*1 BALTI- FOR THE COURT IN CIRCUIT TIONS ENTERED CITY; MORE APPEALS SPECIAL THE COURT OF OF
JUDGMENT THE IT AFFIRMS SEN- FAR AS IN SO REVERSED BAL- COURT FOR BY THE CIRCUIT TENCES IMPOSED CITY; TIMORE AP- OF SPECIAL THE COURT REMANDED TO
CASE THE SEN- DIRECTION TO VACATE PEALS WITH BAL- FOR BY THE CIRCUIT COURT TENCES IMPOSED THAT THE CASE TO REMAND CITY AND TO TIMORE WITH IN ACCORDANCE RESENTENCING COURT FOR OPINION; THIS THE OF IN AND IN COURT THIS COURT
COSTS AND PAID BY THE MAYOR BE APPEALS TO SPECIAL BALTIMORE. OF CITY COUNCIL
Norman PETERSON. Term, 20, Sept.
No. 1988. Appeals Maryland. Feb. 1989. *3 Bair, E. Gary Atty. (J. Asst. Joseph Curran, Jr., Gen. Gen., Atty. brief), Baltimore, both for petitioner. John D. Thompson (Thompson and Fleming, both on brief), Baltimore, for respondent.
Argued MURPHY, C.J., before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.
ELDRIDGE, Judge. third sentence Maryland provides revocation of probation hearing “shall held before the sentencing judge, practicable.” whenever granted We petition State’s for a writ of certiorari in this case to decide whether the Special Court of Appeals had misapplied this provision. Although events subsequent to the issuance of a writ of certiorari have moot, rendered the case we shall nevertheless set forth our concerning views the interpreta- tion and application of the third 4-346(c). sentence of Rule
On January the Circuit Court for Baltimore City, Norman Peterson pled guilty charges driving while intoxicated and on a driving revoked license. District Resnick, Court Judge Alan M. temporarily assigned to the *4 court, circuit imposed two consecutive sentences of eighteen entirety 1. Rule provides (emphasis added): in its as follows “(c) Hearing on Violation of Conditions. —On motion of the order, Attorney by may State’s hearing its own the court hold a to determine whether condition has been violated. The charged motion or order shall state each violation of conditions and shall be served on the defendant in sufficient time before the hearing permit opportunity to a charges. reasonable to rebut the sentencing judge, shall be held whenever before practicable. provisions apply Rule 4-242 do not to an probation.” admission of violation of conditions of fine and court as well a $500.00 as imprisonment, months one month of the all but suspended Judge Resniek costs. (1957, Code Maryland pursuant sentences prison proba- on 641A, Peterson placed and Art. Repl.Vol.), § Peter- probation, of his As conditions years. three tion for alcohol and an program an alcohol to attend son was license. on Ms driver's placed was restriction violating charged with was 1986 Peterson September proba- April On probation. of his conditions Judge Robert held before Chief hearing was tion City. for Baltimore of the Circuit Court Hammerman LH. place: took following colloquy hearing the At that is I notice that this ... ATTORNEY]: “[PETERSON'S Judge His Honor ... imposed of a sentence a violation 6th, January Court on sitting in the Circuit Resniek while judiciary of the is still a member Judge and Resniek 6th, 1984, I and January on he was capacity in the same this Resniek since Judge not before why we are question case. is Ms in the same sitting he Because
“THE COURT: time he time. At that he at that now that was capacity for Baltimore the Circuit Court judge sitting as sitting judge as a District Today he is City. bench, and assigned to this is not He City. for Baltimore bench, authorized this as practice it is the Rules, imposed who judge that when proceedings for further available sentence is not original Judge bench. assigned another may it to the Circuit Court assigned longer is no Resniek City. for Baltimore please, If Your Honor ATTORNEY]:
“[PETERSON'S that His Honor record, opinion is my for the Dis- the same associate He is still is available. Resniek I January, just 1984 and he was judge trict Court being presented— is not this case question why making state- Well, are the same you “THE COURT: ago you did a moment asking question the same ment same answer. I say repeat I only can *5 Just on behalf officially “[PETERSON’S ATTORNEY]: client, I my ask that this matter be to Judge referred Resnick for disposition. denied____”
“THE request COURT: Your is Following testimony from the probation officer and argu- counsel, ments of Judge Hammerman revoked Peterson’s probation original and reinstated his sentence, less credit for time served.
