Hawkins v. State

RODOWSKY, Judge. Historically, one of the sacred cows of Maryland practice is the trial de novo on an appeal from a court of limited jurisdiction to a circuit court. Currently appeals from the District Court of Maryland, other than by consent or in civil actions in which the amount in controversy exceeds $2,500, are tried de novo. Md.Code (1974, 1989 Repl.Vol.), § 12-401(d) of the Courts and Judicial Proceedings Article (CJ). 1 This case asks which court hears allegations that a convicted person violated the conditions of a probation imposed by a District Court judgment which was appealed ¹⁵⁰ to a circuit court where the appeal was voluntarily dismissed before trial de novo.

In July 1985 petitioner, Anthony Tyrone Hawkins (Hawkins), was convicted in the District Court of Maryland, sitting in Kent County, of trespassing and resisting arrest. The presiding judge, Hon. John T. Clark, III, sentenced Hawkins to five years confinement with all but eighty-nine days suspended. Hawkins appealed to the Circuit Court for Kent County where the matter came on for trial after Hawkins had completed serving the unsuspended portion of his sentence.

Before trial, Hawkins, through counsel, dismissed the appeal. The judge of the Circuit Court for Kent County, Hon. George B. Rasin, Jr., wrote on the face of Judge Clark’s order for probation the words, “This Order adopted as Circuit Court Order.” Judge Rasin signed that notation under date of January 3, 1986. The docket of the Circuit Court for Kent County reflects an entry on that date in Hawkins’s appeal which reads: “Motion by Defendant to Dismiss appeal.

Motion granted by the Court. District Court Sentence Reimposed. Probation Order signed by Judge John T. Clark, III, adopted by Judge Rasin.” The order for probation included the condition that Hawkins obey all laws. In May 1987 Hawkins was convicted in the Circuit Court for Kent County on a number of motor vehicle violations including driving on a revoked license and driving while intoxicated, for which he was sentenced to thirteen months imprisonment and five years of supervised probation.

In July 1987 Hawkins was again convicted in the Circuit Court for Kent County. The offense was assault and battery for which he was sentenced to five years confinement, the final three years of which were suspended. That sentence was consecutive “to any other sentence to be served.” Thereafter the State, relying on the May and July 1987 convictions, petitioned the Circuit Court for Kent County to find that Hawkins had violated the order of probation ¹⁵¹ adopted by that court on January 3, 1986. Hearing on that petition was held before Hon.

Elroy G. Boyer, Judge Basin’s successor as judge of the Circuit Court for Kent County. At that hearing Hawkins moved to dismiss the petition on the ground that jurisdiction lay in the District Court. Judge Boyer denied the motion, found Hawkins violated a condition of probation, reimposed the suspended portion of the original five year sentence, and directed that that sentence run concurrently with “any sentence now being served or to be served.” Hawkins appealed to the Court of Special Appeals which affirmed in an unreported opinion. We granted Hawkins’s petition for a writ of certiorari.

We affirm because Maryland Rule 1314 c controls, and under that rule it is an order of the Circuit Court for Kent County which was violated. Rule 1314 c, part of Ch. 1300, entitled “Appeals from the District Court,” reads: “If the party appealing fails to appear for trial in the appellate court or moves to abandon his appeal, he waives the right to a trial de novo. In the event of such waiver the appellate court shall enter as its judgment the same judgment as was entered in the lower court.” This rule has been in effect since July 1, 1973, without change, other than to reletter subsection “b” as “c” in 1978. Judge Rasin correctly applied the rule when, in January 1986, he entered as a circuit court order the District Court’s order of probation promulgated by Judge Clark.

Hawkins argues that literally applying Rule 1314 c so that it includes orders of probation entered under the circumstances presented here results in having probation violations heard by a judge other than the one who heard the facts concerning the offense and the defendant. This, Hawkins submits, violates the policy of Maryland Rule 4-346 under which a violation of probation hearing “shall be ¹⁵² held before the sentencing judge, whenever practicable.” 2 We recently addressed the importance of the policy and its administrative enforcement in State v. Peterson, 315 Md. 73 , 553 A.2d 672 (1989). Rule 1314 c is a rulemaking response to conceptual complexities which previously haunted de novo appeals in the stages between entry of the order for appeal from the