Smith v. State

Citation506 A.2d 1165,306 Md. 1
Decision Date01 September 1985
Docket NumberNo. 113,113
PartiesWayne Anthony SMITH v. STATE of Maryland. ,
CourtCourt of Appeals of Maryland

Page 1

306 Md. 1
506 A.2d 1165
Wayne Anthony SMITH
STATE of Maryland.
No. 113, Sept. Term, 1985.
Court of Appeals of Maryland.
April 3, 1986.

[506 A.2d 1166]

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David R. Durfee, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

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Valerie W. Loftin, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.


MURPHY, Chief Judge.

This case involves a probation revocation hearing and whether the trial judge, in revoking probation, acted on an improper basis and contrary to the due process requirements of the Fourteenth Amendment.


On February 11, 1981, Wayne Anthony Smith was convicted of larceny in the Circuit Court for Baltimore City and placed on five years' probation. On May 23, 1984, the Division of Parole and Probation alleged that Smith had violated the following conditions of his probation:

Rule 3d: Must get permission from agent before owning, possessing or using dangerous weapon;

Rule 4: Must obey all laws;

Rule 5: Must notify probation agent at once if arrested;

Rule 9: Must pay $729.45 in costs and restitution; and

Rule 10: Must undergo drug screening to determine if there is a drug problem and complete a program same if directed by Probation Department.

At the hearing on December 31, 1984, Smith's probation agent, Ernestine DeVance, testified that Smith had been charged with assault, assault with intent to murder, and handgun violations during his probationary period. She also testified that Smith had been arrested for a handgun violation and for armed robbery on [506 A.2d 1167] December 2, 1984. 1 DeVance said that Smith did not notify her of these arrests, thereby violating Rule 5 of his probation. She also testified that Smith violated Rule 9 by failing to pay the required

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$13.00 monthly payment for restitution and court costs. DeVance stated that Smith had also violated Rule 10 by failing to undergo drug screening, but she admitted that she had no record of ever instructing Smith as to when, where, or to whom he was to have reported for screening.

DeVance testified that Smith had violated additional conditions of his probation for which he had not been charged. These included Smith's alleged failure to appear for a previously scheduled probation violation hearing on May 25, 1984 and to notify his probation agent of his change in address.

Smith testified that he had been unable to make any of the required restitution payments because he was imprisoned between February 10, 1981 and December 8, 1983. Smith said that two or three months after his release he was again arrested on a domestic charge which was later nol prossed by the State. During Smith's brief interlude from imprisonment, while on probation, he was unemployed.

At the close of evidence, Smith unsuccessfully moved for dismissal, and asked to be heard regarding the alleged violation of Rule 4--failure to obey all laws. The court denied the request, responding:

"Well, I don't grant a motion or deny a motion as to one specific ground. The charge is violation of probation and even though it might not be sustainable on one ground if it's sustainable on another that is sufficient."

The court then found that Smith had violated conditions of his probation, stating:

"I believe that there has been sufficient testimony here today to indicate that certain rules have been violated by you. Unfortunately I think it might have been easier for the probation agent to testify as to what rules you had not violated rather than the long litany of those that you had."

On appeal to the Court of Special Appeals, Smith argued that the trial court's finding that he had violated conditions of his probation should be reversed because it was improperly

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based on nol prossed charges or mere arrests (Rule 4); possession of a firearm without permission (Rule 3d); violation of conditions which the State had not charged (Rules 3a and 7); 2 failure to make restitution and pay court costs (Rule 9); and failure to undergo drug screening (Rule 10).

The State conceded that Smith could not be found to have violated Rules 3a and 7 because he had not been formally charged with those violations. The State also conceded that there was insufficient proof on the record of violations of Rules 3d and 4 in that those violations were based only on arrests and nol prossed charges. Notwithstanding these errors, however, the intermediate appellate court, in an unreported opinion, concluded that there remained sufficient evidence in the record of other violations warranting the revocation of Smith's probation. Specifically, the court found that sufficient evidence existed that Smith had failed to pay restitution and court costs (Rule 9) and had not undergone the required drug screening (Rule 10). It further determined that Smith had not informed his probation officer of his arrests during the probationary period (Rule 5).


Probation is a matter of grace which is in effect a bargain made by the [506 A.2d 1168] people with the malefactor that he may be free as long as he conducts himself in a manner consonant with established communal standards and the safety of society. Donaldson v. State, 305 Md. 522, 528, 505 A.2d 527 (1986) (quoting Scott v. State, 238 Md. 265, 275, 208 A.2d 575 (1965)). See also Matthews v. State, 304 Md. 281, 292-93, 498 A.2d 655 (1985). Accordingly, the procedural protections given a probationer are not the same as those afforded a defendant at a criminal trial, and probation may be revoked by a trial court if it is reasonably

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satisfied that a violation of a condition of probation has occurred. Howlett v. State, 295 Md. 419, 456 A.2d 375 (1983); Hutchinson v. State, 292 Md. 367, 369, 438 A.2d 1335 (1982); Dean v. State, 291 Md. 198, 202, 434 A.2d 552 (1981). To be enforceable a condition of probation must not be vague, indefinite or uncertain. A general condition of probation is permissible only "so long as it is contemplated...

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