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Maryland v. Kennedy10/9/1990
In this case we must determine whether the Circuit Court for Carroll County erred in granting Petitioner probation before judgment pursuant to Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), Article 27, § 641 rather than imposing extra jail time when he had been found guilty of escape under Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), Art. 27, § 139.
Petitioner, John Kevin Kennedy, was found guilty of escape from the Carroll County Detention Center. He had been serving an 18 month sentence in the work release program as a result of a conviction for driving while intoxicated. He failed to return to the detention center after work, and he was charged with and convicted of escape under Art. 27, § 139, which states in pertinent part:
If any individual who is legally detained in the State penitentiary or a jail, house of correction, reformatory, station house, or other place of confinement in this State or who is committed to the Alcohol and Drug Abuse Administration for examination or inpatient treatment escapes, the individual is guilty of a felony and on conviction by the circuit court for the county in which the escape takes place, is subject to confinement in the State penitentiary or a jail or house of correction for an additional period not exceeding 10 years. The sentence imposed under this subsection shall be consecutive to any sentence which was being served at the time of the escape, or any sentence which had been imposed but was not yet being served at the time of sentencing on the escape. A sentence imposed under this subsection may not be suspended.
Kennedy's counsel sought a lenient sentence, maintaining that Kennedy's escape was the result of his concern for his young daughter who was seriously ill and required surgery.
The trial judge deferred entry of judgment and placed Kennedy on five years supervised probation before judgment pursuant to Art. 27, § 641(a) which provides in part:
Whenever a person accused of a crime pleads guilty or nolo contendere or is found guilty of an offense, a court exercising criminal jurisdiction, if satisfied that the best interests of the person and the welfare of the people of the State would be served thereby, and with the written consent of the person after determination of guilt or acceptance of a nolo contendere plea, may stay the entering of judgment, defer further proceedings, and place the person on probation subject to reasonable terms and conditions as appropriate.
The State then appealed pursuant to Md. Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Art. § 12-302(c)(2), which allows an appeal by the State, "if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code." The Court of Special Appeals held that although the escape statute requires a consecutive sentence and prohibits suspension of a sentence imposed, it does not proscribe imposition of probation before judgment. State v. Kennedy, 79 Md. App. 433, 557 A.2d 268 (1989). Accordingly, the intermediate appellate court affirmed the judgment of the circuit court. Id. We disagree.
The words of § 139 are plain and unambiguous. The escapee is to receive an additional prison sentence, consecutive to the one already being served, no part of which can be suspended. The legislature intended that a person who escapes from prison should, upon being tried and found guilty, be punished.
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