Swan v. State, 203

Citation200 Md. 420,90 A.2d 690
Decision Date15 July 1952
Docket NumberNo. 203,203
PartiesSWAN v. STATE.
CourtCourt of Appeals of Maryland

Harold Buchman, Baltimore (I. Duke Avent, and Mitchell A. Dubow, Baltimore, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Anselm Sodaro, State's Atty., and Wm. H. Maynard, Deputy State's Atty., Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

Appellant was one of several members of a political party who were convicted in 1948 in the Criminal Court of Baltimore by Judge Moser, sitting without a jury, of conspiracy to disturb the peace. After a motion for a new trial had been heard by the Supreme Bench, and overruled as to the count containing this charge, he was sentenced on March 22, 1949, to three months in the Maryland House of Correction, and to pay a fine of $10, but the sentence was suspended for two years, and he was released on probation in the custody of the Probation Department of the Supreme Bench. An appeal was taken to this court, an appeal bond given, and the appellant was released on bail. On November 17, 1949, the judgment was affirmed. Winkler v. State, Md., 69 A.2d 674. Thereupon appellant filed with the Supreme Court of the United States a petition for a writ of certiorari, 339 U.S. 919, 70 S.Ct. 621, 94 L.Ed. 1343, and the mandate of this court was stayed pending the consideration of this petition. On March 27, 1950, the Supreme Court denied the petition, and its order on that petition, and the mandate from this court, were sent to the Criminal Court on March 30, 1950. On May 22, 1950, Judge Moser again sentenced the appellant, giving him the same sentence and suspension which had been given on March 22, 1949, and affirmed by this court. On January 22, 1952, more than two years after the imposition of the original sentence, but within two years from the denial of the writ of certiorari and the receipt of the mandate from this court, and within two years from the re-sentence a warrant was issued for the appellant for a violation of probation. This was heard on January 30, 1952, the probation was stricken out, and he was sentenced to three months in the House of Correction and fined $10 and costs. This sentence was suspended pending appeal here, which was promptly taken, and which is this case now before us. Two questions are raised, first, had the probationary period expired prior to the time of its revocation by the lower court, and, second, did the court below abuse its discretion in revoking the order of probation?

The original sentence of appellant, which would ordinarily have begun on March 22, 1949, having been superseded, could not begin to operate until all of the proceedings which he invoked to set it aside had been tried and had failed. The sentence to the House of Correction, therefore, could have begun only after March 30, 1950, when the mandate of this court had been returned to the Criminal Court showing the denial of the writ of certiorari by the Supreme Court. There could be no suspension of the sentence until the sentence itself became operative, at which time the suspension also would take effect. It is not clear on what theory the trial court re-sentenced appellant, and again suspended the sentence, but it is not necessary for us to consider the validity of that action, because the revocation of the suspension was made within two years from the time the original sentence and suspension went into effect. Irrespective of the second sentence and suspension, the probationary period on the original sentence had not expired at the time of the revocation by the trial court.

This court has held that a parole cannot be revoked without first giving the parolee a hearing, and that this is a requirement of due process of law. Wright v. Herzog, 182 Md. 316, 322-323, 34 A.2d 460. State ex rel. Murray v. Swenson, Md., 76 A.2d 150. Hite v. State, Md., 84 A.2d 899. There is no question in this case that the appellant did have a hearing, and the requisites of due process were complied with in this respect. The question raised is whether the revocation was justified under the facts, and under a proper construction of the conditions of the suspension.

In ordinary circumstances, this court has no control whatever over a sentence imposed by a trial court, if the offense is one created by common law. If the offense is one created by statute, and the sentence is within the limits prescribed by that statute, then we likewise are without power to strike it down. The exception is one which has never occurred within the knowledge of this court, although it has been discussed in several cases. It is where the court has not acted from a sense of justice, but has plainly been actuated by some other and improper motive. Mitchell v. State, 82 Md. 527, 534, 34 A. 246; Apple v. State, 190 Md. 661, 59 A.2d 509; Von Den Bosch v. Swenson, Md., 70 A.2d 599; Reid v. State, Md., 88 A.2d 478, 89 A.2d 227. In the last mentioned case, all the previous cases involving these propositions are cited.

