CHAPTER 7

BAIL

§ 7.01 The Right to Bail

§ 7.02 The Right to the Least Restrictive Conditions of Release

§ 7.03 - Appearance Conditions

§ 7.04 - Nonappearance Conditions

§ 7.05 - The Bail Form Conditions

§ 7.06 The Bail Hearing - Nighttime and Weekend Bail

Procedures

§ 7.07 - The Rule 5 Proceeding

§ 7.08 - Bail Review Hearings

§ 7.09 Bail in Special Proceedings - Life Imprisonment Cases

§ 7.10 - Probation Violation Cases

§ 7.11 - Parole Violation Cases

§ 7.12 - Extradition Cases

§ 7.13 Peace Bonds

§ 7.14 Revocation of Bail - Grounds for Revocation

§ 7.15 - Procedure

§ 7.16 - The Least Restrictive Alternative Requirement

§ 7.17 Bail Violation as a Criminal Offense

§ 7.18 Bail Appeals - The Right To Appeal

§ 7.19 - Procedure on Appeal

§ 7.20 Bail Pending Sentence and Appeal; Stays of Execution

of Sentence

§ 7.21 Presentence Credit - The Grant of Credit

§ 7.22 - Credit on Multiple Charges

§ 7.01

The Right to Bail

The eighth amendment's prohibition of "[e]xcessive bail" does not create a federal right to bail;{1} it only requires that when bail is set it should be no higher than necessary to assure the defendant's appearance at trial.{2} Chapter II, section 40 of the Vermont Constitution, however, grants a near-absolute right to bail in non-life-imprisonment cases. The section provides as follows:

Excessive bail shall not be exacted for bailable offenses. All persons, unless sentenced, or unless committed for offenses punishable by death or life imprisonment when the evidence of guilt is great, shall be bailable by sufficient sureties. Persons committed for offenses punishable by death or life imprisonment, when the evidence of guilt is great, shall not be bailable as a matter of right.

In qualifying cases article 40 bars "preventive detention" - that is, an order to hold without bail on the ground that the defendant's release would pose a danger to the public.{3} The same principle prevents a judge, on grounds of possible dangerousness, from purposely setting bail so high that the defendant cannot make it.{4}

The rule has two possible exceptions: defendants who pose a risk of flight and for whom no amount of bail will reasonably assure presence,{5} and defendants whose release would pose a threat to the "integrity of the judicial process." Threats to judicial integrity are an established ground for revocation of bail, but the Vermont Supreme Court has not decided whether they could justify denial of bail in the first instance.{6}

Vermont's bail statutes{7} reiterate these constitutional rules. Except in life imprisonment cases when the evidence of guilt is "great," the defendant "shall at his or her appearance before a judicial officer be released" on nonmonetary and/or monetary conditions.{8} A defendant "charged with an offense punishable by life imprisonment when the evidence is great shall not be bailable as of right[,]" but when the evidence of guilt is not great the normal bail rules apply.{9}

The right to bail is in perennial difficulty with the state legislature. In 1975 the Vermont court held unconstitutional a portion of the bail statute which authorized denial on a prediction of danger to the public.{10} The constitution originally exempted only capital offenses, and a 1982 amendment added crimes punishable by life imprisonment.{11} In 1989, in part for the sake of this exemption, the legislature upped the maximum punishment for aggravated sexual assault from twenty-five years to life,{12} so that defendants charged with this crime could be held without bail. Cases of serious crime committed by people on bail invariably prompt calls for constitutional amendments,{13} the creation of new life-imprisonment offenses for which the defendant would not be bailable as of right, or the amendment of the bail statutes.{14}

§ 7.02

The Right to the Least Restrictive

Conditions of Release

13 V.S.A. § 7554 states a presumption in favor of release on personal recognizance or an unsecured appearance bond{15} unless the judge finds that more restrictive measures are necessary to assure appearance in court or to protect the public.

§ 7.03

- Appearance Conditions

When additional restrictions are deemed necessary to assure the defendant's appearance, the statute sets forth a series of options and requires the judge to impose "the least restrictive conditions or combination of conditions which will reasonably assure the appearance of the person as required."{16} These include placing the defendant under the supervision of a designated person or organization; placing restrictions on travel and association, the execution of an appearance bond, and "any other condition found reasonably necessary to assure appearance as required, including a condition that the person return to custody after specified hours."{17}

The authorized monetary conditions are (in order of severity) an unsecured appearance bond, an appearance bond in a specified amount, with 10 percent cash deposit, and an appearance bond "with sufficient solvent sureties, or the deposit of cash in lieu thereof."{18} Forms for the bonds are included in an appendix.{19}

A judge may be willing to allow release without a deposit of cash if the defendant agrees to nonmonetary conditions (such as release to the custody of another person), or if a friend or family member who can cover the amount will co-sign. If a deposit of cash is required the judge may allow a day or two to assemble the amount.

If the defendant cannot make bail with liquid assets, she or someone acting for her will have to file a bail bond note secured by a mortgage of real estate or other property. At this writing there are no bailbond companies operating in Vermont. Certificates of deposit and other quasi-liquid assets can be pledged rather than sold. If the only assets are in real estate, the court will probably require an appraisal (the town tax appraisal, which is supposed to indicate market value, may be good enough), and a title search.

