Johnson v. State, 76

• Decision Date: 24 February 1975
• Docket Number: No. 76,76
• Parties: William JOHNSON, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 29

274 Md. 29

333 A.2d 37

William JOHNSON, Jr. v. STATE of Maryland.

No. 76.

Court of Appeals of Maryland.

Feb. 24, 1975.

Arnold M. Zerwitz and Dennis M. Henderson, Asst. Public Defenders, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

James I. Keane, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

We are here asked to rule that a defendant in a criminal case whose sentence has been modified, pursuant to Maryland Rule 764 b 2, has the right, within 30 days from the imposition of that revised sentence, to appeal to the Court of Special Appeals.

The appellant, William Johnson, Jr., was charged in the District Court upon a warrant with having assaulted and shot one George Chestnut on September 24, 1973. Upon his arraignment in that court he elected trial by jury and his case was transferred to the Criminal Court of Baltimore. See Maryland Code (1974), Courts and Judicial Proceedings Article § 4-302 d.

When his case came before the Criminal Court on October 18, 1973, he waived a jury trial and was tried upon the warrant ¹ by Judge Robert J. Gerstung. ²

After adjudging the appellant to be guilty Judge Gerstung inquired of counsel as to whether or not Johnson had 'an outstanding conviction.' Although the Assistant State's Attorney responded in the affirmative, the particulars thereof were not disclosed. Johnson's counsel responded that 'apparently (there was) not.' Judge Gerstung then imposed a sentence of five years, stated that he would request 'a post sentence report for the specific purpose of determining prior record, work habits, and drug habits,' and directed counsel to file a motion for reduction of sentence. He then informed the defendant that he had the right to file a motion for a new trial within three days and that he had 'thirty days in which to file an appeal.'

When the Probation Department of the Supreme Bench of Baltimore filed the report of its post-sentence investigation on November 12th it was disclosed that the appellant had been placed on 'probation without verdict' in 1969 for attempted burglary, had served a three-year sentence in 1970 for assault with intent to murder-confirmed by the arrest records and fingerprints, but denied by the appellant-and had three cases charging him with gambling in 1972, on one of which he had been fined and on the other two he had been given 'probation without verdict.' Upon this data Judge Gerstung was apparently persuaded to reduce the sentence imposed on October 18, 1973, ³ and on December 28, 1973, pursuant to the provisions of Maryland Rule 764 b 1, resentenced the appellant to a four-year term which modification was entered of record upon the docket.

On January 25, 1974, an appeal was docketed to the Court of Special Appeals, and on February 22nd the Criminal Court of Baltimore (Perrott, J.), upon a petition, signed an order extending the time for the transmittal of the record until April 25, 1974. See Maryland Rule 1025 b. When, apparently, the record could not be transmitted within 90 days 'from the date after the first order for appeal,' a petition filed on April 19, 1974, for a further extension of time was addressed, pursuant to Maryland Rule 1025 c, to the Court of Special Appeals. Chief Judge Orth denied the petition on April 22, 1974, marginally noting that the 'appeal (was) untimely filed.'

Counsel for the appellant asserting that the appeal was entered from the modified sentence and judgment imposed on December 28, 1973, petitioned the Court of Special Appeals to reconsider the order dismissing the appeal. That court on April 30, 1974, noting that the motion was, in effect, to have the court rescind its prior order, denied it. The Clerk of the Court of Special Appeals by letter advised the Clerk of the Criminal Court of Baltimore, as well as the State's Attorney for Baltimore City and the Attorney General, of the action taken by the court and directed the addressees' attention to Maryland Rule 1013. On April 26, 1974, Judge Perrott, in the Criminal Court of Baltimore, noting that the appellant's attempted appeal was from the action taken on December 28, 1973, reducing his sentence and was not taken within 30 days from the date of the imposition of his original sentence on October 18, 1973, dismissed the appeal pursuant to Maryland Rule 1013-which authorizes the lower court, sua sponte, or upon motion, to strike an order for appeal where the appeal has not been timely filed.

The appellant seasonably noted an appeal to the Court of Special Appeals from Judge Perrott's final order. See Code (1974), Courts and Judicial Proceedings Article § 12-301. While the case was pending in the Court of Special Appeals we granted the petition of the appellant for the issuance of a writ of certiorari. See Code (1974), Courts and Judicial Proceedings Article § 12-203.

