Warren v. State, 156

Decision Date06 October 1977
Docket NumberNo. 156,156
Citation377 A.2d 1169,281 Md. 179
PartiesBob Joe WARREN and Michael Thomas Doyle v. STATE of Maryland.
CourtMaryland Court of Appeals

Barry J. Renbaum, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellants.

Kathleen M. Sweeney, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

LEVINE, Judge.

The sole issue presented in this case is whether an order for probation without judgment, entered pursuant to Maryland Code (1957, 1976 Repl.Vol.) Art. 27, § 292(b), is a disposition from which an appeal may be taken by the defendant. The Circuit Court for Worcester County (Prettyman, J.) held that such an appeal would not lie. We then granted certiorari and for reasons that follow, we affirm.

Appellants, Bob Joe Warren and Michael T. Doyle, were tried in the District Court of Maryland, Worcester County, on charges of petty larceny and possession of marihuana. The court found them not guilty of larceny, but guilty of possession. Pursuant to § 292(b), 1 which provides that the court "may, with the consent of (the defendant) stay the entering of the judgment of guilt, defer further proceedings and place (the defendant) on probation," the District Court withheld the entry of judgment and signed identical orders placing each appellant on supervised probation for one year. Both appellants consented in writing to the entry of the orders, but then noted a timely appeal to the circuit court. The State promptly moved to dismiss the appeal on the ground that "a probation before sentence verdict, voluntarily consented to, results in no conviction or judgment and that no appeal will lie." In dismissing the appeal, the court apparently took the view that a sentence must be imposed if a disposition is to constitute an appealable "final judgment." In the view which we take of this case, it is unnecessary to rest our decision on this ground.

(1)

Our analysis begins with the observation that appellate jurisdiction in both civil and criminal causes is dependent upon a statutory grant of power. Lohss and Sprenkle v. State, 272 Md. 113, 116, 321 A.2d 534 (1974). The provision with which we are concerned here is Code (1974, 1976 Cum.Supp.), § 12-401(a) of the Courts and Judicial Proceedings Article, which governs appeals from the District Court and provides:

"A party in a civil case or the defendant in a criminal case may appeal from a final judgment entered in the District Court. . . . In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended."

The issue, then, is whether an order for probation without entry of judgment is a "final judgment" within the contemplation of the statute.

At the outset, we note that § 12-101(f) of the Courts and Judicial Proceedings Article defines "final judgment" to mean:

". . . a judgment, decree, sentence, order, determination, decision, or other action by a court including an orphans' court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken."

This section, however, does not attempt to specify what is an appealable final judgment or order, and leaves that determination to the case law. Wright v. Nugent, 23 Md.App. 337, 356, 328 A.2d 362 (1974), aff'd per curiam, 275 Md. 290, 338 A.2d 898 (1975).

From our prior decisions, it is evident that the rule in Maryland has traditionally prohibited piecemeal disposition of litigation and, subject to exceptions not relevant here, has permitted appeals only from final judgments. As early as 1835, this Court referred to the "well established rule" that no appeal can be prosecuted "until a decision has been had in the Court below, which is so far final, as to settle, and conclude the rights of the party involved in the action, or denying to the party the means of further prosecuting or defending the suit." Boteler & Belt v. State, 7 G. & J. 109, 112-13 (1835); accord, United States Fire Ins. v. Schwartz, 280 Md. 518, 521, 374 A.2d 896 (1977); In re Buckler Trusts, 144 Md. 424, 427, 125 A. 177 (1924). Otherwise stated, to be final a judgment must actually settle the rights of the parties, Collins v. Cambridge Hospital, 158 Md. 112, 116, 148 A. 114 (1930), or it must finally settle some disputed right or interest of the parties, Harlan v. Lee, 177 Md. 437, 439, 9 A.2d 839 (1939).

In addition to arguing that they met these standards, appellants draw upon a test enunciated for the Supreme Court by Mr. Justice Black in Korematsu v. United States, 319 U.S. 432, 435, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943). There, the Court stated that a judgment is final when it terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined. Applying this test, the Court held that an order of the District Court suspending the imposition of sentence and placing the defendant on probation after he had been found guilty was an appealable final judgment.

