Costello v. State

Marbury, J., delivered the opinion of the Court. The appellant, Walter L. Costello, was tried and convicted in the People’s Court of Montgomery County for operating a motor vehicle in excess of seventy miles per hour, which is violative of Code (1957), Article 66j4i, Section 211 (g), and for operating a motor vehicle on a revoked permit, second offense, which contravenes Section 112 of the same Article. He appealed the two convictions to the Circuit Court for Montgomery County, and therein these cases became Criminal Nos. 6022 and 6023, respectively. On April 13, 1964, in a trial de novo before Judge Shure, Costello entered pleas of guilty in both cases and was sentenced on April 17, 1964, as follows: “Docket Entries Criminal 6022 ‘That the Traverser, Walter Lee Costello, be confined in the Montgomery County Jail for a period of Thirty (30) days, at release from Jail Traverser be placed on probation for Two (2) years.’ ¹⁶⁶ "Docket Entries Criminal 6023 ‘That the Traverser, Walter Lee Costello, be confined in the Montgomery County Jail for a period of Thirty (30) days, to run concurrently with No. 6022 Criminal.’ ” The official court reporter of Montgomery County transcribed the aforegoing sentencing as follows: “ ‘The sentence of the Court is that in No. 6022 that you be confined in the Montgomery County Jail for Thirty (30) days; and in No. 6023 that you be confined in the Montgomery County Jail for a space of Thirty (30) days.

They will run concurrently and then you will be put on probation for a space of Two (2) years after serving the Thirty (30) days.’ ” Immediately thereafter the appellant duly served the thirty day sentences and was then released. On November 16, 1964, the sentencing judge, having been advised that appellant was not behaving himself, caused a bench warrant to be issued for his arrest. In a hearing on December 2, 1964, on the matter of violation of probation, Judge Shure ordered the probation in both Criminal Nos. 6022 and 6023 revoked and sentenced the defendant as follows: “Docket Entries Criminal 6022 “Docket Entries Criminal 6023 ‘Judgment that the Traverser, Walter Lee Costello, be confined in the Maryland House of Correction for a period of Three (3) months.’ ‘That the Traverser be confined in the Maryland House of Correction for a period of Eight (8) months, Three (3) months of same to run concurrently with sentence imposed in Criminal No. 6022.’ ” Immediately following that hearing the appellant filed a motion to strike an illegal sentence. In his motion he asserted that in Criminal No. 6022 the court in its original sentencing neglected to provide an underlying sentence, which could be reinstated in the event of the revocation of probation.

In addition, he contended that in essence, the court by its action was giv ¹⁶⁷ ing two separate and distinct sentences for the same offenses. With reference to Criminal No. 6023 he contended simply that since the docket entries in that case showed no probation in the original sentencing, the court could not subsequently revoke a non-existent probation. On December 11, 1964, the court, after a hearing on the motion to strike an illegal sentence, struck out the sentence imposed on December 2, 1964, in Criminal No. 6023. However, relying on Maryland Rules 764 a and 765, Judge Shure entered a nunc pro tunc order in which he sought to correct the original sentence in Criminal No. 6022 imposed on April 17, 1964, to show that the court’s sentence at that time was one year with a suspended