Gakaba v. State

¹⁵⁵ ALPERT, Judge. Peter Gakaba, the applicant, was charged with committing theft of over $300.00 (Art. 27, § 342). Trial was held in the Circuit Court for Baltimore City on December 11, 1989 before the Honorable Arrie W. Davis. At that time, applicant pled guilty to the charge.

Judge Davis did not enter a judgment of conviction but instead stayed the judgment and placed applicant on probation prior to judgment (Art. 27, § 641). As a condition of the probation, Judge Davis ordered applicant to pay $500.00 restitution. The applicant did not seek appellate review of this disposition, but on January 22, 1990 filed a petition seeking post conviction relief (Art. 27, § 645A-645J). Relief was denied by an order filed June 15, 1990.

Applicant now seeks leave to appeal the denial and in doing so raises a number of allegations of error. We shall not consider these allegations, however, as we conclude that the petition must be dismissed for want of jurisdiction. The Maryland Post Conviction Procedure Act is not available to every defendant who appears in a criminal case, but applies only to “[a]ny person convicted of a crime and either incarcerated under sentence of death or imprisonment or on parole or probation____” Art. 27, § 645A(a) (emphasis added). See also Creswell v. Director, 2 Md. App. 142 , 233 A.2d 375 (1967).

The problem in this case is that the applicant seeks post conviction relief of a proceeding which did not result in a criminal conviction. We explain. The circuit court proceeding was concluded by the trial judge’s imposing probation before judgment. The Court of Appeals in Myers v. State, 303 Md. 639, 647 , 496 A.2d 312 (1985) stated that in 1975 the General Assembly, by enacting an amendment to the probation before judgment act “expressed its unmistakeable intent that the disposition of probation before judgment not be a conviction.” The Court also explained that a conviction does not exist until there is ¹⁵⁶ a determination of guilt and an imposition of a sentence.

Id. at 645 , 496 A.2d 312 . At the proceeding conducted in the circuit court, determination was made that applicant was “guilty of an offense,” but a formal judgment of conviction was not and has not yet been entered. Because no conviction has yet been entered, the circuit court proceeding may not, at this time, be collaterally attacked by a