Eggleston v. State, 138

• Decision Date: 06 April 1956
• Docket Number: No. 138,138
• Citation: 209 Md. 504,121 A.2d 698
• Parties: Morton H. EGGLESTON, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 504

209 Md. 504

121 A.2d 698

Morton H. EGGLESTON, Jr. v. STATE of Maryland.

No. 138.

Court of Appeals of Maryland.

April 6, 1956.

Fred Kolodner, Baltimore (Leon J. Rudd, Baltimore, on the brief), for appellant.

Alexander Harvey, II, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Anselm Sodaro, State's Atty. and

J. Robert Brown, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This case involves two appeals in one record from orders of the Criminal Court of Baltimore. The appellant had been convicted in two cases of larceny by a Magistrate. On appeal by the appellant here, he was convicted in the Criminal Court and sentenced on March 8, 1955, to six months in the House of Correction in each case, the sentences to run concurrently from February 23, 1955, the date of his original arrest and conviction by the Magistrate. He was referred by the court to the Patuxent Institution for examination and diagnosis to ascertain whether he was a defective delinquent under the provisions of Code 1951, art. 31B, sec. 6, and was admitted to Patuxent on March 14, 1955. On June 20, 1955, the Director, Dr. Harold M. Boslow, forwarded to the court a written report with findings and a letter recommending that the appellant be committed to the Institution on an indeterminate basis as a defective delinquent.

On July 21, 1955, the appellant was summoned before the court and advised of the findings and conclusion of the Director of the Patuxent Institution. On the same day, Fred Kolodner, Esq. was appointed by the Court to represent the appellant in proceedings to determine whether or not he was a defective delinquent. Under the statute it was mandatory upon the court to appoint counsel within twenty days after the summons and service of a copy of the report. Mr. Kolodner requested that the hearing on the issue, originally set by the court for July 22, 1955, be postponed until a later date in order that he might prepare his defense. Here again the statute provided that counsel appointed is entitled to at least thirty days to prepare his case. The court granted the request, and by order dated July 22, 1955, directed that appellant should remain in the custody of the Patuxent Institution pending the final determination of the issue of defective delinquency. Had appellant been confined in the Maryland House of Correction under the sentence of March 8, 1955, and remained there, that sentence would have expired, assuming the usual time off for good behavior, on July 23, 1955. However, the appellant was in the Patuxent Institution from March 14, 1955, until his case was disposed of except for his appearance in court on July 21, 1955.

On September 28, 1955, the appellant was 'arraigned' for hearing upon the report and pleaded 'not guilty', electing to be tried by the court. Counsel for the defense introduced reports of Dr. Charen, a psychologist, and Dr. Freedom, a psychiatrist, who had examined the appellant at the request of his counsel and at State expense. Both reports corroborated the findings in the report from the Institution. It was stipulated that the appellant had been convicted in the criminal courts of this State of two or more offenses punishable by imprisonment. In fact, he had had a number of previous convictions. At the conclusion of the hearing, the court found the appellant to be a defective delinquent within the meaning of art. 31B of the Code, suspended his original sentence to the House of Correction, and committed him to Patuxent Institution for an indefinite period, subject to further order of court. The present appeals are from this order of September 28, 1955, and from the previous order of July 22, 1955

The new law relating to defective delinquents was enacted by Ch. 476, Acts of 1951, and appears in Code 1951, art. 31B. Sec. 11 of this Article provides that 'From any court order issued under the provisions of Section 9, or of Section 10, there shall be the same right of appeal to the Court of Appeals as after any conviction of felony.' Sections 9 and 10 deal with sentences after judicial determinations of defective delinquency, and with judicial determinations on petitions for review of a sentence. Neither of these sections refer to preliminary or interlocutory orders, and they do not in terms authorize an appeal from such orders. Moreover, the type of appeal is analogized to the ordinary criminal appeal. It is well settled that an appeal in a criminal case is premature until after final judgment. State v. Harman 199 Md. 209, 212, 86 A.2d 397, and cases cited. The appeal from the order of July 22, 1955, must be dismissed. We may consider the effect of the order, however, on the appeal from the order of September 28, 1955.

