Kupfer v. State

Murphy, C. J., delivered the opinion of the Court. The central issue in this case is whether probation may be extended beyond the five-year maximum probationary period prescribed by Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 641A, which provides in pertinent part: "Upon entering a judgment- of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years.” Appellant Arthur Kupfer was convicted of forgery and larceny after trust in the Criminal Court of Baltimore and sentenced to two concurrent four-year terms of imprisonment.

On November 16, 1971, the court suspended his sentence and placed him on probation for five years. Under the terms of his probation, Kupfer was required to make restitution in the amount of $3,000. On November 8, 1976 — one week before the termination of Kupfer’s probationary period — the court, with Kupfer’s written consent, extended his probation until November 16, 1981, five years beyond the statutory maximum. On August 26, 1977 a warrant was issued for Kupfer’s arrest for violating the terms of his probation.

After several continuances, a hearing on the alleged violation was held on July 24, 1979. Kupfer moved to dismiss on the basis that the five-year maximum probationary period had elapsed. The State argued that Kupfer’s consent to the extension constituted a waiver of the maximum term of probation. The court agreed with the State’s position and denied the motion to dismiss; ⁵⁴² it subsequently found Kupfer guilty of violating his probation and ordered that his probation be continued under a new schedule of payments.

Kupfer appealed, contending that once the maximum five-year probationary period authorized by the statute had expired, the court was without authority to extend it, with or without his consent. 1 The State claims that the order continuing Kupfer’s probation was not a final judgment which settled or concluded his rights and thus cannot be appealed. Assuming appealability, the State asserts that Kupfer’s consent to the additional probationary term estops him from challenging the validity of the extension. (1) Appellate jurisdiction in both criminal and civil causes is generally dependent upon a statutory grant of power. Estep v. Estep, 285 Md. 416, 422 , 404 A.2d 1040 (1979); Smith v. Taylor, 285 Md. 143, 146 , 400 A.2d 1130 (1979); Warren v. State, 281 Md. 179, 182 , 377 A.2d 1169 (1977).

Maryland Code (1974, 1976 Repl. Vol.) § 12-301 of the Courts and Judicial Proceedings Article provides that "a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended.” 2 We have held consistently that an order revoking probation and reinstating a previously suspended sentence ⁵⁴³ is a final and