Jackson v. State

ROBERT M. BELL, Judge. Three questions are presented by this appeal from the Circuit Court for Baltimore City’s judgment revoking the probation of Michael Jackson, appellant, and requiring appellant to pay restitution in addition to serving the full term of incarceration previously suspended. The questions are: 1. Should appellant be required to pay restitution? 2.

If so, can the amount of restitution exceed $300.00. 3. May appellant’s sentence survive the trial court’s subsequent issuance of the probation order? ⁶⁸¹ We hold that where the docket entry is ambiguous, but the order of probation clearly makes payment of restitution a condition of probation, the continuation of a restitution order is “effectively precluded”, even if the trial court intended to order restitution as a part of the sentence. This renders moot appellant’s second assignment of error. We also hold that, under the facts and circumstances of this case, inclusion of a probation order in the record does not vitiate the trial judge’s sentence of incarceration.

The Facts Appellant was charged in a five-count criminal information with daytime housebreaking and related charges. On July 12, 1983, he was arraigned in circuit court and entered a plea of guilty to the Fifth Count charging theft under $300.00. 1 The guilty plea was accepted and a finding of guilt entered. The docket entries record the court’s judgment as follows: “Judgment—18 months c/o DOC from 1/18/83. 3 years prob. Pay cost and make restitution.” An Order For Probation form was completed, initialed by the trial judge, and filed in the court file on the same day.

That form provided: ⁶⁸² It is ORDERED, this 12 day of July, 1983, by the Circuit Court for Baltimore, by virtue of the authority conferred upon it by the laws of the State of Maryland that ... [/] the execution of the sentence of 18 months from 1/18/83 balance has been suspended, for the offense of DHB and the defendant is hereby released on Probation [/] under supervision of the Maryland Division of Parole and Probation, ... for a period of 3 yrs, effective this 12 day of July, 1983, subject to the following conditions: 9a Shall pay through the Division of Parole and Probation the sum of $400.00 as follows: ... [/] Restitution of $400.00 to Banyat Csiramongkolsiri, whose address is 222 St. Paul Street. Appellant’s probation agent prepared a Special Report— Request For Warrant (detainer) on December 10, 1985, which was submitted to the trial judge on December 17, 1985. That special report alleged that appellant had violated his probation by being convicted of a subsequent offense, i.e. storehousebreaking on 7/22/85, Rule No. 4, and by failing “to pay $408.00 restitution and collection fee,” Rule 9a. A warrant charging those rule violations was issued for appellant’s arrest on December 17, 1985.

The probation violation charges were heard on January 20, 1986, before the same judge who had originally placed appellant on probation. Having elected to plead not guilty and proceed on an agreed statement of facts, which confirmed the fact of the subsequent conviction and appellant’s failure to pay restitution, appellant was found guilty of the violations. At the disposition phase of the hearing, the following occurred: THE COURT: The defendant is sentenced to the jurisdiction of the Division of Correction for a period of eighteen months, to be consecutive to any present and unserved sentence. In addition, he has to make $400.00 ⁶⁸³ restitution to whoever the victim is in this case plus the court costs.

MR. RAGLAND [Defense counsel]: Your Honor, the restitution order, if that was not part of the original sentence, part of the original probation, would be uncollectible since you violated the probation. THE COURT: I can’t tell from the docket whether the clerk did it the way I wanted it to be done or not. My intention always is, and I articulated it as such, I believe restitution is separate and apart from, and it’s always a condition of probation.

In the event the defendant violates his probation, the restitution, as part of the original sentence survives any violation of probation. It can be imposed, in addition to incarceration. MR. RAGLAND: I agree with that, as long as it is part of the original sentence.

THE COURT: I can’t tell from the docket entry. If the defendant wishes to raise it, he can get a transcript of the proceedings and see what I said.... The docket entries of January 20, 1986 2 reflect the sentence as announced by the court, except that it states to whom restitution is to be paid, and how it is to be paid, “thru prob upon release from DOC.” They also reflect the notation that a “prob order and commitment” were filed. The Order For Probation form contained in the court file bears the notation, in the left upper corner, “For collection only” and provides: ⁶⁸⁴ It is ORDERED this 20th day of January, 1986, by the Circuit Court for Baltimore City, by virtue of the authority conferred upon it by the laws of the State of Maryland, that □ the imposition of sentence is suspended or 0 the execution of the sentence of has been suspended for the offense as above, 3 and the defendant is hereby released on Probation 0 under supervision of the Maryland Division of Parole and Probation, □ without supervision for a period of effective this___day of_, 19_, subject to the following conditions: Standard conditions 1 through 8 are set out without alteration.

Then the form provides: 9. Shall pay-through t-he-Sheriff’s Department the-sum-of $_ as-follows. □ Court costs of $130; □ Fine of $_; In such installments as the Sheriffs Department shall determine and direct or; In installments of $_per__ 9a. Shall pay through the Division of Parole and Probation the sum of $530.00 as follows: □ Attorney’s fee of $-to_, whose address is 0 Restitution of $400.00 to Banyat Csiramongkolsiri whose address is 222 St. Paul Street, Apartment 802 In such installments as the Division shall determine and direct or; In installments of $_per_ 10. Special conditions as follows: For collection only.

