Roberts v. State

• Decision Date: 12 December 1983
• Docket Number: No. 101,101
• Citation: 468 A.2d 410,56 Md.App. 562
• Parties: Wayne Hamton ROBERTS v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 562

56 Md.App. 562

468 A.2d 410

Wayne Hamton ROBERTS v. STATE of Maryland.

No. 101 Sept. Term 1983.

Court of Special Appeals of Maryland.

Dec. 12, 1983.

George E. Burns, Jr., Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County, and Barbara Jung, Asst. State's Atty. for Baltimore County, on the brief, for appellee.

Submitted before WILNER, BISHOP and BLOOM, JJ.

BLOOM, Judge.

Wayne Hamton Roberts, appellant, was convicted by a jury in the Circuit Court for Baltimore County of two counts of larceny. He was sentenced to a period of two years imprisonment for the first larceny conviction with a concurrent two year commitment for the other larceny conviction. Appellant was directed to serve sixty days of his sentence in the detention center. The remainder of the sentences was suspended in favor of three years probation. The conditions of probation included advising his probation agent of any change of residence and payment of $446.35 restitution. No appeal was taken from this judgment.

Five months after sentence was imposed, the Division of Parole and Probation filed a petition charging appellant with violation of his probation by leaving the area without notifying his probation agent and by failing to pay restitution. After a hearing, the court revoked probation and reimposed the remainder of the two year sentence. Appellant now contends the court:

1. Failed to give him credit for time spent in custody pending the violation of probation hearing; and

2. Failed to comply with the provisions of the Intrastate Detainer Act.

At the revocation hearing, appellant admitted that after he had been placed on probation on February 14, 1977, he had subsequently moved to North Carolina without notifying his probation officer. Thereafter he worked for a period of time in North Carolina before returning to the Baltimore area. Appellant also admitted that he had not paid the restitution as directed.

Appellant testified that on May 8, 1982, he had been incarcerated in the Baltimore City Jail in connection with a handgun violation charge. While at the Baltimore City Jail, a detainer had been placed against him in connection with the Baltimore County violation of probation charge. On December 14, 1982, the Baltimore City handgun charge was stetted and appellant was transferred to the Baltimore County Detention Center.

In imposing sentence the court said:

I will strike out the suspended sentence and have him serve the balance of the sentence at the Baltimore County Detention Center. He is to get credit for the time he spent in jail awaiting this hearing, which is from December the 14th [1982]. He has made some allegation that he filed something under the Interstate [sic] Detainer Act, but there is nothing in the file to that effect, nor has he presented anything to the Court through his own testimony or by way of any exhibits that I could so conclude. Therefore, I cannot find that he's entitled to any relief for non-compliance with that Act.

I. Credit for time spent in detention

Appellant first contends that he is entitled to credit for all the time he spent in detention (that is from May 8, 1982) rather than just the time he spent in the Baltimore County Detention Center (that is from December 14, 1982) while waiting for the violation of probation hearing.

Md.Ann.Code art. 27, § 638C(a), which provides that time spent in detention awaiting trial is to be credited against a subsequent sentence, states, inter alia:

In any case where a person has been in custody due to a charge that culminated in a dismissal or acquittal, the amount of time that would have been credited against a sentence for the charge, had one been imposed, shall be credited against any sentence that is based upon a charge for which a warrant or commitment was lodged during the pendency of such custody. In all other cases, the sentencing court shall have the discretion to apply credit against a sentence for time spent in custody for another charge or offense. This section does not apply to a parolee who is returned to the custody of the Division of Correction as a result of a subsequent offense and is incarcerated prior to the date on which he is sentenced for the subsequent offense.

Contending that the prosecution's action in stetting the handgun charge was a dismissal of the charge, appellant argues that he is entitled to have the time spent in custody due to the handgun charge credited against his sentence for the probation violation. We disagree.

The statute provides for credit for time spent in custody under a charge which culminates in "dismissal or acquittal," not a stet. "A stet in Maryland is a method of placing an indictment in a state of suspended animation into which new vitality may be breathed through either prosecutorial or defense resuscitation." ...