Cardinell v. State, 32

CourtCourt of Appeals of Maryland
Citation644 A.2d 11,335 Md. 381
Docket NumberNo. 32,32
PartiesLaura Beth CARDINELL v. STATE of Maryland. ,
Decision Date01 September 1992

Page 381

335 Md. 381
644 A.2d 11
STATE of Maryland.
No. 32, Sept. Term, 1992.
Court of Appeals of Maryland.
July 14, 1994.

Page 382

Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender and Julia Doyle Bernhardt, Asst. Public Defender, both on brief), Baltimore, for petitioner.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.



This case involves two principal questions: did the trial judge have authority to reduce the defendant's sentence when he did; and if not, did the State have any right to appeal that action to the Court of Special Appeals? The first question is readily answered in the negative; under the facts of this case

Page 383

the trial judge had no authority to modify the sentence. The second question is more difficult, and requires that we examine and trace a common law right of appeal of the State in [644 A.2d 12] criminal cases when the lower court acted without jurisdiction. It also requires that we consider the applicability of that doctrine to the facts of this case, and determine whether that right has been extinguished by the legislature.


Laura Beth Cardinell pled guilty in the Circuit Court for Garrett County to one count of distribution of cocaine and two counts of possession of cocaine. She was sentenced to imprisonment for a total of three years. She filed a timely motion for revision of sentence pursuant to Maryland Rule 4-345, and that motion was denied. Nearly seven months after sentence was imposed, the defendant filed a "supplemental" motion for revision of the sentence. This motion was granted on the day it was filed, and the trial judge ordered that execution of the unserved portion of the three-year sentence of imprisonment be suspended, and that the defendant be placed on supervised probation for three years. Two days later, the State, apparently unaware of the action taken by the court, filed an answer to the defendant's motion, arguing that the court had no jurisdiction to entertain or act on the motion.

The State filed a timely appeal to the Court of Special Appeals. That court held, among other things, that the trial judge acted without authority and therefore in excess of his jurisdiction, that the State was entitled to appeal, and that the trial court's order modifying the sentence must be vacated. State v. Cardinell, 90 Md.App. 453, 601 A.2d 1123 (1992). We granted the defendant's petition for certiorari to consider the two questions presented:

1. Whether the Court of Special Appeals erred in holding that the State had a right to appeal the lower court's order despite the clear language of [Maryland Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Article,] § 12-302(c)(2)?

Page 384

2. Whether the Court of Special Appeals erred in holding that the trial court lacked revisory power over the sentence?

We address these questions in reverse order.


The lower court was clearly without authority to modify or reduce the defendant's sentence when it did so. The sequence of relevant events is as follows:

4 Oct 90 Sentence imposed.

27 Dec 90 Defendant's Motion for Revision of Sentence filed.

3 Jan 91 Order filed denying defendant's motion.

1 May 91 Defendant's "supplemental" motion for revision of sentence filed.

1 May 91 Order filed granting defendant's "supplemental" motion and reducing sentence.

Maryland Rule 4-345 provided, 1 in pertinent part, as follows:

(a) Illegal Sentence.--The court may correct an illegal sentence at any time.

(b) Modification or Reduction--Time for.--The court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition ... in a circuit court, whether or not an appeal has been filed. The court may modify or reduce or strike, but may not increase

Page 385

the length of, a sentence. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregularity....

(c) Open Court Hearing.--The court may modify, reduce, or vacate a sentence [644 A.2d 13] only on the record in open court after notice to the parties and an opportunity to be heard. 2

The defendant's first motion for modification of sentence was timely. That motion, however, was denied. At that point, and thereafter when the 90-day period following the imposition of sentence expired, no motion was pending. The so-called "supplemental" motion for modification was filed months later, and simply had no efficacy under the Rule.

The trial judge did not enjoy a common law or inherent right to reduce or modify the legal sentence he had imposed. A limited common law revisory power has, however, been recognized. As Judge Digges pointed out for this Court in Ayre v. State, 291 Md. 155, 433 A.2d 1150 (1981),

"[i]n Maryland all judgments are under the control of the court during the term in which they are entered, and during that time the court has inherent power to strike out or modify judgments in both civil and criminal cases." Madison v. State, 205 Md. 425, 431, 109 A.2d 96, 99 (1954). In the absence of a statute or rule either modifying or rescinding this power, such authority survives.

