The Vermont Statutes Online

Title 12: Court Procedure

Chapter 143: Habeas Corpus

• § 3951. Unlawful restraint

  A person shall not be restrained or imprisoned unless by authority of law.

• § 3952. Prisoners entitled to writ of habeas corpus

  A person imprisoned in a common jail, or the liberties thereof, or otherwise restrained of his or her liberty by an officer or other person, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and obtain relief therefrom if it is unlawful.

• § 3953. Authority to grant writ; complaint

  Such writ may be granted by a Superior judge, or by Superior Court during its sitting, in the county where such person is imprisoned, on application by complaint in writing signed by the party for whose relief it is intended or by some person in his or her behalf, stating the person by whom and the place where the party is imprisoned or restrained, naming the prisoner and the person detaining him or her, if their names are known, and describing them, if they are not known, and stating also the cause or pretense of such imprisonment or restraint, according to the knowledge and belief of the person applying. The petitioner or the State may appeal from the decision on the petition to the Supreme Court under chapter 102 of this title. (Amended 1966, No. 41 (Sp. Sess.), § 4, eff. March 12, 1966; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

• § 3954. Copy of process annexed to complaint

  When the imprisonment or restraint is by virtue of a warrant or other process, a copy thereof shall be annexed to the complaint, or it shall appear that copy thereof has been demanded and refused, or that for sufficient reason a demand of such copy could not be made.

• § 3955. Complaint to be sworn to

  The facts set forth in the complaint shall be verified by the oath of the person making the application or by that of some credible witness. Such oath may be administered by the court or magistrate to whom the application is made, or a Superior judge. (Amended 1965, No. 194, § 10, eff. July 1, 1965, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 27, eff. April 9, 1974.)

• § 3956. Issue and return of writ

  Without delay, such court or magistrate shall award and issue a writ of habeas corpus, which shall be made returnable forthwith.

• § 3957. Signing of writ

  When the writ is issued by the Superior Court, it shall be signed by the clerk, otherwise by the magistrate issuing the same. (Amended 1966, No. 41 (Sp. Sess.), § 5, eff. March 12, 1966; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

• § 3958. Return after court adjourns; procedure

  When the court to which the writ is returnable adjourns before it is returned, the return shall be made before one of the Justices of the Supreme Court. If the writ is in any case returned before one Justice or judge when the court is in session, he or she may adjourn the case into the court, to be there heard and determined as if the writ had been returned into the same court.

• § 3959. Designation of person to be served

  The person having the custody of the prisoner may be designated by his or her official title, if he or she has any, or by his or her name. If such title or name is unknown or uncertain, he or she may be described by an assumed appellation. Any one upon whom the writ is served shall be deemed the person intended thereby.

• § 3960. Designation of prisoner

  The prisoner to be produced shall be designated by his or her name, if known, and if that is unknown or uncertain, he or she may be otherwise described so as to make known who is intended.

• § 3961. Pay for transporting prisoner

  When the prisoner is confined in a common jail, or in the custody of a civil officer, the court or magistrate issuing the writ shall certify thereon the sum to be paid for bringing him or her from the place of imprisonment. The officer to whom the writ is directed shall not be bound to obey it, unless such sum is paid or tendered to him or her.

• § 3962. When a person to be served is not an officer

  In cases of imprisonment by a person not an officer of the State or of the courts of the United States, the writ shall be directed to a sheriff or his or her deputy, commanding him or her to take and have the person imprisoned before the court or magistrate granting the writ, immediately after the receipt thereof, and summon the person by whom such prisoner is restrained to appear before such court or magistrate and show the cause for taking and detaining such prisoner.

• § 3963. Receipt and return of writ; notice to State’s Attorney or Attorney General

  A person to whom the writ is directed shall receive the same and, upon payment or tender of the charges demandable for its execution, shall make return thereof forthwith. In case a person is restrained of his or her liberty by reason of a court sentence to a penal institution the judge may, in his or her discretion, order such other or further notice be given to the State’s Attorney of the county in which the prisoner was convicted or to the Attorney General as he or she deems reasonable.

• § 3964. Return of statement as to custody and authority

  In cases other than those provided for in section 3962 of this title, the person who makes the return shall state therein, and, in the cases provided for in such section, the person in whose custody the prisoner is found shall state, in writing, to such court or magistrate, plainly and unequivocally, whether he or she has or has not the prisoner in his or her custody or power or under restraint. If he or she has him or her in his or her custody or power or under restraint, he or she shall set forth at large the authority and the true and whole cause of such imprisonment or restraint, with a copy of the writ, warrant, or other process, if any, upon which he or she is detained. If he or she has had him or her in his or her custody or power or under restraint and has transferred such custody or restraint to another, he or she shall state particularly to whom, at what time, for what cause and by what authority such transfer was made.

• § 3965. Return to be signed and sworn to; exception

  The return or statement shall be signed by the person making it, and shall be sworn to by him or her unless he or she is a sworn public officer and makes the return in his or her official capacity.

• § 3966. Prisoner brought unless sick

  The person who makes the return or statement, at the same time, shall bring the prisoner, if in his or her custody or power or under his or her restraint, according to the command of the writ, unless prevented by the sickness or infirmity of such prisoner.

• § 3967. Examination in case of sick prisoner

  When the prisoner cannot be brought to the place appointed for the return of the writ, without danger, because of his or her sickness or infirmity, that fact shall be stated in the return. When such fact is provided to the satisfaction of such court or magistrate, he or she may proceed to the jail or other place where the prisoner is confined and there make an examination or adjourn the hearing to another time or make such order in the case as law and justice require.

• § 3968. Examination; time; adjournment

  When the writ is returned, such court or magistrate, without delay, shall examine the causes of imprisonment or restraint; but the examination may be adjourned from time to time.

