Moulden v. State, 269

• Decision Date: 18 June 1958
• Docket Number: No. 269,269
• Citation: 217 Md. 351,142 A.2d 595
• Parties: Charles Henry MOULDEN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 351

217 Md. 351

142 A.2d 595

Charles Henry MOULDEN v. STATE of Maryland.

No. 269.

Court of Appeals of Maryland.

June 18, 1958.

James B. Davis, Rockville, for appellant.

James H. Norris, Jr., Sp. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Alger Y. Barbee, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

This appeal was taken from the denial by a circuit court of a motion to reduce, as illegally excessive, sentences it had imposed months before in appeals to it from a magistrate who had convicted for violations of the motor vehicle law. The State did not challenge the appeal as one from final action of the circuit court in its limited appellate jurisdiction on appeal from a magistrate. We do not decide the right to appeal because we find it apparent that the questions sought to be raised render 'it desirable and in the public interest that the case should be reviewed', to use the words of Code 1957, Art. 5, Sec. 21, granting this Court the right of appellate review in such cases. We treat the appeal as an application for certiorari, grant the application and decide the case. Shipley v. State, 201 Md. 96, 93 A.2d 67; Hite v. State, 198 Md. 602, 84 A.2d 899.

The People's Court of Montgomery County gave Moulden, the appellant, two sixty-day consecutive sentences for driving a motor vehicle after revocation of his license and driving under the influence of intoxicating liquor and fined him $15 for reckless driving (ten days in default) concurrent with the other sentences. On appeal to the Circuit Court, Moulden pleaded guilty to all three charges and asked the court for leniency. Judge Reeves, noting his long record of relatively serious violations of the motor vehicle law (including the fact that he had been charged at least once before with operating a motor vehicle after his license had been revoked), imposed the following sentences: for operating a motor vehicle while under the influence of intoxicating liquor, a fine of $1,000 and costs and a year in the House of Correction; for operating a motor vehicle in a reckless manner, a year in the House of Correction, to begin at the expiration of the previous sentence; and for operating a motor vehicle after his license had been revoked, a fine of $1,000 and costs and six months in the House of Correction, the sentence to begin at the expiration of the second of the one-year sentences. The court then suspended the execution of all sentences and placed Moulden on probation on condition that at no time and under no circumstances was he to operate or attempt to operate a motor vehicle until his operator's license had been restored.

Three months later, Moulden was again brought before the court, having been arrested by the police of Montgomery County on the charge of driving a motor vehicle after his license had been revoked. On May 2, 1957, Judge Reeves struck out the suspensions of sentence and reinstated all of them in conformity with his original pronouncement. On October 10, 1957, Moulden filed a motion in the Circuit Court to correct the sentences, claiming that the Circuit Court, acting in its special limited jurisdiction as an appellate court, has no power, inherent or statutory, to impose any sentence in excess of that imposed by the magistrate in the People's Court.

The appellant concedes that his appeal to the Circuit Court was under the provisions of Code 1957, Art. 66 1/2, Sec. 325. He contends that regardless of how a magistrate's appeal gets to the Circuit Court, restrictive language in Sections 30 and 39 of Art. 5 of the Code of 1957 strips the Circuit Court of power to increase any fine imposed by a magistrate or to require imprisonment for more than thirty days upon default in payment. The language he relies on in Section 30 is this: 'In the event of acquittal or of the levy of a fine (including costs) by the circuit court in a sum less than that levied by the magistrate, the entire fine or the surplus held by the clerk in excess of the fine levied by the circuit court, as the case may be, shall be returned to the defendant. * * * All fines levied by the circuit court for motor vehicle violations shall be paid by the clerk of the circuit court to the Department of Motor Vehicles.' We find nothing in this language to indicate more than a legislative intent to establish a system of accounting of fines in motor vehicle cases, just as the previous paragraph of Section 30 establishes it for fines in general criminal appeals. The second sentence in the quotation permits an inference against the position of the appellant as strong as any he could draw from the first sentence.

Section 39 of Art. 5 of the Code of 1957 is as follows: 'Where any judgment of a justice of the peace, imposing any fine or penalty for the violation of any law or ordinance, shall be affirmed upon appeal, the court to which such appeal is taken shall have the power to commit the defendant or appellant in the case of nonpayment of such fine or penalty and costs; provided, that no person shall be imprisoned under this section for a longer period than thirty days for any one offense.'

This section was added to the law by Chap. 56 of the Acts of 1870 which also amended the section that is now Sec. 30 of Art. 5 of the Code 1957, by providing that trials on appeal were to be heard de novo and by the addition of a proviso that appeals were to be allowed in cases of actions of debt for the collection of fines, penalties and forfeitures which justices of the peace could impose and as to which there was no appeal provided in the special statute giving the justice jurisdiction. The amendment then added this language: 'if the appellant should not appear on or before the second day of the term of the Court to which such appeal is taken, the judgment shall be affirmed as of course'. Justices of the peace had no general criminal jurisdiction in Maryland until 1880, Acts 1880, c. 326. Before that 'Criminal charges which the statute did not specifically authorize justices of the peace to try and determine could be heard only in the Criminal Court after indictment by the grand jury.' Yantz v. Warden, 210 Md. 343, 348, 123 A.2d 601, 604. Since the 1870 amendment made the trial on appeal de novo and a case actually tried and decided de novo is not, accurately speaking, either reversed or affirmed (even if the decision and judgment is the same as that below, it is an independent decision and judgment and not merely an affirmance), it may well be that the provisions of the statute now codified as Sec. 39 of Art. 5 were intended to limit jurisdiction to imprison for no more than thirty days only to cases of automatic affirmance upon non-appearance of the appellant. We need not decide the point because Moulden was convicted of violating Sections 112, 206 and 209 of Art. 66 1/2, Code of 1957. Section 340 of Art. 66 1/2 provides: 'In default of the payment of any fines imposed for violations of any of the provisions of this article, the offender shall be committed to jail in accordance with the provisions of § 4 of Article 38 * * *.' Section 4 of Art. 38, Code 1957, provides a sentence of a dollar a day for each dollar of fines and costs with a maximum of thirty days for fines and costs amounting to $100, sixty days for those above $100 up to $500, and ninety days for those above $500. Section 1 of Art. 66 1/2 makes that article the exclusive and controlling state-wide law as to matters covered by it unless the legislature 'specifically' otherwise provides. It is of no significance that Sec. 39 of Art. 5 was re-enacted by Chap. 399 of the Acts of 1957, for Sec. 1 of Art. 66 1/2 also provides in its last paragraph: 'No provision of this article shall be deemed as repealed by any act hereafter passed unless said provision is expressly referred to and repealed in terms or some other clear evidence [is] given of the intent on the part of the General Assembly to change the policy of the State herein declared.' No such intent is revealed by Chap. 399 of the Acts of 1957. Incidentally, Sec. 4 of Art. 38 was repealed and re-enacted by a chapter of the 1957 Assembly later in number than that re-enacting Sec. 39 of Art. 5. We think the Circuit Court, on appeal under Sec. 325 of Art. 66 1/2, had the authority to impose any...