State v. Kennedy

GILBERT, Chief Judge. Judge Donald J. Gilmore, at a non-jury trial in the Circuit Court for Carroll County, entered a verdict of guilty against John Kevin Kennedy for the crime of escape. The judge stayed entry of the judgment and placed Kennedy on probation for a period of five years. The State asks this Court to reverse that judgment by determining that Md.Ann.Code art. 27, ⁴³⁵ § 139(a)(l)(Repl.Vol.l987) precludes probation on a conviction for escape. 1 At the time of Kennedy’s elopement, he was serving an eighteen month sentence for driving while intoxicated.

The escape was affected by his failure to return to the Carroll County Detention Center following work release. He was subsequently arrested and returned to confinement. Significantly, we think, when Kennedy’s case was called for trial, the eighteen month sentence for the DWI had been totally served. Md.Ann.Code art. 27, § 139(a)(1) provides: “If any individual who is legally detained in the State Penitentiary or a jail, house of correction, reformatory, station house, or other place of confinement in this State or who is committed to the Drug Abuse Administration for examination or inpatient treatment escapes, the individual is guilty of a felony and on conviction by the circuit court for the county in which the escape takes place, is subject to confinement in the State Penitentiary or a jail or house of correction for an additional period not exceeding 10 years.

The sentence imposed under this subsection shall be consecutive to any sentence which was being served at the time of the escape, or any sentence which had been imposed but was not yet being served at the time of sentencing on the escape. A sentence imposed under this