*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
STATE OF CONNECTICUT v. JACQUI SMITH

(AC 38832)

DiPentima, C. J., and Sheldon and Mihalakos, Js.

Syllabus

The defendant, who had been on probation in connection with his conviction

of certain drug related offenses, appealed to this court from the judgment

of the trial court revoking his probation and imposing a sentence of

five years incarceration. The defendant was arraigned on a violation of

probation charge after the police had observed him driving a motor

vehicle while his driver’s license was under suspension in violation of

the applicable statute (§ 14-215 [a]). Thereafter, the defendant moved

to dismiss the probation violation charge on the ground that a hearing

did not occur within 120 days of his arraignment in violation of the

statute (§ 53a-32 [c]) pertaining to violation of probation, which the trial

court denied. Subsequently, the court found, by a preponderance of the

evidence, that the defendant had wilfully violated the terms and condition of his probation, and that the beneficial aspects and purposes of

probation were no longer being served. In addition to finding that the

defendant had violated his probation by violating § 14-215 (a), the court

also found that he had violated certain other conditions of his probation

regarding reporting his whereabouts to his probation officer. Held:

1. The defendant could not prevail on his claim that, pursuant to § 53a-32

(c), the trial court improperly denied his motion to dismiss the violation

of probation charge because the plain language of § 53a-32 (c) establishes a mandatory time period, 120 days from the arraignment, in which

the probation violation hearing must occur, and the state failed to establish good cause for extending that time period; this court previously

has determined that the 120 day limitation of § 53a-32 (c) is advisory

and not jurisdictional in nature, as neither the text of § 53a-32 (c) nor

the legislative history concerning the addition of the 120 day language

to the statute indicated that that time period implicated the subject

matter jurisdiction of the trial court, our Supreme Court also has concluded that the 120 day time limitation was a guideline that was advisory,

and not mandatory, on the trial court, and this court was not at liberty

to disregard the decisions from our Supreme Court or the decisions

from another panel of this court.

2. The evidence was insufficient to prove that the defendant had operated

a motor vehicle while his driver’s license was under suspension in

violation of § 14-215 (a), as the state did not produce any evidence that

the Department of Motor Vehicles had mailed a notice of suspension

to the defendant’s last known address, which is a necessary element

for a violation of that statute; moreover, because the trial court expressly

relied on the violation of § 14-215 (a) in sentencing the defendant to

five years incarceration, the defendant was entitled to a new sentencing hearing.

Argued October 11—officially released December 19, 2017

Procedural History

Information charging the defendant with violation of

probation, brought to the Superior Court in the judicial

district of Fairfield, where the court, Devlin, J., denied

the defendant’s motion to dismiss; thereafter, the matter

was tried to the court, Kavanewsky, J.; judgment revoking the defendant’s probation, from which the defendant appealed to this court. Reversed in part; further

proceedings.

Laila M. G. Haswell, senior assistant public defender,

for the appellant (defendant).

Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were John C. Smriga,

state’s attorney, and C. Robert Satti, Jr., supervisory

assistant state’s attorney, for the appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Jacqui Smith,

appeals from the judgment of the trial court revoking

his probation and sentencing him to five years incarceration. The defendant claims that (1) the court improperly denied his motion to dismiss the probation violation

charge on the basis that the hearing did not occur within

120 days of his arraignment in violation of General

Statutes § 53a-32 (c) and (2) the evidence was insufficient to prove that he had operated a motor vehicle

while his driver’s license was under suspension in violation of General Statutes § 14-215 (a) and, therefore,

he is entitled to a new sentencing hearing. The state

counters that, pursuant to State v. Kelley, 164 Conn.

App. 232, 137 A.3d 822 (2016), aff’d, 326 Conn. 731, 167

A.3d 961 (2017), the 120 day time frame of § 53a-32 (c)

is directory and, additionally, that the court properly

found good cause for the delay. The state concedes,

however, that there was insufficient evidence for the

court to conclude that the defendant had violated § 14-

215 (a), and, therefore, under these facts and circumstances, the defendant is entitled to a new sentencing

hearing. We conclude that the court properly determined that the 120 day time period of § 53a-32 (c) is a

nonmandatory ‘‘guideline.’’ Further, we agree that a

new sentencing hearing is required. Accordingly, we

affirm in part and reverse in part the judgment of the

trial court.

