State v. Berry

• Decision Date: 23 April 1980
• Docket Number: No. 37,37
• Citation: 413 A.2d 557,287 Md. 491
• Parties: , 13 A.L.R.4th 1231 STATE of Maryland v. Donald Elbert BERRY.
• Court: Maryland Court of Appeals

Page 491

287 Md. 491

413 A.2d 557, 13 A.L.R.4th 1231

STATE of Maryland v. Donald Elbert BERRY.

No. 37.

Court of Appeals of Maryland.

April 23, 1980.

Ray E. Stokes, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

Michael R. Malloy, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief) for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, ^* COLE and DAVIDSON, JJ.

COLE, Judge.

The question presented here is whether a trial court may revoke a defendant's probation for failure to support his wife and children as ordered and sentence him under the original conviction when the period of probation has expired.

The statute involved is Maryland Code (1957, 1976 Repl.Vol., 1979 Cum.Supp.), Art. 27, § 88. Section 88(a) deals with the wilful neglect to provide for support and maintenance of a spouse and § 88(b) deals with the wilful neglect to provide for support and maintenance of a child. Both sections make such failure a misdemeanor punishable by a $100 fine and three years imprisonment and both sections authorize the trial court to release the defendant on probation for a period of three years upon condition that the defendant comply with the court's order of probation. Both sections further provide in pertinent part, that

(i)f 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, the court immediately may proceed to the trial of the defendant under the original indictment, or sentence him or her under the original conviction, as the case may be. (Emphasis supplied.)

We shall be primarily concerned with the application of this last part of the statute to the facts of the instant case.

On March 7, 1973, Donald E. Berry was convicted on a guilty plea in the Criminal Court of Baltimore of nonsupport of his wife and two children. He was sentenced to eighteen months imprisonment for both offenses. However, the execution of this sentence was suspended, and he was placed on probation for three years, commencing March 7, 1973, conditioned upon his making weekly support payments as ordered by the court.

On March 4, 1976, three days prior to the expiration of the probationary period, a petition was filed in the Criminal Court of Baltimore alleging that Berry had violated the terms of his probation by "failing to make payments" in accordance with the order of March 7, 1973. The facts recited in the petition were sworn to by a parole and probation officer, before a judge of the Supreme Bench of Baltimore City. A violation of probation warrant was issued on March 4, 1976 for Berry's arrest. He was not served with this warrant until May 1, 1978, and it was not until June 5, 1978, over two years after the expiration of the probationary period, that a hearing was held on the charge of violation of probation. At the hearing, the court found him guilty of violating his probation, revoked his probation and reimposed the original eighteen month sentence to be served consecutively to a sentence he was serving on an unrelated offense.

The Court of Special Appeals reversed the judgment finding that he had violated his probation and vacated the sentence. 41 Md.App. 563, 398 A.2d 59 (1979). It held that the trial court lacked jurisdiction to entertain the revocation proceeding because the language of the statute required the trial court to be "satisfied by information and due proof under oath, at any time during the three years . . . ." That court regarded these words as pointing to the revocation trial itself and not to the petition to revoke filed by the probation department. We granted certiorari to determine the impact of this statutory language.

Before us, the State contends that this language is ambiguous because it is susceptible of two interpretations. It maintains that the words do not make clear whether this process of satisfaction refers to the preliminary judicial finding of probable cause on which an arrest warrant for violation of probation is based, or whether it refers to the final adjudication at a probation revocation hearing. The State urges us to construe the statute as requiring only the initial determination of probable cause for issuance of the warrant as necessary to be conducted within the three year period in order to toll the running of the probation period and thus permit a trial court to revoke probation at some point after the three year period. The defendant, on the other hand, contends that the trial court was powerless to revoke this probation after the probationary period had expired and claims that to hold as the State urges would deny him due process in that he would be denied a hearing. We shall examine this statutory language in the light of certain principles announced in our prior cases.

