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*********************************************** 
STATE v. BUTLER—DISSENT

BISHOP, J., dissenting. In reversing the judgment of

the trial court opening its judgment of dismissal, my

colleagues in the majority conclude: ‘‘[T]he court

improperly granted the state’s motion to open because,

in the absence of any codified authorization, either

express or clearly implied, a criminal court cannot take

further action in a criminal matter once there has been

a complete and final resolution of all pending charges,

which would include the judgment of dismissal rendered in the present case.’’ In coming to this view, the

majority acknowledges that it is deciding a case of first

impression. Indeed, there is neither statutory nor common-law precedent to support the majority’s conclusion. Because I believe the court had both the power

and the authority to open the judgment of dismissal, I

respectfully dissent.

At the outset, I acknowledge that the majority has

accurately set forth the procedural and factual underpinnings to this appeal as well as our standard of review.

My disagreement lies in the majority’s legal reasoning

and the conclusion it draws from its analysis.

I begin my analysis by noting our jurisprudence

regarding the jurisdiction of the Superior Court. ‘‘The

Superior Court of this state as a court of law is a court

of general jurisdiction. It has jurisdiction of all matters

expressly committed to it and of all others cognizable

by any law court of which the exclusive jurisdiction is

not given to some other court.’’ State ex rel. Morris v.

Bulkeley, 61 Conn. 287, 374, 23 A. 186 (1892); see also

State v. Das, 291 Conn. 356, 361, 968 A.2d 367 (2009)

(‘‘[t]he Superior Court is a constitutional court of general jurisdiction’’ (internal quotation marks omitted));

State v. Luzietti, 230 Conn. 427, 431, 646 A.2d 85 (1994)

(same). ‘‘Article fifth, § 1 of the Connecticut constitution proclaims that ‘[t]he powers and jurisdiction of the

courts shall be defined by law,’ and General Statutes

§ 51-164s provides that: ‘[t]he [S]uperior [C]ourt shall

be the sole court of original jurisdiction for all causes

of action, except such actions over which the courts

of probate have original jurisdiction, as provided by

statute.’ ’’ State v. Carey, 222 Conn. 299, 305, 610 A.2d

1147 (1992). Additionally, because the Superior Court

is a constitutional court of general jurisdiction, ‘‘[i]n

the absence of statutory or constitutional provisions,

the limits of its jurisdiction are delineated by the common law.’’ (Internal quotation marks omitted.) State v.

Das, supra, 361; see also State v. McCoy, 331 Conn. 561,

577, 206 A.3d 725 (2019) (explaining that, in absence of

legislative or constitutional provisions governing when

trial court loses jurisdiction, issue is governed by common law).

The Superior Court’s general jurisdiction includes
jurisdiction over criminal cases. ‘‘The Superior Court

has subject matter jurisdiction to hear criminal matters

from its authority as a constitutional court of unlimited

jurisdiction. . . . The Superior Court’s authority in a

criminal case becomes established by the proper presentment of the information . . . which is essential to

initiate a criminal proceeding.’’ (Citations omitted;

emphasis added; internal quotation marks omitted.)

State v. Pompei, 52 Conn. App. 303, 307, 726 A.2d

644 (1999).

Further, at common law, ‘‘a trial court possesse[d]

the inherent power to modify its own judgments during

the term at which they were rendered. . . . During the

continuance of a term of court the judge holding it

ha[d], in a sense, absolute control over judgments rendered; that is, he can declare and subsequently modify

or annul them. . . . Under the [common-law] rule, a

distinction [was] drawn between matters of substance

and clerical errors; the distinction being that mere clerical errors [could] be corrected at any time even after

the end of the term. . . . But [i]n the absence of waiver

or consent of the parties, a court [was] without jurisdiction to modify or correct a judgment in other than

clerical respects after the expiration of the term of the

court in which it was rendered.’’ (Citations omitted;

internal quotation marks omitted.) State v. Wilson, 199

Conn. 417, 436–37, 513 A.2d 620 (1986).

In a venerable opinion, our Supreme Court opined

that ‘‘[t]he jurisdiction continues to exist in full force,

to be exercised whenever a proper occasion shall

require it. A suspension of the jurisdiction of a court

. . . is a solecism. Jurisdiction is either exhausted or

retained. It can never be properly said to be in a state

where it is suspended and can be revived. The exercise

of it by the court possessing it may be and often is

suspended, but it still continues to exist, and only awaits

the determination of the court as to when and how it

shall be called into action.’’ (Emphasis in original.)

Sanford v. Sanford, 28 Conn. 5, 14 (1859). Additionally,

the teaching of our decisional law is that ‘‘[t]he question

of whether the court has . . . jurisdiction . . . must

be informed by the established principle that every presumption is to be indulged in favor of jurisdiction.’’

