) (concluding that habitual offender statute authorizing a life sentence is not in itself a valid basis for a court’s departure from applicable sentencing guidelines).
The majority recites a lengthy history of the constitutional amendments to eh. II, § 40 and the subsequent legislative enactment of § 7553. Ante, ¶¶ 5-9. The history behind § 7553, however, indicates only that the voters and then the Legislature *494intended to limit the right to bail for persons facing life imprisonment when the evidence of guilt was great. This obvious fact does little to resolve the underlying ambiguity as to whether the Legislature intended to unilaterally increase the category of life offenses by grafting the possibility of sentence enhancement under § 11 onto § 7553. It is this ambiguity that necessitates application of the rule of lenity.
The majority argues that the policy reasons in favor of reversing the presumption of release in cases where a defendant is charged with an offense carrying a life sentence — assuring appearance before the court and protecting the public — militate in favor of reversing the presumption of release here. See ante, ¶ 10. This type of policy argument, however, is best addressed to the Legislature. As the statutes stand now, there is at least an ambiguity about whether the Legislature intended to graft the penalty enhancement provision of § 11 onto every fourth felony charge, transforming such a charge into an automatic life offense for purposes of bail. Given the ambiguity, it is not the job of this Court to enlarge the scope of life offenses for bail purposes (thus shrinking the protection afforded those charged with crimes under our Constitution) by judicial fiat. Instead, the rule of lenity requires us to construe the statutes in favor of a defendant, such that the ordinary presumption of release applies.