State v. Shepley

ALEXANDER, J.,

with whom DANA, J., joins, dissenting.

[¶ 18] I respectfully dissent. Since adoption of the Criminal Code, courts have been authorized to terminate probation at any time earlier than the specified probation period upon a showing of good conduct, including satisfactory completion of a condition or conditions of probation. This early termination of probation can be initiated by a probationer, by a probation officer, or even by the court on its own motion. Thus, 17-A M.R.S.A. § 1202(3) (Supp.2002) essentially unchanged since adoption of the Criminal Code, and in its present form since 1991,8 states that:

On application of the probation officer, or of the person on probation, or on its own motion, the court may terminate a period of probation and discharge the convicted person at any time earlier than that provided in the sentence made pursuant to subsection 1, if warranted by the conduct of such person. A termination and discharge may not be ordered upon the motion of the person on probation unless notice of the motion is given to the probation officer by the person on probation. Such termination and discharge shall serve to relieve the person on probation of any obligations imposed by the sentence of probation.

[¶ 19] The Court’s opinion suggests that when the Legislature enacted section 1202(1-B) in 1999, and included the specification that the two-year probation “must be terminated at the time the probationer completes a certified batterers’ intervention program,” the Legislature really meant nothing more than that once the *1153intervention program was completed, probation might be terminated early upon a motion being filed as authorized by section 1202(3).

[¶ 20] The Court’s interpretation renders the “must be terminated at the time” language crafted by the Legislature a nullity. It also suggests that subsequent amendments to section 1202(1-B) were unnecessary and superfluous.

[¶ 21] In construing a statute, we have said that “[n]othing in a statute may be treated as surplusage if a reasonable construction supplying meaning and force is otherwise possible.” Watts v. Watts, 2003 ME 36, ¶ 8, 818 A.2d 1031, 1033 (quoting Struck v. Hackett, 668 A.2d 411, 417 (Me. 1995)); see also Stromberg-Carlson Corp. v. State Tax Assessor, 2001 ME 11, ¶ 9, 765 A.2d 566, 569 (“Words must be given meaning and not treated as meaningless and superfluous.”). Our caution against treating statutory language as superfluous is particularly important in this criminal case where — as the Court recognizes — the statute must be strictly construed and ambiguities resolved in favor of the defendant. Examining legislative intent from the common and ordinary meaning of the phrase “at the time that the probationer completes a certified batterers’ intervention program,” a reasonable construction suggests that once the court determines that the probationer has satisfactorily completed the batterers’ intervention program, the court must order that the termination is effective, retroactive to the date — “at the time that” — the program was completed.

[¶ 22] The Superior Court found, and the State does not dispute, that Shepley satisfactorily completed his batterers’ intervention program on February 19, 2002. On this basis, pursuant to 17-A M.R.S.A. § 1202(1-B) (Supp.1999), the court was required to terminate Shepley’s probation effective February 19, 2002. Because Shepley was not on probation when he was charged with criminal mischief on April 27, 2002, or when the State filed its motion for probation revocation two days later, the Superior Court erred in revoking Shep-ley’s probation. Accordingly, I would vacate the judgment.

. P.L.1991, ch. 258, § 3.