State v. Kylie Dodds
CourtSupreme Court of Vermont
Date FiledNovember 13, 2026
Docket26-AP-072
StatusPublished
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Full Opinion
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2026 VT 53
No. 26-AP-072
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Lamoille Unit,
Criminal Division
Kylie Dodds September Term, 2026
Justin P. Jiron, J.
Matthew Dolezal, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellant.
Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for
Defendant-Appellee.
PRESENT: Reiber, C.J., Eaton, Waples, Nolan and Drescher, JJ.
¶ 1. NOLAN, J. After granting defendant’s motion to suppress evidence, the criminal
division extended the State’s appeal deadline by thirty days and then granted the State’s motion
for interlocutory appeal. Defendant moved to dismiss the appeal as untimely filed, arguing that
the State failed to file within the statutorily prescribed seven-business-day appeal deadline. We
agree. Under the controlling statute and appellate rule, the State must file its interlocutory appeal
within seven business days, and this period cannot be extended using the rule that applies to
appeals as of right. We therefore dismiss the appeal as untimely filed.
¶ 2. Defendant is charged with driving under the influence of alcohol, third offense—a
felony—and driving with a suspended license. On December 18, 2025, the criminal division
granted defendant’s motion to suppress her statements while in custody, the drug recognition
evaluation report, the results of both of defendant’s breath tests, her blood-test refusal, and her
blood-test result.1
¶ 3. The next day, the State moved to extend by thirty calendar days the seven-business-
day deadline to appeal the suppression decision. The State represented that it intended to file a
motion to reconsider and argued that this constituted “good cause” for an extension of the appeal
period under Vermont Rule of Appellate Procedure 4(d), which permits enlargements of up to
thirty days upon a showing of “excusable neglect or good cause” for appeals taken as of right. The
criminal division granted the request, and the State filed its motion to reconsider on December 30,
2025.
¶ 4. On January 29, 2026, the day of the new appeal deadline established by the criminal
division, the State filed a “notice of appeal and § 7403(d) certification” with the criminal division,
purporting to appeal the December 18, 2025 suppression order. Because the State filed a
“notice”—not a “motion” for permission to appeal, as required by Vermont Rule of Appellate
Procedure 5—the criminal division did not transmit the appeal to the Supreme Court or otherwise
respond to the filing. On February 6, 2026, the State asked the criminal division to issue an order
certifying its interlocutory appeal. Defendant opposed the request as untimely because the State
appealed more than seven business days after the December 18 order. Reasoning that the State’s
ability to appeal a suppression order is effectively as of right, and therefore eligible for a filing
deadline extension of up to thirty days under Rule 4(d), the trial court granted the State permission
to appeal the order.
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The complexities of the suppression litigation are not detailed here because we conclude
there was a jurisdictional defect in the State’s filing and therefore do not reach the merits of the
appeal.
2
¶ 5. After transmission to this Court, defendant moved to dismiss the appeal as filed out
of time. We deferred ruling on the motion so that we could consider it with the merits of the
suppression-order appeal. Defendant now renews her argument that the State’s failure to request
permission to appeal within seven business days is a jurisdictional barrier necessitating dismissal
of the appeal. State v. Mason, 147 Vt. 647, 647, 518 A.2d 366, 366 (1986) (mem.). The State
counters that the criminal division properly extended the State’s filing deadline under Rule 4(d),
after which it filed on time.2 In the State’s view, the extension provisions of Rule 4(d) are available
for this interlocutory appeal because the criminal division “must” grant motions to take them when
the State meets all certification requirements. V.R.A.P. 4(d) (providing for extension of time for
appeals “as of right”); V.R.A.P. 5(b)(4)(A) (providing that court “must allow the State to take an
appeal” if other requirements of rule are met).
¶ 6. A sketch of the separate frameworks for interlocutory and by-right appeals helps to
contextualize the parties’ positions. The State has no common-law right to appeal in criminal cases
and thus any appeal “must thus be grounded in a statutory grant of such a right.” State v. Roy,
2018 VT 67A, ¶ 12, 209 Vt. 133, 203 A.3d 1177. By statute, in felony cases, the State may appeal
from a limited list of interlocutory orders, including those “granting a motion to suppress
evidence.” 13 V.S.A. § 7403(c)(1). To appeal, the State must certify “to the [superior] court” that
the appeal is not taken for the purpose of delay, the evidence suppressed “is substantial proof” of
a material fact, and the relief “is necessary to avoid seriously impeding” the proceeding. Id.
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Defendant disputes whether the State even properly complied with the extended deadline
of January 29, 2026. Defendant argues that the State’s January 29 filing did not conform with the
governing statute, 13 V.S.A. § 7403(c), (d), and Rule 5 because it was styled as a notice of appeal,
not a motion, and, as a result, the State did not appeal until February 6, 2026. See State v. Lewis,
151 Vt. 38, 40, 556 A.2d 59, 61 (1988) (concluding State timely filed “motion for permission to
appeal” where original filing had missing word that was supplied in subsequent filing) (emphasis
added)). Although this is an open question, we need not resolve it because we conclude that the
criminal division should not have granted the extension.
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§ 7403(d). The appeal must be taken “within seven business days after the decision.” Id.
§ 7403(e). “The failure of the State to comply with the requirements of the statute gives rise to a
jurisdictional defect.” Mason, 147 Vt. at 647, 518 A.2d at 366.
¶ 7. Rule 5 echoes and implements the State’s interlocutory appeal rights as set forth in
§ 7403(e). Like its statutory counterpart, Rule 5—entitled “Appeals Before Final Judgement”—
establishes that the State must move the trial court for permission to appeal and make the statutorily
required certifications “within 7 business days after the decision” appealed from. V.R.A.P.
