David K., In re

• Decision Date: 13 May 1981
• Docket Number: No. 1287,1287
• Citation: 429 A.2d 313,48 Md.App. 714
• Parties: In re DAVID K.
• Court: Court of Special Appeals of Maryland

Page 714

48 Md.App. 714

429 A.2d 313

In re DAVID K.

No. 1287.

Court of Special Appeals of Maryland.

May 13, 1981.

Neil Edward Axel, Rockville, for appellant.

Patricia E. McDonald, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Md., Andrew L. Sonner, State's Atty., for Montgomery County and Eric E. Wright, Asst. State's Atty., for Montgomery County on the brief, for appellee.

Argued before MELVIN, WILNER and WEANT, JJ.

WILNER, Judge.

The seventeen-year old appellant was found to be a delinquent child by reason of his having committed certain traffic offenses. He makes no complaint about that finding. What he does complain of is the dispositional order entered by the court. Specifically, he asks in this appeal whether the juvenile court had the authority to (1) require him to pay a $500 fine, and (2) suspend his driving privileges for an indefinite period.

The relevant facts are not in dispute. We shall adopt the statement of them set forth in appellant's brief:

"On May 24, 1980, at approximately 4:00 p. m. Maryland State Police Trooper S. A. McGee was operating a stationary radar speed gun at U.S. Route 50 and Bell Road in Worcester County. At the time, a 1966 Buick automobile, operated by the Appellant, was observed in the fast lane of eastbound U.S. Route 50 at a high rate of speed. The radar speed gun indicated the vehicle was traveling at 101 miles per hour in the 55 mile per hour speed zone at that location. The vehicle was in the fast lane and no other motor vehicles were near it. The vehicle was stopped at U.S. Route 50 east of Maryland Route 610, and at that time the police officer could detect a moderate to strong odor of alcohol on the operator. The Appellant's manner was that of an intoxicated person in the opinion of the officer, in that his face was flushed and he staggered when attempting to walk. Also in the motor vehicle operated by the Appellant was a passenger who also smelled of the odor of alcohol. In plain view in the rear seat of the motor vehicle were ten 16 ounce Colt 45 Malt Liquor cans which were unopened. The beer was in an ice-filled cooler with no top. A blood sample was obtained from the Appellant which was tested for the presence of alcohol. The said sample was found to contain 0.15% ethel (sic) alcohol by weight."

As the result of this occurrence, a juvenile petition was filed in the Circuit Court for Worcester County charging appellant with being delinquent by (1) possessing an alcoholic beverage, in violation of Md.Ann.Code Art. 27, § 406A, (2) operating a motor vehicle while intoxicated, in violation of Transportation article, § 21-902(a), (3) driving while impaired by consumption of alcohol, in violation of Transportation article, § 21-902(b), and (4) speeding, in violation of Transportation article, § 21-801.1. At or before the adjudicatory hearing, the State dismissed charges (1) and (3), but, proceeding on an agreed statement of facts, the court found charges (2) and (4) to be sustained and, accordingly, entered a finding of delinquency.

Pursuant to Courts article, § 3-809, and apparently without objection, the proceeding was then transferred for purposes of disposition to Montgomery County, where appellant and his family lived. After holding a disposition hearing, the District Court for that county, Juvenile Division, entered an order: (1) committing appellant to the Maryland Training School; (2) suspending that commitment and placing appellant in the care of his parents under a program of probation to be provided by the Juvenile Services Administration; (3) directing that appellant receive "a tour" of the Maryland Training School and referring him to "the DWI School"; (4) suspending appellant's privilege to operate a motor vehicle; (5) fining appellant $500, to be paid at the rate of $100 a month; and (6) continuing the court's jurisdiction over appellant.

In the Stipulation of Facts entered by the parties, we are told that appellant objected to parts (4) and (5) of the order the suspension of driving privileges and the fine. It does not appear in the stipulation, although it does in the record that the court had before it a "social history" indicating that appellant had previously been charged with vandalism, which charge had been informally adjusted based upon an agreement to pay restitution of $1,400, that he had two previous speeding violations, that he consumes a six-pack of beer twice a week (and has been drinking beer since the ninth grade), that he occasionally uses marijuana, and that, in the social worker's view, he did not seem to be taking this episode very seriously.

Appellant's attack on the suspension of his driving privileges and the fine is based on overlapping, yet distinct theories.

