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71 Md. App. 314

State v. Fincham

Court of Special Appeals of Maryland · decided 1987-05-11

Cited by 6 later decisions — most recently April 1996

6 state decisions

Key passage — most relied on by later courts

““Notwithstanding paragraph (1) of this subsection, a court may not stay the entering of judgment and place a person on probation for a second or subsequent violation of § 21-902(a) or (b) of the Transportation Article if the second or subsequent violation occurred within 5 years of the previous violation. A person is in violation of § 21-902(a) or (b) if that person receives probation under this section.” (Emphasis supplied.)”

quoted by 1 later decision, including 75 Md. App. 233 - State v. Shilling

Good law ✅— No negative treatment on recordhow we know

Decided 1987-05-11

View the full empirical analysis of this case →

WILNER, Judge.

¶1Md. Code Ann. art. 27, § 641(a)(1) permits a court, if satisfied that the best interests of the person and the welfare of the people of the State would be served thereby, to stay the entry of judgment in a criminal case and place the defendant on probation. Subsection (a)(2) of § 641 very clearly provides, however, that:

“Notwithstanding paragraph (1) of this subsection, a court may not stay the entering of judgment and place a person on probation for a second or subsequent violation of § 21-902(a) or (b) of the Transportation Article if the second or subsequent violation occurred within 5 years of the previous violation. A person is in violation of § 21-902(a) or (b) if that person receives probation under this section.”

¶2On or about August 31,1985, Richard Doyle Fincham was convicted of driving under the influence of alcohol in violation of Transp. art., § 21-902(b). On October 3, 1986, he *316appeared before the Circuit Court for Anne Arundel County again charged with driving under the influence of alcohol. He entered a plea of guilty to that pífense and to a companion offense of improper lane change, both pleas being amply supported by an undisputed statement of facts recited by the prosecutor.

¶3The Court accepted the pleas and found Fincham guilty. Despite its awareness of Fincham’s 1985 conviction, however, and in absolute defiance of § 641(a)(2), the Court stayed the entry of judgment and placed Fincham on probation. In response to the State’s protest that its disposition of the charge under § 21-902(b) constituted an “illegal sentence,” the Court blithely remarked that “The Court can do anything it wants at any time.”

¶4We regret the need to inform the Circuit Court that it may not do anything it wants at any time. It is obliged to follow the law, and the law plainly forbids the Court from doing what it did on the charge of driving under the influence of alcohol. As the State has raised no complaint about the disposition of the other charge of “improper lane change,” that disposition will stand.

¶5ORDER STAYING ENTRY OF JUDGMENT ON CHARGE OF DRIVING UNDER INFLUENCE OF ALCOHOL VACATED; CASE REMANDED TO CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR ENTRY OF CONVICTION AND RESENTENCING; APPELLEE TO PAY THE COSTS.

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