The following facts and procedural history are necessary for our discussion. The defendant was convicted

of drug related offenses in January, 2013, and sentenced

to ten years incarceration, execution suspended after

three years, and three years of probation. He was

released from custody on April 1, 2015, and first

reported to his probation officer on April 9, 2015. During

this meeting, the probation officer reviewed the conditions of probation with the defendant.

The standard conditions of probation provided, inter

alia, that the defendant was not to violate any criminal

law of the United States or the state of Connecticut,

that he was to report as instructed to the probation

officer and that he was to inform the probation officer

if he was arrested. The specific conditions of probation

required the defendant to complete a mental health

evaluation, to complete a substance abuse evaluation

and treatment, if necessary, to obtain full-time employment and/or educational/vocational training, to attend

one ‘‘Project Safe Neighborhood Meeting’’ within the

first three months of probation and not to possess

drugs, narcotics or weapons. The defendant signed a

form listing the conditions of his probation.

On June 15, 2015, the state charged the defendant

with violating his probation. See General Statutes § 53a32 (a). It alleged that on May 25, 2015, Bridgeport police
officers observed the defendant driving a motor vehicle

and noticed that the occupants were not wearing seatbelts. After a brief investigation, the officers issued the

defendant a misdemeanor summons for operating a

motor vehicle while his driver’s license was under suspension in violation of § 14-215 (a) and without minimum insurance in violation of General Statutes § 14-

213b. The state also claimed that the defendant had

missed four appointments for an integrated mental

health and substance abuse assessment. The defendant

was arraigned on the violation of probation charge on

June 30, 2015.

On December 16, 2015, the defendant moved to dismiss the probation violation charge pursuant to § 53a32 (c). Specifically, the defendant argued that he had

‘‘been held on this charge for more than 120 days in

violation of said statute.’’ On December 21, 2015, the

court, Devlin, J., held a hearing on the defendant’s

motion. After hearing from the parties, the court ruled

as follows: ‘‘[A]s I read this statute, it is advisory. This

is a statute which advises the court of the legislature’s

concern. . . . [T]he statute does not provide that the

remedy for not having someone adjudicated on their

violation of probation case is a dismissal of the charge.

It doesn’t provide for that. . . . So, I’m going to deny

this motion to dismiss.’’

The next day, the court, Kavanewsky, J., conducted

a hearing on the probation violation charge. At the conclusion of the adjudicatory phase,1

the court found the

following facts. ‘‘The state has established that the

defendant violated the terms and conditions of his probation in several different respects, including reporting

as the probation officer directed him to, keep the probation officer advised of his general whereabouts, also

more specific conditions relating to the defendant

obtaining mental health, regarding substance abuse and

regarding attendance at, at least one project safe neighborhood meeting.’’ It further found that the defendant

had been advised of these conditions in April, 2015, but

essentially ‘‘dropped off the radar’’ in May, 2015.

The court also expressly found, on the basis of the

testimony of two police officers, that the defendant had

operated a motor vehicle in violation of § 14-215 (a)

on May 25, 2015. Accordingly, the court found, by a

preponderance of the evidence,2

that the defendant wilfully had violated the terms and conditions of his probation.

During the dispositional phase, the court determined

that the beneficial aspects and purposes of probation

were no longer being served. The court then stated:

‘‘[The defendant] was previously sentenced to ten years,

suspended after three years, with three years’ probation. The judgment previously entered is reopened.

The sentence is vacated and the defendant is sentenced

. . . to a period of five years to serve . . . .’’ This
appeal followed.

On October 4, 2016, the trial court issued a memorandum of decision further explaining the oral decision

denying the defendant’s motion to dismiss. It concluded

that our decision in State v. Kelley, supra, 164 Conn.

App. 232, was dispositive. Specifically, the court noted

that in Kelley, which had been released after the hearing

and oral decision on the defendant’s motion to dismiss,

we concluded that the 120 day limitation of § 53a-32

(c) is a ‘‘goal’’ and a ‘‘guideline,’’ not a jurisdictional

requirement. Id., 240. Additional facts will be set forth

as necessary.

I

The defendant first claims that the court improperly

denied his motion to dismiss the violation of probation

charge. Specifically, he argues that the plain language

of § 53a-32 (c) establishes a mandatory time period,

120 days from the arraignment, in which the probation

violation hearing must occur. He also contends that the

state failed to establish good cause for extending this

time period. We are not persuaded.

