State v. Sinclair , 184 Conn. 215 ( 1981 )

184 Conn. 215 (1981)

STATE OF CONNECTICUT
v.
JOHN D. SINCLAIR

Supreme Court of Connecticut.

Argued April 8, 1981. Decision released May 12, 1981.

BOGDANSKI, C. J., PETERS, HEALEY, PARSKEY and ARMENTANO, JS.

Donald D. Dakers, assistant public defender, for the appellant (defendant).

Roland D. Fasano, assistant state's attorney, with whom, on the brief, was Arnold Markle, state's attorney, for the appellee (state).

PER CURIAM.

The sole issue on this appeal is whether an information charging the defendant with being a persistent felony offender in violation of General Statutes § 53a-40 (b)^[1] is sufficient even though it does not allege that the defendant was imprisoned as a result of his prior felony conviction. On September 26, 1979, the defendant was convicted after a jury trial of third degree burglary and third degree larceny. Third degree burglary is a class D felony. General Statutes §§ 53a-103, 53a-103a.

The day after his conviction the defendant pleaded not guilty to part II of the information alleging that he was a persistent felony offender. He elected a court trial. Part II of the information stated in pertinent part that "on or about the 24th day of June 1977, the said John D. Sinclair was convicted of the crime of Burglary, 3rd Degree, and sentenced to an imposed term of more than one year in State Prison in violation of Section 53a-40 of the General Statutes." Pursuant to the defendant's request, the information was amended prior to trial to specify that the state was proceeding under subsection (b) of § 53a-40. At the conclusion of the evidence, the defendant moved for a judgment of acquittal, claiming that the information was fatally defective because it failed to allege imprisonment as a result of the prior felony conviction.

Although a persistent felony offender charge is not a separate crime; State v. Perkins, 169 Conn. 263, 265, 363 A.2d 141 (1975); under our practice it must be alleged in a separate part of the information which alleges the principal crime with which the defendant is charged. State v. Lewis, 176 Conn. 270, 272-73, 407 A.2d 955 (1978); State v. LaSelva, 163 Conn. 229, 232-33, 303 A.2d 721 (1972). Whether the defendant is to be subject to the enhanced punishment which follows from an adjudication that he is a persistent felony offender; see General Statutes § 53a-40 (i); is an issue resolved in a separate judicial proceeding. See State v. Grady, 153 Conn. 26, 32-33, 211 A.2d 674 (1965). The state has the burden of proving beyond a reasonable doubt the elements essential to establish that the defendant is a persistent felony offender. See id. In testing the legal sufficiency of the information, therefore, we look to the standards which apply to other criminal informations.

In the present case the defendant does not claim that any defect in the information resulted in either prejudicial surprise or an inability to prepare a defense. See State v. Ramos, 176 Conn. 275, 277-78, 407 A.2d 952 (1978). Nor is it claimed that actual imprisonment for more than one year, the aspect of the charge which was not alleged in the information, was not adequately proved at trial. The defendant's sole claim is that the information was fatally defective because it failed to allege actual imprisonment.

The record before us indicates that the defendant never moved to dismiss the information; Practice Book §§ 808, 815 (2); never made a request for essential facts; Practice Book § 625; see J. Freedman, "An Analysis of Connecticut's New Rules of Criminal Procedure," 50 Conn. B.J. 254, 258-59 (1976); and never sought a bill of particulars. Practice Book §§ 830 through 833. Thus the defendant never sustained his burden of requesting a complete statement of facts. See State v. Coleman, 167 Conn. 260, 276, 355 A.2d 11 (1974) (Bogdanski, J., concurring). Under these circumstances he may not now rely on a purported defect in the information to secure a reversal.

There is no error.

NOTES

[1] General Statutes § 53a-40 (b) provides: "(b) A persistent felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) and the prior conviction was for a crime other than those enumerated in subsection (a)."