State v. Stowe, 136

• Decision Date: 07 August 2003
• Docket Number: No. 136,136
• Citation: 829 A.2d 1036,376 Md. 436
• Parties: STATE of Maryland v. David Erwin STOWE.
• Court: Maryland Court of Appeals

829 A.2d 1036

376 Md. 436

STATE of Maryland v. David Erwin STOWE.

No. 136, Sept. Term, 2000.

Court of Appeals of Maryland.

August 7, 2003.

Gary E. Bair, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for petitioner.

David A. Martella (Barry H. Helfand, on brief), of Rockville, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.

BELL, Chief Judge.

In Massey v. State, 320 Md. 605, 579 A.2d 265 (1990), this Court considered, in the context of a prosecution for welfare perjury, the appropriate limitations period for misdemeanor prosecutions, and, in particular, those involving "penitentiary misdemeanors." When that case was decided, the general statute of limitations for misdemeanors was contained in Md.Code (1974, 1989 Repl.Vol.), § 5-106 of the Courts and Judicial Proceedings Article. Pursuant to that section, except as it otherwise provided, "a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed." Therefore, the statute of limitations for a misdemeanor was one year, unless another period of limitations was specifically provided or the misdemeanor was "made punishable by confinement in the penitentiary." Id. at 611, 579 A.2d at 268.¹ As this Court put it, "[m]isdemeanors punished by confinement in the penitentiary are excluded from the [one year limitation] provisions of this section of the statute, and are placed along with felonies." Id., (quoting Schaumloeffel v. State, 102 Md. 470, 472, 62 A. 803, 804 (1906) and citing Archer v. State, 145 Md. 128, 137-138, 125 A. 744, 747 (1924) (noting that these misdemeanors are "class[ed]... with felonies"). Moreover, the Court noted that it was the fact that imprisonment in the penitentiary was statutorily authorized, rather than the sentence actually imposed, that determined whether limitations was unlimited or one year. Id. at 611-12, 579 A.2d at 268, (citing, inter alia, Archer, 145 Md. at 136, 138, 125 A. at 747-748).

Pursuant to (1957, 1985 Repl.Vol., 1989 Cum.Supp.), Art. 88 A, § 62(a), welfare perjury was defined by reference to the offense of perjury, and a person committing the offense, "upon conviction therefor is subject to the penalties provided by law for perjury." Md.Code (1957, 1987 Repl.Vol.) Article 27, § 439 prescribed, as the penalty for perjury, "imprisonment in the jail or penitentiary for not more than ten years." Consequently, the Court of Special Appeals, to which the State appealed the trial court's dismissal of the welfare perjury charge against Massey, concluded that welfare perjury was a penitentiary misdemeanor and, for that reason, excluded from the one year limitation for misdemeanors generally. Massey, 320 Md. at 609,579 A.2d at 267. And because there was not otherwise provided in § 5-106 a specified period of limitations applicable to that offense, a prosecution for welfare perjury was not subject to any limitations period. Id.

We granted Massey's petition for writ of certiorari challenging the propriety of an unlimited period of limitations for welfare perjury when allegedly greater offenses arising out of the same acts were subject to a specified, and therefore shorter, limitations period. We added two questions, one of which addressed the meaning of the phrase, "not made punishable by confinement in the penitentiary by statute" in light of Article 27, § 690, governing the sentencing and confinement of persons convicted of crime. Id. at 609-10, 579 A.2d at 267. As enacted by Ch. 556 of the Acts of 1916, Article 27, § 654, the predecessor of § 690, provided:

"When any person is convicted, before any Circuit Court of any County, or the Criminal Court of Baltimore, of any crime ... punishable by any imprisonment whatsoever ... said Court may, in its discretion, sentence such person to imprisonment in jail or in the Maryland House of Correction or in the Maryland Penitentiary.

"It is expressly provided, however, that nothing in this Section shall be construed to add to, alter or change the class of crimes, as they existed before this Act takes effect, with respect to the right of challenge or with respect to the fees in criminal cases, or to make any crime infamous, by reason of any sentence to the Maryland Penitentiary, or transfer thereto, which would not have been an infamous crime before this Act takes effect...."