Peterson
to
appealed
Special
the Court of
Appeals, which
reversed
and remanded. Peterson v.
73 Md.App.
Despite held the hearing was Circuit of probation revocation 1988, 1, Judge before City, August for Baltimore Judge that request made no Peterson W. Brown. Roger us, we were told argument oral before At preside. Resnick to have been before happy quite Peterson had been that no one object. Apparently not The State did Brown. Judge of had issued a writ that this Court Brown Judge told Brown, Judge Peterson before At the certiorari. Judge Brown probation. his he violated admitted that had for less credit year imprisonment, him to one sentenced served, fine, prison costs. and court a $500 time probation. of months in favor five suspended sentence was on Peterson’s driver’s placed An alcohol restriction was and screening an alcohol license, he was to attend program. treatment
I. appellate proceedings present It clear that moot. become have of Special Appeals the third sentence of also held
2. The Court 27, 642,” 4-346(c) authority granted severely Art. § limits the "Rule Art. 642 of first Md.App. A.2d at 1357. Section generally to decisions relates Ch. 398 of the Acts enacted sentences, sentences, suspension probation, and impose to things, probation. Among statute does autho- other violations particular hear presiding in that court” to "judge who is then rize the existing light alleged probation. of the conditions In violation of an statute, wording of the we doubt passed, statute was when the possible which of several principal 642 concerns focus § charge. assigned judges to hear should event, 4-346(c) opinion in Part III of this any our construction of 4- any 642 and Rule possibility § of a conflict between removes 346(c). When the State and Peterson both acquiesced in appearing Judge before Brown the probation hearing, parties, effect, waived any objection to proceeding Brown, before waived claim that Judge Resnick was required preside, to and waived any argument that under Rule Judge Resnick was not required preside. concerning The issue the practicability returning Judge Resnick to the circuit court for the hearing disappeared from the case. longer is no “[TJhere existing an controversy parties, between so there is no longer any effective remedy which provide.” the court can Gen. Attorney Bus, v. A.A. School A.2d moot, case is now unless the circuit court was without subject jurisdiction matter *7 proceed with the which Judge presided. Brown argues State of issuance the writ of certiorari deprived the so, circuit court of to jurisdiction do rendering proceedings the before Judge Brown a nullity. that,
This Court has consistently taken the view when an appeal taken, the trial court may continue to act with reference to matters relating of, to the subject matter or matters not affecting, the appellate proceeding; it may also act in furtherance the Nevertheless, of appeal. with regard relating to matters to the subject matter of the appeal, affecting appeal, or the it, and not in furtherance of we at position one time took the appellate the court “is power vested with the exclusive the jurisdiction over subject matter proceedings, of the the authority and control of the lower court with reference thereto are sus pended.” Director, 629, 633, Bullock v. 231 Md. 190 A.2d 789, (1963), 792 Pulley State, 406, overruled in v. 287 Md. 2, 1244, (1980). 416 n. 412 2 A.2d 1250 n. also, e.g., See Staggs v. Blue Maryland, 576, 578, Cross 57 Md.App. of 326, (1984), A.2d overruled in Makovi v. Sherwin- Co., Williams Md.
