State v. Robinson

MOYLAN, Judge. The appellee, Darryl Avery Robinson, was initially convicted on November 25, 1988 and sentenced on February 3, 1989 for various crimes, including assault with intent to maim. Following a convoluted series of proceedings, the details of which need not concern us, his case was remanded for resentencing. For present purposes, the critical resentencing occurred on May 10, 1990, at which time the appellee received a sentence of ten years for his conviction for assault with intent to maim.

On June 6, 1990, the appellee timely filed a motion for the modification of his sentence, along with various other motions. We are not concerned with what happened on those other motions. Following a hearing on the motion to modify on December 23, 1994, Judge J. James McKenna modified the sentence by suspending the still-unserved portion of it and imposing a term of five years probation. The State has filed this appeal, ⁷²² challenging the authority of a trial judge to modify a sentence approximately 4/é years after it was imposed.

The State is correct that at common law a court had revisory power over its judgments, which would include a modification of sentence, only during the term of court in which the judgment was issued. Ayre v. State, 291 Md. 155, 159-60 , 438 A.2d 1150 , 1153 (1981); State v. Butler, 72 Md. 98, 100 , 18 A. 1105 (1890). As Judge Delaplaine pointed out for the Court of Appeals in Madison v. State, 205 Md. 425, 433-34 , 109 A.2d 96, 100 (1954), however, the rigidity of the former requirement was ameliorated by the promulgation, in 1951, of Rule 10(c) of the General Rules of Practice and Procedure, part 4: We held in 1950 in Czaplinski v. Warden of Maryland Penitentiary, 196 Md. 654, 663 , 75 A.2d 766, 770 , that it is beyond the power of a trial court to change a judgment in a criminal case after the term at which it was rendered. In 1952 we held in Wilson v. Warden of Maryland Penitentiary, 200 Md. 652 , 89 A.2d 227 , that a trial court has no power to strike out or reduce a sentence imposed upon a convicted defendant after it has become enrolled.

The law of these cases has been modified by the rule of this Court which provides that in all criminal cases, except cases involving bastardy, desertion, and non-support, the court may reduce a sentence within 90 days after the sentence is imposed, or within 90 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of appeal. General Rules of Practice and Procedure, part 4, rule 10(c). 205 Md. at 433-34 , 109 A.2d at 100 . Johnson v. State, 274 Md. 29, 40 , 333 A.2d 37, 42 (1975), pointed out that the purpose of the new rule was “to ameliorate the harshness of the former practice.” That first amelioration, in 1951, gave a sentencing judge a 90-day period within which to modify the sentence. It made no distinction between whether the judge was doing it sua sponte or pursuant to a motion filed by the defendant.

The ⁷²³ 90-day period, moreover, was not affected by the coincidental fact that during those 90 days one term of court might have terminated and another begun. In 1961, the time period within which a judge could modify the sentence was significantly expanded. Maryland Rule 764(b) then provided: For a period of ninety (90) days after the imposition of a sentence ... or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over the judgment.... After the expiration of such period, the court shall have such