Kupfer v. State

• Decision Date: 21 May 1980
• Docket Number: No. 161,161
• Citation: 414 A.2d 907,287 Md. 540
• Parties: Arthur KUPFER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 540

287 Md. 540

414 A.2d 907

Arthur KUPFER v. STATE of Maryland.

No. 161.

Court of Appeals of Maryland.

May 21, 1980.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Ray E. Stokes, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

MURPHY, Chief Judge.

The central issue in this case is whether probation may be extended beyond the five-year maximum probationary period prescribed by Maryland Code (1957, 1976 Repl.Vol.) Art. 27, § 641A, which provides in pertinent part:

"Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years."

Appellant Arthur Kupfer was convicted of forgery and larceny after trust in the Criminal Court of Baltimore and sentenced to two concurrent four-year terms of imprisonment. On November 16, 1971, the court suspended his sentence and placed him on probation for five years. Under the terms of his probation, Kupfer was required to make restitution in the amount of $3,000. On November 8, 1976 one week before the termination of Kupfer's probationary period the court, with Kupfer's written consent, extended his probation until November 16, 1981, five years beyond the statutory maximum. On August 26, 1977 a warrant was issued for Kupfer's arrest for violating the terms of his probation. After several continuances, a hearing on the alleged violation was held on July 24, 1979. Kupfer moved to dismiss on the basis that the five-year maximum probationary period had elapsed. The State argued that Kupfer's consent to the extension constituted a waiver of the maximum term of probation. The court agreed with the State's position and denied the motion to dismiss it subsequently found Kupfer guilty of violating his probation and ordered that his probation be continued under a new schedule of payments.

Kupfer appealed, contending that once the maximum five-year probationary period authorized by the statute had expired, the court was without authority to extend it, with or without his consent. ¹ The State claims that the order continuing Kupfer's probation was not a final judgment which settled or concluded his rights and thus cannot be appealed. Assuming appealability, the State asserts that Kupfer's consent to the additional probationary term estops him from challenging the validity of the extension.

(1)

Appellate jurisdiction in both criminal and civil causes is generally dependent upon a statutory grant of power. Estep v. Estep, 285 Md. 416, 422, 404 A.2d 1040 (1979); Smith v. Taylor, 285 Md. 143, 146, 400 A.2d 1130 (1979); Warren v. State, 281 Md. 179, 182, 377 A.2d 1169 (1977). Maryland Code (1974, 1976 Repl.Vol.) § 12-301 of the Courts and Judicial Proceedings Article provides that

"a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended." ²

We have held consistently that an order revoking probation and reinstating a previously suspended sentence is a final and appealable judgment. Burch v. State, 278 Md. 426, 428-29, 365 A.2d 577 (1976); Skinker v. State, 239 Md. 234, 235-36, 210 A.2d 716 (1965); Coleman v. State, 231 Md. 220, 222, 189 A.2d 616 (1963); Swan v. State, 200 Md. 420, 425-26, 90 A.2d 690 (1952). The fact that Kupfer's probation was modified and continued, rather than revoked, does not deprive us of jurisdiction to hear this appeal. The judgment from which Kupfer is appealing is the very finding that he did in fact violate the terms of his probation. See Swan v. State, supra, 200 Md. at 425, 90 A.2d 690. This determination is both final and appealable. Neither the sanction which Kupfer received for violating probation, or the fact that he consented to the extension, has any effect on the finality of this judgment. ³

(2)

Section 641A provides, in clear and unambiguous language, that the aggregate period of probation which a court may impose upon entering a judgment of conviction cannot exceed five years. The court's authority to suspend the execution of sentence and to place a defendant on probation derives directly from the statute which strictly delineates its power in this respect. See State ex rel. Sonner v. Shearin, 272 Md. 502, 325 A.2d 573 (1974). In...