As pointed out Pulley atMd. 416-417, 412 A.2d at Bullock and similar cases con fused the concepts fundamental jurisdiction with the the Bigges exercising jurisdiction. propriety as follows Pulley appeal the effect of an explained Court 1250): (287 A.2d at Md. at words, retains ‘fundamental “In other the trial court its cause, exercise such right over but its to jurisdiction’ the (i) or interrupted statute power may by bond, or appeal bail Rule, (ii) posting the authorized sentence, (iii) granted stay following a conviction and itself, in court, or court those the trial appellate an interloc- is taken from an permitted appeal cases where judgment.” or final utory 1251): (287 419, 412 A.2d at Md. at
Further
does, however,
during
proceed
“If
decide to
the trial court
it,
a stay required by
appeal,
absent
pendency
court, has
law,
from
appellate
or one
an
obtained
which
jurisdiction’
‘fundamental
authority to exercise the
possesses.”
analogous
in the
case is
to
issue
present
The issue
Investigation
in No.
Special
re
this
presented
(1984). There, subpoenas
281, A.2d 1
of certain
upon
tecum were served
the custodian
duces
quash
records.
custodian filed a motion
dental
circuit
subpoenas;
this
was denied
court
motion
filed,
stay pending appeal
An
but a
judge.
appeal was
production
of the time for
Upon
expiration
denied.
appeal,
records,
adjudication
the dental
before
-but
*8
held that
contempt.
the custodian was held
We
of the
was
contempt
proper
circuit court’s issuance
order
jurisdiction over
because the court retained fundamental
See
also
case, notwithstanding the
pending appeal.
Co.,
supra, 311
283,
Md. at
Makovi v. Sherwin-Williams
not
appeal
order of
does
divest
(premature
The above-cited cases deal with the effect of appeals, but the same in the principles apply context of the issuance of a case, writ certiorari. In this no stay granted by this or any court. The Circuit Court Baltimore had City retained fundamental jurisdiction, conferred by the Consti- tution Assembly, General handle revocation of probation hearing. See Art. 642. As the circuit court § had to act jurisdiction according to the mandate of the of Special Appeals, this case is moot.3
II.
Ordinarily,
would end our opinion
we
point.
this
moot,
“[Generally when
case becomes
we order that the
or the
appeal
case be dismissed
expressing
without
our
on the
views
merits of the controversy.” Mercy Hosp. v.
Jackson,
Md.
510 A.2d
As
Judge
Chief
Murphy stated for the Court in
Ficker,
State v.
500, 506-507,
266 Md.
(1972),
Nevertheless, is no there constitutional prohibition which bars this Court from its expressing views merits of a case which becomes during moot appellate proceedings. Reyes v. George’s Prince County, 12 (1977). so, however, We will do “only in rare instances which demonstrate the most compelling of proper proceeded 3. Whether was for the circuit have court to after certiorari, opposed we power issued a writ of as to whether it had the so, to do is not before us. think ordinarily We trial court proceed here, not thereby should mooting with a in the circumstances that, appellate an issue before an court. We have no doubt procedural posture had been Brown informed case, objection posture, or had been an there based on that he would held have
§3 Reyes George’s County, v. Prince circumstances.” 297, at 22. Lloyd Supervisors 380 A.2d 281 Md. at of (1954), Judge 36,Md. Elections, 206 “only for the Court that where emphasized Hammond matters a rule of future conduct in establishing of urgency manifest, will imperative concern is and public of important and a from rule departure general justified there be questions.” academic deciding of not practice in one of those “rare instances” that this is We believe merits of its views on the express the Court should which moot case. of criminal dispose trial courts thousands
Maryland’s Fiscal given year. example, during in For cases 52,039 and terminated criminal cases circuit courts 144,060 processed criminal and the District Court appeals An (counted charged). of defendants cases the number Table Maryland Report Judiciary nual 48; DC-7, course, CC-6.9, Table at 83. Of not all these convictions, in not all or result and processings terminations as safely result in but be. probation, may convictions in probation infrequent disposition is not an sumed probation Proceedings criminal cases.4 also numerous.5 are 4-346(c), it is
In the context of the third sentence Rule recognize sentencing revo- and important apart, months or years occur even proceedings may cation at trial presiding, particular county, that the and sentencing county a resident in that may and not be he or she is regular judge of the court which even has sitting. Appeals The Chief of the Court of then 39,823 1986, the Division of Parole and Probation received 4. In Fiscal Maryland from the circuit courts and probationers District Court. Report Annual Fiscal Years 1985 Division Parole Probation 1986, at 69. 5,605 hearings In Fiscal 1988 there were in the 5. Givson, Letter from Robert circuit courts. Administrator Statistics, Lally, Office of Research and Assistant to Peter (Nov. 1988). Administrator State Court *10 power broad to “assign any judge except a judge Orphans’ Court to sit in temporarily except court an Orphans’ IV, 18(b), Court.” Art. of the Maryland Consti- § tution. See Maryland also Rule 1202 Moreover, a 1. circuit administrative judges possess the authority provide for assignments. intracircuit Rule 1202 b 1.
