Berry v. State

• Decision Date: 07 March 1979
• Docket Number: No. 445,445
• Citation: 41 Md.App. 563,398 A.2d 59
• Parties: Donald Elbert BERRY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 563

41 Md.App. 563

398 A.2d 59

Donald Elbert BERRY v. STATE of Maryland.

No. 445.

Court of Special Appeals of Maryland.

March 7, 1979.

Alan H. Murrell, Public Defender, and Michael R. Malloy, Asst. Public Defender, for appellant.

Francis B. Burch, Atty. Gen., Ray E. Stokes, Asst. Atty. Gen., William A. Swisher, State's Atty. for Baltimore City, and Robert Moss, Asst. State's Atty. for Baltimore City, for appellee.

Submitted to MOORE, LOWE and WILNER, JJ.

MOORE, Judge.

On March 7, 1973, Donald E. Berry, the appellant, was convicted on a guilty plea in the Criminal Court of Baltimore (Cardin, J.) of nonsupport of his wife and two children pursuant to Article 27, Section 88 of the Annotated Code of Maryland (Supp.1978). He was sentenced to the custody of the Division of Correction for an eighteen-month period. However, the sentence was suspended and the appellant was placed on probation on the condition he make support payments as directed by the court. Commencing on March 7, 1973, the probationary period was to run for three years.

Appellant encountered difficulty satisfying the support obligations and, therefore, was deemed in violation of his probation. On March 4, 1976, three days prior to the expiration of the probationary period, a warrant was issued for his arrest. A hearing was held with respect to this alleged violation in the Criminal Court of Baltimore (Hammerman, J.) on June 5, 1978, over two years after the expiration of the probationary period. The trial delay was attributable to pending criminal charges that resulted in several postponements of the revocation proceeding. At the hearing, the court revoked appellant's probation and reimposed the eighteen-month sentence, to be served consecutive to a sentence appellant was serving for an unrelated offense. On appeal, the appellant contends that: 1) the trial court was in error when it permitted appellant to waive counsel without conducting the waiver inquiry required by Maryland Rule 723(c); 2) the trial court was without jurisdiction to revoke appellant's probation pursuant to Article 27, Section 88(a)-(b) because the three-year probationary period had expired at the time of the hearing; and 3) his original conviction was unconstitutional because Section 88(a) had been declared to be violative of the Equal Rights Amendment to the Maryland Constitution and, therefore, the original sentence could not be reimposed.

I

Rule 723(c), effective July 1, 1977, is mandatory and governs the "provision for or waiver of counsel" at a defendant's initial appearance in a proceeding. It reads as follows:

"c. Waiver Inquiry.

When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:

1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any;

2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;

3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition;

4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him."

In Bryan v. State, 39 Md.App. 250, 384 A.2d 479 (1978), we held that, pursuant to Maryland Rule 723(d)(2), ¹ the procedure directed by Maryland Rule 723(c) was applicable whenever an accused appeared in court without counsel " 'at any proceeding after his appearance pursuant to Section (723(- a)),' " and that this included probation revocation proceedings. Id. at 254-55, 384 A.2d at 481. The Court of Appeals recently affirmed the holding of the Bryan case. 395 A.2d 475 (1978).

The record before us indicates that at the probation revocation hearing the following colloquy occurred between the court and the appellant:

"THE CLERK: Your Honor, we will hold the warrant pursuant to the other trial. Now, Mr. Berry, this is a criminal proceeding. You would have a right to have a lawyer represent you in this case or you can proceed without one, sir. What is your wish in that respect?

MR. BERRY: Proceed without one.

THE CLERK: Proceed without one. You also have a right to enter a plea of guilty or not guilty for failing to make the payments through the Probation Department. What is your plea?

MR. BERRY: Not guilty.

THE CLERK: Not guilty. All parties raise your right hands."

It is very apparent that the lower court, in its cursory questioning of appellant, failed to comply with the mandatory standards of Rule 723(c). This constituted error and we would ordinarily reverse the judgment, vacate the sentence, and remand the case for further proceedings. However, for the reasons set forth in our consideration of appellant's second assignment of error, we find there must be a reversal without remand.

II

Appellant contends that the lower court lacked jurisdiction to hear the revocation proceeding because of the following language in both subsections (a) and (b) of Article 27, Section 88:

"If the court be satisfied by information and due proof under oath, At any time during the three years that the defendant has violated the terms of the order (of probation), the court immediately may proceed to the trial of the defendant under the original indictment or sentence him (or her) under the original conviction, as the case may be." (Emphasis added.)

According to appellant, the underscored phrase mandates that the probation revocation Hearing be held Before the expiration of the probationary period. The State, in disagreement, asserts that the provision refers to the petition-initiating process and, therefore, that the period was tolled on March 4, 1976, within the probationary period, when the Probation Department filed a Violation of Probation Petition and the arrest warrant was issued charging appellant with nonsupport. To construe section 88 so as to require the probation revocation hearing Within the three-year period would, the State contends, constitute an unreasonable and illogical interpretation of the statute. We conclude that appellant's contention must prevail.

The statute involved here is not a civil limitations statute but is in a sense jurisdictional in that it places a limit upon the time when The court may proceed against a defendant who has been placed on probation. That which must satisfy the court "during the three years" is the presentation to it of "information and due proof," not the filing of an action as in Md. (Cts. & Jud.Proc.) Code Ann. § 5-101 (1974), or the commencement of an action as under former Art. 57, § 1. The latter are as stated in Neel v. Webb Fly Screen Mfg. Co., 187 Md. 34, 37, 48 A.2d 331 (1946), the "impetration of the original writ"; however, to satisfy the court with "information and due proof" clearly speaks to the trial itself,...