Restitution—To Pay or Not to Pay It is now quite clear that a trial judge may order restitution either as a condition of probation, see Md.Code Ann. art. 27, §§ 640(c) and 641A(a); Coles v. State, 290 Md. 296, 305 , 429 A.2d 1029 (1981), or as a part of a sentence. See ⁶⁸⁵ Smitley v. State, 61 Md.App. 477, 482 , 487 A.2d 315 (1985). It is also quite clear, as we painstakingly and clearly explained in Smitley , that there is “a significant distinction between the two methods.” Id. at 483 , 487 A.2d 315 . One distinction relates to the method of enforcement: If the order is made “as a sentence,” it may, if the State shows an ability on the part of the defendant to comply with the order, be enforced through contempt proceedings.

If, on the other hand, the order is not stated “as a sentence” but rather as a condition of probation or parole, it may be enforced through the power to revoke the probation or parole, (footnote omitted) Id. The more significant distinction, however, relates to “the inability of the court to increase or enhance a sentence that has once and validly been imposed.” Id. We explained: When restitution is ordered “as a sentence,” enforcement through contempt proceedings serves merely to implement the sentence, not to enhance it. It is an additional remedy to that provided in [art. 27,] section 637.

Similarly, when restitution is attached as a condition to probation and, upon non-compliance, the court revokes the probation and directs execution of all or any part of the suspended sentence, the initial sentence has merely been implemented, not enhanced. It may even be possible, pursuant to section 642 of art. 27, for the court to direct execution of the suspended sentence, suspend anew a part of that sentence, place the defendant on further probation, and continue an order of restitution as a condition of the new probation. What the court may not do, however, when the restitution is not “as a sentence” but only a condition of probation, is to direct execution of the full term of the suspended sentence and continue the restitution order, either “as a sentence” or as a condition to some further probation. That is equivalent to increas ⁶⁸⁶ ing, not merely implementing, the suspended sentence, (emphasis in the original, footnote omitted) 61 Md.App. at 484 , 487 A.2d 315 .

It is, therefore, critically important that we resolve as a threshold matter whether, as appellant contends, the restitution was ordered only as a condition of probation, or, as the State contends, as a part of the sentence, or whether it was ordered both as a condition of probation and as a part of the sentence. Once again, Smitley is instructive. There, the judgment, as reflected in the docket entries was:. “Judgment: as to 48210310—Sixty (60) da[y]s to the Department of Correction concurrent to 48210310 [sic]— Pay costs thru Probation. Judgment: as to 48210311— Two (2) years to Department of Correction from 9-22-82 to suspended—Three (3) years supervised probation.

Make restitution and pay Costs thru Probation, Perrott, J.” We observed: Although the docket entry may be a bit ambiguous as to the nature of the restitution order, the Order For Probation is not. It clearly reflects the sentences to be confinement for sixty days and two years, respectively, and that payment of the restitution (and court costs) was merely one of the nine conditions of probation. Accordingly, when Judge Johnson revoked the probation, he necessarily revoked the conditions attached to it, including the conditions relating to payment of restitution and court costs. Id., 61 Md.App. at 484-85 , 487 A.2d 315 .

The situation presented here is almost identical: as we have seen, the judgment sets out the fact of suspension of sentence of incarceration and three years probation, followed by the direction to pay costs and make restitution; and the Order for Probation unmistakably includes restitution as one of the several conditions of probation imposed upon suspension of that sentence. The conclusion would thus appear inescapable that continuation of an order of ⁶⁸⁷ restitution is precluded by the revocation of appellant’s probation. The State, however, resists that conclusion by seizing upon dicta in Smitley and the comments of the trial judge made at disposition. Relying upon the statement from Smitley , that “ ... [i]t may be possible for a court to do both when entering its judgment, i.e., to order restitution as part of a sentence and, ... to order payment of the restitution as a condition of that probation,” 61 Md.App. at 483 , 487 A.2d 315 , it argues that the trial judge’s statements at sentencing make clear that this is exactly what the court did.

Thus, the State urges that the docket entries are not ambiguous. Curiously, it also contends that condition 9a in the Order for Probation “shows nothing more than the fact that the money was to be collected according to the dictates of Maryland Ann.Code art. 27, § 640(d), the administration portion of the State’s restitution statute.” While at first blush the State’s argument is persuasive, closer analysis reveals its basic flaw. At issue here is not what the trial judge always does, or even what he intended to do in this case, rather, it is what the trial judge did that is important. And that “ ... determination is to be made as of the time when the sentence [is] imposed.” Brown v. State, 237 Md. 492, 507 , 207 A.2d 103 (1965).

See Shade v. State, 18 Md.App. 407, 411 , 306 A.2d 560 (1973) (unilateral acts of the trial judge taken after entry of