The temporary recall of retired judges pursuant to Art. IV, 3A, of has, the Maryland Constitution in recent years, § somewhat diminished the intercircuit assignment of circuit court judges. Compare Annual Report the Maryland of 1983-1984, Judiciary p. with Annual Report the 1987-1988, at Judiciary p. 96. But intracireuit assignment of judges those is Moveover, common. Ibid. during Fiscal inter-district assignments within the produced District Court judge days. Ibid. In the same period, time provided District Court the circuit courts 292 judge days assistance, with 178 of judge days those in the Circuit Court for Baltimore City. Ibid.
Thus, for example, when the sentencing judge impos- who es is sitting temporarily in the Circuit for Baltimore City, but holds his appointment as a judge of the District Court and is resident in Worcester County, is quite likely will in (or be back Worcester County State) elsewhere in the if and when the defendant brought into the Circuit Court for Baltimore City for a probation revocation hearing. Under the opinion of the Court of Special Appeals, in these circumstances the defend- ant would a “right” have under Rule have Worcester County District preside at his Baltimore circuit City court revocation proceeding unless the record demonstrates that it impractical, would presiding be and the findings makes to that effect.
Considering the busy
courts,
dockets of Maryland
complexity
administrative
of intercourt and intercounty ju
assignments,
dicial
and the
numbers
cases and individu
involved,
als
the issue in this case assumes major public
importance.
questions
Unlike the
in Mercy Hosp. v. Jack
son, the answers to which would
no
have had
constitution-
involved difficult
application and which
general
565-566,
III. that a The third sentence of Rule states “hearing shall held the sen before probation thus, provision, tencing judge, practicable.” whenever assign for the uncomplicated an flexible standard sets forth previous As ment of revocation cases. judges discussed, however, adopted Special Appeals the Court of ly right provision confers an enforceable view sentencing original the defendant to have the upon pre unless the at the preside is not and unless the siding judge practicable finds that this supports finding. record construc- disapprove Special Appeals’ of the Court of
We
4-346(c).
of Rule
application
of the third sentence
tion
moot,
the Court of
If this case were not
we would reverse
directions that
Special Appeals’ judgment
judg-
with
affirmed.
ment of the circuit court be
his
litigant
right
has no
to have
case
Generally, a
State,
Lane v.
81,
particular judge.
heard before
denied, 368 U.S.
cert.
993, 82
93,
400,
(1961),
406
Corn,
United States v.
611,
(1962);
836
Consistent with the principle that a litigant right has no to hearing particular before a judge, courts regularly hold that statutes and rules relating to the assignment of judges ordinarily are not intended to confer rights enforceable litigation. See, upon parties e.g., Sinito v. States, United 515-516; 750 F.2d at United States Torbert, v. 154, (9th 496 F.2d 157 denied, cert. Cir.), 419 857, 105, U.S. 95 42 (1974); S.Ct. L.Ed.2d 91 United States Dichiarinte, v. 333, 385 (7th F.2d Cir.1967), 337 cert. de nied, 945, 390 1029, U.S. 88 S.Ct. 19 (1968); L.Ed.2d 1133 States, Levine v. United 556, 182 (8th F.2d 559 Cir.1950), denied, cert. 921, 352, U.S. 71 S.Ct. (1951); L.Ed. 665 Padie v. 1024, 566 P.2d (Alaska 1977); 1027-1028 Powell, Kruckenberg So.2d (Fla.App. 995-996 1982); Stevens v. Wakefield, 163 Ga.App. 292 S.E.2d (1982); State v. Mahoney, App.3d 114, Ohio ) . (1986 N.E.2d
For example,
Dichiarinte,
United States v.