• § 3969. Notice of examination

  When it appears that the prisoner is detained on a process under which another person has an interest in continuing his or her imprisonment or restraint, he or she shall not be discharged until sufficient notice has been given to such other person, or his or her attorney, if within the State, to appear and object to such discharge.

• § 3970. Prisoner charged with crime, notice to State’s Attorney

  When it appears that the prisoner is imprisoned on a criminal accusation, he or she shall not be discharged until sufficient notice is given to the State’s Attorney, whose duty it is to prosecute for such offense, to appear and object to such discharge.

• § 3971. Pleading; hearing

  The prisoner may deny any of the facts set forth in the return or statement and may allege other material facts. Such court or magistrate may examine the causes of the imprisonment or restraint in a summary manner and hear the evidence produced by any person interested or authorized to appear, in support of or against such imprisonment or restraint.

• § 3972. Discharge; decision and record

  When legal cause is not shown for the imprisonment or restraint, such court or magistrate shall discharge the person therefrom. The petition for a writ of habeas corpus heard by a court or magistrate, together with the decision thereon in writing, shall be returned for record to the office of the county clerk of the county in which the person is alleged to be restrained or confined, or, if restrained upon process issuing from a court, into the clerk’s office in the county where such court is held. Such proceedings shall be docketed and properly indexed, and the same, together with the decision thereon, recorded in the same manner as other judgments of such court.

• § 3973. Bail

  When the prisoner is detained for a bailable cause or offense, such court or magistrate shall admit him or her to bail, if a sufficient amount thereof is offered, and if not, shall remand him or her with an order fixing the sum in which he or she shall be held to bail, and the court at which he or she shall be required to appear. A judge of the Superior Court in the county where such prisoner is confined may admit him or her to bail pursuant to such order before the sitting of such court. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

• § 3974. Remand of prisoner

  When the prisoner is lawfully imprisoned or restrained or is not entitled to be released on bail, he or she shall be remanded to the person from whose custody he or she was taken or to such other person or officer as by law is authorized to detain him or her.

• § 3975. Custody pending judgment

  Until the judgment is given, such court or magistrate may remand the prisoner, admit him or her to bail to appear from day to day, commit him or her to the custody of the sheriff of the county, or place him or her under such other care and custody as the circumstances of the case require.

• § 3976. Refusal to receive or obey and execute writ—Contempt proceedings

  When a person to whom a writ of habeas corpus is directed refuses to receive the same, or does not obey and execute it, unless sufficient excuse therefor is shown, such court or magistrate shall compel obedience to the writ and punish the person guilty of the contempt forthwith, by process of attachment as for contempt.

• § 3977. Precept to another officer or person

  Upon such refusal or neglect, such court or magistrate may also issue a precept to an officer or other person, to be designated therein, commanding him or her to bring forthwith before such court or magistrate the person for whose benefit the writ of habeas corpus was issued. The prisoner shall be thereupon discharged, bailed, or remanded, in like manner as if he or she had been brought in on habeas corpus.

• § 3978. Penalty for not executing writ

  A person neglecting or refusing to receive and execute a writ of habeas corpus shall forfeit to the person aggrieved $400.00, to be recovered in an action of tort on this statute.

• § 3979. Confinement for contempt—Issuance and return of writ

  When a person disobeys the order, decree, judgment, or process of a court or a magistrate thereof, or is guilty of a contempt of such court or magistrate, and in consequence is imprisoned or confined by the order or judgment of such court or magistrate, such person shall be entitled to his or her writ of habeas corpus, returnable to the Supreme Court.

• § 3980. Discharge of person confined for contempt

  When it appears on the hearing upon such writ that such disobedience or contempt was committed through ignorance, mistake, or misapprehension, or by acting in good faith under the advice of counsel, and that relief may be granted without impairing the rights of the parties concerned or the due administration of law, the Supreme Court may discharge such person from such imprisonment or confinement upon such terms as seem just.

• § 3981. Bond

  The Supreme Court may order the person bringing such writ to file a bond with the Clerk of the Court, in such sum and with such sureties and conditions as it directs, to be given to the Clerk of the Court or to such person as the Court designates in the order, and may further order that, upon filing such bond, the person may go at large. The bond may be prosecuted for the benefit of any party interested.

• § 3982. Penalty for attempting to elude service

  Whether a writ has been issued or not, a person who has in his or her custody or under his or her power a prisoner entitled to a writ of habeas corpus, and who, with intent to elude the service of such writ or to avoid the effect thereof, transfers such prisoner to the custody, or places him or her under the power or control of another person, or conceals him or her or changes the place of his or her confinement, shall forfeit to the person aggrieved $400.00, to be recovered in an action of tort on this statute.

• § 3983. Recovery of penalty not bar to further suit

  The recovery of a penalty imposed by this chapter shall not be a bar to an action for false imprisonment or for a false return to the writ of habeas corpus or for damages.

• § 3984. Imprisonment for same cause after discharge

  A person who has been discharged upon habeas corpus shall not be imprisoned or restrained again for the same cause, unless he or she is indicted therefor or convicted thereof, or does not find bail as ordered by a court of record or unless, after a discharge for a defect of proof or for material defect in the commitment in a criminal cause, he or she is again arrested on sufficient proof and committed for the same offense.

• § 3985. Habeas corpus to bring respondent or witness into court

  Nothing in this chapter shall prevent a court from issuing a writ of habeas corpus, when necessary, to bring before it a prisoner for trial in a criminal cause pending in the court, or to be surrendered in discharge of bail, or examined as a witness in any action or proceeding, civil or criminal, pending in such court, when the personal attendance and examination of the witness is necessary in the administration of justice.