State v. Marcotte

¶1concurring.

¶2Although my colleagues place a construction on section 358 and the Sales and Use Tax Law that in my judgment is not free from doubt, neither is the legislative intent as to the interaction of those enactments clear enough to justify imposing Class B sanctions1 upon a retailer. So far as the court is informed, at no time prior to the present indictment in 1979 has the State during all the 28 years of the sales tax even once charged any retailer with criminal liability under section 358 (“theft by misapplication of property”) or its pre-Code counterpart, 17 M.R.S.A. § 2107 (“embezzlement or fraudulent conversion”). It is a fundamental principle of criminal law that persons subjected to the potential of severe punishment should be given reasonable notice of what the legislature makes criminal. United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971); Knowlton v. State, Me., 257 A.2d 409, 409-10 (1969). For that reason, penal statutes are strictly construed. State v. Millett, Me., 392 A.2d 521, 525 (1978). It is simply impossible to say that Maine retailers have ever been put on fair notice, at least prior to October 24, 1977,2 that they must put the sales taxes they have collected from customers into a special reserve fund. Nor is it clear from section 358 that such a special reserve fund or its equivalent is not required for criminal liability under that section.

¶3As for retailers who have in the past diverted sales tax moneys, the State is not without criminal remedy. Any individual violation of the Sales and Use Tax Law, including failure to report and failure to pay, has been unmistakably declared to be a crime, punishable by a fine of up to $500 or imprisonment for up to 11 months or both.3 As for the future, if the legislature believes that any retailer should be subject to the same criminal liabilities for embezzlement as the ordinary collection agent who does not remit collected funds to his principal, its draftsmen are fully capable of implementing that intent with clarity-either by amendment of section 358 or by amendment of the Sales and Use Tax Law. In the instant case I agree that the first seven counts of the indictment cannot stand.