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State v. Glenn Curtis, corrected 11-30-98
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 254
Docket:	Cum-98-136
Submitted on 
Briefs:		October 28, 1998
Decided:	November 25, 1998

PANEL:WATHEN, C.J., and  CLIFFORD,  RUDMAN,  DANA, SAUFLEY,  ALEXANDER,
and CALKINS, JJ.

STATE OF MAINE v. GLENN CURTIS


ALEXANDER, J.

	[¶1]  	Glenn Curtis appeals from a decision of the Superior Court
(Cumberland County, Crowley, J.) which (1) affirmed his conviction for
assault, 17-A M.R.S.A. § 207 (1983 & Supp. 1997), (2) vacated his
conviction for harassment by characteristics, 17 M.R.S.A. § 2931 (Supp.
1997), and (3) vacated the sentence imposed and remanded to the District
Court for resentencing on the assault charge.  Because there is no final
judgment following resentencing in the District Court, we dismiss this
interlocutory appeal.
	[¶2]  	As we have often stated, where, as here, the Superior Court acts
as an intermediate appellate court, our review on further appeal is a direct
review of the District Court judgment.  State v. Richford, 519 A.2d 193, 195
(Me. 1986).  Because of the remand for resentencing, there is no final
District Court judgment upon which to base an appeal to this Court.
	[¶3]  	In our rules governing, respectively, appeals to the Superior
Court, Rule 36(c) M.R. Crim. P., and appeals from the Superior Court to this
Court, Rule 37(c) M.R. Crim. P., we set the standard for finality and
appealability:
A judgment or order is entered within the meaning of this
paragraph when it is entered in the criminal docket.  A notice of
appeal filed after verdict or finding of guilty but before entry of
judgment shall be treated as filed on the day of entry of
judgment.
M.R. Crim. P. 36(c); M.R. Crim. P. 37(c).
	[¶4]  	Judgment is considered to occur when a sentence imposed is
entered on the criminal docket, State v. Willette, 402 A.2d 476, 477 (Me.
1979).  The above-cited rules, and Willette, recognize that a notice of appeal
filed prematurely before sentencing and judgment may be deemed filed at
the time of judgment.  But sentencing and judgment still must occur before,
not after, consideration of the appeal.  A criminal case must have proceeded
to final judgment before this court will review a defendant's claims of error. 
State v. Lydon, 450 A.2d 485, 486 (Me. 1982); see also State v. Bassford,
440 A.2d 1059, 1061-1062 (Me. 1982).
	[¶5]  	There are certain exceptions to the general prudential practice
of barring interlocutory appeals in criminal cases.  Thus, where double
jeopardy is an issue or in other instances "when substantial rights of a party
will be irreparably lost if review is delayed until final judgment" this Court
may entertain interlocutory appeals.  State v. Savard, 659 A.2d 1265, 1266
(Me. 1995); (quoting State v. Hanson, 483 A.2d 723, 724 (Me. 1984)); see
also State v. LeBroke, 589 A.2d 941, 942 (Me. 1991).
	[¶6]  	No such substantial rights would be lost by awaiting final
judgment, after sentencing, in this case.  The principal issues in this case
developed from a sentencing disagreement.
	[¶7]  Originally, at arraignment, the defendant and the State worked
out an agreement where, in exchange for a plea, the defendant would pay a
small fine and serve no jail time.  On the appointed date for trial the State
revoked its offer because, in the State's view, the defendant had not
complied with the conditions of the offer.  The matter was then continued
and ultimately tried before the District Court (Portland, MacNichol, J.) with
the resulting convictions and a sentence which included jail time.  From
those convictions, the defendant appealed to the Superior Court which led
to the remand for resentencing on the assault charge.
	[¶8]  It is conceivable that, upon resentencing, the defendant could
receive a sentence that would be consistent with his original plea bargain
offer.  Then there would be no need for any further proceedings.  This
possibility demonstrates the validity of a cautious approach of allowing
interlocutory appeals only where substantial rights may be irreparably lost
and a firm position of requiring sentencing and final judgment before
appeals may be considered on the merits in the great majority of cases.
	[¶9]  In the last century, refusing to hear an interlocutory appeal, our
predecessors observed:
If the case be sent to us once in this way, there is no reason why
it could not come up in the same way over and over again upon
motions possible to be made.
State v. Brown, 75 Me. 456, 457 (1883).  That observation remains good
advice today.
	[¶10]  The actions of the trial court about which the defendant
complains, denial of his delayed request for a jury trial and alleged improper
burden shifting, may be fully considered without any prejudice to the
defendant, after he elects whether to appeal from any sentence that may be
imposed on remand.
	The entry is:
Appeal dismissed.  Remanded to the Superior
Court for remand to the District Court for
imposition of sentence and entry of final
judgment.

Attorneys for State: Stephanie Anderson, District Attorney Deborah Chmielewski, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: William R. Savage, Esq. P O Box 223 Portland, ME 04112