Maryland Rule 1012, relating to appeals to the Court of Special Appeals, provides as follows:

'Whenever an appeal to this Court or an application to this Court for a writ of certiorari is permitted by law, the order for appeal or the application for a writ of certiorari shall be filed within thirty days from the date of the judgment appealed from.' (Emphasis supplied.)

It is substantially the same as Maryland Rule 812 a, which governed appeals to this Court.

In Colter v. State, 219 Md. 190, 148 A.2d 561 (1959), it was held that the appellant's appeal must be dismissed where it was not taken, as required by Maryland Rule 812 a, within 30 days from the judgment of conviction appealed from, and that the filing of a motion for a new trial, after the entry of a judgment and the imposition of sentence did not extend the time for filing such appeal under the holdings in Hayes v. State, 141 Md. 280, 282, 118 A. 652, 652, (1922). ⁴

In Coleman v. State, 231 Md. 220, 189 A.2d 616 (1963), the appellant was sentenced on February 15, 1961, to a term of two years which was suspended and he was placed on probation for that same period, under specified conditions. His probation was revoked on July 11, 1962 for failure to comply with the conditions. When the trial court revoked the probation the clerk, in error, made a docket entry which read: 'Probation stricken out and sentenced to two (2) years in the Maryland House of Correction from July 6, 1962, Foster, Judge.'

This Court, in remanding the case for a correction of the docket entry, stated:

'When the sentence in a criminal case is imposed and execution of the imposed sentence is conditionally suspended, as distinguished from the suspension of the imposition of sentence, and the defendant placed on probation, and thereafter the probation is stricken out, the defendant should not be re-sentenced. His original sentence is effective with the probationary provisions stricken out. Cf. Swan v. State, supra, 200 Md. at page 424, 90 A.2d at 692 (1952).' 231 Md. at 222, 189 A.2d at 618.

Judge Prescott (later Chief Judge), who delivered the opinion concerning Coleman's appeal, stated:

'(I)t is apparent from the appellant's brief that he is not entitled to the relief he has requested. He, of course, could not appeal from the original sentence in February, 1961, as the time limited for such an appeal had long since expired. Maryland Rule 812 a. If we consider his present appeal as one from the order striking out his probation, he conceded that he had violated the conditions of his probation; hence he could obtain no assistance from this quarter. And if we consider his appeal as from the 'sentence' of July 11, 1962, (as he claims it is), and that 'sentence' is stricken out (as we have indicated above it should be by a correction of the docket entry), the original sentence is in full force and effect, which means, of course, the appellant, likewise, is entitled to no relief here.' 231 Md. at 223, 189 A.2d at 618.

In Wampler v. Warden, 231 Md. 639, 191 A.2d 594 (1963), in denying application to appeal under the Post Conviction Procedure Act, this Court rejected the contention that the applicant's petition for a reduction of the sentence operated as an extension of time within which an appeal might be entered. Chief Judge Brune, who delivered the opinion of the Court, stated:

'To avoid possible misconception in the future, we think it advisable, however, to note our disagreement with the view of the trial court as to the time allowed for an appeal. The time is within thirty days from the judgment appealed from. Md. Rule 812. The applicant's petition for a reduction of sentence did not operate to extend the time within which an appeal might be entered. Cf. Colter v. State, 219 Md. 190, 148 A.2d 561, and Hayes v. State, 141 Md. 280, 118 A. 652, holding that the filing of a motion for a new trial after judgment has been entered does not stop the running of the time for appeal. Similar rules apply in civil cases. We think it unnecessary to prolong this opinion further by citing authorities in such matters.' 231 Md. at 652, 191 A.2d at 602.

In Blackstone v. State, 6 Md.App. 404, 251 A.2d 255 (1969), the appellant filed a timely appeal to the Court of Special Appeals after the imposition of sentence. About 70 days later, in a document signed by him and his counsel, and filed with the clerk, he dismissed the appeal. Several days thereafter, pursuant to Maryland Rule 764 b 2, he filed a 'Motion for New Trial Based on Newly Discovered Evidence.' When that motion was heard and denied and he was committed to the custody of the sheriff, he again filed in proper person a 'Motion for Appeal.' Judge Orth (now Chief Judge), for the Court of Special Appeals, in dismissing that appeal, stated:

'If the appellant seeks an appeal from the judgment of his convictions and sentences, Md. Rule 1012 requires that the order of...