State v. Miller
| Decision Date | 06 February 1981 |
| Docket Number | No. 20,20 |
| Citation | 289 Md. 443,424 A.2d 1109 |
| Parties | STATE of Maryland v. James Harvey MILLER. |
| Court | Maryland Court of Appeals |
F. Ford Loker, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.
Thomas J. Saunders, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.
Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
We shall decide in this case whether a defendant's probation may be revoked after the period of probation has expired, on the basis of a violation committed within the period of probation.
The pertinent facts are very brief. James Harvey Miller was tried and convicted in the Criminal Court of Baltimore on two counts: breaking and entering and possession of narcotics paraphernalia. He was sentenced to one year on each count, to be served concurrently. The sentences were suspended and he was placed on probation for three years. On November 21, 1977, the probationary period expired. On January 6, 1978, a warrant was issued charging the defendant with violating the terms and conditions of the order of probation, which had required him to pay a fine and court costs.
At the violation hearing on September 26, 1978, he was found guilty of violating his probation and was ordered to serve the original sentences. 1 He appealed to the Court of Special Appeals which reversed, holding that the trial court lacked jurisdiction to revoke his probation since the arrest warrant was issued and the revocation hearing was held after the term of probation had expired. Miller v. State, 44 Md.App. 587, 410 A.2d 1081 (1980). We granted the State's petition for certiorari in order to consider the Court of Special Appeals' decision in light of our later holding in State v. Berry, 287 Md. 491, 413 A.2d 557 (1980). We conclude that our holding in Berry is dispositive of the issue in the case sub judice.
In Berry, we held that one of the purposes of Maryland Code (1957, 1976 Repl. Vol. 1979 Cum.Supp.), Article 27, § 88, a statute involving enforcement of the duty to support defendants, was to afford a defendant an opportunity to obey the court's order for support and thereby avoid imprisonment. We said that "(t)his purpose can be achieved only if the defendant knows his conduct during the probation period is determinative of his status and that the consequence of any violation may be the reinstatement of the original ... sentence." 287 Md. at 497-98, 413 A.2d 557 (emphasis added). We then continued by stating that our interpretation of the statute "would allow the State to conduct a hearing at any time, even if the probationary period has expired, so long as the court is satisfied by due proof that the defendant has violated the terms of the probation within the three year (probationary) period." 287 Md. at 498, 413 A.2d 557. We limited our holding only to the extent of requiring the State to comply with the dictates of due process, i. e., to proceed "with due diligence or reasonable promptness so as to avoid prejudice to the defendant." 2 287 Md. at 500, 413 A.2d 557. We further indicated that
(f)or the purposes of due process, we are not so concerned with the timeliness of the issuance of the warrant as we are with the timeliness of the actual hearing on the merits. If the delay is unjustified, the mere issuance of the warrant within the probationary period...
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...v. State, 291 Md. 198, 202, 434 A.2d 552, 554 (1981), non-compliance must occur when the offender is on parole. State v. Miller, 289 Md. 443, 446, 424 A.2d 1109, 1111 (1981); State v. Berry, 287 Md. 491, 499, 413 A.2d 557, 562 (1980); Cornish v. State, 65 Md.App. 213, 214, 500 A.2d 295, 295......
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