Certiorari to the Circuit Court for Washington County; Corderman, J.
Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ., and reargued before Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ. Digges, J., delivered the opinion of the Court.
This case arose out of a scuffle on January 25, 1978, between petitioner Steven Briggs and several officers at the Maryland Correctional Institute in Hagerstown where petitioner was then serving a prison sentence for armed robbery. Briggs was subsequently convicted in the District Court of Maryland on February 15, 1978, of assault on one of these officers and Judge J. Louis Boublitz sentenced him to thirty days imprisonment to run consecutively from the term he was then serving. The accused appealed this judgment to the Circuit Court for Washington County.*fn1 After a
trial de novo in that court on July 24, 1979, Briggs was again found guilty of the same offense, but this time Judge John P. Corderman directed imprisonment for ten years to run consecutive to the term for which Briggs was then incarcerated. Petitioner challenges this substantially enhanced punishment on the ground that the circuit court misinterpreted section 12-702 ((b) and (c)) of the Maryland Courts & Judicial Proceedings Article (1974, 1980 Repl. Vol.) by basing its sentencing decision on the fact that Briggs was convicted of three other assaults during the interim period between the District Court trial of this case and his trial de novo in the circuit court. He claims this reliance on these unrelated assaults was error because the conduct from which those intervening convictions arose occurred prior to the imposition of the original sentence by the District Court. We agree with petitioner and, consequently, will remand the case to the circuit court for resentencing.
As an aid in explaining the reasons for our conclusion, it is desirable that we first chronicle the significant additional events. During the intervening period between the petitioner's first trial in the District Court and his trial de novo in the circuit court seventeen months later, Briggs was convicted in the Circuit Court for Washington County before Judge Irving Rutledge of three assaults on Department of Correction officers.*fn2 For these three offenses, on a de novo appeal in the circuit court, the accused received one year additional imprisonment, the same punishment as had been imposed below. The incident which gave rise to the three interim convictions, however, occurred on December 5, 1977 -- seven weeks before the scuffle which spawned the case now before us. Judge Corderman, when increasing petitioner's sentence in this case from thirty days to ten years imprisonment following reconviction on appeal to the circuit
court, based this enhanced punishment solely on the fact that these intervening convictions had occurred.
In determining the proper punishment following a conviction on de novo appeal, the circuit court recognized that section 12-702 of the Courts & Judicial Proceedings Article limits the discretion of the sentencing judge. In relevant part, this statute provides:
(b) Remand for sentence or new trial; limitations on increases in sentences. -- If an appellate court remands a criminal case to a lower court in order that the lower court may pronounce the proper judgment or sentence, or conduct a new trial, and if there is a conviction following this new trial, the lower court may impose any sentence authorized by law to be imposed as punishment for the offense. However, it may not impose a sentence more severe than the sentence previously imposed for the offense unless:
(1) The reasons for the increased sentence affirmatively appear;
(2) The reasons are based upon objective information concerning identifiable conduct on the part of the defendant occurring after the original sentence was imposed [(emphasis supplied)]; and
(3) The factual data upon which the increased sentence is based appears as a part of the record.
(c) Limitation on sentence following de novo appeal. -- If a defendant who appeals from a conviction in the District Court is convicted after a trial de novo on appeal, the appellate court may impose any sentence authorized by law to be imposed as punishment for the offense, or it may impose a sentence more severe than that imposed in the District Court but only under the conditions prescribed in subsection (b).
The circuit court here determined, and the State in this Court argues, that the intervening assault convictions of petitioner Briggs constituted "identifiable conduct on the part of the defendant which occurred after the original sentence
was imposed," authorizing harsher punishment.*fn3 The petitioner contends, on the other hand, that the three interim convictions which took place after the imposition of the District Court sentence in the present case, but whose underlying events occurred before that sentence was there pronounced, do not constitute subsequent "conduct" within the meaning of section 12-702 ((b) and (c)) so as to permit enhanced incarceration.
Since the genesis of section 12-702 ((b) and (c)) is crucial to our inquiry, we shall first set forth its background prior to discussing the specific issue presented here. The text of the statute represents our State legislature's response to adjudications made by both the United States Supreme Court and this State's Court of Special Appeals. These cases, discussed in their chronological order, are North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), Cherry v. State, 9 Md. App. 416, 264 A.2d 887 (1970), and Colten v. Kentucky, 407 U.S. ...