State v. Peterson, 20

CourtCourt of Appeals of Maryland
Citation553 A.2d 672,315 Md. 73
Docket NumberNo. 20,20
PartiesSTATE of Maryland v. Norman PETERSON. ,
Decision Date01 September 1988

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for petitioner.

John D. Thompson (Thompson and Fleming, both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ELDRIDGE, Judge.

The third sentence of Maryland Rule 4-346(c) provides that a revocation of probation hearing "shall be held before the sentencing judge, whenever practicable." 1 We granted the State's petition for a writ of certiorari in this case to decide whether the Court of Special Appeals had misapplied this provision. Although events subsequent to the issuance of a writ of certiorari have rendered the case moot, we shall nevertheless set forth our views concerning the interpretation and application of the third sentence of Rule 4-346(c).

On January 6, 1984, in the Circuit Court for Baltimore City, Norman Peterson pled guilty to charges of driving while intoxicated and driving on a revoked license. District Court Judge Alan M. Resnick, temporarily assigned to the circuit court, imposed two consecutive sentences of eighteen months imprisonment, as well as a $500.00 fine and court costs. Judge Resnick suspended all but one month of the prison sentences pursuant to Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 641A, and placed Peterson on probation for three years. As conditions of his probation, Peterson was to attend an alcohol program and an alcohol restriction was placed on his driver's license.

In September 1986 Peterson was charged with violating the conditions of his probation. On April 6, 1987, a probation revocation hearing was held before Chief Judge Robert I.H. Hammerman of the Circuit Court for Baltimore City. At that hearing the following colloquy took place:

"[PETERSON'S ATTORNEY]: ... I notice that this is a violation of a sentence imposed ... by His Honor Judge Resnick while sitting in the Circuit Court on January 6th, 1984, and Judge Resnick is still a member of the judiciary in the same capacity he was on January 6th, 1984, and I question why we are not before Judge Resnick since this is his case.

"THE COURT: Because he is not sitting in the same capacity now that he was at that time. At that time he was sitting as a judge of the Circuit Court for Baltimore City. Today he is sitting as a judge of the District Court for Baltimore City. He is not assigned to this bench, and it is the practice of this bench, as authorized by the Maryland Rules, that when the judge who imposed the original sentence is not available for further proceedings it may be assigned to another judge of that bench. Judge Resnick is no longer a judge assigned to the Circuit Court for Baltimore City.

"[PETERSON'S ATTORNEY]: If Your Honor please, for the record, it is my opinion that His Honor Judge Resnick is available. He is still the same associate District Court judge that he was on January, 1984 and I just question why this case is not being presented--

"THE COURT: Well, you are making the same statement and asking the same question you did a moment ago and I can only say I repeat the same answer.

"[PETERSON'S ATTORNEY]: Just officially on behalf of my client, I ask that this matter be referred to Judge Resnick for disposition.

"THE COURT: Your request is denied...."

Following testimony from the probation officer and arguments of counsel, Judge Hammerman revoked Peterson's probation and reinstated his original sentence, less credit for time served.

Peterson appealed to the Court of Special Appeals, which reversed and remanded. Peterson v. State, 73 Md.App. 459, 534 A.2d 1353 (1988). The intermediate appellate court took the position that " 'whenever practicable' [within the contemplation of Rule 4-346(c) ] should be decided on a case-by-case basis with a fact-finding process to determine if it is practicable to have the judge who imposed probation preside at the revocation proceeding." 73 Md.App. at 467, 534 A.2d at 1357. The Court of Special Appeals held that Judge Hammerman's ruling, on Peterson's request that Judge Resnick preside, failed to comply with Rule 4-346(c) because "Judge Hammerman made no findings as to the practicality of having Judge Resnick preside over [Peterson's] probation revocation proceedings...." 73 Md.App. at 469, 534 A.2d at 1358. The court went on to hold that "denying [Peterson's] request that Judge Resnick hear the case without any determination of the practicality of having Judge Resnick preside violated [Peterson's] rights under Rule 4-346(c)." Ibid. The Court of Special Appeals concluded that "there is nothing in the record to show, or even suggest, that it was not practical for Judge Resnick to have heard this case." 73 Md.App. at 472, 534 A.2d at 1360. In fact, pointing to the scope of the order designating Judge Resnick to sit on the Circuit Court for Baltimore City, and to the close proximity of the District Court locations (where Judge Resnick usually sat) to the Circuit Court for Baltimore City, the Court of Special Appeals implied that it had been practicable for Judge Resnick to have presided at the probation revocation hearing. 73 Md.App. at 470-471, 534 A.2d at 1359. The appellate court stated that, "[a]t the very least, it was incumbent upon the court to place a telephone call, inquiring into Judge Resnick's availability," 73 Md.App. at 471, 534 A.2d at 1359. 2

The State then filed a petition for a writ of certiorari. This Court granted the petition and issued a writ of certiorari on June 2, 1988.