§ 7.04

- Nonappearance Conditions

The judge can impose additional conditions if the appearance conditions "will not reasonably protect the public. . . ."{20} The statute sets forth three options, and again requires the judge to impose the least restrictive condition or combination of conditions.{21} Two of the options are the same as authorized appearance conditions: placing the defendant under supervision, and restricting travel and association.{22} The third, a catch-all clause, allows "any other conditions found reasonably necessary to protect the public, except that a physically restrictive condition may only be imposed in extraordinary circumstances."{23} The option of "physically restrictive" conditions, whatever else it may constitutionally authorize, does not permit an outright denial of release on danger-to-the-public grounds.{24} Nor does it ever authorize imposition of a monetary condition of release, because such a condition would only protect the public if the defendant were unable to meet it.{25}

§ 7.05

- The Bail Form Conditions

A form bail order (District Court Form No. 344) in use in the district courts is reproduced in an appendix.{26} The form lists fourteen conditions without distinguishing between appearance and nonappearance conditions. A number of these so-called "standard" conditions of release involve the same sort of restrictions routinely imposed as conditions of probation following conviction; for example, condition no. 12 banning purchase and use of alcohol; no. 14 forbidding association with named persons; and no. 3 specifying that the defendant "not be charged with, and have probable cause found for, a felony, a crime against a person, or an offense like the offense s/he is now charged with."

The constitutionality of these probation-like conditions has been occasionally litigated but never clearly decided. In unpublished opinions the Vermont court has held that a requirement of urine testing was too invasive under the circumstances,{27} and it has occasionally struck "no-alcohol" and nonassociation orders as not justified by the circumstances.{28} A condition releasing the defendant to the custody of a responsible third person cannot be a basis for the defendant's confinement if no willing third person can be found.{29} The "no-new-charges" condition may depend, for its constitutionality, on a minimum showing that the defendant has been guilty of new crimes.{30}

§ 7.06

The Bail Hearing - Nighttime and Weekend

Bail Procedures

The first time a judge hears the bail question is at the defendant's first appearance, the Rule 5 hearing.{31} When a defendant has been arrested after court hours or during weekends, Rule 5 mandates local procedures allowing conditions of release to be set "at any hour[,]" each court being required to maintain a schedule identifying the official ("judge, clerk or designee") who is responsible for a particular date.{32} By statute the court administrator must designate people empowered to set prearraignment bail in misdemeanor cases (where the offense charged carries a penalty of less than two years or a fine of less than $1000).{33}

A procedural manual in use in the district courts provides that an official with power to set bail should be available every hour of every day. After-hours bail applications will generally be phoned in from a police station or correctional center.{34} The courts are supposed to supply the police and correctional officials with blank conditions of release orders, to be filled out by the officer and signed by the defendant when the release conditions are set.{35}

Because court clerks have authority to set bail,{36} these after-hour applications may be addressed to them. Clerks are advised to accept calls from defense counsel and prosecutors regarding after-hours bail and have authority to reconsider their initial bail decision.{37}

§ 7.07

- The Rule 5 Proceeding

The defendant's first appearance before a judge, the Rule 5 hearing, provides the occasion for the first formal bail determination.{38}

The judge is required to take into account

the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of residence in the community, record of convictions, and record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings. Recent history of actual violence or threats of violence may be considered by the judicial officer as bearing on the character and mental condition of the accused.{39}

Because the Rule 5 hearing is generally defense counsel's first contact with the case it will be the rare case which counsel can present competent evidence on most of these subjects. When there is an opportunity to do so (e.g., when the defendant has been cited to appear and has consulted counsel before the hearing), witnesses should be called, and support people (family, employers, friends) should be present in court to demonstrate ties to the community. When there is a possibility that money bail or tight nonmonetary conditions will be required, counsel can sometimes make preemptive preparations, such as arranging stable housing and a job, or getting the defendant admitted to a therapy program.

When witnesses are unavailable the relevant bail facts can and should be presented by way of counsel's representations.

The Vermont Supreme Court has not decided whether evidence that would be inadmissible at trial because illegally seized may be introduced at a bail hearing.{40}

§ 7.08

- Bail Review Hearings

The bail statute grants an absolute right to a bail review hearing. A defendant who is "detained as a result of his or her inability to meet the conditions of release" or whose release conditions require "that he or she return to custody after specified hours" has a right to review within forty-eight hours.{41} Defendants who have not been detained by the initial bail order are entitled to a review hearing within five working days.{42} The review is heard by the same judge (if available) who, if the requested amendments are not made, must "set forth in writing or orally on the record a reasonable basis for continuing the conditions imposed."{43}

The bail review hearing may be the defense attorney's first opportunity - although it is certainly not the last{44} - to make a well-prepared case for liberal conditions of release. Even if the chances seem slim that the judge will change his mind, a bail review motion is a prerequisite for any bail appeal.{45}

§ 7.09

Bail in Special Proceedings - Life Imprisonment Cases

Chapter II, section 40 of the Vermont Constitution provides that "[p]ersons committed for offenses punishable by death or life imprisonment, when the evidence of guilt is great, shall not be bailable as a matter of right." The bail statutes repeat the same limitation and specifically provide that when the evidence of guilt is not great the defendant "shall be bailable in accordance with section 7554[,]" that is, as of right.{46} Evidence of guilt is "great" for this purpose if "the facts adduced by the state, viewed in the light most favorable to the state (i.e., notwithstanding contradiction of them by defense proof), are legally sufficient to sustain a verdict of guilty."{47} This is the same standard by which a court decides motions to dismiss for lack of a prima facie case{48} and motions for judgment of acquittal.{49} It is more than the "probable cause" required to be shown at a Rule 5 hearing and less than proof beyond a reasonable doubt.{50} It requires the state to show "by affidavits, depositions, sworn oral testimony, or other admissible evidence `that it has substantial admissible evidence as to the elements of the offense . . . sufficient to prevent the grant of a motion for judgment of acquittal at the trial.'"{51}

Because the state has to show substantial admissible evidence, evidence that will be excluded as illegally seized cannot be considered. When the defendant challenges all or part of the state's evidence in this context, the judge must engage in a two-step process.