Id. 291 Md. at 159-60, 433 A.2d 1150 (some citations omitted). See also Christian v. State, 309 Md. 114, 123, 522 A.2d 945 (1987) (acknowledging the common law doctrine that a court has plenary authority over its judgments and orders during the term in which they are entered).

Assuming, arguendo, that this revisory power extends to sentences imposed in criminal cases, and that it has not been

Page 386

supplanted by Rule 4-345, 3 the principle would not be applicable here because sentence was imposed in the September, 1990 term of court, which expired when the new term of court began on the second Monday in March, 1991. 4 The order reducing the sentence was not entered until May, 1991.


Having determined that the trial judge lacked the power to reduce this defendant's sentence when he did, we turn to the question of whether this Court is authorized to entertain the appeal noted by the State. Article IV, § 14 of the Constitution of Maryland provides in part that "[t]he jurisdiction of the Court of Appeals shall be co-extensive with the limits of the State and such as now is or may hereafter be prescribed by law." A part of the law of which that constitutional provision speaks is the common law as it existed in England and in this colony on the 4th day of July, 1776, and is not inconsistent with the constitution of the State or its new political institutions. See Declaration of Rights of Maryland, Article 5; State v. Buchanan, 5 H. & J. 317, 358 (1821).

A majority of the Court of Special Appeals' panel considering this case held that the appeal was permitted by statute, and in the alternative was permitted under the common law principle that an appellate court may entertain an appeal to review a contention that an inferior court acted in excess of its jurisdiction. State v. Cardinell, supra, 90 Md.App. at 460, 601 A.2d 1123. We do not agree that the statute is broad enough to authorize the State's appeal, but we do agree that the appeal will lie pursuant to common law principles that have not been abolished by the legislature.

Page 387

The statutory authority suggested by the State is § 12-302(c)(2) of the Courts and Proceedings Article, Md.Code (1974, 1989 Repl.Vol.). That section provides in pertinent part as follows:

[644 A.2d 14] (c) In a criminal case, the State may appeal as provided in this subsection.

* * * * * *

(2) The State may appeal from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.

A majority of the Court of Special Appeals' panel reasoned that rules promulgated by this Court have the force of law, 5 that the trial judge acted outside the authority granted him by Maryland Rule 4-345(b), and that the modified sentence was therefore not authorized "by the Code." State v. Cardinell, supra, 90 Md.App. at 458-60, 601 A.2d 1123. This broad interpretation of the statute was adopted in the belief that "[t]he legislature must have intended that the State have a right to appeal under circumstances such as these where a trial court imposed a sentence that was contrary to law." Id. at 459, 601 A.2d 1123. Although we agree that the legislature did not intend by the enactment of this section of the statute to deprive the State of the important and long-standing common law right to appeal when a court has exceeded its power, we do not agree that the statute was intended to, or does, codify that right. Ordinarily, when the legislature speaks of the Code, it means the statutory law of the State. The more general term "law" encompasses much more, including the common law of the State and the rules of this Court that have the force of law. We think the legislature used the word "Code" in its ordinary signification in § 12-302(c)(2), and consequently that section does not authorize the State's appeal in this case.

The State does, however, enjoy a common law right to appeal under these circumstances. In State v. Buchanan,

Page 388

supra, 5 H. & J. at 329-30, our predecessors noted that even in the absence of a statute,

the King might have a writ of error in a criminal case; since it would be absurd to say that a man who had obtained a judgment of acquittal for a defect in the indictment, or on a special verdict, could never again be indicted for the same offense, until that judgment was reversed by writ of error, if a writ of error would not lie.

Pointing out that Attorney General Luther Martin had prosecuted writs of error on behalf of the State in various criminal cases tried in the Court of Oyer and Terminer, & c. for Baltimore County, the Court said:

And there is no sufficient reason why...

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