State v. Hemingway, 196 Vt. 441 (2014)

Citation: State v. Hemingway, 196 Vt. 441 (2014)
Parent Document: State v. Hemingway, 196 Vt. 441 (2014)
Jurisdiction: Vermont (state)
Effective Date: 2014-05-09
Original Source: https://www.courtlistener.com/opinion/2673207/state-v-hemingway/ ↗

Full Text

1,204 chars

¶ 33.        
Therefore, probation has a rehabilitative purpose, but it is also
intended to protect society.  State v. Lockwood, 160 Vt. 547, 552,
632 A.2d 655, 659 (1993).  Invalidating known conditions that were not
provided in a certificate does not further the purpose of providing defendant
with notice of his conditions, but actually interferes with the legislative purpose
of protecting particular citizens and the public in general.  See Howard
v. Banks, 544 S.W.2d 601, 603-04 (Mo. Ct. App. 1976) (explaining that
public policy may impel interpreting statute containing word “shall” as
directory so that failure of public official to act does not prejudice rights
of citizens having no direct control over officials).  Here, the court’s
failure to provide a certificate caused defendant no harm since he was aware of
the condition.  On the other hand, invalidating the probation revocation
based on the ministerial failure to provide the certificate prejudices the
victim for whose protection the condition was imposed.  Absent more
specific direction from the Legislature, this Court should avoid a construction
that elevates technicality over the general purpose of protection.

Other Sections in This Document (105)

Full Text