High court allows probation in armed home invasion cases
December 23, 2009 12:09 PM
By Globe Staff
The state's highest court ruled today that judges can impose a sentence of probation after a defendant is convicted of the crime of armed home invasion, saying the ruling "may seem contrary to common sense" but was necessary because of the ambiguous language of the law.
The armed home invasion statute currently says that anyone convicted of the crime "shall be punished by imprisonment in the state prison for life or for any term of not less than 20 years."
But the statute, in a previous version, had contained language that specifically barred a suspended sentence or probation for anyone who committed the crime a second time, the Supreme Judicial Court noted. And the removal of that language, the court said, raised questions.
"In this context, the Legislature's decision ... to remove all language from [the law] that expressly prohibited probation leaves a question in our minds regarding its intent with respect to the availability of a probationary sentence," the court said in a three-page opinion written by Justice Margot Botsford.
"We recognize that this result, which has the effect of offering a sentencing judge a choice between probation and a mandatory minimum prison term of 20 years, may seem contrary to common sense," the court said.
However, the court said, the changes to the law "render ambiguous what might otherwise be clear" and mean that the probationary sentence is allowable.
The high court rejected an appeal by prosecutors of the sentence imposed on Jacob Zapata, who pleaded guilty in January to charges that included attempted murder, armed home invasion, and five other crimes. Zapata received a five-year prison sentence on the attempted murder charge, but probation for five years after that on the armed home invasion charge and the other crimes.