The first step is to determine whether the State has sufficient evidence to deny bail without considering the evidence challenged by the defendant. If such evidence is found, the court need not consider further the challenge to the evidence in making its bail decision. . . . If the State cannot show, without considering the challenged evidence, that substantial admissible evidence of guilt exists, sufficient to convince a fact-finder that the defendant is guilty, . . . the court must go forward to the second step of the analysis. At this step, it must determine whether the State can make out a prima facie case of compliance with applicable constitutional requirements.{52}

This determination is necessarily tentative and will not control the ultimate decision of the motion to suppress.{53} It will rarely be possible to make even this rough and ready judgment at the Rule 5 hearing, when "[q]uestions of admissibility of evidence will not yet have surfaced."{54} So long as the court initially finds probable cause, it can hold the defendant without bail "for such time as is necessary to enable the parties to prepare for a full bail hearing and to make appropriate motions[,]" but the bail hearing must still be held "as soon as reasonably possible. . . ."{55}

Even on a finding that evidence of guilt is great, the judge retains power to release the defendant in his or her discretion.{56} The defendant has the right to a hearing on such "discretionary" bail,{57} and the record must show, at minimum, that the judge exercised discretion.{58} Beyond these basic rights the Vermont Supreme Court has "left for another day" any attempt to channel the bailing court's discretion or to define the standard of review, except to note that "exercise of discretion [i.e., a grant of release] may be required in a particular case to avoid running afoul of federal constitutional limits."{59} The preventive detention statute approved in Salerno required the government to prove by clear and convincing evidence that the arrestee "presents an identified and articulable threat to an individual or the community[,]"{59.5} and this is arguably the due process minimum.

Discretionary bail in life imprisonment cases can be revoked for good cause, even without a showing that the defendant violated a condition of release.{60}

§ 7.10

- Probation Violation Cases

Defendants who have been sentenced are not entitled to bail as of right under chapter II, section 40, and the exception almost certainly applies to defendants who have been placed on probation and are subsequently charged with a violation of probation.{61} By rule, however, a defendant charged with a probation violation "may be released . . . pending hearing or appeal[,]" with appropriate conditions to be determined "in the manner provided in 13 V.S.A. §§ 7554 and 7556 for pretrial release."{62} There is some authority that the rule grants bail as of right in probation revocation cases.{63} Because a probation order is already in place, and there has been some track-record of supervision, defendants charged with relatively minor probation violations are almost always granted release under this provision.

§ 7.11

- Parole Violation Cases

Constitutionally the parolee charged with a violation of parole is in the same boat as the probationer charged with a probation violation: both are entitled to minimum due process protections, including a prompt probable cause finding,{64} and both have been "sentenced" and are not entitled to bail as of right. Parole violations, however, are decided without court proceedings of any kind (and with no absolute right to counsel), and neither the bail statutes nor the rules of criminal procedure apply.

A superior court decision holds that alleged parole violators are entitled to a bail hearing, before the parole board, within twenty-four hours of arrest.{65}

§ 7.12

- Extradition Cases

The Vermont Supreme Court has held that there is no constitutional right to bail in extradition cases.{66} The extradition statute, however, provides that the court "shall admit the person arrested to bail[,]" unless the person is charged with an offense punishable by death or life imprisonment.{67}

The statutory right to bail applies to the first stage of extradition proceedings, when the alleged fugitive has been arrested as a fugitive from justice. Whether it also applies to the second stage - when the governor has issued an extradition warrant and the defendant is incarcerated pending a habeas corpus challenge to the warrant - is an open question. The issue was raised but not decided in In re Iverson, the defendant in that case having been charged with a life imprisonment crime.{68} Unpublished single-justice opinions on the subject point both ways.{69}

§ 7.13

Peace Bonds

Despite the state constitutional prohibition of preventive detention and the rule that monetary bail not be imposed to secure against future dangerousness, a court can require a defendant, who has been arrested for a criminal offense, to post a "peace bond," that is, to "find sureties that he will keep the peace," and "commit him to jail until he complies."{70} This archaic procedure{71} is still on the books and is occasionally used in situations where monetary bail could not otherwise be ordered. In State v. Weller,{72} avoiding a constitutional challenge to the peace bond procedure,{73} the Vermont Supreme Court sharply curtailed its use as a method of preventive detention.

Noting that Vermont's statute "is probably the sparest implementation" of the peace bond concept{74} the court in Weller proceeded to fill in some of the blanks. The procedure is not, the court held, strictly speaking a pretrial bail statute, but a separate proceeding, independent of the underlying criminal case.{75} This "independent proceeding" is triggered by a criminal arrest (not a citation or summons), and it may be brought by the court, sua sponte, by the state, or "by a third party with cause."{76}

The Weller court went on to specify some, but not all, of the procedural safeguards which must accompany a peace bond proceeding. The defendant must have "notice of the specific facts at issue. . . ." The state (or other proponent) bears "an independent burden of proof" but the opinion does not say whether that burden is by a preponderance, beyond a reasonable doubt, or something in between.{77} The defendant "must have an opportunity to oppose the bond in a `full hearing and investigation of the facts.'"{78} The court imposing it must make "specific findings based on the evidence" and the bond must specifically describe the "conduct to be covered. . . ."{79} Unlike ordinary bail orders the duration of the peace bond is not strictly tied to the triggering criminal case and "in the absence of a time limit, will go on indefinitely. The better practice is to impose a time limit on the bond requirement or to provide for automatic review after a specified period of time."{80}

Weller notes that the peace bond statute, among the other things which it says nothing about, does not specify that the defendant post cash,{81} and a later decision appears to rule out cash as a peace bond requirement.{82} The court advised trial judges to "use the surety requirement liberally to ensure a peace bond requirement is used for prevention rather than for detention."

