Miller v. State
| Decision Date | 06 February 1980 |
| Docket Number | No. 72,72 |
| Citation | 410 A.2d 1081,44 Md.App. 587 |
| Parties | James Harvey MILLER v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Thomas J. Saunders, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.
F. Ford Loker, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Charles J Zuckerman, Asst. State's Atty. for Baltimore City, on the brief, for appellee.
Argued before MORTON, MOYLAN and MASON, JJ.
On this appeal we are presented with two questions: First, whether the revocation of appellant's probation for failing to pay a fine and court costs was a violation of the equal protection clause of the fourteenth amendment; and second, whether the trial court lacked jurisdiction to revoke appellant's probation after the term of probation had expired. Because we answer the second question in the affirmative, we shall reverse the order of the lower court without reaching or deciding the first question.
James Harvey Miller, appellant, was convicted at a bench trial in the Criminal Court of Baltimore of breaking and entering and possession of narcotics paraphernalia. He was sentenced to two concurrent three year terms of imprisonment. The execution of the sentences was suspended and appellant was placed on probation for three years commencing November 21, 1974, subject, among other things, to the condition that he pay court costs of $74.00 and a fine of $500.00. After appellant's term of probation had expired, it was revoked for non-payment of the assessed fine and court costs.
At the time appellant was placed on probation, he was employed as a merchant seaman and a payment plan was established wherein appellant was to pay $20.00 a month by mail. From the date probation was granted to the date probation was revoked, appellant had paid only $70.00 and his last payment was on May 28, 1976. According to appellant, he was "blackballed" by the Maritime Union for missing a ship in Philadelphia. Thereafter, he did not rejoin the union because he did not have the $80.00 reinstatement fee. Since January of 1975 he had worked only for two months, and during 1977 he was incarcerated for eight months for burglary.
The record reveals that appellant was placed on probation for three years commencing November 21, 1974 and ending November 21, 1977. A petition to revoke his probation was filed with the court and a warrant was issued on September 30, 1977. This warrant, however, was not signed by the issuing judge. For some inexplicable reason the warrant was not signed until January 30, 1978, four months after it was initially issued and more than two months after appellant's probationary period had expired. After a hearing on September 26, 1978, appellant's probation was revoked.
Appellant argues, and we agree, that the trial court lacked jurisdiction to revoke his probation after the probationary period had expired. On the other hand, the State argues that "since the cause for the violation arose within the probationary period, the court had jurisdiction to conduct a hearing." While this precise question is one of first impression in this State, there is a niagara of authority on this point in other jurisdictions. The cases in these jurisdictions, however, have reached different results and fall into one of the following three general categories depending, in most instances, on the language and interpretation of their statutes.
In the first category the cases hold that probation may be revoked provided the proceedings are initiated within a reasonable time after expiration of the probationary period. See, e. g., United States v. Swanson, 454 F.2d 1263 (7th Cir. 1972); Commonwealth v. Sawicki, 369 Mass. 377, 339 N.E.2d 740 (1975); Commonwealth v. Clark, 225 Pa.Super. 171, 310 A.2d 316 (1973); Decker v. State, 209 N.W.2d 879 (N.D.1973).
Cases in the second category hold that probation may be revoked if the proceedings are instituted within the probationary period. See State v. Gibson, 156 N.J.Super. 516, 384 A.2d 178 (1978); Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977); State v. O'Neal, 24 Or.App. 423, 545 P.2d 910 (1976); McNeill v. State, 287 So.2d 745 (Fla.App.1974); People v. Williams, 10 Ill.App.3d 428, 294 N.E.2d 61 (1973); People v. Clark, 48 Ill.2d 554, 272 N.E.2d 10 (Ill.1971); State v. Hutto, 252 S.C. 36, 165 S.E.2d 72 (1968).
Cases in the third category hold that probation may be revoked only when the proceedings are completed within the probationary period. See State v. Harris, 342 So.2d 179 (La.1977); People v. Smith, 12 Cal.App.3d 621, 90 Cal.Rptr. 811 (1970); State ex rel. Phillips v. Wood, 152 W.Va. 568, 165 S.E.2d 105 (1968); In re Griffin, 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625 (1967).
Although involving a statute different from the one in the present case, Berry v. State, 1 41 Md.App. 563, 398 A.2d 59 (1979) is an instructive illustration of the third category of cases. There the defendant was convicted of non-support of his wife and two children in violation of the Maryland Code, Article 27, section 88 (1976 Repl. Vol., 1979 Cum. Supp.), and was sentenced to a term of eighteen months imprisonment. The sentence, however, was suspended and he was placed on probation for three years commencing on March 7, 1973, subject to the condition that he make support payments as directed by the court. On March 4, 1976, three days before expiration of the probationary period, a warrant was issued for the defendant's arrest because of his failure to satisfy the support obligations in the order of probation. A revocation hearing was held on June 5, 1978, over two years after the expiration of the probationary period. Probation was revoked and the eighteen month sentence previously suspended was reimposed. On appeal this Court held that the trial court lacked jurisdiction to revoke probation after the expiration of the probationary period. Our holding was based solely on the language of the statute, which in part provides:
"If the court be satisfied by information and due proof under oath, at any time during the three years, that the defendant has violated the terms of the order, it may forthwith proceed to the trial of the defendant under the original indictment, or sentence the defendant under the original conviction, as the case may be." Article 27, § 88(a), (b).
The State argued that the phrase, "at any time during the three years," referred to the petition initiating process and that the probationary period was tolled when the arrest warrant was issued. In responding to this argument, we said:
"A petition for revocation is certainly not 'information and due proof' and it is the latter only that, if presented to the court 'during the three years,' permits it to 'proceed to trial . . . or sentence' the appellant." (Emphasis supplied). Id. at 567-68, 398 A.2d at 62.
In the present case, unlike the statute in Berry, supra, the statutory authority for granting and revoking probation is Article 27, section 641A of the Maryland Code, which provides:
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State v. Miller
...since the arrest warrant was issued and the revocation hearing was held after the term of probation had expired. Miller v. State, 44 Md.App. 587, 410 A.2d 1081 (1980). We granted the State's petition for certiorari in order to consider the Court of Special Appeals' decision in light of our ......