Hite v. State, 47

• Decision Date: 07 December 1951
• Docket Number: No. 47,47
• Citation: 198 Md. 602,84 A.2d 899
• Parties: HITE v. STATE.
• Court: Maryland Court of Appeals

Page 602

198 Md. 602

84 A.2d 899

HITE v. STATE.

No. 47.

Court of Appeals of Maryland.

Dec. 7, 1951.

John M. Robb, Cumberland, for appellant.

A. T. Hartman, Sp. Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and Paul M. Fletcher, State's Atty., Allegany County, Cumberland, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

This court issued the writ of certiorari in this case under the provisions of Sec. 104 of Article 5 of the Annotated Code, because it was made to appear by the petition of Walter Hite, now designated the appellant, that decisions had been made with respect to him which were not in accord with the decisions in other circuit courts, and it was desirable, and in the public interest, that the questions raised should be reviewed. While the record does not show any contrary decisions in other circuits, it does show that certain decisions were made in this case which are not in conformity with what is the settled law.

Hite was tried in the Juvenile Court of Allegany County on January 3, 1951, on a warrant for non-support, and, after a hearing, was sentenced to ten days in the county jail. This sentence was suspended and he was paroled on condition that he pay up his delinquency, and pay $15 weekly as a regular payment. On January 11, 1951, a warrant was issued for him for violation of his parole. After trial, he was found guilty and sentenced to six months in the House of Correction. He filed an appeal to the Circuit Court, and, on April 20, 1951, he was tried in the Circuit Court and sentenced to confinement in the Maryland House of Correction for two years. After the writ of certiorari had been granted, the trial judge filed a nunc pro tunc opinion in which he stated that the case was heard de novo on appeal upon the insistence of Hite's attorney. He said that the records of the Juvenile Court show that Hite had been presented in the Juvenile Court fourteen times in connection with the non-support of his wife and minor child, and that he was almost continuously delinquent.

The case was tried under the Juvenile Court Act for Allegany County, which is Chapter 976 of the Acts of 1945. The act provides for the trial of any person charged by law with the care of any child, who wilfully neglects or refuses to support or maintain it. Sec. 374. This provision authorizes the magistrate for juvenile causes to impose sentence, or to suspend sentence, and place the party charged under probation. Sec. 374B provides, among other things, for the bringing of any adult who may be on probation before the magistrate charging him with violation of the probation. The magistrate is then authorized to continue the proceedings and finally dispose of them as fully as if there had been no suspension of sentence in the first place. This last section is relied upon by the trial court and the State to authorize the magistrate to impose the new six months sentence. Sec. 374AAA provides that any person aggrieved by any order passed under the act may, within ten days thereafter, file appeal to the Circuit Court for Allegany County, where the case shall be tried de novo. There was some question about the time of the appeal in this case but the court decided that it was in time and no point is made as to that by the State. The Circuit Court and the State rely on this section to justify the hearing of the entire case de novo, and not merely the case involving the violation of parole. It is under this section that the court imposed the two-year sentence.

A suspension of sentence by a magistrate carries with it the same rights of the parolee as a suspension by a court, or a conditional pardon by an executive. In the case of a conditional pardon, this court has placed itself in agreement with the case of Fleenor v. Hammond, 6 Cir., 116 F.2d 982, 132 A.L.R. 1241, and has held that a parole cannot be revoked without first giving the parolee a hearing, and that this is a requirement of due process of law. Wright v. Herzog, 182 Md. 316, 322-323, 34 A.2d 460; State ex rel. Murray v. Swenson, Md., 76 A.2d 150. The case before us here does not involve a general suspension of sentence, or as it is sometimes termed, a suspension of the imposition of sentence, which would not be a final determination of the case. In Symington v. State, 133 Md. 452, 105 A. 541, 542, this court said that such a suspension of sentence 'was in legal effect and meaning the suspension of judgment, and, where there is no sentence or judgment pronounced, no appeal will lie.' In so holding this court cited the case of State v. Brewer, N.J.Sup., 59 A. 31, where an accused had been found guilty of non-support and the court had suspended the imposition of sentence. A writ of error was issued to the Supreme Court of New Jersey, and the court said: 'Such a writ will only lie to review a final judgment, and no final judgment has yet been entered in this case, its rendition having been indefinitely postponed.' This court also cited as authority the unreported case of Fleet v. State, 73 Md. xiv. That case was where there had been an adjudication of guilty on a charge of fraudulent voting, but no sentence had been pronounced. An appeal was taken, but the court held that there was no final judgment from which an appeal could be taken. In the case of Pritchett v. State, 140 Md. 310, 117 A. 763, the court had before it a conviction for non-support of a wife under a statute which provided for a fine or imprisonment, or both, but also, as an alternate, that instead of imposing such punishment, or in addition, an order might be passed requiring the defendant to pay a certain sum weekly to his wife and to release him from custody on probation. The trial court did...