Despite the court's holding that the peace bond statute is not a pretrial bail statute,{83} peace bonds can be challenged pursuant to the usual accelerated bail appeal procedures.{84} Weller itself came to the supreme court as a bail appeal,{85} and the court has entertained similar appeals in other peace bond cases.{86}

§ 7.14

Revocation of Bail - Grounds for Revocation

Despite the constitutional right to bail for "[a]ll persons, unless sentenced," courts have some leeway to hold an unsentenced defendant without bail if he has violated an initial bail order. Indeed, at first blush that power appears very substantial. By statute a court is permitted to revoke bail in its discretion on a finding that the defendant has

(1) intimidated or harassed a victim, potential witness, juror or judicial officer in violation of a condition of release; or

(2) repeatedly violated conditions of release; or

(3) violated a condition or conditions of release which constitute a threat to the integrity of the judicial system; or

(4) without just cause failed to appear at a specified time and place ordered by a judicial officer; or

(5) in violation of a condition of release, been charged with a felony or a crime against a person or an offense like the underlying charge, for which, after hearing, probable cause is found.{87}

The constitutionality of some of these provisions is open to serious doubt, and the statute raises a number of substantive and procedural questions, some of which have been addressed by the case law.

It is established that when a defendant violates conditions of release a judge can "revoke the right altogether" on a finding "that no conditions of release will assure the defendant's appearance at trial . . . or that the defendant's breach of bail conditions constitute[s] a threat to `the integrity of the judicial process.'"{88} Except for these two narrow grounds, it is far from clear that revocation is constitutionally permissible at all. Thus, repeated violations of release conditions,{89} such as a ban on use of alcohol or violation of a curfew, do not warrant revocation (despite the statutory authorization) unless they threaten judicial integrity or raise a risk of flight.{90}

§ 7.15

- Procedure

The bail revocation statute is almost completely silent on the subject of procedure. When revocation is sought on the basis of new charges, it specifies that the court must make a probable cause finding after a hearing,{91} and the supreme court has held that this means more than the ex parte probable cause determination made at the Rule 5 hearing: the defendant must have an opportunity to present evidence.{92} Whatever violation the state alleges, it must prove its claim by a preponderance of the evidence, which means that "the court must look, not just to the strength of the state's case, but also at contrary evidence, and is required to exercise its discretion by weighing the evidence."{93}

The broader procedural questions, regardless of the particular grounds on which bail revocation is sought, can be argued by analogy to the procedural requirements of probation and parole revocation proceedings. In Hohman v. Hogan,{94} the United States District Court for the District of Vermont held that a state court revoking bail pending appeal had to observe the same due process safeguards which the United States Supreme Court required for parole and probation revocation, in particular (1) written notice of the claimed violation, (2) disclosure of the evidence on which revocation is sought, (3) the right to confront and cross-examine adverse witnesses, (4) a neutral hearing officer, and (5) a written statement of findings and the reasons for revocation.{95} These requirements should apply equally in a pretrial bail revocation proceeding.{96}

§ 7.16

- The Least Restrictive Alternative Requirement

When grounds for revocation have been proved, the court must decide whether revocation is reasonably necessary to protect compelling state interests.

Unlike the bail statute (13 V.S.A. § 7554), the revocation statute does not expressly require the judge to canvass less restrictive alternatives. The least restrictive alternative requirement, however, is implicit as a statutory matter, and is probably also a constitutional requirement.{97} Thus, a charge of a new offense,{98} while it may justify imposition of monetary conditions on the theory that the new charge increases the defendant's incentive flee,{99} may not warrant revocation if money bail or other conditions of release can reasonably assure the defendant's presence. The burden should be on the prosecution to show that no measure short of revocation will suffice.{100}

§ 7.17

Bail Violation as a Criminal Offense

A failure to appear "without just cause" in violation of a condition of release is a misdemeanor punishable by two years imprisonment and a fine of $5,000.{101}

Other violations of conditions of release may be prosecuted as criminal contempt, with a maximum punishment of six months and a fine of $1000.{102} A statutory provision permitting the court in such a contempt prosecution to "terminate the release of the person"{103} is subject to the same qualifications discussed above in connection with 13 V.S.A. § 7575, the bail revocation statute.{104} When the defendant is charged with violating a condition of release that he not commit or be charged with a new crime, a criminal contempt prosecution may raise a double-jeopardy bar to subsequent prosecution of the new charge.{105}

§ 7.18

Bail Appeals - The Right To Appeal

Both the defendant and the state have a right to appeal a conditions of release order to the Vermont Supreme Court.{106} Although the statute appears to limit the defendant's right to cases where he has been "detained" (and to limit the state's right to cases where the defendant has been released),{107} the supreme court regularly entertains bail appeals in cases where the defendant, although not in custody, challenges his conditions of release as unduly restrictive.{108} The court will not hear an appeal from an initial bail order until the defendant has moved for review in the trial court.{109}

The order will be affirmed "if it is supported by the proceedings below."{110} Otherwise, the court can remand for further proceedings or amend the conditions of release itself.{111}

§ 7.19

- Procedure on Appeal

The bail appeal procedure is quick, simple, and frequently productive. The appeal is initiated by filing a notice of bail appeal in the trial court, with a copy to the supreme court and counsel for the other side. Counsel should ask the clerk to forward the file, as it relates to the conditions of release, to the supreme court. Transcripts may not be necessary but if they are they should be ordered promptly, with a request to the stenographer and clerk to expedite them.

