Williams v. State

BISHOP, Judge. The issue in this appeal is whether appellant may be found in contempt of court based on a violation of a condition of probation. When an accused has been convicted of a crime, “a sentencing judge is vested with virtually boundless discretion. He may impose any sentence, which is not cruel and unusual punishment proscribed by Article 16 of the Maryland Declaration of Rights, and which is within the statute ²³⁵ rily imposed limitations (if any there be), determined to be deserved for or necessitated by the proven criminal conduct in question.” Logan v. State, 289 Md. 460, 480 , 425 A.2d 632 (1981).

He may also suspend the imposition or execution of all or part of the sentence and place the defendant on probation upon such terms and conditions as the court deems proper. Md.Code, Art. 27, §§ 641A (a) and 643A (a). Probation is an act of grace. Kaylor v. State, 285 Md. 66, 75 , 400 A.2d 419 (1979).

It permits a court, in its discretion, to suspend what would be the normal penalty for violation of the criminal law in favor of conditions which, if performed, tend to promote the rehabilitation of the criminal as well as the welfare of society. Scott v. State, 238 Md. 265, 275 , 208 A.2d 575 (1965). In other words, in an appropriate case, the criminal defendant is given a second chance—an opportunity to show that by performing the conditions of probation he can function as a law-abiding and useful member of society. If he faithfully performs those conditions, he is spared the more drastic punishment that generally follows a violation of the criminal law.

If, however, the defendant fails to perform the conditions of probation he may forfeit the benefits of probation. In such a case, when the original sentence or some portion of it is reimposed, the “original sentence is the only true punishment; the probation revocation is merely the withdrawal of favorable treatment previously afforded the defendant.” Clipper v. State, 295 Md. 303, 313 , 455 A.2d 973 (1983). Turner v. State, 307 Md. 618, 624-5 , 516 A.2d 579 (1986), quoting 61 Md.App. 1, 9 , 484 A.2d 641 (1984). See Md.Code, Art. 27, §§ 642 and 643A (c).

In other words, when a probationer violates a condition of his probation, he is not subject to an additional punishment for that violation; but rather to the forfeiture of his conditional exemption from punishment for the origi ²³⁶ nal crime. 1 Because probation involves a conditional exemption from punishment, rather than a part of the penalty, a court may condition probation upon acts or omissions which it otherwise lacks the authority to impose. See, e.g., Coles v. State, 290 Md. 296, 304-05 , 429 A.2d 1029 (1981). Kursch v. State, 55 Md.App. 103, 107 , 460 A.2d 639 , cert. den. 297 Md. 109 (1983); and Turner v. State, supra. The difference between an act ordered as part of the penalty for a crime and an act ordered as a condition of probation was examined in Smitley v. State, 61 Md.App. 477 , 487 A.2d 315 (1985), in the context of restitution.

Until 1977, the authority of a court exercising criminal jurisdiction to order restitution was somewhat limited; with a few specific exceptions, restitution could be ordered only as a condition of probation (not a part of the penalty) where the court was otherwise empowered to suspend execution of a sentence in favor of probation. In 1977, the General Assembly enacted a new Section 640 to Article 27, to permit an order of restitution to be made either “as a sentence” or as a condition of probation or parole. In Smitley , Judge Wilner explained the two quite different methods for effecting the enforcement of an order of restitution: If the order is made “as a sentence,” it may, if the State shows an ability on the part of the defendant to comply with the order, be enforced through contempt proceedings. If, on the other hand, the order is not stated “as a sentence” but rather as a condition of probation or parole, it may be enforced through the power to revoke the probation or parole.

Although it may be possible for a court to do both when entering its judgment, i.e., to order restitution as part of a sentence and, if another part of the sentence is suspended in favor of probation, to order payment of the ²³⁷ restitution as a condition of that probation, there is, nevertheless, a significant distinction between the two methods. The nub of the distinction is the inability of the court to increase or enhance a sentence that has once and validly been imposed. See Mitchell v. State, 58 Md.App. 113, 472 , A.2d 494 (1984); Williams v. State, 45 Md.App. 596 , 414 A.2d 254 (1980). When