in-
volved a rule “requiring that when a case is dismissed and a
second case is filed involving the same parties
subject
and
matter,
it is to be reassigned to the judge to whom the
original case was assigned.”
There rights rales do not create assignment ciple judicial constitu include litigants. exceptions These by enforceable statutes, disqualifi requiring or rules provisions, tional situations, circum in specific particular judges cation of preju might appear particular judge stances where intended to confer manifestly diced, or rales were which sentence of The third rights upon litigants. enforceable excep of these however, falls none 4-346(c), within tions. 4-84@(e),s sen third and of Rule language history
The
manifest
provision
that the
any argument
refute
tence
rights upon
parties
to confer enforceable
intended
ly
“whenever
proceeding.
phrase
the idea that
compatible
not
with
certainly
practicable”
on
to have
right,
appeal,
has a
reviewable
the defendant
revoca
assigned
to the
original sentencing judge
or “as
practicable”
“whenever
words
proceedings.
tion
and
cases,
of a relative
according to our
“are
practicable,”
less
character,
controlled more or
to be
dependent
case,
no means furnish
circumstances
v.
73
Somerset
County,
and fixed rule.”
definite
Lankford
Selinger
1017,
(1890).
v.
105, 113-114,
20 A.
1019
See
Md.
817,
A.2d
Md.
298
Maryland,
Governor of
1111,
922,
L.Ed.2d
denied,
819,
409 U.S.
S.Ct.
cert.
341,
Broersma,
325,
(1972);
v.
Robey
also,
Travelers Ins.
Co.,
v.
e.g., Young
827,
See
Cir.1941)
(5th
“are
words
(they
119 F.2d
They
roomy
are
words.
import. They
definite
precise and
in their nature
free
are
play. They
for more or less
provide
facts
particular
to the
subject
impact
...
ambulatory
Petition
cases”);
329 Mass.
Gally,
particular
Ins. Co.
Transamerica
(1952);
107 N.E.2d
They
Parrott,
(Tenn.App.1975).
312-313
531 S.W.2d
if Rule
employed
which would be
are not words
obviously
right
specific
to confer a
manifestly intended
were
his ease.
hear
particular judge
to have a
upon the defendant
*13
The Court of Special Appeals correctly indicated
the phrase “whenever practicable” is flexible and de
pends upon the particular circumstances pertinent
to the
case.6 Peterson v.
73 Md.App. A.2d at 1357. What the intermediate appellate court over
looked, however, is that the relevant circumstances include
more
scope
than the
original
order designating Judge
court,
Resnick to sit on the circuit
Judge Resnick’s normal
geographical proximity to the circuit
location,
court
Judge Resnick’s view of his availability
preside
at the
probation revocation hearing. The circumstances
include
upon
effect
the judicial assignment system of the Cir
cuit Court for Baltimore City, the judicial assignment sys
Court,
tem of the District
and intercourt assignments of
judges under orders of the Chiéf Judge of the Court of
Appeals.7
present case,
the relevant circumstances
also include the impact upon Judge Resnick’s dockets and
of the
business
court or courts to which he is presently
assigned. More generally,
there must be considered the
systemic
substantial
problems which arise when judges
must
from
move
court
to court and from geographical
case,
particular
course,
6. The
circumstances of the
must be viewed
light
policy
in
sentencing judge
of the
favoring
original
embodied in Rule
presiding judge
as the
at the
revocation
hearing.