In the supreme court counsel should file a memorandum summarizing the facts, arguing the claim, and attaching relevant trial court documents (including the conditions of release order that is being challenged).

The case will be set for a hearing, usually within a few days, usually before a single justice, and usually as a telephone conference call. An order will follow shortly,{112} accompanied by a brief unpublished opinion. If the court sees the issue as significant, it may set the appeal for argument or reargument before the full court, sua sponte or at counsel's request.{113}

§ 7.20

Bail Pending Sentence and Appeal;

Stays of Execution of Sentence

After a verdict of guilty the trial judge will review the conditions of release and, by rule, "may terminate them or may continue or alter them pending sentence or pending notice of appeal or the expiration of the time allowed for filing notice of appeal."{114} Insofar as it allows the judge to hold a person without bail after verdict but before imposition of sentence, the rule runs into constitutional difficulties.{115}

After sentencing the defendant has no constitutional right to bail. Rule 46, however, provides for postsentence bail pending an appeal in the court's discretion, taking into account "the factors set forth in 13 V.S.A. § 7554(b), as well as the defendant's conduct during the trial and the fact of conviction."{116} The order is appealable in the same way as a pretrial conditions of release order.{117}

In misdemeanor cases, however, the defendant will often be able to win release pending appeal through a stay of execution of his sentence under V.R.Cr.P. 38. When a misdemeanor defendant has been released after verdict in accordance with Rule 46, a stay of execution of any prison sentence is mandatory for cases "not involving an act of violence against another person. . . ."{118} This mandatory stay rule even applies to appeals of probation revocation orders where the underlying conviction is for a misdemeanor, unless the court finds that the violation constituted "a threat to public safety."{119} Stays of prison sentences in felonies are discretionary, as are stays of fines and probation orders in all cases.{120}

§ 7.21

Presentence Credit - The Grant of Credit

A defendant who has been confined before sentence is entitled to credit for all time spent in custody "in connection with" the offense.{121} The provision is in part an equal protection requirement, "eliminating the `invidious discrimination' resulting where an indigent person, because of pretrial incarceration, received a sentence nominally the same but effectively more severe than an affluent person."{122} Pretrial detainees are also credited with statutory "good time" deductions{123} for time spent in custody before sentence.

The statutory credit for time "in custody" is not restricted to time in jail. In In re McPhee{124} the Vermont Supreme Court held that a defendant who was required to attend a residential treatment program was "in custody" for purposes of the sentence-credit statute. Noting that the bail statute permits "a gradation of restraint ranging all the way from full freedom on personal recognizance to a total denial of bail[,]" the court left undecided which "release" decisions will entitle a defendant to credit, leaving the question to a case-by-case determination.{125} McPhee may be restricted to cases where the defendant is committed to the custody of an institution or another person. A defendant who was required to remain in the county and be at home between 11:00 p.m. and 6:00 a.m. was not entitled to McPhee credit.{126}

§ 7.22

- Credit on Multiple Charges

Sentence credit issues get complicated when the defendant has been detained on more than one charge. The general rule when the sentences are made to run concurrently{127} is that the defendant must be given full credit for time spent in custody in connection with each of the charges. Thus, a defendant held for want of bail on charges of several crimes will receive credit for all of them if the sentences imposed run concurrently. Similarly, a prisoner who escapes from custody, and is reincarcerated on the original sentence and a charge of escape, gets credit against his escape sentence for time spent in detention pending disposition of the escape charge, since his custody during that period was "in connection with" the new charge, as well as the underlying sentence.{128} The exception is where the defendant is held in custody on Vermont charges in another state. In that situation the time in custody will not be credited against the Vermont sentence unless the Vermont charges were the "sole basis" of the out-of-state detention.{129}

On the other hand, a probationer who is detained for a new offense is not entitled to credit against his suspended sentence because his time in detention was only in connection with the new charge.{130}

When a defendant is granted conditions of release on one charge but detained on another, it will generally be to his advantage to formally refuse the release conditions, to ensure that his incarceration will be credited against all charges.{131} A failure to do so will usually result in a loss of credit.

When the multiple charges result in consecutive sentences the sentence credit rules are different. The holdings in the concurrent sentence cases, that statutory credit must be awarded for "days spent in custody in connection with" each charge for which a sentence was imposed, result in a windfall for pretrial detainees who are given consecutive terms. For example, a defendant with four consecutive sentences, who has spent one year in pretrial detention on all four charges, would get not one but four years of credit against his aggregate sentence. The court appeared to disapprove multiple credits in dicta in In re Perry,{132} but until 1988 the department of corrections routinely awarded multiple credit in all cases. In State v. Percy{133} the Vermont Supreme Court adopted a "single credit" rule for consecutive sentence cases: the defendant with four consecutive sentences and one year in pretrial detention will generally get only a one-year sentence credit.{134}

ENDNOTES

1. United States v. Salerno, 481 U.S. 739, 754-55 (1987).

2. United States v. Salerno, 481 U.S. 739, 754 (1987); Stack v. Boyle, 342 U.S. 1, 5 (1951); State v. Sauve, Nos. 92-568 and 92-571, slip op. 5 (Vt. Jan. 29, 1993); State v. Cardinal, 147 Vt. 461, 464 (1986); State v. Pray, 133 Vt. 537, 541 (1975) ("The purpose of bail, as presently constitutionally mandated, is to assure the defendant's attendance in court. . . .").