(Internal quotation marks omitted.) State v. Mack, 55

Conn. App. 232, 235, 738 A.2d 733 (1999).

Finally, as to general principles pertinent to our

inquiry, our decisional law is clear that when determining whether a statute has abrogated or altered the common law, the construction of the statute ‘‘must be strict,

and the operation of a statute in derogation of the common law is to be limited to matters clearly brought

within its scope.’’ (Internal quotation marks omitted.)

Caciopoli v. Lebowitz, 309 Conn. 62, 70, 68 A.3d 1150

(2013). The teaching of our Supreme Court in Caciopoli

could not be clearer: ‘‘Interpreting a statute to preempt
a common-law cause of action is appropriate only if the

language of the legislature plainly and unambiguously

indicates such an intent. [W]hen a statute is in derogation of common law or creates a liability where formerly

none existed, it should receive a strict construction and

is not to be extended, modified, repealed or enlarged

in its scope by the mechanics of [statutory] construction. . . . In determining whether or not a statute abrogates or modifies a [common-law] rule the construction

must be strict, and the operation of a statute in derogation of the common law is to be limited to matters

clearly brought within its scope. . . . Although the legislature may eliminate a common-law right by statute,

the presumption that the legislature does not have such

a purpose can be overcome only if the legislative intent

is clearly and plainly expressed. . . . We recognize

only those alterations of the common law that are

clearly expressed in the language of the statute because

the traditional principles of justice upon which the common law is founded should be perpetuated. The rule that

statutes in derogation of the common law are strictly

construed can be seen to serve the same policy of continuity and stability in the legal system as the doctrine of

stare decisis in relation to case law.’’ (Citations omitted;

internal quotation marks omitted.) Id., 70–71.

With these principles in mind, I turn next to the circumstances at hand. There can be no question that the

Superior Court acquired jurisdiction over the defendant, Carlton Butler, and the case once the criminal

charges against him were brought to court. The question

for our decision is whether the court lost jurisdiction

once it rendered the judgment of dismissal after finding

that the defendant had successfully completed a two

year, supervised diversionary program pursuant to General Statutes § 54-56l.

My analysis of this issue requires an examination of

the common law pertaining to the court’s retention of

jurisdiction and then of whether the common law in this

regard has been superseded or abrogated by statute.

As our Supreme Court has noted, on the criminal side,

‘‘[n]either our General Statutes nor our Practice Book

rules define the period during which a trial court may

modify or correct its judgment in a criminal case.’’

(Emphasis in original.) State v. Wilson, supra, 199 Conn.

437. Accordingly, I turn to our judicial decisions to

determine what limitations on the court’s jurisdiction

have been promulgated by decisional law.

In my review of our judicial decisions, I have found

only two limitations that affect the common-law rule

regarding the retention of jurisdiction by a criminal

court. First, a criminal court loses jurisdiction over a

matter once a sentence has been imposed and a defendant is committed to the Commissioner of Correction.

State v. McCoy, supra, 331 Conn. 581–82 (‘‘the court

loses jurisdiction over [a] case when the defendant is
committed to the custody of the [C]ommissioner of

[C]orrection and begins serving the sentence’’ (internal

quotation marks omitted)). ‘‘It is well established that

under the common law a trial court has the discretionary power to modify or vacate a criminal judgment

before the sentence has been executed. . . . This is so

because the court loses jurisdiction over the case when

the defendant is committed to the custody of the [C]ommissioner of [C]orrection and begins serving the sentence.’’ (Internal quotation marks omitted.) State v. Das,

supra, 291 Conn. 361–62. Although there is a bright-line,

common-law rule regarding a criminal court’s power

to modify or vacate a criminal judgment when a sentence has been imposed, there is no such rule where,

as here, a criminal judgment has been dismissed.

Second, where no sentence has been imposed, a criminal court’s jurisdiction to modify its judgment ends

after a period of four months following judgment. See

State v. Wilson, supra, 199 Conn. 437. In a much debated

opinion, our Supreme Court in Wilson held that ‘‘[n]either our General Statutes nor our [rules of practice]

define the period during which a trial court may modify

or correct its judgment in a criminal case. On the civil

side, however, [our rules of practice provide] that any

civil judgment or decree may be opened or set aside

within four months succeeding the date on which it

was rendered or passed. We see no reason to distinguish

between civil and criminal judgments in this respect,

and we therefore hold that, for purposes of the [common-law] rule, a criminal judgment may not be modified

in matters of substance beyond a period of four months

after the judgment has become final.’’ (Emphasis in

original; internal quotation marks omitted.) Id.

