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State v. Powers12/26/2001
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
The Department of Corrections appeals the judgment of the district court denying its motion to amend the court's probation order with respect to defendant, Jason Powers. The Department contends that the trial court erroneously concluded that, notwithstanding 28 V.S.A. § 102(b)(12) (granting the Commissioner of Corrections the power to contract with private collection agencies for the collections of fines, penalties and restitution imposed under Title 13), it may order defendant in this case to pay a fine imposed as a condition of probation directly to his probation officer in cash. The Department argues that the court's conclusion is at odds with the doctrine of separation of powers. We affirm.
Defendant was convicted in January 1998 of driving with a suspended license in violation of 23 V.S.A. § 674. He was sentenced to zero-to-two years, with all but two days suspended, and placed on probation. As part of his conditions of probation, defendant was required to pay a fine of $1500. In November 2000, the State charged him with violating this condition of probation. A hearing was scheduled for December 8, 2000.
The day of the hearing, the State and defendant reached an agreement to dismiss the violation-of-probation complaint and reduce defendant's fine to five hundred dollars. The trial court entered a modified probation order reducing the fine to five hundred dollars and providing specifically that defendant was to pay this amount directly to his probation officer in cash in monthly installments of no less than fifty dollars.
On December 18, 2000, the Department of Corrections filed a motion to amend the order, seeking to strike the portion specifying that defendant's payments be made directly to his probation officer in cash and to replace it with a provision ordering payment "to the collection agency to which efendant is directed by his probation officer." The Department argued that this was required to conform with the provisions of 28 V.S.A. § 102(b)(12), as well as Policy 208 and Directive 208.1 promulgated by the Department under § 102(b)(12). The trial court denied the motion. The Department now appeals to this Court.
The Department argues that the trial court's refusal to amend the order violates the separation of powers doctrine "by intruding upon the province of the legislative and executive branches." We need not reach such weighty constitutional issues to decide this case, for we discern no conflict between § 102(b)(12) and a trial court's traditional responsibility to impose individual conditions of probation for the purpose of supervision of offenders released on probation. See 28 V.S.A. § 205(a) (allowing trial court to suspend all or part of a sentence and place defendant on probation with conditions); id. at § 252(a) ("The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist him to do so.") (emphasis added); State v. Moses, 159 Vt. 294, 301, 618 A.2d 478, 482 (1992) ("the Legislature placed the power to impose probation conditions on the court"); State v. Bubar, 146 Vt. 398, 405, 505 A.2d 1197, 1202 (1985) (noting that trial courts have great discretion in setting conditions of probation).
At the time the Department made its motion, § 102(b)(12) provided:
(b) The commissioner [of the Department of Corrections] is charged with the following powers:
(12) To enter into contracts with private collection agencies for the collection of supervisory fees imposed by this title and fines, penalties and restitution
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