policy
absolute,
particularly strong,
This
although
original sentencing judge
when the
wishes to
the
notes on the record that he or she
preside
Such action underscores
sentencing judge’s
particular concern for the defendant and the
probation.
effectiveness of the
previously
7. We have
complex
discussed in detail the
and intricate
judicial assignment,
nature of
v.
scheduling systems.
and case
See State
Frazier,
forth detail the Court 464-466, State, Md.App. at supra, Peterson v. repeat shall not here. history
at
and we
however,
shows,
practica-
that the “whenever
history
was
more flexi-
language ultimately adopted
purposely
ble”
prac-
than
alternates.8 The “whenever
proposed
ble
several
intended to foster the
language
specifically
ticable”
Appeals rejected
originally
the Court of
8. The Rules Committee of
rule,
hearing
proposed
simply
which
stated: "The
should be held
State,
Md.App.
sentencing judge.”
supra,
Peterson v.
rejected proposed language saying
The Committee also
A.2d at 1355.
sentencing judge
preside
he "has been removed
that the
should
unless
office,
resigned,
incapacitated
has
or
or is otherwise
...
from
died
sentencing judge
should be held
that "the [revocation]
deceased”;
providing
and that the trial
he is not disabled
compelling
specific
preside
reasons in a
case
should
"unless there are
Md.App.
provide
otherwise.” Peterson v.
at 465-
466,
Finally, our determination that the third sentence of Rule 4-346(c) does not confer rights enforceable upon individual litigants, neither minimizes the important policy underlying provision nor results in an absence of sanctions when policy ignored. There are several statutes and rules of judicial which, procedure violated, if do not carry sanc *15 tions operating as a benefit or detriment particular litigants. The appropriate sanctions for violating these rules are normally ones of judicial internal administration. See, W., In re e.g., 99, Keith 310 Md. 107-109, 35, 527 A.2d (1987); 40 State v. One Davidson, 1980 Harley 303 Md. 154, 160-162, 896, 492 A.2d (1985); 899 State, Farinholt v. 32, 40-41, 299 Md. 452, (1984); A.2d In re Dewayne H., Md. 430 A.2d (1981); 79-80 State Hicks, 310, 335, (1979). If, in a particular locality, policy of Rule is ignored, we are confident that the situation will be remedied by appro priate administrative action.
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE APRIL JUDG- MENT OF THE CIRCUIT COURT FOR BALTIMORE CITY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE EVENLY DIVIDED.
ADKINS, J., concurs and files an in opinion which McAULIFFE, JJ., COLE and join.
ADKINS, Judge, concurring.
The Court correctly holds that moot; this case is there- fore, I concur in the Court’s judgment. I also agree that this is one of those rare situations where the Court should express its views on the merits of a moot case. I But or the majority of either the agree with the views cannot third sentence of concerning Special Appeals 4-846(c). that a requires probation third sentence That whenev- sentencing judge held “hearing shall be before litigant ordi- reasons that a majority The practicable.” er her case heard before a right to have his or has no narily therefore, relating assign- to the rules judge; particular rights enforceable ordinarily do not confer ment of judges concludes that majority further litigants. upon 4-346(c)’s third sentence of Rule language history intended to provision that the contention preclude any to a revo- rights upon party confer enforceable the objec- I a different view of quite have cation sentence, and, achieved this third sought to be tive therefore, effect. of its important is an provision premise underlying sentencing judge, notion that the It is the