Despite the issuance of the writ of certiorari, another revocation of probation hearing was held in the Circuit Court for Baltimore City, on August 1, 1988, before Judge Roger W. Brown. Peterson made no request that Judge Resnick preside. At oral argument before us, we were told that Peterson had been quite happy to have been before Judge Brown. The State did not object. Apparently no one told Judge Brown that this Court had issued a writ of certiorari. At the hearing before Judge Brown, Peterson admitted that he had violated his probation. Judge Brown sentenced him to one year imprisonment, less credit for time served, a $500 fine, and court costs. The prison sentence was suspended in favor of five months probation. An alcohol restriction was placed on Peterson's driver's license, and he was to attend an alcohol screening and treatment program.

I.

It is clear that the present appellate proceedings have become moot.

When the State and Peterson both acquiesced in appearing before Judge Brown for the probation revocation hearing, the parties, in effect, waived any objection to proceeding before Judge Brown, waived any claim that Judge Resnick was required to preside, and waived any argument that under Rule 4-346(c) Judge Resnick was not required to preside. The issue concerning the practicability of returning Judge Resnick to the circuit court for the hearing disappeared from the case. "[T]here is no longer an existing controversy between the parties, so there is no longer any effective remedy which the court can provide." Attorney Gen. v. A.A. School Bus, 286 Md. 324, 327, 407 A.2d 749, 752 (1979). The case is now moot, unless the circuit court was without subject matter jurisdiction to proceed with the hearing at which Judge Brown presided. The State argues that issuance of the writ of certiorari deprived the circuit court of jurisdiction to do so, rendering the proceedings before Judge Brown a nullity.

This Court has consistently taken the view that, when an appeal is taken, the trial court may continue to act with reference to matters not relating to the subject matter of, or matters not affecting, the appellate proceeding; it may also act in furtherance of the appeal. Nevertheless, with regard to matters relating to the subject matter of the appeal, or affecting the appeal, and not in furtherance of it, we at one time took the position that the appellate court "is vested with the exclusive power and jurisdiction over the subject matter of the proceedings, and the authority and control of the lower court with reference thereto are suspended." Bullock v. Director, 231 Md. 629, 633, 190 A.2d 789, 792 (1963), overruled in Pulley v. State, 287 Md. 406, 416 n. 2, 412 A.2d 1244, 1250 n. 2 (1980). See also, e.g., Staggs v. Blue Cross of Maryland, 57 Md.App. 576, 578, 471 A.2d 326, 327 (1984), overruled in Makovi v. Sherwin-Williams Co., 311 Md. 278, 283, 533 A.2d 1303, 1306 (1987). As pointed out in Pulley v. State, supra, 287 Md. at 416-417, 412 A.2d at 1251, Bullock and similar cases confused the concepts of fundamental jurisdiction with the propriety of exercising jurisdiction. Judge Digges for the Court explained in Pulley the effect of an appeal as follows (287 Md. at 417, 412 A.2d at 1250):

"In other words, the trial court retains its 'fundamental jurisdiction' over the cause, but its right to exercise such power may be interrupted by (i) statute or Maryland Rule, (ii) the posting of authorized appeal bond, or bail following a conviction and sentence, or (iii) a stay granted by an appellate court, or the trial court itself, in those cases where a permitted appeal is taken from an interlocutory or final judgment."

Further (287 Md. at 419, 412 A.2d at 1251):

"If the trial court does, however, decide to proceed during the pendency of the appeal, it, absent a stay required by law, or one obtained from an appellate court, has the authority to exercise the 'fundamental jurisdiction' which it possesses."

The issue in the present case is analogous to the issue presented to this Court in In re Special Investigation No. 281, 299 Md. 181, 473 A.2d 1 (1984). There, subpoenas duces tecum were served upon the custodian of certain dental records. The custodian filed a motion to quash the subpoenas; this motion was denied by the circuit...

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