Hutchinson v. State

Lowe, J., delivered the opinion of the Court. — sufficiency of certified conviction to revoke probation — This is an appeal of a revocation of probation in the Criminal Court of Baltimore, the evidence for which consisted solely of a certified docket entry showing appellant’s subsequent criminal conviction as evidence that he had violated a condition of his probation that he would obey all laws. Relying primarily upon Kern v. State, 521 P.2d 412 (Okla. Crim. 1974), appellant contends that proof of a conviction that has been appealed and thus is not yet final, may not serve as the sole basis for finding a violation of probation, citing Stoner v. State, 566 P.2d 142 (Okla. Crim. 1977), and Harris v. State, 331 S.W.2d 941 (Tex.

Crim. 1960), ¹⁸⁴ as well as State ex rel. Roberts v. Cochran, 140 So. 2d 597, 599-600 (Fla. 1962), for support. Quoting from State v. Roberson, 327 A.2d 556 (Conn. 1973), the State convincingly points out that the majority of jurisdictions hold that either proof of a conviction or proof of the commission of acts constituting a crime is sufficient to support an order of revocation. We are convinced that although Maryland has not reported its alignment with the majority in that regard, it is the better practice and has been adhered to, if not acknowledged until now.

See, e.g., Brown v. State, 4 Md. App. 623 (1968). A judgment of conviction despite its appealability, provides, at the very least, a strong permissible inference that a probationer has not obeyed all laws and is a sufficient circumstance “to satisfy the conscience of the court of the truth of the violation.” Knight v. State, 7 Md. App. 313, 318 (1969). All that is required as the standard of proof to support a revocation is that the evidence and the facts be such as “ ‘to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.’ ” Scott v. State, 238 Md. 265, 272 (1965), quoting Manning v. United States, 161 F.2d 827, 829 (5th Cir. 1947). Stated otherwise by the same Court, probation being a matter of grace, “... may be ended, if the court is reasonably persuaded, by knowledge of facts, even if obtained more informally than the rules of evidence would permit it to be obtained in a trial, that it should be.” Id. at 275.

Our conclusion is also strongly supported by the facts in Scott, supra. Scott was acquitted by a jury; yet the judge revoked his probation because he was convinced by evidence which he had ruled inadmissible in the trial that Scott had committed the crime. If the fact of acquittal upon evidentiary suppression does not preclude revocation, we have no difficulty in concluding that when evidence is sufficient to permit a jury in one case to determine by the highest standard of proof that an accused has committed a crime, its official conclusion certified to the revocation hearing judge is ¹⁸⁵ sufficient prima facie to satisfy the lesser standard of reasonable persuasion, that the condition of legal obedience has been violated. The evidence was sufficient to justify revocation.

The judge did not abuse his discretion (Edwardsen v. State, 220 Md. 82, 88 (1959)), in so concluding, based on the knowledge of a conviction, although not yet final, placed in evidence before him. — effect of reversal of the conviction upon which revocation is founded — Such holding, however, does not contemplate the complexity of the problem that arises when the conviction upon which the revocation is based is reversed on appeal. That is precisely what occurred in this case on March 7,1979, eight months after appellant’s probation had been revoked by Judge Martin B. Greenfeld on June 21, 1978. The State would have us? decline to consider that complicating factor because we are technically reviewing the action of the trial court and, since the subsequent reversal was not before Judge Greenfeld, it does not form a part of the record for this appeal. The State points out that our reversal itself is in jeopardy since the Court of Appeals has issued a writ of certiorari 1 to review our judgment and that in any case appellant may, upon post conviction or habeas corpus, raise the issue of the impact of the appellate reversal, which would provide the State the opportunity to prove the violation through factual evidence of the criminal violation without