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Sheppard v. State12/12/1996
Opinion by Chasanow, J.
The issue in the instant case is whether the trial judge abused his discretion by requiring, as a condition of probation, that a defendant convicted of driving under the influence of alcohol not operate a motor vehicle for the full three-year term of probation, even if the Motor Vehicle Administration (MVA) restores her driver's license.
I.
The facts in the instant case are not in dispute. The appellant, Frances Diana Sheppard, was convicted pursuant to Maryland Code (1977, 1992 Repl. Vol.), Transportation Article, § 21-902(b) of two counts of driving under the influence of alcohol. One offense occurred on August 23, 1994 and the other on March 6, 1995. A sentencing hearing was held, and Sheppard's attorney proffered that Sheppard had recently undergone triple-bypass, open-heart surgery, that she was suffering from anxiety and stress as the result of the recent murder of her son by an unidentified drug dealer, and that she was now in a counseling and alcohol treatment program. In allocution Sheppard stated:
"I'm not working now. I have no driver's license. And I live in Ocean Pines. I just don't have access to public transportation. And I've been under so much stress that I've tried to get my life together. I want to go back to work [as a registered nurse] more than anything."
The trial judge was also informed that Sheppard had two prior offenses, each of which occurred over ten years before the two instant offenses. Those prior offenses resulted in a probation before judgment for driving under the influence in 1982 and a conviction for driving under the influence in 1983.
For each of her new driving under the influence convictions, the court imposed a one-year-concurrent sentence, with all but 60 days suspended and a five-hundred-dollar fine. The court also placed Sheppard on supervised probation for three years. In addition, the court imposed several conditions including "alcohol counselling as may be directed by her probation officer, ... mandatory attendance at AA at least four times weekly," random urinalysis, and the requirement that she "not ... possess or consume any alcoholic beverages." As an additional condition of probation, the court stated: "I'm going to order her to not operate a motor vehicle while on probation. * Even if the Motor Vehicle Administration gives you back your license, you cannot drive, because my order says you can't."
Sheppard appealed her sentence to the Court of Special Appeals raising the single issue: "May a trial judge lawfully order a defendant, in a driving under the influence case, as a condition of probation, to abstain from driving a motor vehicle for the three year term of probation?" This Court, on its own motion, issued a writ of certiorari to review the case prior to decision by the Court of Special Appeals. We hold that, under the circumstances of the instant case, the trial judge abused his discretion in ordering, as a condition of probation, that Sheppard not operate a motor vehicle even if the MVA returns her driver's license.
II.
A judge has very broad discretion when imposing conditions of probation "and may make such orders and impose such terms as to ... conduct ... as may be deemed proper...." Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 639(a). A judge, however, does not have unlimited discretion in fashioning conditions of probation. A condition of probation may be found to be unduly restrictive and unreasonable. For example, the suspension of a sentence on the condition that the defendant, who had been found guilty of assault with intent to murder, return to Puerto Rico and remain there for at least a ten-year p
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