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Rule 38 – Stay of Execution

May 14, 2021 | Criminal Procedure, Vermont

(a) Imprisonment. A sentence of imprisonment upon conviction of a misdemeanor not involving an act of violence against another person shall be stayed pending the expiration of the time allowed for filing notice of appeal and pending appeal, if the defendant elects not to commence service of the sentence and is released in accordance with Rule 46(c) of these Rules and Rule 9(b) of the Vermont Rules of Appellate Procedure.
(b) A sentence of imprisonment on conviction of a misdemeanor involving an act of violence against another person or a felony may be stayed in the discretion of the court pending the expiration of the time allowed for filing notice of appeal or pending appeal if an appeal is taken from the conviction. In exercising its discretion under this subsection, the court shall consider the following factors:

(1) Potential danger posed by the defendant to the community and to individuals.
(2) The type of offense committed.
(3) The length of sentence imposed.
(4) The defendant’s prior criminal record.
(5) The defendant’s record of appearance at judicial proceedings.
(6) The likelihood that the defendant will prevail on appeal.
(7) The defendant’s conduct since commission of the offense.
(8) Any other relevant information.

The decision of the court shall be in writing or on the record in open court and shall state the basis for the decision.

(c) Fine. A sentence to pay a fine, if an appeal is taken, shall be stayed upon such terms as the court deems proper. The court may require the defendant pending appeal to deposit the whole or any part of the fine with the clerk, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating assets.
(d) Probation.

(1) An order placing the defendant on probation may be stayed if an appeal is taken. If the order is not stayed, the court shall specify when the term of probation shall commence. If the order is stayed, the court shall set conditions of release as provided in Rule 46(c).
(2) Notwithstanding any stay granted under this section, an order sentencing a defendant to a term of imprisonment upon a violation of probation shall not be stayed pending appeal if the court finds that the violation of probation constituted a threat to public safety.

Vt. R. Crim. P. 38

Amended Dec. 19, 1973, eff. Jan. 1, 1974; 1993, No. 95, ยง4.