The appellant contends that the court lost jurisdiction to determine the issue of defective delinquency because the original sentence expired by lapse of time on August 23, 1955, or on July 23, 1955, if time off for good behavior is allowed. Thus, it is argued that the court had no jurisdiction to try the case on September 28, 1955, and the original sentence to the House of Correction could not be extended by the order of July 22, 1955, remanding him to the Patuxent Institution pending trial.

Sec. 6 provides that on request of the State's Attorney, the Chairman of the Board of Correction of the defendant, or of his attorney, the court may order an examination by the Institution, or the court may do so on its own initiative. The request must be by petition filed with the court stating the reasons why defective delinquency is suspected or supposed. Such examination may only be ordered if the person to be examined has been convicted and sentenced by a court of this State for a crime or offense in the following categories: a felony, a misdemeanor punishable by imprisonment in the penitentiary, a crime of violence, a sex crime of three defined types, or 'two or more convictions for any offenses or crimes punishable by imprisonment, in a criminal court of this State.' Sec. 6(c) provides: 'Such an examination may be requested and made at any time after the person has been convicted and sentenced for a crime or offense specified hereinabove in this section, provided that said person has been sentenced to a period of confinement in a penal institution or is then serving such a sentence. No such examination shall be ordered or made if the said person has been released from confinement for the particular crime or offense of which he was convicted.'

It is clear that the court in the instant case had jurisdiction to order the examination, since the order was passed after sentence for a crime falling into one of the specified categories, and before the sentence had been served. The proceeding was initiated by the petition and examination order. Sec. 6(e) provides that 'The Court which last sentenced the defendant, whether or not the term of Court in which he was sentenced has expired, shall retain jurisdiction of the defendant for the purpose of any of the procedures specified in Sections 6, 7, 8, or 9 hereof.' It would appear that under this sweeping language, jurisdiction, once properly obtained, would continue until the purposes to be served by the examination were accomplished, regardless of the expiration of the original sentence. It is a general rule that a court obtaining jurisdiction of the person and subject matter retains it until the case is finally disposed of. 14 Am.Jur. 'Courts' § 170; Hunter v. Warden, 198 Md. 655, 656, 80 A.2d 611. In criminal cases the accused, unless released on bail or on his own recognizance, is necessarily held in custody until trial. The remand in the instant case was designed to accomplish the same purpose. Ordinarily credit for time spent in jail pending trial is discretionary with the court and does not go to the question of jurisdiction. Hands v. Warden, 205 Md. 642, 643, 109 A.2d 51.

In any event, we think the time of the original sentence did not run during the period the defendant was held for examination. Sec. 7(a) sets out in detail the scope of the examination by three experts, and calls for a determination 'On the basis of all the assembled information, plus their own personal examination and study of the said person'. Obviously, time is required for study and deliberation. Moreover, the person examined is entitled to an examination, at State expense, by a psychiatrist of his choice. The examiners are required to state their findings in a written report addressed to the court. 'If the substance of the report is that the said person is not a defective delinquent, he shall be returned forthwith to the custody of the Department of Correction on the original criminal conviction, and he shall begin or resume his period of confinement on said conviction as if he had not been examined for possible defective delinquency.' We think this is a clear directive that credit shall not be allowed for the time spent in the examination. He could never 'begin' serving the original sentence, if credit were given for the examination time. The same language appears in Sec. 9(a), dealing with the situation where a defendant is found not to be a defective delinquent on a trial of the issue before a court or jury.

These provisions denying credit for the time spent in the examination may be contrasted with the provisions of sections 10(a) and 13(e). Where a person confined as a defective delinquent under an indeterminate sentence is subsequently determined by the court or jury not to be a defective delinquent, on a petition for review or on recommendation by the Institutional Board of Review, it is expressly provided that he shall receive credit against his original sentence for the time served...