In Re Ovitt

229 A.2d 243 (1967)

In re Herbert E. OVITT.

No. 494.

Supreme Court of Vermont. Essex.

April 4, 1967.

Herbert E. Ovitt, pro se.

Chester S. Ketcham, Sp. Counsel for Atty. Gen., Middlebury, for the State.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

PER CURIAM.

While the appeal in State v. Ovitt, Vt., 229 A.2d 237, was pending, the respondent appellant presented a motion to vacate his sentence. The motion was brought under the provisions of 13 V.S.A. § 7131 (1966, No. 41 § 1a). It attacks the validity of the information, claiming the Deputy Attorney General was without lawful authority to institute the prosecution. This point is considered in the appeal from his conviction.

The Essex County Court denied the motion because of the pending appeal, ruling that all of the issues presented were available on direct review by this Court. The statute, upon which the petitioner acted, cannot do service as an appeal. The order dismissing the petition is well founded. In re Rickert, 124 Vt. 232, 235, 203 A.2d 602.

Order affirmed.