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62 Md. App. 651

Donaldson v. State

Court of Special Appeals of Maryland · decided 1985-04-16

Cited by 4 later decisions — most recently November 2004

2 federal appellate · 2 state decisions

Key passage — most relied on by later courts

“Whenever any person is convicted of any offense in any of the courts of record of this State, having criminal jurisdiction, and the judge presiding does not impose sentence or suspends sentence generally or for a definite time places the offender upon probation, or makes another order and imposes other terms as she or he may deem proper, and that person at any time thereafter is brought before the court to be sentenced upon the original charge of his conviction, or for a violation of the terms and conditions of the order of probation in the case, the judge who then is presiding in that particular court, if he determines that the offender violated the terms and conditions of probation, may proceed to sentence the person to serve the period of imprisonment prescribed in the original sentence or any portion thereof, or if no sentence was imposed, any sentence provided for by law for the crime for which that person was originally convicted. The sentence may be suspended in whole or in part and the offender may be placed on further probation on the terms and conditions the judge deems proper but no term of probation may exceed the maximum prescribed by § 641A of this article, (emphasis added).”

quoted by 1 later decision, including Donaldson v. State

“the sentencing court ... [is in] the same position it occupied at the original sentencing of the defendant with one exception; the court may not impose a sentence greater than that which was originally imposed and suspended.”

quoted by 1 later decision, including United States v. Pollard

Relies on United States v. DiFrancesco · Brown v. State · Clipper v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1985-04-16

View the full empirical analysis of this case →

BISHOP, Judge.

¶1Thomas R. Donaldson appeals a judgment of the Circuit Court for Baltimore City (Edward J. Angeletti, J.), entered after the court determined that appellant violated the terms and conditions of his probation, which “extended” the period of his probation by two years from the date of the probation revocation proceedings. “Extending” appellant’s probation was merely a shorthand version of revoking probation, striking the suspension of 'the sentence, reinstating the original sentence, suspending that sentence, and placing *653him on “further probation.” Brown v. State, 62 Md.App. 74, 78, 488 A.2d 502 (1985).

¶2Appellant contends that the trial court lacked the statutory authority to increase the period of his probation beyond the one year that was originally imposed upon suspension of the sentence for his theft conviction. We do not agree and we held accordingly in Brown v. State, 62 Md.App. 74, 76-77, 488 A.2d 502 (1985), decided after appellant filed his brief in the case sub judice. Appellant’s second contention, however, was not resolved by Brown.

¶3In addition to his statutory argument, appellant contends that the additional period of probation constitutes double jeopardy as an increase in his sentence. See Brown v. State, 237 Md. 492, 207 A.2d 103 (1965) where the sentencing court attempted to increase a sentence of life imprisonment to a death sentence after Brown had begun serving the life sentence. The Court held that this was an increase prohibited under the Fifth Amendment to the Federal Constitution and under the common law of Maryland. 237 Md. at 503, 207 A.2d 103. We hold that extending the period of probation under Md.Ann.Code art. 27, § 642 (1982) upon a determination that the offender has violated the terms and conditions of his probation does not constitute an increase of sentence.

¶4There is no double jeopardy violation when probation is revoked and the probationer is imprisoned as a result. Clipper v. State, 295 Md. 303, 313, 455 A.2d 973 (1983) citing United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980).

Probation is by definition conditional; therefore, the defendant is on notice that breaching those conditions may lead to the reinstatement of his original sentence. That original sentence is the only true punishment; the probation revocation is merely the withdrawal of favorable treatment previously accorded the defendant.

¶5Clipper, 295 Md. at 313, 455 A.2d 973.

¶6Once probation is revoked under Md.Ann. Code art. 27, § 642 (1982), “the sentencing court ... [is in] the same *654position it occupied at the original sentencing of the defendant with one exception; the court may not impose a sentence greater than that which was originally imposed and suspended.” Brown, 62 Md.App. at 77, 488 A.2d at 503-504. Accordingly, the original sentence, or a portion thereof, may be reimposed, and “[t]he sentence may be suspended in whole or in part and the offender may be placed on further probation on the terms and conditions the judge deems proper but no term of probation may exceed the maximum prescribed by § 641A of this article.” Md.Ann. Code art. 27, § 642 (1982) (referring to the five year limitation of Section 641A(a)). See Christian v. State, 62 Md. App. 296, 489 A.2d 64 (1985).

¶7Appellant’s sentence was not increased when the trial court extended his probation. Rather, the sentence, which was reimposed after a determination that he violated the conditions of his probation, was suspended again as “an act of grace ... in favor of conditions which, if performed, tend to promote the rehabilitation of the criminal as well as the welfare of society.” Turner v. State, 61 Md.App. 1, 9, 484 A.2d 641 (1984). This does not constitute a violation of double jeopardy principles.

¶8JUDGMENT AFFIRMED;

¶9COSTS TO BE PAID BY APPELLANT.

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