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Flaherty v. Maryland3/27/1991
On 13 September 1987, Michael Francis Flaherty was charged with operating a motor vehicle while intoxicated, and with negligent driving. Flaherty retained counsel, and on 14 April 1988, in the District Court of Maryland sitting in Charles County, he entered a plea of guilty to a lesser included charge of driving while under the influence of alcohol. The plea was pursuant to a plea bargain by which the State agreed not to proceed on the charge of driving while intoxicated, or on the charge of negligent driving.
Judge Robert C. Nalley questioned the defendant to be certain the plea was knowingly and voluntarily entered, received a proffer of facts from the Assistant State's Attorney, and accepted the plea. After hearing from Flaherty and his attorney on the question of disposition, the District Court judge offered the defendant two choices. He said, under one option, that he would sentence the defendant to a term of imprisonment; suspend the sentence in favor of probation with a special condition that the defendant not operate a motor vehicle for 60 days; impose a fine; and,
require the defendant to attend an alcohol education program. Under the other option, the judge said he would grant the defendant probation before judgment with no restriction on his driving, impose a fine, and require the defendant to attend an alcohol education program. The judge further explained, however, that as a "precondition" to obtaining the second option, the defendant had to agree to imprisonment for two or three days.
Flaherty preferred probation without verdict, and said he would serve the required period of imprisonment over a weekend. The judge granted probation before judgment, and ordered a two year period of probation to begin at 7:00 p.m. on 25 April. He imposed a fine of $295 and costs, and required that the defendant attend an alcohol education program. He said that as a "precondition of probation" the defendant would be required to surrender to the custody of the sheriff from 7:00 p.m. on 22 April until 7:00 p.m. on 25 April.
Judge Nalley completed a written order for probation pursuant to Art. 27, § 641, which set forth the conditions of a two year unsupervised probation as: 1) pay costs of $5; 2) pay a fine of $295; and, 3) attend and satisfactorily complete D.W.I. clinic. The defendant signed the bottom of the
order, acknowledging the conditions, agreeing to the disposition, and waiving his right to appeal. The probation order contained no reference to a requirement of imprisonment.
To provide a mechanism for the defendant's imprisonment, the judge completed and signed an "Order of Court and Bail Review." This order stated that the judge had reviewed the bail set by the commissioner, and that " ail is hereby revoked effective 7:00 p.m. Friday, April 22, 1988." The order further provided, in a section reserved for specific conditions of pretrial release, that "the defendant shall serve 72 hours in the Charles County Detention Center from 7:00 p.m. Friday, April 22, 1988, through 7:00 p.m. Monday, April 25, 1988."
After the hearing, Flaherty, acting out of what he described as an obsessive fear of incarceration, initiated his own legal research into the legality of the proceedings. Persuaded by his reading of Stone v. State, 43 Md. App. 329, 405 A.2d 345 (1979), that the judge could not lawfully require imprisonment as a condition of probation, Flaherty, acting against the advice of his trial attorney, filed a petition for writ of habeas corpus with Judge Ernest A. Loveless, Jr. of the Circuit Court for Prince George's County. Judge Loveless
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