Dawson v. State

Moylan, J., delivered the opinion of the Court. The appellant, Patrick Kelly Dawson, was convicted in the Circuit Court for Anne Arundel County for three drug-related offenses and for possession of a deadly weapon. Those convictions were affirmed by us in Dawson v. State, 14 Md. App. 18 , 284 A. 2d 861 . The present appeal concerns the sentencing upon those convictions.

The appellant was initially sentenced by Judge E. Mackall Childs on April 29,1971. The lion’s share of the sentence came upon Count 1 of Indictment No. 12074, charging a violation of Article 27, § 277, the possession of marihuana. Judge Childs sentenced the defendant to a prison term of eight years and to a fine of $5,000. Sentences on the other three charges — (1) Count 3 of Indictment 12074, charging the maintaining of a common nuisance, (2) Count 1 of Indictment 12075, charging possession of dilaudid, and (3) Count 3 of Indictment 12075, charging possession of a deadly weapon — were one year each and were made both concurrent with each other and concurrent with the major ³¹⁸ eight-year sentence under Count 1 of Indictment 12074.

At the time of the initial sentencing, an emergency act of the 1970 Legislature had lowered the maximum sentence for a first offender convicted of possession of marihuana to a prison sentence of one year and a fine of $1,000. That measure had gone into effect on April 15, 1970. The eight-year sentence was thus illegal. This was somehow drawn to the court's attention and the case was set in for resentencing on June 10, 1971.

The court there acted under Maryland Rule 764 b, which provides: “For a period of ninety (90) days after the imposition of a sentence, or within ninety (90) days after receipt by the court of a mandate issued by the Court of Appeals or the Court of Special Appeals upon affirmance of the judgment or dismissal of appeal, or thereafter, pursuant to motion filed within such period, the court shall have revisory power and control over the judgment or other judicial act forming a part of the proceedings. The court may, pursuant to this section, modify or reduce, but shall not increase the length of a sentence. After the expiration of such period, the court shall have such revisory power and control only in case of fraud, mistake or irregularity.” Under its revisory power, the court quite properly reduced the sentence on Count 1 of Indictment 12074 to imprisonment for one year and a fine of $1,000. Concomitant with that action, however, the court increased the sentence under Count 3 of Indictment 12074, charging common nuisance, from one year to two years.

That sentence was made concurrent with the sentence under Count 1 of the same indictment; it was also made concurrent with the sentence then pronounced on the two counts of Indictment 12075. On Count 1 of Indictment 12075, charging possession of dilaudid, the sentence was increased ³¹⁹ from one year to five years and a fine of $1,000 was imposed where no fine had been imposed before. Under Count 3 of