Finnegan v. State

Citation4 Md.App. 396,243 A.2d 36
Decision Date19 June 1968
Docket NumberNo. 284,284
PartiesMargaret Nancy FINNEGAN v. STATE of Maryland.
CourtCourt 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.


ORTH, Judge.

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:

THE DEFENDANT: Yes, sir: I do.

THE COURT: The very first time the State's Attorney's Office reports to the Court you have failed to co-operate with them fully, in identifying or testifying against any of your former business associates, off you go to prison. Do you understand that?


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:

MR. STEPHENS: She states that she never worked for that individual.

THE COURT: I know. That is what bothers me. It is pretty obvious that she did work for him. There isn't any question about it.

MR. STEPHENS: Well, if that is the situation, why hasn't there been an arrest?

THE COURT: I don't know, but I am not concerned Why on earth she should persist in protecting somebody making the biggest amount of money at the risk of going to prison herself, I don't know.

with that. Probably because your client refuses to identify and appear and testify against him.

MR. STEPHENS: This Mrs. Sollers will testify admittedly.

THE COURT: Is your client prepared to get on the stand and deny what that woman said?

MR. STEPHENS: I believe she is, yes, Your Honor.

THE COURT: Your standing up there arguing won't help her too much in this present state of affairs, I can tell you.



defendant herein, was called as a witness in her own behalf, and, having been first duly sworn, was examined and testified as follows:

THE COURT: Now, sir, I want to ask you before you start this whether you have advised your client of the penalties for perjury?

MR. STEPHENS: Will you step down?

Your Honor, may I speak to her although she is under oath,

THE COURT: Yes, indeed.

Go back down.

MR. STEPHENS: Could we request a short recess?

THE COURT: Yes, sir. I think you had better explain it to her pretty clearly because if it becomes apparent to me that she is lying to me, she is going to have not only the State's Attorney responsible for her prosecution but it is going to be conducted under the order of the Court.'

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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  • Knight v. State
    • United States
    • Court of Special Appeals of Maryland
    • 25 Junio 1969
    ...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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    • 10 Septiembre 1982
    ...presented for review, it would be found ultra vires. See Bird v. State, 231 Md. 432, 190 A.2d 804 (1963); Finnegan v. State, 4 Md.App. 396, 403 n. 3, 243 A.2d 36, 41 n. 3 (1968); Dear Wing Jung v. United States, 312 F.2d 73, 76 (9th Cir. 1962); Weigand v. Commonwealth, 397 S.W.2d 780 (Ky.19......
  • Howard v. State, 1909
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    • 12 Octubre 2016
    ...authority holding that a sentence of banishment or the suspension of a sentence conditioned on banishment is void"); Finnegan v. State, 4 Md. App. 396, 404 n. 3 (1968) ("While the conditions of probation are usually within the discretion of the trial court, its power to impose conditions is......
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