policy concept. knowledge of the facts as greater his both presumably with on the they case and bear underlying relate to the as they defendant, shap an informed discretion can best exercise if has been violated. See Smith v. ing a sanction (Wyo.1979) (quoted P.2d Peterson *16 1353, 1359-1360). Md.App. 73 Standing on concept That moved the Committee likely when, Procedure in its Fifty-third Rules of Practice and precursor Rule the of Rule 4-846. Report, proposed Jan.1976). (7 pertinent The section of the Md.Reg. rule read: proposed of on Conditions. Hearing
C. Violations Attorney upon of the State’s or its Upon the motion motion, hearing hold a to determine may the court own has violated. condition of been whether each violation of conditions The motion shall state sufficiently on the defendant and shall be served charged him opportuni- a reasonable hearing permit before the to ty charges. to rebut the should held hearing be the sentencing judge. [Emphasis supplied.] The final in sentence this draft is hortatory cast rather terms, than mandatory clearly but strong- embodies policy ly favoring use of the sentencing at the revocation hearing.1
The proposal produced some concerns the part the then State Court Administrator and judges, several a num- whom ber of urged more flexibility should be into built Bloom, the rule. for the of Special Appeals, history recounts that with accuracy clarity, and and like the I Peterson, majority, find no need repeat to it here. Md.App. 534 A.2d at upshot 1355-1356. The 775c, was that Rule as eventually proposed by the Commit- Court, tee adopted by this effective 1 July (16 Md.Reg. 1977), Feb. contained a final sentence virtu- penultimate identical to ally 4-346(c): sentence hearing “The is to be practicable held whenever sentencing judge.” Md.Reg. at 255. “legislative”
This history yields clear result. The policy having sentencing judge preside at the revocation is favored, fundamental is although it absolute. Considerations practicality come into play when, for reason, some substantial it is not feasible sentencing appear to I am not persuaded that this important policy may freely be disregarded vastly applied different fashions in differ- ent parts The rule is State. a State-wide rule and clearly applied should be with reasonable uniformity throughout to Maryland, subject whatever minor variations may required by be the phrase practicable.” “whenever Thus, I see no litigant reason awhy should not able to raise improper application of the rule in a particular analogous case. situation is litigant’s ability improper application 4-271(a) (the raise the of Rule 180-day Proposed (7 1. *17 Md.Reg. M.D.R. Rule 775 was like tenor. 3 36 Jan.1976). rule) rale that is intended in large part not to confer —a rights upon criminal defendants to insure that but criminal in justice system public works interest See, cases e.g., processing expedition. with reasonable Brown, v. Md. State (1986); Frazier, 422, 456-457, State A.2d therefore, question, controlling becomes how the provisions of Rule are to be This applied. should in recognizes be done that reflected in way policy rale, but to the contrary Special view I Appeals, do not believe that mandates a policy case-by- case determination of is “practicable.” what And contrary to the view of the I do not think that majority, determina- relegated tion should be to the discretion of unreviewable administrative judges.
Among
“practicable”
the definitions of
are “feasible” and
“capable
being
put
practice,
...
into
with the available
means.” The Random
Dictionary
House
the English
Language
1987).
(unabridged
might
2d ed.
And it
Judge
have been feasible for
Hammerman to make a tele-
phone
Judge
call to check into
Resnick’s
at the
availability
Peterson,
See
hearing.
time of the revocation
73 Md.App.
sense,
might
at
A.2d at 1358-59. But under the feasibility practicability rule perspective larger must be viewed from a than that framed the facts of this case.
