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trialverdictmotionoverruled
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State v. Deso, 110 Vt. 1, 1 A.2d 710

Facts

Donald Deso and Warren Rich planned to rob a store in Burlington after returning from St. Albans. They entered a variety store owned by Michael Mangini, where Rich attempted to rob Mangini at gunpoint while Deso took money from the cash register. The two fled but were later apprehended. Deso's defense included a motion for a directed verdict, which the court did not rule on before allowing the State to enter a nolle prosequi.

The first count of the information in this case charges that “Donald Deso — on — at — did then and there unlawfully, wilfully and feloniously assault Michael A. Mangini and then and there rob, steal and take from the said Mangini, Thirty–two ($32.00) Dollars, of the lawful money of the United States, then and there the subject of larceny, then and there being armed with a dangerous weapon, to wit, a revolver, with intent to maim the said Mangini, if he, the said Mangini then and there had resisted ***.” The second count is for aiding and abetting Warren Rich in the commission of this offense.

Issue

Did the trial court err in failing to rule on Deso's motion for a directed verdict and in permitting the State to enter a nolle prosequi?

Did the trial court err in failing to rule on Deso's motion for a directed verdict and in permitting the State to enter a nolle prosequi?

Rule

An indictment or information charging the highest degree of an offense includes the lower degrees, and a nolle prosequi does not bar further prosecution for the same offense.

An indictment or information charging the highest degree of an offense includes the lower degrees, and a nolle prosequi does not bar further prosecution for the same offense.

Analysis

The court analyzed the evidence presented and determined that while the highest charge of felonious assault with intent to maim was not proven, the evidence was sufficient to support lesser charges such as robbery and simple assault. The court emphasized that the entry of a nolle prosequi was within the discretion of the court and did not preclude future prosecution for the same offenses.

The court analyzed the evidence presented and determined that while the highest charge of felonious assault with intent to maim was not proven, the evidence was sufficient to support lesser charges such as robbery and simple assault. The court emphasized that the entry of a nolle prosequi was within the discretion of the court and did not preclude future prosecution for the same offenses.

Conclusion

The court overruled Deso's exceptions, affirming the trial court's decision to allow the State to enter a nolle prosequi and concluding that further prosecution was not barred.

Exceptions overruled.

Who won?

The State prevailed in the case as the court upheld the entry of a nolle prosequi and allowed for the possibility of future prosecution.

Exceptions overruled.

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