Nimon v. State

BLOOM, Judge. This appeal is the result of a resentencing hearing on October 30, 1986, in the Circuit Court for Harford County. Appellant, Veronica Lee Nimon, had been convicted in a nonjury trial before Judge Brodnax Cameron, Jr., of theft. According to the docket entries, Judge Cameron sentenced appellant on September 13, 1985, to the “Commissioner of Correction for three years effective today” but deferred execution of sentence for 30 days provided defendant filed an appeal.

Defendant was released on her own recognizance pending appeal. She was ordered to pay “court costs of $200 and restitution in the sum of $31,268.61 to extent not covered by insurance as condition of parole.” We vacated the sentence and remanded the case for proper sentencing, in an unreported per curiam opinion, Nimon v. State, No. 154, September Term, 1986, filed September 25,1986. At the resentencing hearing, the court sentenced appellant to the Commission of Correction for five years and suspended all but two years to serve in the Harford County Detention Center effective today. The defendant is placed on five years supervised probation upon release and to pay court costs in the sum of $200; and to pay restitution in the sum of $31,603.54.

Costs and restitution are to be paid as directed by Probation Department. Defendant to obey all other rules of probation. On appeal, Ms. Nimon contends that her sentence is illegal because: A. The imposition of restitution upon remand constitutes a more severe sentence than that initially imposed; B. The amount of restitution imposed upon remand was inexplicably increased; and C. The record does not support the conclusion that she owes restitution. ⁵⁶² We need not and do not respond to all of appellant’s contentions. We hold that the sentence is illegal, and we again remand for the imposition of a proper sentence.

Although appellant makes no complaint about the court’s increasing the original sentence from three years to five years (obviously because all but two years were suspended), the increase is still illegal. Briggs v. State, 289 Md. 23 , 421 A.2d 1369 (1980); North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1976); Courts and Judicial Proceedings Article § 12-702(b). Furthermore, the restitution originally ordered was not part of the sentence, but was merely a condition of parole. Our reversal of that sentence was required