In State v. Patricia Kane, 2016 VT 121 (Nov. 22, 2016) the Court reviewed an appeal regarding the denial of bail for a probationer, when she had committed no new crime, but had violated the terms of her probation. The Court held that probationer could not be held without bail because she was within the exception created by the Legislature in 28 V.S.A. § 391(4) and therefore could not be held without bail pending a hearing.
Issue: Probationer/Defendant’s original crime in 2014 was of custodial interference under 13 V.S.A. § 2451, a non-violent crime, and she was not charged with endangering the child in any way. In 2016, her probation officer filed a probation complaint alleging that Defendant had violated four terms of her probation, including not reporting a change in address, violating her curfew on three occasions, and not properly charging her electronic monitoring device. The officer’s affidavit also stated that Defendant had made comments to a third party that “What happened with Jody Herring is understandable” and comments to the local police that she did not feel safe and did not care if she lived, died, or went to jail. Taking these statements as a threat to herself or others, the probation officer requested that, in light of the prior violations, her probation be revoked. The next day, the State asked that she be held without bail, pending a revocation hearing, and cited a concern that Defendant would not appear in court as required, and was a risk to herself or others.
Holding: Defendant seeks review based on a 2010 statutory change. The legislature modified defendants’ right to bail in 2010, creating an exception to the rule that there is no right to bail: “There shall be no right to bail or release, unless the person is on probation for a nonviolent misdemeanor or nonviolent felony and the probation violation did not constitute a new crime.” Defendant in this case argues that she is entitled to bail under this exception because her original crime was a non-violent felony, not involving the sexual exploitation of children, and her probation violations were not new crimes. The Court agreed with Defendant, reversing and remanding the case to the trial court, and held that this statute does not give the trial court discretion to hold a defendant without bail when she meets the provisions under the statutory exceptions of 28 V.S.A. § 391(4).