State v. Cady ( 1978 )

Larrow, J.

Respondent was charged with operating a motor vehicle after his right or license to operate had been suspended by the Commissioner of Motor Vehicles, and before reinstatement, in violation of 23 V.S.A. § 674(a). The trial court found that respondent had never had a driver’s license, despite notices of purported suspension thereof issued by the District Court and by the Commissioner following a previous conviction for driving under the influence. It certified to us, before final judgment, two questions relating to the propriety of the charge and the procedures used in suspending for failure to furnish proof of financial responsibility. We do not regard response to these questions as required, because a judgment of acquittal is clearly required upon the facts found by the trial court.

Whatever notices may have issued from the court upon his first conviction, or following that from the Commissioner of Motor Vehicles, the simple fact is that this respondent never had a license or right to operate a motor vehicle in Vermont. There was never anything for anyone to suspend or to reinstate. The charge of operating after his license or right to operate was suspended and before reinstatement is another instance of the prosecutorial “overkill” we have called attention to repeatedly. His obvious offense was operating without a license, and an appropriate information would have saved all parties concerned much time and trouble.

The cause is remanded to the District Court for entry of judgment of acquittal.