An Act Relating to Deferred Sentences

AS PASSED BY HOUSEH.36

2003Page 1

H.36

AN ACT RELATING TO DEFERRED SENTENCES

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 13 V.S.A. § 7041(a) is amended to read:

§ 7041. DEFERRED SENTENCE

(a) Upon an adjudication of guilt and after the filing of a presentence investigation report, the court may defer sentencing and place the respondent on probation upon such terms and conditions as it may require if a written agreement concerning the deferring of sentence is entered into between the state’s attorney and the respondent and filed with the clerk of the court, or upon motion by the respondent, if the court determines that deferring sentence would best serve justice. Entry of deferment of sentence shall constitute an appealable judgment for purposes of appeal in accordance with sections 2381-2390section 2383 of Title 12 and Rule 3 of the Vermont Rules of Appellate Procedure. Entry of deferment of sentence shall constitute imposition of sentence solely for the purpose of sentence review in accordance with section 7042 of this title. Thereafter the court may impose sentence at any time within five years from and after the date of entry of defermentAfter the entry of deferment, the court may impose sentence any time within five years, except as provided in subsection (c) of this section.

(b) If the court is considering deferring sentence without the consent of the state’s attorney, the court shall:

(1) order a presentence investigation in accordance with the procedures set forth in Rule 32 of the Vermont Rules of Criminal Procedure, unless the state’s attorney agrees to waive the pre-sentence investigation;

(2) permit the victim to submit a written or oral statement concerning the respondent’s motion under this section; and

(3) review the presentence investigation and the victim’s impact statement with the parties.

(c) If the respondent is charged with a listed crime as defined in section 5301 of this title, the court may only defer sentencing over the objection of the state’s attorney for a period of no less than five years.

(b)(d) Upon violation of the terms of probation or of the deferred sentence agreement, the court shall impose sentence. Upon fulfillment of the terms of probation and of the deferred sentence agreement, the court shall strike the adjudication of guilt and discharge the respondent, except that a person shall not be discharged from probation imposed under this section until restitution has been paid in full, absent a finding of good cause by the court. Upon discharge the record of the criminal proceedings shall be expunged as if an application pursuant to section 5538 of Title 33 had been granted.

(c)(e)(1) A deferred sentence imposed under subsection (a) of this section may include a restitution order issued pursuant to section 7043 of this title. If a court determines that a person subject to a deferred sentence has failed to comply with a restitution order issued under section 7043 of this title, the court may impose sentence upon finding the defendant has the present ability to pay.

(2) No sentence shall be imposed or continued pursuant to this subsection after compliance with the restitution order. This subsection shall not apply to the violation of any condition of probation other than a failure to comply with a restitution order.