Boone v. State

⁶⁶⁴ Bishop, J., delivered the opinion of the Court. James Boone appeals an order of the Criminal Court of Baltimore, (now the Circuit Court for Baltimore City), revoking his probation. He suggests that the court erred: (A) because it relied on a conviction that occurred after expiration of his probationary term, and (B) because there was an inexcusable delay of almost nine years between issuance of the warrant alleging a probation violation and the revocation hearing. Inasmuch as we reverse on the basis of the latter issue, there is no need to address the former issue.

The Facts On October 17, 1972, the circuit court suspended appellant’s eight-year sentence for robbery and imposed a five-year term of probation. The conditions of probation required, inter alia, that appellant report to his probation officer as directed, conduct himself in a law-abiding manner, and receive treatment for alcoholism. About one year later, appellant’s probation officer notified the court that appellant had missed seven appointments and had failed to take treatment for alcoholism. Based on these allegations, the court issued a warrant on October 15, 1973, for appellant’s arrest.

On July 20, 1982, almost nine years after issuance of the warrant, appellant was brought before the court for a probation revocation hearing. The docket entries and statements at the hearing indicate that the following events transpired between the warrant issuance and the hearing: June 10, 1976 — Appellant sentenced for non-support. August 23, 1977 — Appellant received thirty-day sentence in Baltimore City jail for larceny. September 5,1977 — Appellant again sentenced for non-support; incarcerated until December 5, 1977. ⁶⁶⁵ September 27, 1979 — Docket entry — "Sheriff could not locate warrant.

Violation of probation still outstanding.” December 12, 1979 — Docket entry — "Notified Probation Agent, Maurice Jacobs, that Sheriffs Office could not locate warrant and that Judge Perrott’s office does not have any record of this violation case. He informed clerk that this case was still outstanding and that it is the Sheriffs problem if they cannot find the warrant. Warrant is still outstanding.” April 28, 1982 — Appellant convicted in Central District Court of being rogue and vagabond. Placed on one year supervised probation.

May 5, 1982 — Appellant arrested at probation office. May 12, 1982 — Docket entry — "Violation of Probation warrant returned Cepi Jail.” May 17, 1982 — Docket entry — "Notice of Return of Warrant filed. ... Original Warrant not returned by Sheriff.” On July 20, 1982, appellant moved to dismiss the charges against him because of the delay in bringing the case to a hearing. The court denied the motion.

It then granted a continuance so that the State could additionally charge appellant with committing crimes, in violation of his probation order. When the revocation hearing resumed on August 3,1982, appellant’s counsel argued that: "... this warrant was taken out on Mr. Boone back in 1973, in October of ’73. Mr. Boone was placed on a rather long suspended sentence, and a ⁶⁶⁶ long probationary period.. .. He was in before this Court on June 10, 1976, was found guilty of non-support, for violation of probation, was sentenced to eighteen months to the Department of Correction. * * * He was before the Court on August 23, 1977 for larceny, and he was sentenced to thirty days to the Baltimore City Jail at that time.

He was also again before the Court on September 15, 1977, for non-support. In 1976, when this case should have been brought before Your Honor, not some four, or five, or six years later. He would have been sentenced, been paroled, he would have been on the street by now. MR.

RAGLAND: But I feel he should be found not guilty in view of the State’s conduct in this particular case. It is not just the conduct by the State, but they are responsible for finding — it is their responsibility — THE COURT: Absolutely, absolutely. THE COURT: Absolutely. They had a responsibility to cover the streets and knock on every door MR.

RAGLAND: We are not saying they have to cover the streets, nor knock on every door. But when he is in their custody four times — THE COURT: ... when I extend probation to somebody, and they foul me up, there is no way I’m going to let him go simply because of a very capable lawyer’s argument like yours.... there is no way this man is going to get me with technicalities unless the Court of Special Appeals, or the Court of ⁶⁶⁷ Appeals says he is going to. I trusted him. He let me down.

I’m not concerned with his non-support. That’s between he and his ex-wife, whoever she may be. But I am concerned about some of the other convictions. I find defendant guilty.” The court then reimposed appellant’s original sentence of eight years, minus ten months for time already served.

The Law Delayed revocation Hearing 1 Appellant alleges that the nine-year delay between issuance of the warrant on October 15, 1973, and the initial hearing on July 20, 1982, constituted deprivation of due process. It is by now well settled that a probation revocation hearing, which threatens to deprive the probationer of liberty, must be conducted with due process. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972); Vitek v. Jones, 445 U.S. 480, 488 (1980); See Swan v. State, 200 Md. 420, 425 (1952); State v. Bryan, 284 Md. 152 , 159 n. 6 (1978); Herold v. State, 52 Md. App. 295, 301 (1982); 11 U. Balt. L. Rev. 272 , 296 (1982).

In order to comply with the dictates of due process, the State must bring about the revocation hearing with due diligence or reasonable promptness so as to avoid prejudice to the defendant. State v. Berry, 287 Md. 491, 500 , 13 A.L.R. 4th 1231 (1980). Accord State v. Miller, 289 Md. 443 (1981). See 11 U. Balt.

L. Rev. at 298, Annot. 12 A.L.R. 4th at 1252-3. The Court of Appeals states in Berry: "We also believe that whether the State has been reasonable in proceeding with a revocation hearing is the test. We do not perceive the need to set forth ⁶⁶⁸ the factors a court will consider in determining whether the State has been diligent in instituting and conducting hearings under the statute here involved. However, we think it fair to say that, at a minimum, the State should make reasonable efforts to initiate the proceedings and to locate and serve the defendant with process so as to bring him to trial promptly.

On the other hand, we think the trial court should consider the availability of the defendant to receive such process and the extent to which he has made his presence known in the community in which he lives. While what action is timely, diligent or reasonable will differ on a case by case basis, we do believe that inactivity and inattention by the State for an inordinate period of time, where the defendant has been available and has not concealed his