As we have stated many times, the cardinal rule of statutory construction is to ascertain and carry out the actual intention of the legislature. Board v. Stephans, 286 Md. 384, 408 A.2d 1017 (1979); Harbor Island Marina v. Calvert Co., 286 Md. 303, 407 A.2d 738 (1979); S.A.S. Personnel Consult v. Pat-Pan, 286 Md. 335, 407 A.2d 1139 (1979); Unnamed Physician v. Comm'n., 285 Md. 1, 400 A.2d 396 (1979). The statutory language itself provides the clearest indication of the legislative intent and is thus the primary source for all statutory construction. Board v. Stephans, supra; Harbor Island Marina v. Calvert Co., supra. We also adhere to the principle that the court should confine itself to construing the statute according to the ordinary and natural signification of the words used without resorting to subtle or forced interpretations designed to limit or extend the operation of the statute. Harbor Island Marina v. Calvert Co., supra; Mauzy v. Hornbeck, 285 Md. 84, 400 A.2d 1091 (1979); Massage Parlors, Inc. v. City of Balto., 284 Md. 490, 398 A.2d 52 (1979). When the words used convey a clear and plain meaning, there is no need to look beyond the statute to ascertain the legislative intent. Collier v. Connolley, 285 Md. 123, 400 A.2d 1107 (1979); Mauzy v. Hornbeck, supra, 285 Md. at 93, 400 A.2d 1091; Massage Parlors, Inc. v. City of Balto., supra, 284 Md. at 494-95. Stated differently, when the statute is free from ambiguity, the court may not disregard the natural impact of the words so as to make the statute express an intention which is different from its plain meaning. But where the statutory language is of doubtful meaning, the Court must venture beyond the words of the statute and consider the subject matter of the statute, the purpose underlying its enactment and the object sought to be accomplished. Board v. Stephans, supra; State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976); Fairchild v. Maritime Air Serv., 274 Md. 181, 186, 333 A.2d 313 (1975); Gatewood v. State, 244 Md. 609, 617, 224 A.2d 677 (1966). Finally, the Court should consider the consequences which may flow from one interpretation rather than another and adopt the construction which is in harmony with the general scheme of the enactment and one which will assist in effectuating the legislative purpose. Board v. Stephans, supra; Harbor Island Marina v. Calvert Co., supra; Comptroller v. John C. Louis Co., 285 Md. 527, 538-39, 404 A.2d 1045 (1979); Fairchild v. Maritime Air Serv., supra, 274 Md. at 185-86, 333 A.2d 313. In this pursuit,

(r)esults that are unreasonable, illogical or inconsistent with common sense should be avoided and an interpretation should be given which will not lead to absurd or anomalous results. (Comptroller v. John C. Louis Co., supra, 285 Md. at 539, 404 A.2d at 1053.)

With these principles in mind, we turn to the statute to determine if any ambiguity exists. If no such impediment is found then this Court is not called upon to construe the meaning of the statute because the legislative intent will be clear by the language used.

A grammatical analysis of the sentence in question reveals a main clause: "the court immediately may proceed to the trial of the defendant . . . or sentence him. . . ." This main clause is preceded by two subordinate clauses: 1) "If the court be satisfied by information and due proof under oath" and 2) "that the defendant has violated the terms of the order." These two subordinate clauses are separated by commas from the adverbial phrase "at any time during the three years." As we see it this phrase can be read as modifying either what precedes it or what follows it and thus ambiguity exists.

If the phrase modifies the clause that precedes it, the statute would read in part:

if at any time during the three years, the court be satisfied . . . that the defendant has violated . . . the order, the court immediately may proceed . . . .

This construction would require the State to hold the actual revocation hearing within the three year period or lose jurisdiction over the defendant. Such a construction is unreasonable and would lead to absurd results. It would permit a probationer to violate his probation and, by merely avoiding arrest (whether voluntarily or involuntarily) during the probationary period, escape punishment; or even if in custody awaiting trial, the probationer could escape punishment if the hearing was not completed during the three year probationary period. These absurd consequences cannot be squared with the legislative intent.

The purposes of Art. 27, § 88 are to assist spouses and children in directly procuring support and thereby preventing them from becoming public burdens, to punish the offense of failing to provide support, and, by the fear of punishment, to prevent the commission of such an offense. The purposes of the provisions authorizing the court to place the defendant on probation are to enable the defendant to continue to make support payments and to strengthen the...