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/ ↗

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¶ 39.        
The majority proffers several reasons to support its interpretation of
§ 252(c), but none are persuasive.  The majority first posits that
because probationers must make any facial challenge to a condition prior to its
violation, the probationer requires notice of the condition’s exact
language.  The majority states that without § 252(c)’s requirement that
the defendant receive a certificate “defendant will lose the opportunity to
challenge probation conditions because he or she will not know that they were
imposed.”  Ante, ¶ 15.  Certainly, if a defendant does
not have notice of a condition, he or she cannot challenge it, but it is also
true that a condition cannot be enforced against a defendant without notice of
the terms.  State v. Hammond, 172 Vt. 601, 602, 779 A.2d 73, 75
(2001) (mem.) (explaining that due process requires that defendant know prior
to probation revocation proceeding what conduct is forbidden).  Because
enforcement depends on notice, there is no circumstance under which a defendant
will be bound by a condition that was not noticed.  While a certificate is
a means to provide such notice, it is not the sole avenue for giving defendant
notice.  An error in failing to comply with the statute’s requirements is
harmless if defendant received notice by some other means.  Having
received notice, he is no lesser a position than an individual who received
notice that complied with § 252(c).[4]

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