Cornish v. State

WILNER, Judge. The law is clear that in order to justify revoking a probation for failure of the probationer to comply with the conditions of the probation, the State must show at least (1) that the violation occurred, and (2) that it occurred after the probation was imposed, ie., during a period when the probationer was lawfully subject to the condition. See Matthews v. State, 304 Md. 281 , 498 A.2d 655 (S.T.1985); Berry v. State, 287 Md. 491 , 413 A.2d 557 (1981). There is hardly anything new or startling about that proposition.

Where the basis of an alleged violation is a subsequent criminal act — a failure to “obey all laws” or to refrain from the illegal possession or use of drugs or other contraband— it should normally be a simple matter for the State to prove the date of the violation, especially when the probationer has been arrested for and convicted of the subsequent offense. There are police reports, charging documents, witnesses — all manner of evidence sufficient to establish when the violation occurred. Because the State failed to produce this readily available evidence in this case, we find it necessary to reverse the judgment of the Circuit Court for Baltimore City revoking appellant’s probation and directing execution of a six-month term of incarceration. On April 16, 1984, appellant was convicted of theft; the court found that she had fraudulently signed and cashed social service checks payable to her dead father.

On May 29, 1984, the court imposed a sentence of one year but suspended execution in favor of three years probation, two conditions of which were that she “obey all laws” and “not illegally possess, use, or sell any narcotic drug, ‘controlled dangerous substance’ or related paraphernalia____” ²¹⁵ The record shows that on June 6, 1984 — eight days after having been placed on probation — appellant was arrested and charged with three violations of the controlled dangerous substance laws. On January 10, 1985, as part of a plea bargain, the State nol prossed two of those charges and appellant pled guilty to one — possession with intent to distribute marijuana. For that offense, she again received a prison sentence which was suspended in favor of probation. Following, and as a result of, that conviction, the State moved to revoke the first probation, alleging a violation of the two conditions above noted.

The “Notice of Violation of Probation,” which served as the basis for a warrant, alleged in connection with the failure to “obey all laws” that appellant was “arrested on 6/6/84 and convicted on 1/18/85 in B.C.C.C.” As to the other condition, the notice alleged simply that appellant “was charged and convicted of possession of Marijuana, Narcotic conspiracy.” Nothing was said in the notice as to when the offense was committed. 1 A hearing on the State’s petition was held on March 11, 1985. Two items of evidence were presented — the testimony of appellant’s probation agent and