3. State v. Brown, 136 Vt. 561, 566 (1978); State v. Mecier, 136 Vt. 336, 338 (1978); State v. Pray, 133 Vt. 537 (1975).

4. State v. Wood, 157 Vt. 286, 289 (1991); State v. Mecier, 136 Vt. 336, 338 (1978); State v. Roessell, 132 Vt. 634, 636 (1974).

5. Cf. State v. Sauve, Nos. 92-568 and 92-571, slip op. 9 (Vt. Jan. 29, 1993) (bail amendment's exception for capital cases was "surrogate for a high risk of flight").

6. The court avoided the issue in State v. Wood, 157 Vt. 286, 288 (1991), State v. Fales, 157 Vt. 652, 653 (1991), and again in State v. Sauve, No. 92-457 (Vt. Oct. 22, 1992) (per curiam). But see State v. Sauve, Nos. 92-568 and 92-571, slip op. 3-4 (Vt. Jan. 29, 1993) (implying that denial of bail might be allowed in "extraordinary circumstances"). See § 7.04, infra.

7. 13 V.S.A. §§ 7553 et seq.

8. 13 V.S.A. § 7554(a).

9. 13 V.S.A. § 7553. See § 7.09, infra for a discussion of bail in life imprisonment cases.

10. State v. Pray, 133 Vt. 537, (1975).

11. See State v. Lambert, 145 Vt. 315, 316 (1985).

12. 13 V.S.A. § 3253(b).

13. An amendment that would permit preventive detention in certain circumstances passed the legislature in 1991 and awaits further action. See State v. Sauve, Nos. 92-568 and 92-571, slip op. 8 (Vt. Jan. 29, 1993).

14. The concern about violent crime committed by defendants on bail is exaggerated. Of 5,386 defendants charged with felonies and released on bail in 1986-89 only 200 were charged with new crimes while on bail, a rate of about 4 percent. The great majority of the new offenses (72.9 percent) were property offenses. Vermont Criminal Justice Center, Research Report (Dec. 1991).

15. 13 V.S.A. § 7554(a)(1).

16. 13 V.S.A. § 7554(a)(1). The court has adopted this "least restrictive condition" test as a constitutional requirement as well as a statutory one. See, e.g., State v. Cardinal, 147 Vt. 461, 465 (1986); State v. Ranzona, 137 Vt. 634 (1979). See also the unpublished bail orders in State v. Johnson, No. 89-129 (Vt. April 1, 1989), and State v. Maynard, No. 91-288 (Vt. June 24, 1991).

17. 13 V.S.A. § 7554(a)(1)(A)-(E).

18. 13 V.S.A. § 7554(a)(1)(C),(D).

19. Apps. 7-9.

20. 13 V.S.A. § 7554(a)(2).

21. 13 V.S.A. § 7554(a)(2).

22. 13 V.S.A. § 7554(a)(2)(A),(B).

23. 13 V.S.A. § 7554(a)(2)(C).

24. State v. Pray, 133 Vt. 537, 541 (1975). But see State v. Sauve, Nos. 92-568 and 92-571, slip op. 3-4 (Vt. Jan. 29, 1993) (denial of bail reversed where defendant's misconduct on pretrial release did not rise to "extraordinary circumstances"). See § 7.01, supra.

25. State v. Wood, 157 Vt. 286, 289 (1991); State v. Whitehouse, No. 88-578 (Vt. Dec. 7, 1988) (unpublished).

26. App. 6.

27. State v. Reagan and Sargent, Nos. 89-508 and 89-530 (Vt. Nov. 16, 1989).

28. See State v. Sauve, Nos. 92-568 and 92-571, slip op. 11 (Vt. Jan. 29, 1993) (defendants who continue to use drugs or alcohol pose "special challenges to the justice system" but may not be preventively detained).

29. State v. Levick, No. 89-540 (Vt. Nov. 15, 1989) (unpublished).

30. See § 7.15, infra.

31. See § 7.07, infra.

32. V.R.Cr.P. 5(b). See also the Reporter's Notes to the 1985 Amendment, noting statutory authority allowing bail to be set by clerks and persons designated as acting judges.

33. 13 V.S.A. § 7559(b).

34. Manual 1.B.2. The procedures are supposed to be spelled out by local rule. Id.

35. Manual 1.B.4.

36. 13 V.S.A. § 7554(f) (term "judicial officer" as used in bail statutes includes superior and district court clerks); 13 V.S.A. § 7559(c) (persons designated by court administrator to set prearraignment bail shall be considered judicial officers).

37. Manual 1.B.3 (comment).

38. V.R.Cr.P. 46(a). See § 5.17, supra for a discussion of the Rule 5 hearing generally.

39. 13 V.S.A. § 7554(b).

40. An unpublished single-justice opinion in State v. Richardson, No. 89-270 (Vt. June 15, 1989), noted that "restrictions on evidence admissibility generally do not apply in bail hearings." Id. slip op. 2 (citing State v. Engel, 493 A.2d 1217 (N.J. 1985)).

41. 13 V.S.A. § 7554(d(1).

42. 13 V.S.A. § 7554(d)(2).

