Harmon v. State
Decision Date | 30 October 2002 |
Docket Number | No. 1725,1725 |
Citation | 809 A.2d 696,147 Md. App. 452 |
Parties | Sheri May-Dawn HARMON, v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Margaret L. Lanier, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.
Cecia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Leonard Collins, Jr., State's Atty. for Charles County, LaPlata, on the brief), for appellee.
Argued before HOLLANDER, JAMES R. EYLER, and SONNER, JJ.
In this case, we must examine two sentences imposed upon Sheri May-Dawn Harmon, appellant, by the Circuit Court for Charles County. One was imposed shortly after appellant pleaded guilty to the charge of forgery. The other was imposed a few months later, after appellant had begun to serve the probationary portion of her original sentence.
Appellant was initially sentenced on April 15, 1999, to a term of three years' imprisonment, with all but 90 days suspended, and three years' probation. During the brief period of incarceration, the court agreed to allow appellant to participate in a work release program. While on work release, however, appellant was accused of alcohol consumption, in violation of the program's rules. That violation led the court to hold an evidentiary hearing on July 23, 1999, after appellant had already been released on probation. Following the hearing, the court found appellant in violation of the rules of work release. It then modified the sentence it had previously imposed, changing it to a one-year sentence, to commence almost a year later, on July 4, 2000, with probation upon release.
On appeal, Harmon poses the following six questions on appeal:
I. Did the trial court err in admitting evidence of the breath test, when its admission violated [Maryland Code, Transportation Article] § 16-205.2 and [Maryland Code, Courts and Judicial Proceedings Article] CJ § 10-914?
II. Did the court err in finding appellant in violation of her probation, when her probation had not yet begun?
III. Did the court err in imposing some of the back-up time without ever revoking probation?
IV. Did the court err in its sentence, in: 1.) making the sentence begin in the future, 2.) making the beginning date indeterminate?
V. Did the court err in illegally increasing appellant's sentence?
VI. Did the court fail to give appellant adequate notice, since the condition which the court found she violated was not written on the probation order?
We answer the first question in the affirmative, and so shall vacate the circuit court's imposition of the modified sentence on July 23, 1999. Accordingly, we decline to answer appellant's remaining questions.
On February 19, 1999, appellant pled guilty to the crime of forgery, for which she was initially sentenced on April 15, 1999. At that sentencing, the court stated:
The work release will involve you setting up a schedule with the jail staff and abide by that. You don't make detours coming to or from jail and abide by the rules of occupancy of the jail. You don't come back with any inappropriate chemicals on or in you and cooperate with any effort to police that.
You don't go home while on a released status and you will pay room and board at the jail that won't exceed $15 a day and that is payable in monthly installments and payable in full before you are released. In fact they won't let you out until it is paid.
(Emphasis added).
On May 21, 1999, the Charles County Sheriff's Office wrote a memorandum to the trial court, advising that on May 5, 1999, appellant was suspended from the work release program at the detention center because of "positive alcohol readings of .07 and .05." The sheriff's office further advised that, "[u]nless overruled by the courts," appellant would remain suspended.
Thereafter, on June 7, 1999, the court issued an Order indicating that it had been advised that Ms. Harmon had been "excluded from the work release program [at the Charles County Detention Center] for contravention of its rules in that she possessed an alcoholic beverage on May 5, 1999." Therefore, the court said that it "proposes to revoke the probation authorization in this case," and ordered a hearing.
On July 12, 1999, the Clerk issued a notice advising that a hearing was scheduled on July 23, 1999, to "Revoke Probation Authorization." At the outset of the hearing on that date, defense counsel moved to dismiss, asserting numerous grounds. The following transpired:
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I would also move to dismiss because the law only authorizes reimposition of sentence for a violation of condition of probation, not for a pre-condition of probation. The law doesn't authorize the court to set that pre-condition to probation commencing, so to give Ms. Harmon any more of her sentence at this point would constitute an illegal increase in her sentence, violating the rule that on[c]e sentence has been imposed, it may not be increased.
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