Gantt v. State

MOYLAN, Judge. When an appellate court discovers an error in a criminal proceeding and remands the case for the correction of that error, what is the point in time to which the “remand” dial shall be set? As a general rule, a remand will “beam” a criminal proceeding back to the point where the error occurred. The pace will then pick up and move forward to conclusion, hopefully free from error the second time around.

There is no need, as a general rule, to recapitulate earlier trial stages that were free from error. The appellant, George William Gantt, was initially convicted in the Circuit Court for Prince George’s County for both malicious wounding and for carrying a dangerous weapon. Pursuant to the mandatory sentencing provisions of Article 27, § 643B(c), a mandatory sentence of 25 years was imposed on the conviction for malicious wounding. In an unpublished opinion in Gantt v. State, No. 800, September Term, 1986, filed February 17, 1987, this Court affirmed the convictions but vacated the sentence and remanded for resentencing.

The primary basis for the reversal was that ⁷⁰³ the sentencing judge improperly applied the preponderance of the evidence standard in finding the factual predicates for the enhanced sentence. We pointed out that those findings must be based upon the “beyond a reasonable doubt” burden of persuasion. See Teeter v. State, 65 Md.App. 105, 114 , 499 A.2d 503 (1985), cert. denied, 305 Md. 245 , 503 A.2d 253 (1986). As guidance for the sentencing court at the resentencing hearing, we addressed another point raised in that appeal.

We pointed out that it was improper to admit into evidence the affidavit of the appellant’s former counsel for the purpose of proving the prior convictions and terms of incarceration. At the resentencing, the sentencing judge applied the appropriate burden of persuasion of “beyond a reasonable doubt.” The judge did not permit the State to introduce the affidavit of the appellant’s former counsel but required the State to prove the predicate prior convictions and terms of incarceration by admittedly competent evidence. At the conclusion of that hearing, the appellant was resentenced to a mandatory term of 25 years. He now claims that the sentencing court committed error by not requiring that the State provide, upon resentencing, a new notice of its intention to seek the mandatory sentence under § 643B(d).

The appellant points out that the Enhanced Sentencing Statute requires the State to comply with the procedures set forth by the Maryland Rules and that Maryland Rule 4-245(c), in turn, requires that the State’s Attorney shall serve notice of the intent to invoke the mandatory sentencing