Although the specific holding of Wilson that the court

had continuing jurisdiction of a matter even after a

defendant had been sentenced so long as the court’s

subsequent action took place within four months of

sentencing was later abrogated by our Supreme Court

in McCoy on the basis that once a defendant has been

sentenced the court loses jurisdiction over a criminal

matter, the portion of Wilson that supports a court’s

continuing jurisdiction during the court’s session before

sentencing and committal to the Commissioner of Correction remains unchallenged. See State v. McCoy,

supra, 331 Conn. 586–87 (‘‘we take this opportunity to

clarify and reiterate, as we have consistently done . . .

that a trial court loses jurisdiction once the defendant’s

sentence is executed, unless there is a constitutional

or legislative grant of authority’’).

In its analysis, the majority opines that the commonlaw rule regarding the court’s continuing jurisdiction is

no longer part of our common law because it ‘‘has

been superseded or rendered inoperable by statutory

changes and, thus, does not factor into our consideration of the jurisdiction of the criminal court as it currently exists under our common law.’’ It is apparent
from the majority’s opinion that, in coming to this conclusion, my colleagues are referring to General Statutes

§ 51-1811 and, respectfully, I believe the majority

reaches well beyond the confines of that statute in

making the sweeping assertion that statutory law has

now replaced the common law regarding the retention

of jurisdiction of a criminal court. In further support

of its view, the majority cites to Luziettifor the proposition that the criminal court’s common-law jurisdiction

to vacate a judgment during the ‘‘ ‘term’ ’’ in which it

had been rendered ‘‘no longer has vitality in this state.’’

State v. Luzietti, supra, 230 Conn. 432 n.6. Respectfully,

however, I believe that the majority’s citation to Luzietti is inaccurate. Indeed, the court in Luzietti

explained, in the cited passage, that, ‘‘[a]t common law,

the trial court’s jurisdiction to modify or vacate a criminal judgment was also limited to the ‘term’ in which it

had been rendered. . . . Since our trial courts no

longer sit in ‘terms,’ that particular [common-law] limitation no longer has vitality in this state.’’ (Citation

omitted; emphasis added.) Id. This properly cited passage reveals that the court in Luzietti was discussing

the elimination of the limitation of a trial court’s jurisdiction over its judgments to the term of the court.

Accordingly, Luzietti does not stand for the proposition

advanced by the majority but, rather, for a contrary

interpretation of the development of common law and

one consistent with the court’s exercise of jurisdiction

in this matter. Accordingly, in my view, no decisional

law has altered the common-law rule regarding the

court’s continuing jurisdiction.

The majority takes a different approach to this issue

regarding the durability of common law. In reaching its

conclusion that the trial court lost jurisdiction over this

matter, the majority states that ‘‘[n]o statutory provisions exist . . . that expand the existing common-law

jurisdiction of our criminal courts or expressly permit a

court to reinstate criminal charges after it has dismissed

them.’’ In expressing this view, I believe, respectfully,

that the majority has failed to acknowledge the continued viability of common law unless is has been

expressly abrogated or superseded by statutory or decisional law. The majority’s view ignores the basic jurisprudence that common law persists unless it has been

supplanted or abrogated by statute or judicial decision.

In my view, because the court is a constitutional court

of general jurisdiction, and there are no statutory or

constitutional provisions delineating the jurisdiction of

a criminal court after a judgment of dismissal, we must

look to the common law to determine if any limitations

on the court’s jurisdiction exist. If there are no commonlaw limitations on the court’s jurisdiction to open a

judgment after dismissal in a criminal case, then arguably ‘‘this case does not . . . require us to expand the

court’s jurisdiction, as the majority suggests. Rather,

the question is whether the court inalterably lost juris-
diction it unquestionably had . . . .’’ (Emphasis in original.) State v. McCoy, supra, 331 Conn. 607 (D’Auria,

J., concurring).

The question, therefore, is not whether any statute

or decision permits the court to exercise continuing

jurisdiction but, rather, whether any act of the legislature or judiciary has altered the common law regarding

the jurisdiction of a criminal court. As stated, I have

found no such enactment.

The majority does appear to recognize that the court

could exercise jurisdiction if its judgment had been

procured by fraud but dismisses this possibility on the

basis that the court did not find that its judgment had

been fraudulently procured. Indeed, our Supreme Court

has stated that ‘‘[c]ourts have intrinsic powers, independent of statutory provisions authorizing the opening of

judgments, to vacate any judgment obtained by fraud,

duress or mutual mistake.’’2

In re Baby Girl B., 224

Conn. 263, 283, 618 A.2d 1 (1992); see also Kenworthy

v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980)

(‘‘[t]he power of the court to vacate a judgment for fraud

is regarded as inherent and independent of statutory

provisions authorizing the opening of judgments; hence

judgments obtained by fraud may be attacked at any

time’’).

