Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER 

SUPREME COURT DOCKET NO. 2012-188 

NOVEMBER TERM, 2012 

State of Vermont } APPEALED FROM: 

} 

} Superior Court, Rutland Unit, 

 v. } Criminal Division 

} 

} 

Joseph Bruyette } DOCKET NO. 536-4-87 Rdcr 

 

 Trial Judge: Cortland T. Corsones 

In the above-entitled cause, the Clerk will enter: 

Defendant appeals the court’s order denying his motion for sentence reconsideration. On 

appeal, he argues the court erred in concluding that his double jeopardy claim could not be 

brought in the context of a motion for sentence reconsideration and that, in any event, the claim 

lacked merit. We affirm. 

Defendant was convicted in November 1989 of one count of burglary and three counts of 

sexual assault. Defendant received an aggregate sentence of forty-five to eight-five years, which 

was within the maximum for his convictions. Defendant appealed, and this Court affirmed 

defendant’s convictions. State v. Bruyette, 158 Vt. 21 (1992). 

In April 2012, defendant moved to correct his sentence pursuant to Vermont Rule of 

Criminal Procedure 35(a), arguing that the sentences for burglary and sexual assault were illegal 

because they amounted to double jeopardy. The court denied defendant’s request for relief. The 

court explained that while sentence reconsideration could be used to correct an illegal sentence, 

defendant’s motion was challenging the underlying convictions and not the sentence. Thus, the 

court concluded that a Rule 35 motion was not the proper mechanism for that type of challenge. 

The court additionally held that in any event there was no merit to defendant’s argument 

concerning double jeopardy because the burglary and sexual assault charges contained distinct 

elements. Defendant appeals. 

Under Rule 35, “[t]he court may correct an illegal sentence at any time.” V.R.Cr.P. 

35(a). Where defendant moves for sentence reconsideration based on an alleged illegality in the 

sentence, the issue is a question of law that we review de novo. State v. Oscarson, 2006 VT 30, 

¶ 7, 179 Vt. 442. 

Defendant first argues that the court erred in concluding that his double jeopardy claim 

could not be brought in the context of a motion for sentence reconsideration under Rule 35. We 

need not reach this issue because we conclude that even if the claim was properly brought, there 
2 

is no merit to defendant’s double-jeopardy argument.

*

 Double jeopardy precludes the State from 

punishing a defendant twice for the same conduct. State v. Prior, 2007 VT 1, ¶ 10, 181 Vt. 564 

(mem.). To avoid a double jeopardy violation, a defendant’s offenses must each contain an 

element not contained in the other. Id. 

Defendant argues that his convictions for sexual assault and burglary improperly 

criminalized the same conduct because the sexual assault was an essential element of the 

burglary charge. The simplicity of his argument is misleading. The description of a burglary 

states: “a person is guilty of burglary if he . . . enters any building or structure knowing that 

he . . . is not licensed or privileged to do so, with the intent to commit a felony. . . .” 13 V.S.A. 

§ 1201. In defendant’s case, the three felony counts of sexual assault supplied the intended 

felony required by the definition. While the burglary charge needed a felonious intent to convict, 

but no felony sexual assault in fact, the charge also required the State to demonstrate that 

defendant entered an occupied dwelling without license to do so. To prove sexual assault, the 

State was required to demonstrate that defendant intentionally engaged in an actual sexual act 

with the victim and compelled the victim to participate by placing her in fear of bodily injury. 

13 V.S.A. § 3252(a)(3). Therefore, the offenses each contain unique elements, and there was no 

double jeopardy bar to convicting defendant of both offenses. 

Affirmed. 

 

BY THE COURT: 

_______________________________________ 

John A. Dooley, Associate Justice 

_______________________________________ 

Marilyn S. Skoglund, Associate Justice 

_______________________________________ 

Brian L. Burgess, Associate Justice 

 

* Defendant argues that if relief under Rule 35 is unavailable we should treat his filing as 

a post-conviction relief petition. This argument is moot in view of our disposition on the merits 

of his double jeopardy claim.