43. 13 V.S.A. § 7554(d)(1),(2).

44. 13 V.S.A. § 7554(e) provides that, in addition to the mandatory review hearing, the judge "may at any time amend the order to impose additional or different conditions of release. . . ." See also 13 V.S.A. § 7557, permitting bail orders when a judge postpones the trial.

45. See 13 V.S.A. § 7556(b); § 7.18, infra.

46. 13 V.S.A. §§ 7553, 7554(a).

47. State v. Duff, 151 Vt. 433, 438-40 (1989) (quoting Fontaine v. Mullen, 366 A.2d 1138, 1142 (R.I. 1976)).

48. V.R.Cr.P. 12(d)(2). See chapter 10, infra.

49. V.R.Cr.P. 29. See § 32.13, infra.

50. State v. Duff, 151 Vt. 433, 439 (1989).

51. State v. Duff, 151 Vt. 433, 439 (1989) (quoting V.R.Cr.P. 12(d)(2)).

52. State v. Passino, 154 Vt. 377, 382-83 (1990).

53. State v. Passino, 154 Vt. 377, 383 n.2 (1990).

54. State v. Passino, 154 Vt. 377, 377 (1990).

55. State v. Passino, 154 Vt. 377, 377 (1990) (footnote omitted) The twelve days which elapsed before the bail hearing in Passino "met this mandate."

56. State v. Passino, 154 Vt. 377, 379 (1990); State v. Duff, 151 Vt. 433, 441 (1989); In re Dexter, 93 Vt. 304, 315 (1919).

57. State v. Duff, 151 Vt. 433, 441 (1989).

58. See State v. Passino, 154 Vt. 377, 379 (1990), and State v. Duff, 151 Vt. 433, 441 (1989), remanding for such determinations. In Duff the court called for "appropriate findings and a statement of the basis of the decision." Id at 441-42.

59. State v. Duff, 151 Vt. 433, 441 (1989).

60. State v. McKeen, No. 92-486 (Vt. Oct. 29, 1992) (unpublished) (defendant threatened harm to complainant; trial court could revoke initial bail order even though defendant did not violate any condition).

61. Probationers have been "sentenced" although they are not in execution of sentence.

62. V.R.Cr.P. 32.1(a)(3).

63. State v. Maxfield, No. 89-378 (Vt. July 31, 1989) (unpublished). Contra: State v. Bushey, No. 92-333 (Vt. July 13, 1992) (unpublished).

64. Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972).

65. Smith v. Parole Board, No. S-13-88 WnC (Feb. 29, 1988) (Morse, J.). See § 39.07, infra.

66. In re Iverson, 135 Vt. 255, 256 (1977).

67. 13 V.S.A. § 4956.

68. In re Iverson, 135 Vt. 255, 256 (1977).

69. Compare In re Soucie, No. 85-550 (Vt. March 24, 1986) (Hill, J.) (trial court has discretion to grant bail after governor's warrant has issued) with State v. Reilly, No. 89-217 (May 9, 1989) (Dooley, J.) and State v. White, No. 88-013 (Jan. 15, 1988) (Dooley, J.) (alleged fugitive was not entitled to release after governor's warrant issues).

70. 13 V.S.A. § 7573.

71. "The statute is nearly as old as the state" and its roots go back to early common law. State v. Weller, 152 Vt. 8, 11-12 (1989). The procedure "has fallen into disuse virtually everywhere." Id. at 13.

72. 152 Vt. 8 (1989).

73. State v. Weller, 152 Vt. 8, 16 (1989).

74. State v. Weller, 152 Vt. 8, 12 (1989). Except to provide that a peace bond may be ordered "when it is necessary," the statute says nothing about when peace bonds may be ordered or the procedural requirements.

75. State v. Weller, 152 Vt. 8, 14 (1989).

76. State v. Weller, 152 Vt. 8, 14 (1989) (footnote omitted).

77. State v. Weller, 152 Vt. 8, 14-15 (1989).

78. State v. Weller, 152 Vt. 8, 15 (1989) (citation omitted).

79. State v. Weller, 152 Vt. 8, 15 (1989).

80. State v. Weller, 152 Vt. 8, 15 (1989).

81. State v. Weller, 152 Vt. 8, 15 (1989).

82. State v. Wood, 157 Vt. 286, 290 (1991).

83. State v. Weller, 152 Vt. 8, 14 (1989).

84. See §§ 7.18-7.19, infra.

85. State v. Weller, 152 Vt. 8, 9 (1989).

86. See, e.g., State v. Houser, No. 89-236 (Vt. June 16, 1989) (unpublished); State v. Richardson, No. 89-270 (Vt. June 15, 1989) (unpublished).

87. 13 V.S.A. § 7575 (1989).

88. State v. Cardinal, 147 Vt. 461, 465 (1986) (quoting State v. Mecier, 1136 Vt. 336, 339 (1978)).

89. 13 V.S.A. § 7575(2).

90. State v. Sauve, Nos. 92-568 and 92-571, slip op. 10-12 (Vt. Jan. 29, 1993).

91. 13 V.S.A. § 7575.

92. State v. Huseboe, No. 92-89 (Vt. March 13, 1992); State v. Brown, 136 Vt. 561, 567 (1978); State v. Knight, 135 Vt. 453 (1977).

93. State v. Sauve, Nos. 92-568 and 92-571, slip op. 13-14 (Vt. Jan. 29, 1993).

94. 474 F. Supp. 1290 (D. Vt. 1979).

