Woodfork v. State

Murphy, C. J., delivered the opinion of the Court. On July 17, 1967 appellant pleaded guilty generally in the Criminal Court of Baltimore to a three-count indictment charging violation of the narcotics laws 1 and of being a second offender under an addendum to the indictment. Prior to imposition of sentence, counsel for the appellant drew the court’s attention to the provisions of Section 306B of Article 27 of the Maryland Code (1967 Repl. Vol.), which authorized the court to suspend sentence imposed on a narcotics violator, including a second offender, and refer him to a hospital or other appropriate institution for the treatment of narcotic addicts.

The court, after reviewing appellant’s prior criminal record, imposed a sentence of two years on each count of the indictment and a two-year term “as to the addendum,” all sentences to run concurrently. Immediately after imposing this sentence, the court stated that its attention had been called “to the fact that under the second offender statute, I may not have imposed the proper sentence [since] I think the second offender calls for a heavier sentence than what I have imposed.” Later that afternoon a subsequent proceeding was held at which time the court stated that the statute governing the incarceration of second offenders under the narcotics laws required that a sentence of not less than five years be imposed. A “corrected” sentence of five years “as to the addendum” was then imposed, to run concurrently with the other sentences. Appellant objected to the corrected sentence and contends on this appeal that the court’s action in so revising the sentence violated Maryland Rule 764b which prohibits the court from increasing the length of any sentence previously imposed. ⁶²⁴ Section 300 of Article 27 of the Maryland Code (1967 Repl.

Vol.), relating to the penalties to be imposed for unlawful possession and control of narcotics, provides in part that “For a second offense * * * the offender shall be fined not more than two thousand dollars ($2000) and be imprisoned not less than five or more than ten years.” The thrust of appellant’s argument is that the court was empowered to impose a sentence lesser than the statutory minimum of five years since Section 306B of Article 27 authorizes it to suspend the sentence imposed on narcotics violators, including second offenders, and send them to a hospital for treatment. Appellant reasons that as the court has this authority, it necessarily is empowered to impose a term of imprisonment less than the minimum set forth in Section 300. As a general rule, where the punishment for a criminal offense is fixed by statute, that imposed by the court must conform thereto. 24B C.J.S. Criminal Law, Section 1982, and cases there cited. In Kirschgessner v. State, 174 Md. 195, 198 , it was held to be within the province of the Legislature “to fix the penalty for the commission of crimes and offenses, and thus limit the power of the courts to impose penalties, and, prior to the year 1906, courts were restrained by the limits, high and low, imposed by statute.” The 1906 statute to which the Kirschgessner court had reference (Chapter 536 of the Acts of 1906) is now codified as