Finnegan v. State
| Citation | 4 Md.App. 396,243 A.2d 36 |
| Decision Date | 19 June 1968 |
| Docket Number | No. 284,284 |
| Parties | Margaret Nancy FINNEGAN v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur Marshall, Jr., State's Atty. for Prince George's County, on the brief, for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
On 3 July 1967 the appellant entered a plea of guilty to possession of lottery tickets in the Circuit Court for Prince George's County. A pre-sentence investigation was made and on 7 August 1967 she was sentenced to imprisonment for a term of one year, the execution of the sentence was suspended and she was 'placed on probation, under the supervision of the Department of Parole and Probation, for a period of three years, upon the special condition that she remain with her children and care for them, and that she co-operate in the fullest degree with the State's Attorney's Office from Prince George's County in the discovery of and prosecution of any persons of which she may 'THE COURT: In any event, this would appear to be one of those cases where we can take a chance on you without losing too much, because if you revert to any kind of criminal activity you are going to be compelled to return to court, serve the sentence that the Court imposes on you today, as well as whatever you get for the new offense. And another special condition of your probation is going to be that if anybody from the State's Attorney's Office calls you, either by night or by day, you are to go down to that office and co-operate with them in the prosecution of anybody that they have picked up that you know anything about. Do you understand that?
have knowledge in connection with the offense with which she was charged'. Before imposing the sentence and the conditions of probation the court said to the appellant:
On 7 September 1967 at a hearing in open court the court found her to be in violation of probation and it ordered the suspension of her sentence stricken. She was 'remanded to the custody of the Sheriff to be delivered into the custody of the Commissioner of Correction to serve the unexecuted portions of the sentence heretofore imposed'.
During the hearing Shirley Sollers testified that she had filed a suit for divorce against her husband, Charles Sollers, in the Circuit Court for Montgomery County and that about 18 November 1966 she had testified in that action that the appellant was an employee or her husband. She said that her husband was engaged in bookmaking, that the appellant (referred to by her as Peggy) and another girl named Michele had started 'THE COURT: Mr. Stephens, all this is beside the point. I told her that she was to co-operate with these men in the prosecution of the people who were her associates in the numbers business; that she was supposed to identify them and appear to testify against them. Now she says she didn't know any of them except these nameless or faceless people, and it turns out that she certainly did know the man she was working for, that she was in and out of his apartment, and she called him and made 20 or 30 calls to his right-hand man.
to work for him about March or April 1966, that she called his office about that time and the appellant answered the telephone, that she had seen the appellant in the company of her husband and Michele and had seen her on three different occasions going in and coming out of the apartment building from which her husband conducted lottery operations. The appellant had told the police that she worked in the gambling operations with Stanley, Chet and Vic and that she had only a casual relationship with Charles Sollers, whom she understood to be in the plumbing business, serving him in her capacity as a waitress at Oak Grove Inn. Mrs. Sollers did not know anyone by the name of Stanley, Chet or Vic 'that might have been running a numbers operation at the same location' as her husband. At the conclusion of the evidence presented by the State the appellant's counsel argued that the appellant maintained [243 A.2d 39] that she did not know the identity of the persons who employed her in the gambling operations except by description and first name, which information she had given to the police. The record then shows the following:
with that. Probably because your client refuses to identify and appear and testify against him.
MARGARET NANCY FINNEGAN
defendant herein, was called as a witness in her own behalf, and, having been first duly sworn, was examined and testified as follows:
Go back down.
After a brief recess counsel informed the court that the appellant elected not to testify. The court said, 'I think that is a prudent election under the circumstances'.
The appellant presents the question on appeal from the order revoking probation, 'Did the conduct of the trial Judge in stating his belief of the evidence given by the State coupled with his threat of a charge of perjury made to the Appellant prior to Appellant's testifying constitute such prejudice and bias as to deny Appellant a fair and impartial trial and/or so intimidate appellant as to prevent her testifying and thereby deny her due process of law?'
The Court of Appeals has held that a parole cannot be revoked without giving the parolee a hearing, and that this is a requirement of due process of law. Swan v. State, 200 Md. 420, 425, 90 A.2d 690. It follows that the question of whether the hearing complied with the requisites of due process may be reviewed by this Court on appeal. 1 The hearing on the inquiry of whether or not the conditions of probation have been violated is not required to be a trial in the strict or formal sense. Warden of Maryland Penitentiary v. Palumbo, 214 Md. 407, 411, 135 A.2d 439. The demands of due process will be satisfied if the probationer is extended a reasonable opportunity to defend himself against the charge that he has violated the conditions upon which his probation was granted. Jett v. Superintendent, 209 Md. 633, 640, 120 A.2d 580. In the instant case we think the appellant could reasonably take the remarks of the lower court to mean that it had found at the conclusion of the evidence offered by the State that she had worked for Charles Sollers in the...
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...of law.' Wilson v. State, 6 Md.App. 397, 402, 251 A.2d 379, 382, citing Swan v. State, 200 Md. 420, 425, 90 A.2d 690, and Finnegan v. State, 4 Md.App. 396, 243 A.2d 36. In the instant case a hearing is required by statute. See Charter and Public Local Laws of Baltimore City (Flack 1949) § 2......
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Howard v. State, 1909
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Herold v. State, 706
...if the probationer is given a reasonable opportunity to defend himself, i.e., a hearing to explain his conduct. Finnegan v. State, 4 Md.App. 396, 401, 243 A.2d 36 (1968); Swan v. State, 200 Md. 420, 425, 90 A.2d 690 (1952). Substantive due process is satisfied if revocation of probation is ......