Corcoran v. State
Decision Date | 01 September 1985 |
Docket Number | No. 991,991 |
Citation | 507 A.2d 200,67 Md.App. 252 |
Parties | King CORCORAN v. STATE of Maryland. , |
Court | Court of Special Appeals of Maryland |
Gregg L. Bernstein (M. Albert Figinski, on brief), Baltimore, for appellant.
Ann E. Singleton, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty., for Baltimore City and Deborah K. Hines, Asst. State's Atty., for Baltimore City, on brief), Baltimore, for appellee.
Argued before MOYLAN, ROSALYN B. BELL and ROBERT M. BELL, JJ.
The appellant, King Corcoran, was originally found guilty in the Circuit Court for Baltimore City of two criminal violations involving the home improvement law. Judge Carl W. Bacharach struck the finding of guilt under the provisions of Art. 27, § 641 and placed the appellant on supervised probation for a period of one year. The appellant was ordered to pay restitution in the amount of $2,000 within 60 days and also to pay court costs. On August 9, 1985, the appellant was found guilty of having violated the terms of his probation by Judge Robert I.H. Hammerman. Judge Hammerman struck the probation before judgment and ordered the appellant to serve a term of three months imprisonment. Upon this appeal, the appellant raises two contentions:
1) That Md.Rule 4-346 was violated when the probation revocation hearing was held before a judge different from the one who had imposed the original sentence; and
2) That Judge Hammerman abused his discretion in revoking the probation because the appellant's failure to pay restitution was not willful.
The short answer to the appellant's first contention is that it is an afterthought. When the revocation hearing was convened by Judge Hammerman and through the entire course of that hearing, the appellant made no remote objection to the fact that it was Judge Hammerman and not Judge Bacharach upon the bench. Nothing has been preserved for appellate review.
Few principles are more basic to appellate review than that the reviewing court "will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court." Md.Rule 1085. In Medley v. State, 52 Md.App. 225, 230-231, 448 A.2d 363 (1982), Judge Wilner thoroughly discussed the long history and enduring value of this procedural requirement of contemporary objection. He concluded, at 52 Md.App. 231, 448 A.2d 363:
The appellant claims that he is exempted from the otherwise foreclosing effect of Maryland Rule 1085 by Walczak v. State, 302 Md. 422, 488 A.2d 949 (1985). He reads Walczak far too broadly.
In holding that an illegal sentence may be reviewed on appeal even if not objected to below, the Court of Appeals was very careful to limit the exemption to a situation where the sentence was illegal in itself, a sentence "not permitted by law." 302 Md. at 427, 488 A.2d 949. The Walczak opinion was not dealing with alleged procedural flaws in the sentencing hearing itself. Both the literal holding of Walczak and the reasoning behind it were well spelled out by Judge Eldridge, at 302 Md. 427, 488 A.2d 949:
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Hoile v. State
......It does not remotely suggest that a sentence, proper on its face, becomes an `illegal sentence' because of some arguable procedural flaw in the sentencing procedure." . Wilkins, 393 Md. at 273, 900 A.2d at 768 (quoting Corcoran v. State, 67 Md.App. 252, 255 507 A.2d 200, 202 (1986)). . Although "there are significant differences between the current Maryland rule . 948 A.2d 49 . 4-345] and its federal counterpart [35(b)]," Greco, 347 Md. at 434, 701 A.2d at 424, we have found federal precedent helpful ......
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....... The State cites several cases, Brecker v. State, 304 Md. 36, 497 A.2d 479 (1985), Saenz v. State, 95 Md.App. 238, 620 A.2d 401 (1993), and Corcoran v. State, 67 Md. App. 252, 507 A.2d 200, cert. denied, 307 Md. 83, 512 A.2d 377, cert. denied, 479 U.S. 932, 107 S.Ct. 404, 93 L.Ed.2d 357 (1986), in support of its argument that appellant's contentions are not properly before us. Those cases are inapposite, because none addresses review of ......
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Carlini v. State
...... In terms of what is cognizable under Rule 4–345(a) and what is not, this Court, in Corcoran v. State, 67 Md.App. 252, 255, 507 A.2d 200 (1986), very carefully explained the critical difference between a procedural error and a substantive illegality. The notion of an “illegal sentence” within the contemplation of the Walczak decision deals with substantive law, ......
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Ray v. State
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