Appeal from the Circuit Court for Anne Arundel County; Duckett, J.
Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.
The State appeals from an order of the Circuit Court for Anne Arundel County dismissing its petition for a writ of certiorari by which it sought to have set aside the action of a trial magistrate of that County in placing the appellee on probation without verdict and to have the case remanded to the magistrate for further proceedings.
The major premise upon which the State's case in the Circuit Court and in this Court rests, is that a trial magistrate in Anne Arundel County lacks power to grant probation without verdict. An unreported case (State v. Schreyer, Circuit Court, Anne Arundel County, Law No. 6688) raising this question (involving alleged violation of the motor vehicle laws) had been before Judge Keating of the Second Circuit, then sitting in the Circuit Court for Anne Arundel County, on certiorari in 1962. Judge Keating, in a well reasoned opinion, upheld the contention
of the State. In the instant case, Judge Duckett, though he considered the question a close one, decided to follow Judge Keating's opinion; but he announced that he was "further of the opinion that a retrial of this Defendant at this time will not serve the ends of justice, so the Court in its discretion has decided to dismiss the Petition."
On this appeal, the State first renews its contention that a trial magistrate of Anne Arundel County lacks the power to place a person on probation without verdict; second, it contends that in passing on the State's petition for a writ of certiorari, the Circuit Court was acting in its common law capacity and not in the exercise of a special appellate jurisdiction; and third, it contends that the Circuit Court was required to remand the case to the trial magistrate with instructions as to how to proceed further. The appellee does not challenge the State's first or third contentions, but relies on his motion to dismiss the appeal based upon the ground that the Circuit Court acted in the exercise of its "quasi-appellate" jurisdiction in reviewing the proceedings of the magistrate and in dismissing the writ, and hence that the State has no right of appeal from such action.
Despite the lack of controversy over the State's first contention, we deem it appropriate to state our agreement with the view of Judge Keating, which was followed by Judge Duckett, that a trial magistrate of Anne Arundel County lacks power to place a person on probation without verdict, since our decision of this case is founded upon that view and the question has not previously been decided by this Court.
We find no provision in the Trial Magistrates System subtitle of Art. 52 of the 1957 Code (which originated with ch. 720 of the Acts of 1939) or in any amendment thereof, which confers power upon trial magistrates to place persons upon probation without verdict. In general, except as modified by this subtitle, their "authority, powers and civil and criminal jurisdiction" are the same as those "vested in any justice of the peace by law applicable to the counties for which they are respectively appointed," and "such as may hereafter be prescribed by law." See Art. 52, sec. 100. That section does confer power upon trial magistrates to suspend sentence or costs, or both;
but that is something quite different from the power to grant probation without verdict. The power to suspend sentence can be exercised only when there has been a conviction and sentence thereon; probation without verdict, if granted, avoids any finding of guilt. Indeed, one of its primary purposes, where its use is deemed appropriate, is to avoid placing the stigma of a conviction on the accused. See Mutter, Probation in the Criminal Court of Baltimore, 17 Md. L. Rev. 309, 314. The difference is further manifested by the fact that these two powers are separately mentioned and dealt with by several statutes. See Code (1963 Cum. Supp.), Art. 26, sec. 114(a)(1) and (2) -- powers of the Municipal Court of Baltimore City; Art. 27, sec. 641(1) and (2) -- powers of the Circuit Courts of the Counties and of the Criminal Court of Baltimore; and Art. 52, secs. 17 and 20, relating to suspension of sentence and costs by justices of the peace in certain counties, and sec. 19(1) authorizing justices of the peace in certain counties to suspend sentence or to place a person upon probation before conviction.
Turning to the subtitle of Art. 52 headed "Criminal Jurisdiction," we find sec. 13(a) of the 1957 Code,*fn1 which, in general terms, conferred jurisdiction upon "the several trial magistrates of the State of Maryland (except in the City of Baltimore) to hear, try and determine" cases involving charges of a wide variety of offenses committed within their respective Counties, and provided that the trial magistrates "shall have power to issue all process and to do all acts * * * necessary for the exercise of their said jurisdiction, and may pronounce judgment and sentence in all such cases coming before them, in the same manner, and to the same extent as the circuit courts for said counties could, if such cases had been tried before said ...