5(b)(4), (5)(A) (describing process by which State may file “Motion for Permission To Appeal by
the State in a Felony Criminal Action”). Rule 5 does not contain a provision for extension of time.
¶ 8. In contrast to interlocutory appeals, the Legislature explicitly designated
defendants’ appeals of final criminal judgments as appeals “as of right.” 13 V.S.A. § 7401 (stating
that “the defendant may appeal to the Supreme Court as of right all questions of law involved in
any judgment of conviction” (emphasis added)). The analogue rule, Rule 4(d), titled “Appeal as
of Right—When Taken,” allows the superior court to extend for up to thirty days the time for filing
the notice of appeal, provided the motion is “filed no later than 30 days after the expiration of the
time prescribed by Rule 4(a),” and there is “excusable neglect or good cause.” V.R.A.P.
4(d)(1)(A), (B).
¶ 9. Defendant contends that the criminal division erred by giving the State a Rule 4(d)
filing extension in this Rule 5 interlocutory appeal. This is legal question we review de novo.
State v. Therrien, 2011 VT 120, ¶ 9, 191 Vt. 24, 38 A.3d 1129 (explaining that “interpretation of
a statute is a question of law that we review de novo”); State v. Amidon, 2008 VT 122, ¶ 16, 185
Vt. 1, 967 A.2d 1126 (“The interpretation of procedural rules is a question of law which we review
de novo.”).
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¶ 10. In interpreting statutes, we “first look to the plain and ordinary meaning of the
statutory language to divine” the legislative intent. Roy, 2018 VT 67A, ¶ 14. “If the statutory
language is unambiguous, we enforce it according to its terms.” Polak v. Ramirez-Diaz, 2025 VT
9, ¶ 12, 220 Vt. 564, 336 A.3d 383 (quotation omitted). Procedural rules are interpreted similarly
to give effect to their plain language and the purpose they were designed to serve. State v. Villar,
2017 VT 109, ¶ 7, 206 Vt. 236, 180 A.3d 588.
¶ 11. We conclude that the State’s seven-business-day deadline to seek an interlocutory
appeal in a felony case may not be extended under Rule 4(d), which covers “Appeal[s] as of Right.”
This conclusion rests foremost on the plain language of § 7403, which directs the State to file its
motion for permission to appeal a suppression order—together with the prescribed certifications—
in the criminal division within seven business days. Adherence to this process is a jurisdictional
prerequisite to taking an interlocutory appeal. Mason, 147 Vt. at 647, 518 A.2d at 366. Given
these filing predicates, an interlocutory appeal is not properly characterized as an “as of right”
appeal that is eligible for the Rule 4(d) filing extension.
¶ 12. Moreover, within the statute, the Legislature detailed the certifications the State
must make to the trial court and the time frame in which it must file, but it provided no avenue to
enlarge the seven-business-day filing window. This Court will not read that provision into the law
because, in interpreting a statute, “we do not supply words which the legislature has omitted.”
Villar, 2017 VT 109, ¶ 7 (quotation omitted).
¶ 13. The appellate rules further confirm that the time for the State to bring an
interlocutory appeal in a felony case under § 7403 may not be extended. Rule 5 mirrors the statute,
describing the process to move for permission to file such appeals, including the preconditions the
State must satisfy. V.R.A.P. 5(b)(4)-(5). Like the statute, it contains no provision for extending
the seven-business-day deadline.
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¶ 14. The State points to Rule 5’s directive that the “superior court must” allow an appeal
from a suppression order if the State provides the requisite certifications in urging us to treat this
appeal as by right. But the State’s expansive understanding of the meaning of the phrase “appeal
by right” finds no support in the law.
¶ 15. An appeal by right generally refers to appeals from those orders that are final and
conclusively determine the rights of the parties. See In re Burlington Bagel Bakery, Inc., 150 Vt.
20, 21, 549 A.2d 1044, 1045 (1988) (“To be final and appealable an order must end litigation on
the merits or conclusively determine the rights of the parties, leaving nothing for the court to do
but execute the judgment.” (quotation omitted)). In contrast, interlocutory orders—which are, by
definition, issued before final judgment—require permission for appellate review and “are
typically not subject to immediate appeal.” Polak, 2025 VT 9, ¶ 13.
¶ 16. Moreover, the statutory language forecloses the State’s argument that interlocutory
appeals are taken by “right.” Although § 7403 affords a pathway to appeal a suppression order, it
does not designate those appeals as taken by “right.” On the contrary, it allows the State to pursue
appeal only if it makes certain representations to the criminal division. And Rule 5—through its
title “Appeals Before Final Judgment” and its directive that the State make a “Motion for
Permission To Appeal . . . in a Felony Criminal Action”—puts an even finer point on the
permissive nature of interlocutory appeals. V.R.A.P. 5(b)(4) (emphasis added). In clear contrast,
§ 7401, concerning a defendant’s right to appeal a final judgment of conviction, expressly
identifies those appeals “as of right.” 13 V.S.A. § 7401 (stating that “the defendant may appeal to
the Supreme Court as of right all questions of law involved in any judgment of conviction”
(emphasis added)).
¶ 17. We conclude that the Legislature “chose its words advisedly” when it did not
categorize appeals by the State under § 7403 as by right, and we will not second-guess its decision.
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Roy, 2018 VT 67A, ¶ 15 (quotation omitted). The extension available under Rule 4 for appeals
taken by right does not apply to interlocutory appeals like this one. Appeals before judgment in
felony criminal cases must be taken within seven business days. The State filed its appeal well
beyond that deadline here. Therefore, the appeal is untimely, and we lack jurisdiction to hear it.
Mason, 147 Vt. at 647, 518 A.2d at 366.
Appeal dismissed.
FOR THE COURT:
Associate Justice
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