Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Brown

Court of Appeals of Connecticut

May 9, 1990

STATE of Connecticut
v.
David BROWN.

Argued March 14, 1990.

Page 700

Judith A. Busch, Waterbury, with whom, on the brief, was Ralph Sherman, Law Student Intern, for appellant (defendant).

Geoffrey E. Marion, Deputy Asst. State's Atty., with whom, on the brief, were Frank S. Maco, State's Atty., and David Shepak, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and BORDEN and DALY, JJ.

[22 Conn.App. 109] BORDEN, Judge.

The defendant appeals from the judgment of the trial court revoking his probation and reinstating the suspended portion of his original sentence. The dispositive issue is whether, under the circumstances of this case, the defendant's operation of a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a constituted a violation of that condition of his probation order forbidding him from violating "any criminal law" of this state. We conclude that it does, and, accordingly, we affirm.

The following facts are undisputed. In 1985, the defendant was convicted of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b. He was sentenced to a term of five years, execution suspended after two and one-half years, followed by three years probation. Upon his release from custody, a probation officer explained the conditions of the probation order to the defendant, and the defendant signed the order. Two special conditions of probation were that he not operate a motor vehicle without a valid license, and that he receive alcohol counseling. In addition to the two special conditions, the order contained five conditions. The first of the five conditions specified that the defendant must "not violate any criminal law of the United States, this state or any other state."

In August, 1988, the defendant was arrested for operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a. [1] While that [22 Conn.App. 110] prosecution was pending, the state charged the defendant with violation of probation, claiming that his conduct of operating a motor vehicle while under the influence of liquor, in violation of General Statutes § 14-227a, violated the condition of probation that he not violate any "criminal law" of this state. After a probation revocation hearing, the court found that the defendant had engaged in conduct that was in violation of § 14-227a. The court

Page 701

further found that the defendant's conduct was a clear violation of a condition of his probation, and that the requirements of rehabilitation of the defendant and protection of the community would be served by revoking his probation. The court concluded that under State v. Kluttz, 9 Conn.App. 686, 521 A.2d 178 (1987), General Statutes § 14-227a constituted a "criminal law" for purposes of the defendant's probation. Accordingly, the court revoked his probation and reinstated the suspended portion of his original sentence. This appeal followed.

The defendant raises four intertwined claims: (1) the court violated his due process rights by adding a condition of probation without notice to him; (2) the court abused its discretion in finding that he violated a criminal law; (3) the defendant did not violate any criminal law; and (4) the court reached conclusions contrary to the evidence. Although the defendant purports to raise these four separate claims, he did not brief or argue them separately.

We first note that, despite the defendant's purported claim that the court reached conclusions contrary to the evidence, he does not challenge the court's factual finding that he operated a motor vehicle while under the influence of liquor. Nor does he argue that the court abused its discretion in revoking his probation because revocation and commitment were, under the factual circumstances of this case, disproportionate remedies for the nature of his violation. The linchpin of his claim is that, because under State v. Kluttz, supra, operating [22 Conn.App. 111] a motor vehicle in violation of General Statutes § 14-227a is a motor vehicle violation and not a crime, his probation was invalidly revoked. We disagree.

In Kluttz, we held that, for purposes of the statutory definitions set forth in General Statutes § 53a-24(a), [2] negligent homicide with a motor vehicle in violation of General Statutes § 14-222a is a "motor vehicle violation" and not an "offense" or "crime." Id., at 693, 521 A.2d 178. On the basis of the same analysis, we conclude that for purposes of General Statutes § 53a-24(a), § 14-227a is a motor vehicle violation and not a "crime." That conclusion, however, does not resolve this case.

The issue confronting this court in Kluttz was whether General Statutes § 14-222a, negligent homicide with a motor vehicle, was a lesser included offense of General Statutes § 53a-57, misconduct with a motor vehicle, for purpose of the lesser included offense doctrine. We concluded that even though negligent homicide with a motor vehicle was not a crime for purposes of General Statutes § 53a-24(a), it was an offense for purposes of the lesser included offense doctrine. We reasoned that "[w]hat may or may not be a criminal offense for purposes of a particular statutory categorization is not necessarily determinative of whether it is a criminal offense for purposes of the lesser included offense doctrine. See, e.g., Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) (traffic violation may be an 'offense' for purposes of double jeopardy analysis). Whether the lesser included offense doctrine should apply to include a transgression of the [22 Conn.App. 112] law which the legislature has categorized for certain purposes as noncriminal depends, not on that categorization, but on the functions and purposes of the doctrine itself." Id., 9 Conn.App. at 699, 521 A.2d 178.

Similarly, whether the particular transgression of the law invoked here, which the legislature has deemed to be noncriminal for purposes of General Statutes 53a-24(a), should be regarded, nonetheless, as criminal for purposes of a condition of probation, depends not on that categorization but on the functions and purposes of probation. Those functions and purposes lead us to conclude that, under

Page 702

the facts of this case, a violation of General Statutes ยง 14-227a was, for purposes of the defendant's conditions of probation, a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.