Smith v. State

GILBERT, Chief Judge. Maryland Annotated Code art. 27, § 641A(a) provides that, “[u]pon 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 court deems proper.” We are called upon in this appeal to determine whether an innovative condition of probation is proper. The Facts Kim L. Smith, in accordance with a plea agreement, pled guilty in the Circuit Court for Baltimore City to one count ³⁷³ of child abuse. Under the terms of the agreement, Smith was to receive a maximum sentence of five years incarceration.

Actual imprisonment was to be limited to the time already served. The remaining portion of the five years was to be suspended, and Smith was to be placed on supervised probation. The trial judge found a factual basis for the plea and further found that the plea was freely and voluntarily entered. He then accepted the plea and entered a verdict of guilty.

Disposition was held sub curia, pending the receipt of a pre-sentence investigation and medical evaluation of Smith. When sentencing occurred approximately five weeks later, the judge elicited testimony from a representative of the Department of Social Services (DSS). During the representative’s testimoriy, the judge became aware that Smith had one other child, who had also been subjected to abuse. The judge noted, however, that Smith was not the perpetrator of that abuse, but that the child’s father was.

The father was incarcerated, awaiting trial, for that particular offense. Probing into the matter, the judge discovered that the DSS would consider returning Smith’s children to her during her probationary period provided she demonstrated her fitness. Immediately after receiving the testimony of the DSS representative and over the strenuous objection of Smith’s counsel, the judge added a condition to Smith’s probation. The judge ordered that Smith not seek custody of her children unless she first obtained permission from the judge.

He admonished Smith that if she sought custody without his prior approval she would violate her probation and be sent to jail. The Law Smith urges us to hold that the trial judge erred in imposing a condition of probation prohibiting her from seeking to regain custody of her children without prior ³⁷⁴ approval of the judge. The State, on the other hand, asserts that the imposition of the custody condition was a proper exercise of the court’s discretion regarding Smith’s probation. We disagree with the State’s position and vacate the sentence.

Jurisdiction over the children rests with the Juvenile Court of Baltimore City. 1 In accordance with the statutory procedures, the children were placed under the care of DSS, who then placed the children with relatives. The authority to determine whether and under what circumstances Smith’s child or children will be returned to her rests in the Juvenile Court. Since the trial judge was without jurisdiction to decide custody directly, he is seeking to do indirectly that which he cannot do directly, i.e., nevertheless control custody of the children insofar as their mother, Kim Smith, is concerned. If Smith is required to adhere to the trial judge’s probation order, she may well be faced with a Hobson’s choice.

The juvenile courts might determine that the best interest of the child or children is for custody to be restored to Smith. Montgomery County v. Sanders, 38 Md.App. 406, 424 , 381 A.2d 1154 (1978). She would then have to “make a choice” between taking back her children at that time and violating her probation or petitioning the trial judge to allow her to accept the custody which the juvenile court had already granted. Of course, there is the very distinct possibility that the trial judge, sitting on the criminal side of the circuit court, would deny custody to Smith.

To place her in such a position violates all notions of judicial “fair play.” As