Mitchell v. State, 748
| Decision Date | 12 March 1984 |
| Docket Number | No. 748,748 |
| Parties | Marvin Donnell MITCHELL v. STATE of Maryland. Sept. Term 1983. |
| Court | Court of Special Appeals of Maryland |
Arthur A. Delano, Jr., Asst. Public Defender with whom was Alan H. Murrell, Public Defender on the brief, for appellant.
Richard B. Rosenblatt, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, Kurt L. Schmoke State's Atty. for Baltimore City and Steven Wyman, Asst. State's Atty. for Baltimore City, on brief, for appellee.
Submitted before BISHOP, GARRITY and ADKINS, JJ.
On November 28, 1978, Marvin Donnell Mitchell, appellant, pleaded guilty in the Circuit Court for Baltimore City (Karwacki, J.) to forgery. He received a three year suspended sentence, and was placed on three years supervised probation with one of the conditions being that he pay $1,716.25 restitution and $130.00 court costs.
Appellant was later charged with violating the terms of his probation. A hearing was held and probation was revoked. Appellant's three year sentence was reimposed, concurrent with a sentence then being served. He was also ordered to pay $1,592.45 restitution "as a condition of parole."
Appellant initially argues on appeal that the trial court abused its discretion in revoking probation for violation of probationary conditions with which he had not been charged; failure to report to his probation officer, and failure to get his probation officer's permission to leave the state.
The Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973) held that:
* * *
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Maryland Rule 775, section (c) states that:
(Emphasis added.)
Appellant's violation of probation notice charged him with breaching:
Rule #4 - Obey all Laws
By being convicted of Theft - Case
#08-2-556477 by Judge Fader
1/3/80, in the Towson District Court.
Rule #9 - Failure to Pay
Amount Ordered - $1,846.25
Amount Paid - 253.80
Balance - 1,592.45
At the conclusion of the hearing the court found "beyond a reasonable doubt he [appellant] has violated his probation because he left the state and because he didn't report as required under the probation order, so the verdict will be guilty." Appellant did not object, however, because of the Gagnon ruling and the requirements of Maryland Rule 775(c) coupled with the manner in which the evidence was produced, we hold that there was no waiver.
The violation of probation notice supplied to appellant did not list charges of failure to report to his probation officer, or failure to obtain his probation officer's permission to leave the state. It seems these charges developed in the course of the court's interrogation of the appellant, which concluded with the court's finding that appellant had violated his probation because of his failure to abide by these two rules of which he had received no notice of any alleged violation. Under these circumstances, we hold that the court erred and we reverse appellant's probation revocation. See Broadway v. State, 298 Md. 237, 468 A.2d 351 (1983).
Appellant also argues three additional issues, one which is moot and of no consequence; however, for the purpose of giving guidance to the trial court, we will discuss the other two issues.
Appellant argues that the revocation hearing court erred in sentencing him to pay restitution as a condition of parole.
Article 41, section 107(e), (f) of the Maryland Annotated Code states:
The Board of Parole may grant parole and attach conditions thereto. Parole occurs after a sentence has been implemented. Probation and the conditions applicable thereto occur at the time of sentencing and before the implementation of the sentence.
Appellee argues that Maryland Article 27, Code Annotated, section 640(c) "expressly authorizes restitution to be made a condition of parole." That subsection provides: "When an order of restitution has been entered pursuant to subsection (b), compliance with the order may be made as a sentence or condition of probation or parole." (Emphasis supplied.)
This sub-section cannot be read out of its context with sub-section (b) which provides:
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