State v. BerryState v. Berry
- Reporters:
- ,
- Before:
- Cole
delivered the opinion of the Court.
The question presented here is whether a trial court may revoke a defendant’s probation for failure to support his wife and children as ordered and sentence him under the original conviction when the period of probation has expired.
The statute involved is Maryland Code (1957, 1976 Repl. Vol., 1979 Cum. Supp.), Art. 27, § 88. Section 88 (a) deals with the wilful neglect to provide for support and maintenance of a spouse and § 88 (b) deals with the wilful neglect to provide for support and maintenance of a child. Both sections make such failure a misdemeanor punishable by a $100 fine and three years imprisonment and both sections authorize the trial court to release the defendant on probation for a period of three years upon condition that the defendant comply with the court’s order of probation. Both sections further provide in pertinent part, that
[i]f the court be satisfied by information and due proof under oath, at any time during the three years, that the defendant has violated the terms of the order, the court immediately may proceed to the trial of the defendant under the original indictment, or sentence him or her under the original conviction, as the case may be. [Emphasis supplied.]
On March 7, 1973, Donald E. Berry was convicted on a guilty plea in the Criminal Court of Baltimore of nonsupport of his wife and two children. He was sentenced to eighteen months imprisonment for both offenses. However, the execution of this sentence was suspended, and he was placed on probation for three years, commencing March 7, 1973, conditioned upon his making weekly support payments as ordered by the court.
On March 4,1976, three days prior to the expiration of the probationary period, a petition was filed in the Criminal Court of Baltimore alleging that Berry had violated the terms of his probation by “failing to make payments” in accordance with the order of March 7,1973. The facts recited in the petition were sworn to by a parole and probation officer, before a judge of the Supreme Bench of Baltimore City. A violation of probation warrant was issued on March 4, 1976 for Berry’s arrest. He was not served with this warrant until May 1,1978, and it was not until June 5,1978, over two years after the expiration of the probationary period, that a hearing was held on the charge of violation of probation. At the hearing, the court found him guilty of violating his probation, revoked his probation and reimposed the original eighteen month sentence to be served consecutively to a sentence he was serving on an unrelated offense.
The Court of Special Appeals reversed the judgment finding that he had violated his probation and vacated the sentence. 41 Md. App. 563, 398 A.2d 59 (1979). It held that the trial court lacked jurisdiction to entertain the revocation proceeding because the language of the statute required the trial court to be “satisfied by information and due proof under oath, at any time during the three years... .” That court regarded these words as pointing to the revocation trial itself and not to the petition to revoke filed by the probation department. We granted certiorari to determine the impact of this statutory language.
As we have stated many times, the cardinal rule of statutory construction is to ascertain and carry out the actual intention of the legislature.
Board v. Stephans,
286 Md. 384, 408 A.2d 1017 (1979);
Harbor Island Marina v. Calvert Co.,
286 Md. 303, 407 A.2d 738 (1979);
S.A.S. Personnel Consult. v. Pat-Pan,
286 Md. 335, 407 A.2d 1139 (1979);
Unnamed Physician v. Comm’n,
284 Md. 1, 400 A.2d 396 (1979). The statutory language itself provides the clearest indication of the legislative intent and is thus the primary source for all statutory construction.
Board v. Stephans, supra; Harbor Island Marina v. Calvert Co., supra.
We also adhere to the principle that the court should confine itself to construing the statute according to the ordinary and natural signification of the words used without resorting to subtle or forced interpretations designed to limit or extend the operation of the statute.
Harbor Island Marina
v.
Calvert Co., supra; Mauzy v. Hornbeck,
285 Md. 84, 400 A.2d 1091 (1979);
Massage Parlors, Inc. v. City of Balto.,
284 Md. 490, 398 A.2d 52 (1979). When the words used convey a clear and plain meaning, there is no need to look beyond the
[r]esults that are unreasonable, illogical or inconsistent with common sense should be avoided and an interpretation should be given which will not lead to absurd or anomalous results. [Comptroller v. John C. Louis Co., supra, 284 Md. at 539.]
With these principles in mind, we turn to the statute to determine if any ambiguity exists. If no such impediment is found then this Court is not called upon to construe the meaning of the statute because the legislative intent will be clear by the language used.
A grammatical analysis of the sentence in question reveals a main clause: “the court immediately may proceed
If the phrase modifies the clause that precedes it, the statute would read in part:
if at any time during the three years, the court be satisfied .. . that the defendant has violated .. . the order, the court immediately may proceed. ...
This construction would require the State to hold the actual revocation hearing within the three year period or lose jurisdiction over the defendant. Such a construction is unreasonable and would lead to absurd results. It would permit a probationer to violate his probation and, by merely avoiding arrest (whether voluntarily or involuntarily) during the probationary period, escape punishment; or even if in custody awaiting trial, the probationer could escape punishment if the hearing was not completed during the three year probationary period. These absurd consequences cannot be squared with the legislative intent.