Practicability light systemic must be considered considerations, including the need to cases in the move parties public, interests of both the and the and the need to *18 limit, can, to the extent we in growing backlogs our courts.2 short, frequent of judges movement from court to court in preside probation order to at hearings revocation is not always practicable because of the potentially adverse ef- dockets, parties cases, fects in other and court adminis- hand, tration. On the other is an important statement, procedural and its very terms demonstrate that mere should trivial inconvenience not allowed to be frus- in policy trate the favor of the sentencing judge presiding at a hearing. rule, In construing applying revocation and must conflicting we balance these concerns. For purposes 4-346(c), per of Rule se rule as to practicability would best serve the of the policy rule the sometimes competing our judicial interests of those system, adjudicate who within it, and those litigate who within it. sentencing
When the is a of the judge judge judicial sentencing conducted, circuit which the was practica- is judge ble for that to preside revocation hearing, bench, unless the is no judge longer on or is for protracted unavailable reasons such as illness or disabil- notes, ity.3 As the there majority is considerable intracir- cuit mobility judges circuit court to pursuant Rule 1202 b. Since each circuit is administered by a circuit adminis- c, it judge, trative Rule 1200 ordinarily is feasible to ar- 228,079 beginning example, 2. At the of Fiscal for cases were 250,694 pending figure circuit courts. The had increased to year. Report the end the fiscal Judiciary Annual 48. 1987-1988 follows, sentencing judge 3. In the discussion that I assume that the is (z.e., retired, judge resigned, still an or active that he she has neither died) hearing. nor of the as date of the revocation While certain judges may temporary assign- former ment to active recalled service for IV, pursuant provisions to the of Art. of the § 3A Constitution Article, Proceedings 1-302 Courts and Judicial § the ad- problems per impractica- ministrative and fiscal involved render it se imposed preside ble to a former recall who sentence to at a probation hearing. revocation not, sentencing judge I further assume that the the time of the hearing, subject protracted disability ato illness or delay unduly would nature that the revocation assignments intracircuit range adminis- complex not the more
hearings. require This does inevitable, although (and the activity possible, trative assignments are travel) when intercircuit longer involved from one court must be moved required judges when another, ie., circuit court. District Court to level of the rule is Furthermore, practicability requirement visiting sentencing judge4 when the satisfied court, who, sentencing when assigned temporarily *19 hearing is proceeding of the revocation assignment the date, scheduled to be again is once specific for a made court for the date in that same sitting specific on that Under these circum- hearing general matters. purpose indistinguishable is visiting judge functionally the stances is to sentencing of the court and be judge a resident from one, 4-346(c) purposes. he for Rule though as were treated view, under the rule per practicable it is se my Finally, hear- at the revocation sentencing judge preside to for the although falling within sentencing judge, ing when above, at the time of categories mentioned neither of the or she to on the record that he wishes sentencing notes and, to when contacted preside date, wish and has the reaffirms that specific on a preside preside. so to judge of that administrative approval judge’s sentencing special judge’s emphasizes a notation Such interest in the particular and probationer for the concern It indicates an program. probationary of the effectiveness effectuate the monitor desire to ongoing time of judge at the goals envisioned probationary interest has been mani- specific such a sentencing. When reaffirmed, presence of the importance fested hearing outweighs at the revocation sentencing judge involved, and the difficulty may the administrative judge the circuit in which By "visiting judge” I from outside mean 4. than sentencing from a court level other court is located or one sentencing court. that of the approval of the appropriate administrative judge further indicates feasibility procedure.5 this cases, all other I would deem it per se impracticable sentencing recall the judge preside at the revocation hearing. procedure I designed visualize is to avoid substantial
administrative disruption within the Maryland system. court time, At the same it supports the fundamental policy 4-346(c). In the many cases in which the sentencing judge is a judge court where the sentence involving probation is imposed, and resident in the county which occurs, the sentencing that judge ordinarily will handle a If the sentencing out of his or her county residence, but within his or her judicial circuit, occur, the same result will as it will when a visiting judge is back at the host court at the time of sentencing and when the sentencing indicates, record, on the that he or she wishes to return for a probation revocation hearing. Under these principles, it is likely that the sentencing judge preside will revocation in a substantial num- of, most, cases, ber if hot thus effectuating the policy of the rule Statewide.6
Judges COLE and McAULIFFE have authorized me to
state that
they concur with the views expressed herein.
Obviously,
sentencing judge
5.
longer
if the
duty judge
is no
an active
hearing,
the time of the revocation
is then disabled
a factor
illness,
protracted
such as
may preside
another
at the revocation
agree
6. I am
majority
inclined to
with the
reading
that a careful
thoughtful analysis
Article
and a
purpose
§
of its
will show
that the statute and rule are not in conflict. See