By way of introduction, he correctly states that the primal focus of the juvenile causes act is rehabilitation and not punishment. This is clear from § 3-802 of the Courts article, in which the Legislature set forth the purposes of the juvenile law, from § 3-824, which states that an adjudication of delinquency is not a "criminal conviction for any purpose and does not impose any of the civil disabilities ordinarily imposed by a criminal conviction," from most of the other operative provisions in that law, and from the interpretations given to the law by the appellate courts of this State. See, for example, In re Hamill, 10 Md.App. 586, 271 A.2d 762 (1970); Matter of Davis, 17 Md.App. 98, 299 A.2d 856 (1973); In re Appeal Misc. No. 32, 29 Md.App. 701, 351 A.2d 164 (1976). The clearest expression of this is Judge Orth's statement in Davis, supra, 17 Md.App. at 104, 299 A.2d 856:

"The raison d'etre of the Juvenile Causes Act is that a child does not commit a crime when he commits a delinquent act and therefore is not a criminal. He is not to be punished but afforded supervision and treatment to be made aware of what is right and what is wrong so as to be amenable to the criminal laws."

In accord with this philosophy is Courts article, § 3-820, which lays out the dispositional options available to a juvenile court following a finding of delinquency. Section 3-820(b) provides:

"The overriding consideration in making a disposition is a program of treatment, training, and rehabilitation best suited to the physical, mental, and moral welfare of the child consistent with the public interest. ¹ The court may:

(1) Place the child on probation or under supervision in his own home or in the custody or under the guardianship of a relative or other fit person, upon terms the court deems appropriate;

(2) Commit the child to the custody or under the guardianship of the Juvenile Services Administration, a local department of social services, the Department of Health and Mental Hygiene, or a public or licensed private agency; or

(3) Order the child, parents, guardian, or custodian of the child to participate in rehabilitative services that are in the best interest of the child and the family."

It is important, also, at the outset, to make clear what the court did. As we have noted, it committed appellant to the training school and then suspended that commitment in lieu of a program of probation to be provided by the Juvenile Services Administration. The succeeding obligations imposed upon appellant by the rest of the order were not expressed as conditions to the probation, but rather as independent requirements. ²

(1) Power to Fine

The penultimate paragraph, at issue here, said:

"ORDERED that the minor child ... be fined by the Court the sum of $500.00, said sum is payable in payments of $100.00 per month with the first payment due on or before the 30th day of September, 1980, and subsequent monthly payments due each and every month thereafter until the amount has been paid in full and satisfied ...."

That, without question, is a fine not an order of restitution to an injured party (see Courts article, § 3-829) but a fine payable to the State; and it is clear to us that it was beyond the power of the court to impose.

A fine is a penal exaction; it may be imposed only "if there is a 'conviction' which necessarily requires a finding of guilt." Commissioner of Motor Vehicles v. Lee, 254 Md. 279, 286, 255 A.2d 44 (1969). It has consistently and universally been defined and considered in the context of a criminal proceeding, as a punishment imposed upon conviction of a crime. See, for example, 36A C.J.S. Fines § 1, quoted in Lee, supra; also People ex rel. Doss v. Doss, 35 Ill.App.3d 365, 342 N.E.2d 60, 63 (1975): "Generally, a fine is a pecuniary punishment for a violation of law and relates to a criminal offense"; Bergman v. State, 187 Wash. 622, 60 P.2d 699, 700 (1936): "A fine is a sum of money exacted, as a pecuniary punishment, from a person guilty of an offense ..."; State v. Pitts, 26 Ariz.App. 390, 548 P.2d 1202, 1203 (1976): "A fine is a criminal penalty ... and clearly constitutes a 'sentence' ..."; Marquart v. Maucker, 215 N.W.2d 278 (Iowa 1974); Sinner v. State, 128 Neb. 759, 260 N.W. 275 (1935); State v. Rugon, supra, 355 So.2d 876, 877; Hart v. Norman, 92 Misc. 185, 155 N.Y.S. 238 (S.Ct.1915), appeal denied 155 N.Y.S. 1112 (App.Div.); South Carolina State Highway Dept. v. Southern Railway Co., 239 S.C. 227, 122 S.E.2d 422 (1961).

As appellant points out, some state juvenile codes expressly permit the imposition of a fine in juvenile cases. See, for example, Me.Rev.Stat.Ann., tit. 15, § 3314 (1979); Ohio Rev.Code Ann., § 2151.355(A)(6) (Supp.1980) (fine not to exceed fifty dollars); S.D.Comp.Laws Ann., § 26-8-39 (Supp.1980) (fine not to exceed fifty dollars); Tenn.Code Ann., § 37-231(5) (Supp.1980) (fine not to exceed fifty dollars for each offense); Utah Code Ann., § 78-3a-39 (Supp.1980) ("fines in limited amounts"); Va.Code Ann., § 16.1-279 E 5 (1980 Supp.) (fine not to exceed five hundred dollars); and Wyo.Stat.Ann., § 14-6-229(d)(ii) (1980 Supp.). The Maryland Code, however, makes no such provision. It permits the court to...