                                        ENTRY ORDER

                         SUPREME COURT DOCKET NO. 2013-331

                                   SEPTEMBER TERM, 2013

State of Vermont                                   }    APPEALED FROM:
                                                   }
                                                   }
   v.                                              }    Superior Court, Essex Unit,
                                                   }    Criminal Division
Jonathan Houle                                     }
                                                   }    DOCKET NO. 120-7-10 EXCR
                                                   }
                                                        Trial Judge: Mary M. Teachout

                         In the above-entitled cause, the Clerk will enter:

        Petitioner Jonathan Houle pled no contest to lewd and lascivious conduct with a child, 13
V.S.A. § 2602, in June of this year. He received a sentence of 2 to 15 years, all suspended, and
he was placed on probation with specified conditions. After he allegedly violated one or more of
those conditions, he was arraigned and held without bail on August 22, 2013. Petitioner filed a
motion for review in the superior court of the arraignment decision to hold him without bail on
August 27, 2013, citing the Vermont Constitution ch. II, § 40 and 13 V.S.A. § 7554. The court
scheduled a hearing on the motion for September 12, 2013. On August 30, 2013, petitioner filed
a petition for extraordinary relief in the Essex County Civil Division under V.R.C.P. 75, seeking
an order requiring the Criminal Division to hold the bail review hearing immediately. Petitioner
argued that the hearing must be held under 13 V.S.A. § 7554(d) within 48 hours, or alternatively
within five days. See 13 V.S.A. § 7554(d)(1), (2). The court denied the petition, concluding that
§ 7554(d) did not apply to a probation revocation proceeding. Petitioner subsequently filed this
petition for extraordinary relief under V.R.A.P. 21, to request that we order the lower court to
hold an immediate bail review hearing, again citing 13 V.S.A. § 7554.

        The State urges us to decide that petitioner, as a probationer convicted of a violent crime,
has neither a constitutional nor a statutory right to bail, see 28 V.S.A. § 301(4), and that,
therefore, he should have no bail review. We conclude, however, that whether petitioner has
either a constitutional or a statutory right to bail is not determinative of whether he is entitled to
the procedural step of an immediate bail review hearing.

       The bail procedures detailed in 13 V.S.A. § 7554, titled “Release prior to trial,” are not
written to apply to post-conviction, probation-revocation detentions. That section is, however,
incorporated by reference in the applicable statute, 28 V.S.A. § 301(4) (titled “Detention pending
hearing for probationer”), in a manner that is highly ambiguous as to whether the bail review
hearing procedure is meant to apply. Vermont Rule of Criminal Procedure 32.1(a)(3)(A) also
incorporates 13 V.S.A. § 7554, with somewhat clearer language:
              A probationer held in custody pursuant to a request to revoke
              probation may be released by a judicial officer pending hearing or
              appeal. In determining conditions of release, the judicial officer
              shall consider the factors set forth in 13 V.S.A. § 7554(b). Any
              denial of or change in the terms of release shall be reviewable in the
              manner provided in 13 V.S.A. §§ 7554 and 7556 for pretrial release.

Id. It explicitly requires compliance with § 7554 where bail has been denied and petitioner is
seeking review. We interpret it to require the court to comply with § 7554(d). We conclude that
of the two options of § 7554(d), the best fit is with § 7554(d)(2) requiring the review hearing
within five days of the date of the original denial of bail. That time has already expired, and
petitioner is entitled to immediate relief.

        The Essex Superior Court, Criminal Division, shall hold a bail review hearing as soon as
possible under the procedures specified in 13 V.S.A. § 7554(d)(2) and decide the motion as soon
as possible thereafter.

                                                BY THE COURT:


                                                *
                                                Paul L. Reiber, Chief Justice

   Publish
                                                John A. Dooley, Associate Justice
   Do Not Publish

                                                Marilyn S. Skoglund, Associate Justice


                                                Beth Robinson, Associate Justice


*Note: Chief Justice Reiber was unable to sign this order, but participated in oral argument and
the decision.




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