State v. Hemingway, 196 Vt. 441 (2014)

Citation: State v. Hemingway, 196 Vt. 441 (2014)
Parent Document: State v. Hemingway, 196 Vt. 441 (2014)
Jurisdiction: Vermont (state)
Effective Date: 2014-05-09
Original Source: https://www.courtlistener.com/opinion/2673207/state-v-hemingway/ ↗

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¶ 11.        
The statute at issue provides that a defendant who is placed on
probation “shall be given a certificate explicitly setting forth the conditions
upon which he or she is being released.”  28 V.S.A. § 252(c). 
Generally, the imperative “shall” indicates that the provision is
mandatory.  See In re Green, 2006 VT 88, ¶ 2, 180 Vt. 597, 908
A.2d 453 (mem.).  Accordingly, § 252(c) mandates that a defendant
receive a certificate detailing his or her conditions of probation; however,
the statute does not provide an explicit consequence for the failure to comply
with its terms.  The issue, therefore, is the correct remedy for statutory
noncompliance, as it is undisputed that defendant in this case did not receive
the requisite certificate.  As detailed below, we are persuaded by
defendant’s arguments that the trial court’s failure to comply with the
statutory requirement makes the condition unenforceable.

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