Appellants contend that here the orders of the District Court constituted final judgments within the traditional meaning of the rule. Thus, they had a full trial on the merits in the District Court, in which they presented and exhausted all of their defenses, and then they were found guilty. Consequently, their right to be free from a finding of guilt has been finally settled. Nor, they argue, will an appeal afford them an opportunity to delay the trial by protracting the litigation. In their view, all that remains to be done is to enforce the probation order, for should the court ever determine that they violated probation, its entry of judgment at that time will be a mere formality.

To support their contention, appellants also rely heavily on an English case, Oaten v. Auty, (1919) 2 K.B. 278, which we discussed in Skinker v. State, 239 Md. 234, 239 n. 2, 210 A.2d 716 (1965). There the defendant failed to appear for military service, apparently under claim of exemption as a minister of a religious denomination. The trial court was of the opinion that the offense was proved, but believed it inexpedient to inflict any punishment, and therefore dismissed the information. On appeal, five justices, each writing separately, believed the lower court's action to have been an appealable "determination" within the meaning of the applicable statute. The logic which seemed to persuade the justices to hold the determination appealable was perhaps best expressed by Justice Darling:

"If this appellant cannot appeal a grave injustice might be done. . . . As far as we know he is a man of high character and position in (the Spiritualists), and it is found against him that he is a man who will not do his duty by his country. . . . (I)t is said (the trial justices) have taken a course which prevents the appellant appealing and getting rid of the stigma put upon him. If the stigma has been unjustly put upon him it is not surprising that he desires to come here to get the finding altered . . . ." 2 K.B. at 282-83.

Thus, appellants argue here that a grave injustice may be done if they cannot appeal at this time, since their only remaining option to secure review would be to violate probation in the expectation that the court would enter judgment and impose sentence, thereby ensuring finality.

Although these arguments have great force, they ignore the legislative intention, which we find clear from the controlling statutes, that § 292(b) orders for probation without judgment are not to be final judgments within the meaning of the traditional rule. First, § 12-401(a) expressly provides that appeal lies only from final judgments "entered" by the District Court. Section 292(b), however, by its very terms, stays the entry of judgment upon the finding of guilt. As a consequence, even assuming arguendo that the determination of guilt is a "final judgment" for purposes of § 12-401, that judgment is not entered in a § 292(b) disposition and is thus not appealable.

Moreover, in our view it is not the finding of guilt, but rather a subsequent event either the successful completion of the probationary period or the revocation of probation which actually settles the rights of the parties. If, on the one hand, appellants serve their probationary period and are discharged, the proceedings against them will be dismissed without a judgment of conviction a disposition which they cannot appeal. Cf. Lohss and Sprenkle v. State, 272 Md. at 119, 321 A.2d 534 (State may not appeal dismissal which it sought or to which it consented). Thereafter, all public criminal records are expunged automatically, and the arrest and conviction may not be so regarded "for purposes of employment, civil rights, or any statute or regulation or license or questionnaire or any other public or private purpose." 2 Nor is discharge under § 292(b) deemed a conviction for purposes of the disqualifications or disabilities imposed by law upon conviction of a crime. In short, successful completion of probation erases the stigma of criminal conviction, except for those who later violate the law again. See also State v. Jacob, 234 Md. 452, 455, 199 A.2d 803 (1964).

On the other hand, § 292(b) expressly provides that when the defendant violates a condition of probation, the court then "may enter a judgment of conviction and proceed as otherwise provided." Since such a disposition finally settles the defendant's guilt, as in an ordinary proceeding, he would then be entitled to appeal. At that time, of course, the defendant would be permitted to challenge any determination made at the original District Court trial, since he would have been afforded no prior opportunity to do so. Cf. Burch v. State, 278 Md. 426, 431, 365 A.2d 577 (1976) (where final judgment is entered upon conviction at original...

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