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State v. Griswold4/11/2003
Here, the State appeals from the revision of judgments of conviction in two sexual offense cases, contending that sentences mandated by statute were not imposed. More than five years after the original judgments had been entered, the Circuit Court for Carroll County, purportedly acting pursuant to timely filed Maryland Rule 4-345(b) motions, altered the charges in the indictment counts to which the defendant had pled guilty, and for which he had been legally sentenced, to other crimes which the State had initially charged in other counts, but which the State had nolle prossed at the time of sentencing. The court then modified the sentences to probation before judgment, a statutorily prohibited disposition of the charges to which the defendant had pled guilty. We shall reverse for the reasons set forth below.
In 1996 a Carroll County grand jury returned multi-count indictments against the respondent, David Crary Griswold (Griswold), charging that he had committed sexual offenses more than ten years before with children under the age of fourteen. At the time of the earliest of the offenses Griswold was in his thirties. [FN1] Specifically, in case K-1996-23295, Griswold was charged with four counts involving a male victim who was then approximately six years old. Count I alleged a violation of Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 464B, providing in relevant part as follows:
FN1. At age nineteen Griswold, who had been a brilliant student, was involved in a motorcycle accident which left him with a mentally debilitating brain injury and unable to maintain regular employment outside of the family home. He also suffered from epileptic type seizures.
" § 464B. Third degree sexual offense.
"(a) Elements of offense.--A person is guilty of a sexual offense in the third degree if the person engages in:
....
"(3) Sexual contact with another person who is under 14 years of age and the person performing the sexual contact is four or more years older than the victim[.]"
*188 Count II in indictment 23295 charged a violation of Article 27, § 464C, which in relevant part read:
" § 464C. Fourth degree sexual offense.
"(a) Elements of the offense.--A person is guilty of a sexual offense in the fourth degree if the person engages:
**433 "(1) In sexual contact with another person against the will and without the consent of the other person[.]"
The remaining counts in No. 23295 charged common law battery and child abuse in violation of Article 27, § 35C.
The second case with which we are concerned on this appeal is K-1996-23296. The victim was Griswold's niece, who was born in 1980. The criminal acts were alleged to have occurred between 1987 and 1994. Counts I and II in that indictment charged third degree sexual offense in violation § 464B(a)(3), and Counts III and IV charged fourth degree sexual offense in violation of § 464C. The remaining counts in No. 23296 charged sexual child abuse of a family member, common law battery, and indecent exposure. [FN2]
FN2. A third indictment, No. 23297, returned against Griswold at the same time, involved a third victim. In that case Griswold pled guilty to child abuse. That judgment of conviction was also modified by the circuit court, but it is not involved in this appeal.
On January 17, 1997, Griswold pled guilty to the first counts, charging third degree sexual offense, in the two indictments involved in this appeal, and the State nolle prossed all of the other counts of both indictments. That day, the court sentenced Griswold on each of the two counts of third degree sexual offense to five years, to be served concurrently. The circuit court suspended the execution of the sentence and released Griswold on probation, under a number of conditions. These includ
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