We explained that the first paragraph gave trial judges discretion in the sentencing of a defendant convicted of a crime for which imprisonment was an option, to specify the institution in which the defendant would be confined, thus, permitting a defendant convicted of a crime for which the statute specified confinement in the penitentiary, to be sentenced to imprisonment elsewhere. Id. at 612, 579 A.2d at 268.

The second paragraph, the Court pointed out, indicated that the sentencing flexibility given the judges "should not affect the classification of crimes based upon the statutorily prescribed place of confinement," id., and "was largely the reason for this Court's holding in Archer v. State, supra, 145 Md. at 137, 125 A. at 747. In that case, the Court held that the 1916 statute was not intended to change the operation of Art. 57, § 11 [the predecessor of § 5-106(a)], concerning the periods of limitations for misdemeanor prosecutions." Id. Specifically, the Court said (145 Md. at 137-38, 125 A. at 747):

"There is certainly nothing in either the titles or the bodies of the Acts of 1916 and 1918 to indicate that in passing those Acts the Legislature meant to practically repeal section 11 of article 57 of the Code, which would be the result of the construction contended for by the State. On the contrary, it is perfectly obvious that its purpose was to create a new agency to deal with the State's penal institutions, and to provide for the convenient shifting of convicts from one to the other without regard to the grade of the crime.

"Section 654 expressly provides

`that nothing in this section shall be construed to add to, alter or change the class of crimes as they existed before this act takes effect, with respect to the right of challenge or with respect to the fees in criminal cases, or to make any crime infamous by reason of any sentence to the Maryland Penitentiary, or transfer thereto, which would not have been an infamous crime before the act takes effect.'

"The words, `and punishable by any imprisonment whatsoever or by fine and imprisonment (other than imprisonment in default of fine)' show that it was not intended to change the grade of any crime, but to leave that as it was already fixed by existing law or might be fixed by future legislation.

"Article 57, section 11, in excepting from the amnesty given after one year to ordinary misdemeanors those punished by confinement in the penitentiary, clearly meant to class these with felonies; and in Schaumloeffel v. State, 102 Md. 470, 62 A. 803, that intention was recognized. But the provisions of section 654 of article 27 expressly negative the idea that that section was intended to `place along with felonies' misdemeanors not so classed by the then existing law or by subsequent legislation."

Although there were amendments to § 654 over the years, and the section was renumbered § 690, the changes were rather minor and, in any event, the second paragraph remained unchanged. 320 Md. at 613, 579 A.2d at 269. A constant was "the concept of sentences to and confinement in specific state institutions. Id.

Major changes in § 690 occurred in 1967 with the passage of Ch. 695 of the Acts of 1967. Id. Section (b) of new § 690 provided:

"(b) Notwithstanding any of the provisions of this Article or any other law to the contrary, on and after June 1, 1967, judges, in the sentencing of convicted persons (a) for any offense for which the provisions of this Article or any other law requires the imprisonment to be served at any one of those institutions enumerated in Section 689 of this Article or (b) any offense for which prior to June 1, 1967, the sentence was made for whatever reason to one of those institutions in Section 689, shall in all such cases sentence such persons to the jurisdiction of the Department of Correction. All such persons shall be committed to the custody of the Commissioner of Correction and delivered to him for imprisonment. Thereafter all such persons shall be held, confined in, assigned to or transferred to such of the institutions and facilities under the jurisdiction of the Department as the Department from time to time may order.

"Any person sentenced prior to June 1, 1967 to any one of the institutions and facilities under the jurisdiction of the Department may, after such date, and not withstanding such sentence, be held, confined in, assigned to or transferred to such of these institutions and facilities as the Department may from time to time order."

In addition to limiting the length of sentences permitted to be made to the Department of Correction, the legislation amended sections of Article 27 relating to the Department of Correction by deleting references to the various state institutions and replacing them with "Jurisdiction of the Department of Correction," "Department of Correction," etc. Id at 614-15, 579 A.2d at 269-70. Having repealed the second paragraph of former § 690, no similar language was included in the new section. Id. "[P]erhaps the most significant change," id., was the enactment of new § 690(d), employing a commonly used drafting device to amend every statutory provision relating to the sentencing and confinement options. Id. at 615, 579 A.2d at 270. Pursuant to that section,

"Whenever in this Article or any other law reference is made to the sentencing or confinement of prisoners to any of the institutions enumerated in Section 689, such reference shall after June 1, 1967, be construed to mean

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