95. Hohman v. Hogan, 474 F. Supp. 1290, 1295 (D. Vt. 1979) (citing Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973)). For a discussion of the defendant's procedural rights in probation and parole revocation proceedings, see §§ 38.14-38.18 (probation) and 39.06-39.08 (parole), infra.

96. The Vermont Supreme Court cited Hohman with approval in the pretrial bail revocation case of State v. Huseboe, No. 92-89 (Vt. March 13, 1992).

97. The court left these questions unanswered in State v. Huseboe, No. 92-89 (Vt. March 13, 1992), and State v. Pray, No. 91-560 (Vt. Jan. 28, 1992) (unpublished), remanding to the trial court in both cases to consider them. Language in earlier cases supports the view that revocation is constitutional only if no less drastic alternatives are available. See State v. Cardinal, 147 Vt. 461, 465 (1986); State v. Ranzona, 137 Vt. 634 (1979).

98. 13 V.S.A. § 7575(5).

99. State v. Weller, 152 Vt. 8, 10 (1989); State v. Brown, 136 Vt. 561, 567 (1978).

100. Federal due process arguably requires the same showing by clear and convincing evidence. Cf. United States v. Salerno, 481 U.S. 739, 751 (1987). See § 7.09, supra (bail in life imprisonment cases).

101. 13 V.S.A. § 7559(d).

102. 13 V.S.A. § 7559(e); V.R.Cr.P. 42.

103. 13 V.S.A. § 7559(e).

104. See § 7.14, supra.

105. United States v. Dixon, 61 L.W. 4835 (1993). See § 14.05, infra.

106. 13 V.S.A. § 7556; V.R.A.P. 9.

107. 13 V.S.A. § 7556(b),(c).

108. See, e.g., State v. Padilla, No. 90-012 (Vt. Jan. 12, 1990) (unpublished) (requirement that defendant pay child support); State v. Reagan and Sargent, Nos. 89-508 and 89-530 (Vt. Nov. 16, 1989) (unpublished) (striking a condition that defendants submit to urine testing); State v. Nugent, No. 87-341 (Vt. Sept. 15, 1987) (unpublished) (affirming nonassociation order).

109. 13 V.S.A. § 7556; State v. Beshaw, No. 91-360 (Vt. Aug. 26, 1991) (unpublished).

110. 13 V.S.A. § 7556(b),(c).

111. 13 V.S.A. § 7556(b),(c).

112. Bail appeals "shall be determined forthwith." 13 V.S.A. § 7556(b).

113. The statute specifies that "[n]o further appeal may lie from the ruling of a single justice in matters to which this subsection applies." 13 V.S.A. § 7556. If the provision is intended to rule out motions for reargument before the full court, the court is not likely to feel bound by legislative restrictions on its decision-making procedures. See Vt. Const. ch. II, art. 30. See generally, J. Dooley, The Regulation of the Practice of Law, Practice and Procedure, and Court Administration in Vermont - Judicial or Legislative Power?, 8 Vt. L. Rev. 211 (1983).

114. V.R.Cr.P. 46(c).

115. Vt. Const. ch. II, § 40 (right to bail for all persons "unless sentenced").

116. V.R.Cr.P. 46(c).

117. V.R.Cr.P. 46(c). See § 7.18, supra.

118. V.R.Cr.P. 38(a).

119. V.R.Cr.P. 38(d)(2). See State v. Dapo, No. 89-080 (Vt. Feb. 24, 1989) (unpublished); State v. Holton, No. 88-166 (Vt. May 13, 1988) (unpublished).

120. V.R.Cr.P. 38(b),(c),(d).

121. 13 V.S.A. § 7031(b); In re Lampman, 135 Vt. 226 (1977).

122. In re Lampman, 135 Vt. 226, 228 (1977) (citing Tate v. Short, 401 U.S. 395 (1971), and Williams v. Illinois, 399 U.S. 235 (1970)).

123. See 28 V.S.A. § 811; § 37.18, infra.

124. 141 Vt. 4 (1982).

125. In re McPhee, 141 Vt. 4, 8-9 (1982).

126. State v. Platt, 91-357, slip op. 9-10 (Vt. May 8, 1992).

127. See 13 V.S.A. § 7032(b) (sentences may run concurrently or consecutively).

128. In re Zera, 137 Vt. 421, 423-24 (1979); In re Lampman, 135 Vt. 226, 228 (1977).

129. State v. Coe, 150 Vt. 448, 452 (1988).

130. Marden v. Walton, 142 Vt. 204, 207-08 (1982).

131. In In re Zera, 137 Vt. 421 (1979), the defendant, charged with escaping from a furlough, was granted personal recognizance on the escape charge but incarcerated on the underlying sentence. He refused the recognizance and the court held that the refusal entitled him to presentence credit. Id. at 424. The defendant in Marden v. Walton, 142 Vt. 204 (1982), might have been entitled to credit against his underlying probated sentence if he had either refused conditions of release on the probation violation charge, or refused to accept the probation conditions.

132. 137 Vt. 168, 171 (1979). Despite its dicta the court in Perry approved multiple credit when one of two consecutive sentences had been fully served at the time they were imposed. Id. at 169-70. Marden v. Walton, 142 Vt. 204 (1982), refused to allow multiple credit in a consecutive sentence credit, but only on the ground that the defendant had not been detained in connection with one of the two charges.

133. No. 91-131, slip op. 14 (Vt. May 8, 1992).

134. When one or more of the consecutive sentences has been fully discharged by presentence confinement, the defendant will still receive multiple credit pursuant to the rule of In re Perry,, supra.