We begin with our standard of review. ‘‘A motion to

dismiss . . . properly attacks the jurisdiction of the

court, essentially asserting that the plaintiff cannot as

a matter of law and fact state a cause of action that

should be heard by the court. . . . [O]ur review of the

trial court’s ultimate legal conclusion and resulting

[denial] of the motion to dismiss will be de novo. . . .

Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for the

denial of a motion to dismiss, therefore, generally turns

on whether the appellant seeks to challenge the legal

conclusions of the trial court or its factual determinations.’’ (Internal quotation marks omitted.) State v.

Pittman, 123 Conn. App. 774, 775, 3 A.3d 137, cert.

denied, 299 Conn. 914, 10 A.3d 530 (2010); see also State

v. Soldi, 92 Conn. App. 849, 852–53, 887 A.2d 436, cert.

denied, 277 Conn. 913, 895 A.2d 792 (2006). The defendant also challenges the court’s interpretation of § 53a32 (c), and we consider this question of law under the

plenary standard of review. See, e.g., State v. Smith,

289 Conn. 598, 608, 960 A.2d 993 (2008).

Section 53a-32 (c) provides: ‘‘Upon notification by

the probation officer of the arrest of the defendant or

upon an arrest by warrant as herein provided, the court

shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation

charges. At such hearing the defendant shall be

informed of the manner in which such defendant is

alleged to have violated the conditions of such defendant’s probation or conditional discharge, shall be

advised by the court that such defendant has the right

to retain counsel and, if indigent, shall be entitled to
the services of the public defender, and shall have the

right to cross-examine witnesses and to present evidence in such defendant’s own behalf. Unless good

cause is shown, a charge of violation of any of the

conditions of probation or conditional discharge shall

be disposed of or scheduled for a hearing not later

than one hundred twenty days after the defendant is

arraigned on such charge.’’ (Emphasis added.)

In State v. Kelley, supra, 164 Conn. App. 239, the

defendant claimed, inter alia, that the 2008 amendment

to § 53a-32 (c) created a jurisdictional requirement that

a probation revocation hearing occur within 120 days

of the arraignment, absent good cause. We rejected that

argument for two reasons. Id. First, we noted that ‘‘[t]he

existence of the ‘good cause’ exception specified in

§ 53a-32 (c) undermines that contention, as subject matter jurisdiction is a prerequisite to adjudication that

‘cannot be waived by anyone, including [the] court.’

. . . The trial court’s ability to waive the 120 day limitation for good cause cannot be reconciled with that

fundamental precept.’’ (Citation omitted.) Id., 239–40.

Second, we noted the legislative history regarding

the 2008 enactment of the 120 day limitation demonstrated that it was intended to be ‘‘a goal, rather than a

jurisdictional bar.’’ Id., 240. Specifically, Representative

Michael P. Lawlor ‘‘distinguished the 120 day limitation

from ‘the speedy trial mechanism,’ noting that ‘the

speedy trial is a right . . . . [T]his [120 day limitation]

is not the same thing, this is basically a guideline, [a]

goal being articulated by the Legislature imposed on

the judge really to bring a case to hearing.’ ’’ Id. Lawlor

emphasized that ‘‘[t]here would be no right of the defendant to have a hearing in 120 days under [§ 53a-32 (c)]

. . . . It is advisory on the part of the Legislature

. . . .’’ (Internal quotation marks omitted.) Id., 241. In

response to a question from Representative Arthur J.

O’Neil, Lawlor stated that the only penalty for noncompliance with the 120 day limitation would be questions

that the trial judge would have to face at a future reconfirmation proceeding before the legislature. Id. Thus,

we concluded ‘‘[t]hat [the] legislative history further

persuades us that the 120 day limitation of § 53a-32 (c)

is not jurisdictional in nature.’’ Id. See also State v.

Brown, Superior Court, judicial district of New Britain,

Docket No. CR-05-0224052-S (July 5, 2012) (court concluded that 120 day period was not a right, but rather

‘‘a guideline,’’ and dismissal not appropriate remedy).

