Smith v. State

Orth, J.. delivered the opinion of the Court. The question here is whether the lower court was justified in finding that Eugene Smith had violated the conditions of probation established upon suspension of a sentence imposed upon his conviction of storehouse breaking in the Criminal Court of Baltimore. In Knight v. State, 7 Md. App. 313 we discussed the nature of a proceeding conducted to determine whether there had been a violation of the conditions of probation and the rules of law applicable thereto. We said, at 318, that the purpose of a hearing on an allegation of violation of the terms of probation is to determine judicially whether the conduct of the probationer during the probation period had conformed to the course outlined in the order of probation.

The violation must be established with such reasonable certainty as to satisfy the conscience of the court of the truth of the violation, not beyond a reasonable doubt, but sufficiently to incline a reasonable and impartial mind to the belief that the terms of probation were violated. If the facts comixig to the knowledge of the court, not necessarily in the manner required by the rules of evidence, justify revocation, the act of revocation would not be ar ³¹⁹ bitrary or capricious and would not be set aside on appellate review. See Wilson v. State, 6 Md. App. 397 . The Probation Department of the Supreme Bench of Baltimore City presented a petition to the Criminal Court of Baltimore on 8 June 1970 setting out that appellant was granted probation for two years on 3 October 1969 upon certain terms and conditions on which his 18 month sentence was suspended.

The petition alleged that he had violated four conditions of probation: 1) He failed to report, missing six out of eleven scheduled appointments; 2) He failed to keep regularly employed; 3) He failed to conduct himself in a law abiding manner, having been arrested, charged and convicted of three offenses since being placed on probation; 4) He failed to make any payments on the court costs and court appointed attorney’s fees as ordered by the sentencing judge. There is in the record an Order for Probation signed by Thomas, J. and attested by the Clerk of the Criminal Court of Baltimore. It ordered on 3 October 1969 that sentence of 18 months in the case of State v. Eugene Smith be suspended for two years and that the defendant be released on probation for a like period in the custody of the Probation Department upon the following conditions: (1) He report to his Probation Officer as directed. (2) He not leave the City without the consent of the court or change his residence without approval of his Probation Officer.

(3) He keep regularly employed and adequately support his dependents. (4) He conduct himself in a law abiding manner. (5) He appear in Court in response to any Notice served upon him by mail or by the Police Department. ³²⁰ (6) He pay, through the Probation Department, $73.75 Court Costs. (7) He enter a recognizance in the penalty of $100.

(8) “To pay counsel fee of $100.00. Costs and counsel fee payment to be determined by Prob. Dept.” The first seven conditions were imprinted on the Order with spaces which were appropriately filled in handwriting. The eighth condition was entirely in handwriting.

At the hearing on the petition, prior to the testimony of the Probation Officer, appellant moved, in writing, “to suppress all evidence of alleged violations of probation except that evidence that relates to violation of conditions of probation orally imposed upon the defendant on October 3, 1969 at the time of sentencing in the presence of the defendant and in the presence of his counsel.” He wanted excluded specifically “any and all testimony which alleges violation of those additional conditions of probation which were imposed by the Court in a signed Order also dated October 3, 1969, but not signed in the presence of the defendant or his counsel, and for reasons, says that the defendant has been denied the effective assistance of counsel and has been denied the right to be present during all stages of his trial.” The record before us does not disclose what conditions of probation were orally imposed upon appellant in the presence of him and his counsel at the time of sentencing. The transcript of the proceedings at the hearing shows that upon presentation of the motion there was a bench conference; it was “off-the-record.” At its conclusion the Assistant State’s Attorney said: “If Your Honor please, for the record, of course, the State would object to the motion that has been filed, but at least initially, because of the motion filed, until the Court has had an opportunity to study the legal problems posed, the State will confine its testimony in accordance with the motion.” ³²¹ It seems that the court and the parties accepted that the testimony as so confined would be with respect to the 6th and 8th conditions — the payment of costs and counsel fee. The Probation Officer then testified that a Probation Order had been received from the court on 3 October 1969 and he interviewed appellant on 6 October 1969. “Mr. Smith was to pay $73.75 Court costs and $100.00 for the Court appointed counsel fees.” These amounts were to be paid “[t]hrough our department and through our collection accounting office on the first floor.” No money had been paid. The Officer was asked: “Have you ever asked Mr. Smith for any explanation why he hasn’t paid any of the money?” He replied: “Yes.

I have. I didn’t see Mr. Smith that much, because he had missed several appointments. He was out of work a good part of the time.” The Assistant State’s Attorney said: “Now if Your Honor please, in view of the motion that has been filed, I’ll have no other questions of this witness at this time, but would reserve my right to recall him in case the Court does permit us to ask other questions.” On cross-examination it was elicited that appellant was to pay the money “when he came in for his appointment to the office.” The Officer gave the dates of the appointments and the dates of those missed. He was asked: “But you have nothing in your record to indicate the amount that he was to pay on various occasions, have you?” The Officer replied: “We didn’t discuss specific amounts, because he wasn’t making a whole lot of