We do not have here, however, the question of a change of sentence, or of the imposition of a sentence actuated by any improper motive. What we have is a question whether the appellant violated the terms of his parole. That is largely a question of fact, and includes also the construction of the terms of the suspension which were made known to the appellant, and by which he was to be guided in his conduct. Such questions, while primarily within the discretion of the trial judge, are not wholly so, and are reviewable, if only for the purpose of determining whether that discretion has been abused in any way, or whether an erroneous construction has been placed by the trial judge on the conditions of the parole. We find no difficulty in holding that in such a case, an appeal lies here.

The revocation was brought about by a petition of the chief probation officer of the Supreme Bench of Baltimore City, reciting that appellant had been released on condition that he should conduct himself in a law-abiding manner, and should avoid places or association with people which might easily lead to offenses against the law, that he had violated this condition by not conducting himself in a law-abiding manner having been convicted on January 20, 1952, of the offense of illegally posting a public sign and having been fined $10 by the magistrate sitting in the Eastern Police Court of Baltimore City. The record shows that the appellant was attaching a poster on private property on January 19, 1952, at 1:45 in the morning. He was arrested and charged with the offense which is created by Section 24 of Article 39A of the Annotated Code. This article is the 'Forestry' article of the Code. Section 24 provides that 'Any person or corporation who in any manner, paints, puts or fixes any advertisement, sign, notice or other writing or printing other than notices posted in pursuance of law, on or to any stone, tree, fence, stump, pole, building or other structure which is in or upon the public highway or which is on the property of another, without first obtaining the written consent of such owner, shall be guilty of a misdemeanor, and upon conviction shall be punishable by fine of not more than $10.00 * * *.' The fine is payable to the State Board of...

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34 cases
  • Patuxent Inst. Bd. of Review v. Hancock
    • United States
    • Court of Appeals of Maryland
    • September 1, 1992
    ...in advance, of the condition allegedly violated. Both common sense and due process demands this result. See Swan v. State, 200 Md. 420, 425, 90 A.2d 690, 693 (1952) (whether a condition of probation has been violated depends upon the terms of the suspension, which were made known to the pro......
  • Knight v. State
    • United States
    • Court of Special Appeals of Maryland
    • June 25, 1969
    ...and that this is a requirement of due process of law.' Wilson v. State, 6 Md.App. 397, 402, 251 A.2d 379, 382, citing Swan v. State, 200 Md. 420, 425, 90 A.2d 690, and Finnegan v. State, 4 Md.App. 396, 243 A.2d 36. In the instant case a hearing is required by statute. See Charter and Public......
  • Stouffer v. Pearson
    • United States
    • Court of Special Appeals of Maryland
    • December 8, 2005
    ...... a penalty therefor, to an additional period of incarceration in any institution within this State, such new sentence shall run consecutive to the time to be served on the original term, unless ...Burkett] was then serving [for violation of parole]"); State ex rel. Justice v. Warden, 203 Md. 651, 652, 97 A.2d 906 (1953) (holding that the paroled prisoner's sentence ran consecutively ...Safety and Corr. Servs. v. Henderson, 351 Md. 438, 448-49, 718 A.2d 1150, 1156 (1998); Swan v. State, 200 Md. 420, 425, 90 . Page 631 . A.2d 690, 692 (1952). Thus, in order for a parolee's ......
  • Christian v. State, 892
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1984
    ...circumstances, a technical violation may be so trivial that revocation of probation is itself an abuse of discretion. Swan v. State, 200 Md. 420, 90 A.2d 690 (1952). And when non-compliance with conditions is caused by factors beyond the probationer's control, revocation is impermissible. C......
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