In the present case, the court held the hearing on

December 22, 2015, 175 days after the June 30, 2015

arraignment. The court initially concluded, in its oral

decision, that the 120 day limitation of § 53a-32 (c) was

advisory, and, thus, a violation of that limitation would

not require a dismissal. Following the release of our

decision in State v. Kelley, supra, 164 Conn. App. 232,

the trial court issued a memorandum of decision on
October 4, 2016. In addition to relying on Kelley for the

denial of the motion to dismiss,3

the court also found

good cause for the delay of the hearing.4

On appeal, the defendant argues that the plain language of § 53a-32 (c) establishes a mandatory, rather

than a directory,5

rule that the hearing must occur

within 120 days, absent good cause. The defendant, in

essence, urges us to ignore the judicial gloss placed on

§ 53a-32 (c) by both this court and our Supreme Court

in the Kelley decisions. See, e.g., Williams v. Commission on Human Rights & Opportunities, 257 Conn.

258, 271, 777 A.2d 645 (2001) (Supreme Court considered ‘‘well established judicial gloss’’ from prior cases

in interpreting statute). Although the specific issue in

State v. Kelley, supra, 164 Conn. App. 240–41, was

whether the 120 day limitation was jurisdictional, we

concluded that the 120 day time period was a ‘‘goal,’’

a ‘‘guideline’’ and ‘‘advisory on the part of the Legislature . . . .’’ (Internal quotation marks omitted.) Following its granting of certification to appeal, our

Supreme Court agreed, noting the legislative history

that the 120 time period of § 53a-32 (c) was ‘‘advisory

on the court’’ and did not create a right to a hearing

within that time period. (Emphasis omitted; internal

quotation marks omitted.) State v. Kelley, 326 Conn.

731, 740, 167 A.3d 961 (2017). We are not at liberty to

disregard the decisions from our Supreme Court; see

State v. Holley, 174 Conn. App. 488, 495, 167 A.3d 1000,

cert. denied, 327 Conn. 907, 170 A.3d 3 (2017); or the

decisions from another panel of this court. State v.

Jahsim T., 165 Conn. App. 534, 545, 139 A.3d 816 (2016).

Accordingly, we conclude that the trial court properly

denied the defendant’s motion to dismiss.6

II

The defendant next claims that the evidence was

insufficient to prove that he had operated a motor vehicle while his driver’s license was under suspension and,

therefore, that he is entitled to a new sentencing hearing. Specifically, he argues that the state did not produce

any evidence that the Department of Motor Vehicles

had mailed a notice of suspension to his last known

address, a necessary element for a violation of § 14-215

(a).7 The state concedes that this element was not met,

and that resentencing is required in this case. We agree

with the parties.

At the outset, we set forth our standard of review.

‘‘The law governing the standard of proof for a violation

of probation is well settled. . . . [A]ll that is required

in a probation violation proceeding is enough to satisfy

the court within its sound judicial discretion that the

probationer has not met the terms of his probation.

. . . It is also well settled that a trial court may not

find a violation of probation unless it finds that the

predicate facts underlying the violation have been

established by a preponderance of the evidence at the
hearing—that is, the evidence must induce a reasonable

belief that it is more probable than not that the defendant has violated a condition of his or her probation.

. . . In making its factual determination, the trial court

is entitled to draw reasonable and logical inferences

from the evidence. . . . Accordingly, [a] challenge to

the sufficiency of the evidence is based on the court’s

factual findings. The proper standard of review is

whether the court’s findings were clearly erroneous

based on the evidence. . . . A court’s finding of fact

is clearly erroneous and its conclusions drawn from

that finding lack sufficient evidence when there is no

evidence in the record to support [the court’s finding

of fact] . . . or when although there is evidence to

support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.’’ (Internal quotation marks

omitted.) State v. Acker, 166 Conn. App. 404, 407, 141

A.3d 938 (2016).

In State v. Valinski, 254 Conn. 107, 130, 756 A.2d

1250 (2000), our Supreme Court stated that a conviction

under § 14-215 (a) requires two elements: ‘‘(1) that the

defendant was operating a motor vehicle; and (2) that

the defendant’s license or operating privileges were

under suspension at the time.’’ (Internal quotation

marks omitted.) The second element, ‘‘suspension by

the commissioner, requires proof of compliance with

General Statutes § 14-111 (a).