I agree that the court made no explicit finding of

fraud; however, the record does support a determination that in granting the motion the court made a unilateral mistake induced by the misrepresentations of

defense counsel. The court’s comments during the hearing before the judgment was opened reflect the court’s

belief that it was grossly misled by the representations

defense counsel had made to the court at the time the

dismissal was rendered.3 Although it is clear that the

court did not point the finger at defense counsel for

the statements he made to the court in support of his

motion to dismiss, it is equally apparent that the court

determined that the gist of defense counsel’s comments

were based on material misrepresentations. That the

court was wrongly induced into an erroneous decision

is plain from the court’s comments.

Finally, I note the majority makes a public policy

argument in favor of its view that the judgment in this

matter should not have been opened. At the outset, I do

not believe that the underlying question of jurisdiction

implicates public policy.4 The question is not whether

the court should have granted the state’s motion to

open the judgment but, rather, whether the court had

the power or authority to act as it did. As such, this

case presents a legal issue of the proper understanding

of the common law on this topic and whether the common law has been altered by legislative enactment or

judicial decision making.

Furthermore, to the extent public policy has any role
in this discussion, although I recognize the liberty interests of the defendant implicated in this matter, so, too,

I appreciate the role of the court in punishing the guilty

and protecting victims of crime and the general public

from criminal behavior. Given the allegation of criminal

behavior that was the basis of the initial charges—

finding the defendant with his shorts down to his ankles

and his genitals exposed while standing behind a twelve

year old juvenile male who also had his pants down—

the state has a heightened interest in the protection

of the child-victim as well as the prevention of the

recurrence of such abhorrent behavior for the protection of all minors and society in general.

For the foregoing reasons, I respectfully dissent.5

1 As stated previously, at common law, a court had the power to modify

a judgment during the term in which the judgment was rendered. Morici

v. Jarvie, 137 Conn. 97, 104, 75 A.2d 47 (1950); Wilkie v. Hall, 15 Conn. 32,

37 (1842). ‘‘The word ‘term’ as used in the common-law rule that a judgment

may not be opened after the term at which it was rendered has been interpreted to mean ‘sessions’ of court as defined in § 51-181 . . . .’’ (Footnote

omitted.) Snow v. Calise, 174 Conn. 567, 571, 392 A.2d 440 (1978). General

Statutes (Rev. to 1977) § 51-181 provides in relevant part: ‘‘The superior

court shall be deemed continuously in session with four sessions, except

as otherwise provided in sections 51-180, 51-182 and 51-185, held on the

first Tuesday of September, January and April and the first Tuesday following

July fourth annually, in each of the several counties and judicial districts

of the state, at such times and places and for such duration of time as is

fixed and determined by the chief judge of the superior court annually, with

the approval of the chief court administrator, except as otherwise provided

by law . . . .’’ The present version of General Statutes § 51-181 makes no

reference to ‘‘sessions’’ of court and provides that ‘‘[t]he Superior Court

shall sit continuously throughout the year, at such times and places and for

such periods as are set by the Chief Court Administrator . . . .’’

2

‘‘The elements of a fraud action are: (1) a false representation was made

as a statement of fact; (2) the statement was untrue and known to be so

by its maker; (3) the statement was made with the intent of inducing reliance

thereon; and (4) the other party relied on the statement to his detriment.’’

Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991).

3 For sure, the court did not fault defense counsel for the misrepresentations that had been made when the motion to dismiss had been argued, but

the court, nonetheless, found that the dismissal had been rendered on the

basis of misrepresentations. The court stated that ‘‘the court based its decision to dismiss [the case] on information that was incorrect, was totally

contradictory to his [diversionary program] and I would assert—well, I’m

the judge, so I can—that I did it under false pretenses. I dismissed this

under false pretenses that the defendant was in compliance when, boy, not

only was he not in compliance, he couldn’t have been any further away

from compliance. . . . As you can see, I’m a little angered because it really

stings—it hurts that such a misrepresentation—and, counsel, I’m not faulting

you, you went with the information you had with you at the time—but it

was not even close to being accurate or truthful.’’

4

In response to my assertion that public policy should play no role in a

correct assessment of whether the trial court retained jurisdiction in this

matter, the majority now cites to Demond v. Project Service, LLC, 331 Conn.

816, 848, 208 A.3d 626 (2019) for the contrary proposition. I disagree. As I read

Demond, the court there was discussing the public policy that a commonlaw rule embraced and not whether policy considerations could be utilized

to understand the common law. As such, I believe, respectfully, that Demond

is inapplicable to the issue at hand.

5

It may be argued that the implications of acknowledging the court’s

jurisdiction to act as it did after the dismissal of a criminal matter following

the purported successful completion of a pretrial diversionary program are

that no dismissals should be treated as final and that a judge may open a

judgment at any time and for any reason the court may deem appropriate.

I do not take such a dim view of the wisdom and discretion of the trial

bench. In the case at hand, the prosecutor moved to open the judgment
just one day after the matter had been dismissed and the court’s action was

based on material misrepresentations made to it during the hearing on the

motion for a dismissal.