Duppins v. State

Thompson, J., delivered the opinion of the Court. Norman T. Duppins, appellant, was indicted for possession of heroin in Baltimore City, Indictment No. 2200 of 1970. On July 31, 1970, the case came up for ⁴⁶⁶ trial before a judge in the Criminal Court of Baltimore. The docket entries show that on that date Duppins was granted “Probation before Verdict” and- that “Judgment: Probation c/o Probation Dept, for two (2) yrs. to begin at expiration of sentence now serving and pay court costs.” After release from service of the prior unrelated sentence, Duppins began serving his two years probation.

During that time, on May 8, 1972, a warrant for violation of probation was issued and returned. On May 24, Duppins was brought for a hearing before the same judge who had originally granted him “Probation before Verdict.” The transcript shows that after the hearing for violation of probation was completed the trial judge explained his verdict and announced, “Therefore, the verdict is guilty of violation of probation, and the defendant is found guilty of the first count of Indictment No. 2200 of 1970.” At the revocation hearing no evidence concerning the possession of heroin charge had been received. It developed later that the trial judge was relying on notes he had made at the trial 22 months before. Duppins does not contest the finding made at the hearing below that he violated the conditions of his probation.

His sole contention on appeal is that the hearing judge, despite his assertion that he remembered the prior proceeding and had his notes therefrom before him, was in error when he found Duppins guilty on the first count of the indictment under which Duppins had been originally brought before him. We hold there was not sufficient evidence to support that conviction and therefore the judgment of the lower court was clearly erroneous. The State’s argument that neither objection nor motion for a judgment of acquittal was made below and therefore this question is not before us is not well founded. Our review of the sufficiency of the evidence to support a verdict reached by a trial judge sitting without a jury depends neither upon an objection nor ⁴⁶⁷ upon a motion to acquit.

Md. Rule 1086. Williams v. State, 5 Md. App. 450 , 247 A. 2d 731 . In Bartlett v. State, 15 Md. App. 234, 289 , A. 2d 843, 1 we held that it was error for a judge of the Circuit Court for Prince George’s County to enter a verdict based on the appellant’s plea of guilty at the prior proceedings in which accused had been granted probation before verdict under Md. Code, Art. 27, § 641. We said: “Should the probation thus granted be revoked at a subsequent hearing for that purpose, the case reverts to its status at the time the probation was granted, and determination of guilt, by plea or trial, must follow before any sentence may be imposed.” ( 15 Md. App. at 241 ).

The State argues that Bartlett v. State, supra, should be limited to its facts, i.e. it should be applicable only where there has been a guilty plea filed in the original proceedings. We are unable to follow the rationale of the argument. If the granting of probation without verdict aborts a trial where there has been a guilty plea filed there would seem to be more reason that a trial should be aborted where the accused has never admitted guilt. In either case the court has found no verdict.

If a new trial is required in one case, more cogent reasons require a new trial in the other case. The transcript of the first trial is not included in the record before us. We do not know at what stage of the trial the