‘‘[Section] 14-111 (a) does not require personal service of a notice of suspension but provides that a notice

forwarded by bulk certified mail to the address of the

person registered as owner or operator of any motor

vehicle as shown by the records of the commissioner

shall be sufficient notice to such person . . . . The

statute does not require that a defendant actually

receive notice, or that a motor vehicle department

receive a return receipt. Constructive notice by the

motor vehicle department is all that is required. . . .

The requirements of § 14-111 (a) were satisfied by a

showing of competent evidence that notice of the suspension was mailed to the defendant at his last known

address as indicated by the records of the commissioner.’’ (Citation omitted; internal quotation marks

omitted.) State v. Torma, 21 Conn. App. 496, 501, 574

A.2d 828 (1990).

In the present case, the state failed to produce any

evidence that notice of the suspension had been mailed

to the defendant at his last known address. The state

agrees that the absence of such evidence prevents a

finding that the defendant violated § 14-215 (a). The

state further agrees that the defendant is entitled to a

new sentencing hearing because the court expressly

relied on the violation of § 14-215 (a) in sentencing

the defendant to five years incarceration. See State v.

Johnson, 75 Conn. App. 643, 660–61, 817 A.2d 708
(2003).

The judgment is reversed only as to the sentence

imposed and the case is remanded with direction to

resentence the defendant; the judgment is affirmed in

all other respects.

In this opinion the other judges concurred.

1

‘‘Our Supreme Court has recognized that revocation of probation hearings, pursuant to § 53a-32, are comprised of two distinct phases, each with

a distinct purpose. . . . In the evidentiary phase, [a] factual determination

by a trial court as to whether a probationer has violated a condition of

probation must first be made. . . . In the dispositional phase, [i]f a violation

is found, a court must next determine whether probation should be revoked

because the beneficial aspects of probation are no longer being served.’’

(Internal quotation marks omitted.) State v. Altajir, 123 Conn. App. 674,

680–81, 2 A.3d 1024 (2010), aff’d, 303 Conn. 304, 33 A.3d 193 (2012); see

also State v. Preston, 286 Conn. 367, 375–76, 944 A.2d 276 (2008).

2 See State v. Fisher, 121 Conn. App. 335, 345, 995 A.2d 105 (2010) (state

bears burden of proving by fair preponderance of evidence that defendant

violated terms of his probation).

3 Specifically, the court stated: ‘‘Although not decided at the time of the

hearing, the present motion [to dismiss] is governed by the Appellate Court’s

decision in State v. Kelley, [supra], 164 Conn. App. 232 . . . . Kelley is

persuasive authority for the proposition that a violation of the 120 day

limitation does not require dismissal of the [violation of probation] charge.

There is nothing in either the wording of § 53a-32 (c) or in its legislative

history suggesting that dismissal should be the sanction for a failure to

dispose of a [violation of probation] case within 120 days of arrest. To the

contrary, the advisory nature of the time limitation is apparent.’’

4 With respect to the issue of good cause, the court determined that ‘‘the

reason that the defendant’s [violation of probation] was not adjudicated

within 120 days of his arrest was due to an attempt to resolve all of his

pending cases in a comprehensive plea agreement. Such an approach is

usually in the defendant’s interest and would support a good cause reason

to delay resolving the [violation of probation] independently of the other

pending cases.’’

5 See, e.g., State v. Banks, 321 Conn. 821, 848, 146 A.3d 1 (2016) (Rogers,

C. J., concurring) (mandatory statutes must be strictly complied with while

directory statutes provide direction and are of no obligatory force). We also

note that the 120 day time frame of § 53a-32 (c) has been determined to be

discretionary. State v. Flores, Superior Court, judicial district of Fairfield,

Docket No. CR-00-0161287-T (June 18, 2012).

6 We also note that the court’s finding of good cause offers an alternative

path to affirming the denial of the motion to dismiss.

7 General Statutes § 14-215 (a) provides: ‘‘No person to whom an operator’s

license has been refused, or, except as provided in section 14-215a, whose

operator’s license or right to operate a motor vehicle in this state has been

suspended or revoked, shall operate any motor vehicle during the period

of such refusal, suspension or revocation. No person shall operate or cause

to be operated any motor vehicle, the registration of which has been refused,

suspended or revoked, or any motor vehicle, the right to operate which has

been suspended or revoked.’’