The purposes of Art. 27, § 88 are to assist spouses and children in directly procuring support and thereby preventing them from becoming public burdens, to punish the offense of failing to provide support, and, by the fear of punishment, to prevent the commission of such an offense. The purposes of the provisions authorizing the court to place the defendant on probation are to enable the defendant to continue to make support payments and to strengthen the incentive to do so by providing an opportunity to avoid imprisonment. This purpose can be achieved only if the defendant knows that his conduct during the probation period is determinative of his status and that the consequence of any violation may be the reinstatement of
There are a variety of reasons why a court may not be able to complete probation revocation proceedings within the probationary period. Some of these reasons may be unrelated to the defendant’s conduct. Dockets may be overcrowded and prosecutors, defenders, and witnesses may be unavailable. Other reasons are directly attributable to the defendant’s own conduct. For example, he may be unavailable because he becomes ill, is incarcerated elsewhere, or has purposefully absconded. To make the imposition of a prison sentence dependent upon such fortuitous and uncertain circumstances defeats the intended purpose of the statute.
If the phrase modifies the clause which follows it, the statute would read
if the court be satisfied ... that the defendant has violated ... the order at any time during the three years, the court immediately may proceed....
This construction of the statute would allow the State to conduct a hearing at any time, even if the probationary period has expired, so long as the court is satisfied by due proof that the defendant has violated the terms of his probation within the three year period. We believe this to be the reasonable construction to carry out the legislative intent.
. Statutes and court decisions in a majority of jurisdictions reflect the view that sound public policy requires that under appropriate circumstances, probation may be revoked after the probationary period has expired, and that proceedings incident to probation revocation need not be completed within that period. They emphasize that the date of the alleged violation of probation is determinative, and that if that date falls within the probationary period, probation can
Our holding that the State may conduct a revocation hearing at any time, even if the probationary period has expired, is not intended to imply that the state is relieved of its obligation to initiate and consummate such hearings diligently and promptly. The probationer is entitled to a fair hearing where he can confront his accusers and present his defense, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979); Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). It is not merely the right to a hearing which is guaranteed, but the fairness of that hearing as well. “The proceedings are to be tested by fundamental fairness — the touchstone of due process.” State v. Bryan, 284 Md. 152, 159 n. 6, 395 A.2d 475 (1978).
Finally, we want to make it abundantly clear that our decision that revocation proceedings must be conducted with
Turning to the instant case, we note that the arrest warrant was issued on March 4, 1976, three days prior to the expiration of the probationary period. This warrant was not served until approximately May 1, 1978 and the hearing on the merits was held on June 5, 1978. The record of the revocation proceedings reveals almost nothing about the reasons for this delay except for an unsolicited and unsubstantiated remark by the court clerk that the delay was attributable to pending criminal charges which had resulted in several postponements of the revocation proceeding. However, we need not engage in any lengthy analysis or balancing process because the defendant has alleged no prejudice as a result of the delay. Indeed, we can envision few circumstances where a defendant would be able to show prejudice when as here the issue is a narrow one of compliance with the court’s order for support.
For the foregoing reasons, we must reverse the judgment of the Court of Special Appeals; however, because the Court of Special Appeals indicated in its opinion that the lower court may have committed error by failing to comply with the mandatory standards of Rule 723 c, we shall remand the case to that Court for further proceedings.
Judgment of the Court of Special Appeals reversed and case remanded to that court for further proceedings consistent with this opinion.
Costs to be paid by appellee.
Notes
. Most courts have held that if a probation revocation proceeding is initiated within the probationary period, it may be completed thereafter. United States v. Strada, 503 F.2d 1081, 1084 (8th Cir. 1974); United States v. Bartholdi, 453 F.2d 1225, 1226 (9th Cir. 1972); Carpenter v. State, 355 So. 2d 492, 493-94 (Fla. Dist. Ct. App. 1978); People v. Dawes, 52 Ill. 2d 121, 284 N.E.2d 629, 630-31 (1972); State v. Rosteet, 257 La. 863, 244 So. 2d 813, 814 (1971); Sherman v. Warden, Nev., 581 P.2d 1278, 1279 (1978); Barthiume v. State, 549 P.2d 366, 367 (Okla. Cr. App. 1976); Commonwealth v. Lipton, 238 Pa. Super. Ct. 124, 352 A.2d 521, 522-23 (1975); State v. Taylor, 111 R.I. 653, 306 A.2d 173, 175 (1973); Allen v. State, 505 S.W.2d 715, 717 (Tenn. 1974); Nicklas v. State, 530 S.W.2d 537, 540-41 (Tex. Crim. App. 1975); State v. Hultman, 92 Wash. 2d 736, 600 P.2d 1291, 1293 (1979). See State v. Jones, 284 So. 2d 231, 233-34 (La. 1973); People v. Wakefield, 46 Mich. App. 97, 207 N.W.2d 461, 462-63 (1973); State v. O’Neal, 24 Ore. App. 423, 545 P.2d 910, 912 (1976); State v. Hutto, 252 S.C. 36, 165 S.E.2d 72, 76-77 (1968).