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Rule 4-245 – Subsequent Offenders

May 13, 2021 | Criminal Prodcedure, Maryland

(a) Definition. A subsequent offender is a defendant who, because of a prior conviction, is subject to additional or mandatory statutory punishment for the offense charged.
(b) Required Notice of Additional Penalties. When the law permits but does not mandate additional penalties because of a specified previous conviction, the court shall not sentence the defendant as a subsequent offender unless the State’s Attorney serves notice of the alleged prior conviction on the defendant or counsel before the acceptance of a plea of guilty or nolo contendere or at least 15 days before trial in circuit court or five days before trial in District Court, whichever is earlier. The notice required under this section shall be substantially in the form approved by the State Court Administrator and posted on the Judiciary website.
(c) Required Notice of Mandatory Penalties. When the law prescribes a mandatory sentence because of a specified previous conviction, the State’s Attorney shall serve a notice of the alleged prior conviction on the defendant or counsel at least 15 days before sentencing in circuit court or five days before sentencing in District Court. If the State’s Attorney fails to give timely notice, the court shall postpone sentencing at least 15 days unless the defendant waives the notice requirement. The notice required under this section shall be substantially in the form approved by the State Court Administrator and posted on the Judiciary website.
(d) Disclosure of the Notice. After acceptance of a plea of guilty or nolo contendere or after conviction, a copy of the notice shall be filed with the clerk and presented to the court. The allegation that the defendant is a subsequent offender is not an issue in the trial on the charging document and may not be disclosed to the trier of fact without the consent of the defendant, except as permitted in this Rule. Nothing herein shall prohibit the use of any prior conviction for impeachment purposes, if the evidence is otherwise admissible.
(e) Determination. Before sentencing and after giving the defendant an opportunity to be heard, the court shall determine whether the defendant is a subsequent offender as specified in the notice of the State’s Attorney.

Md. Crim. Causes. 4-245

This Rule is derived from former Rule 734 and M.D.R. 734.

Adopted April 6, 1984, eff. July 1, 1984; amended Nov. 19, 2019, eff. Jan. 1, 2020.

Committee note: Sentencing a defendant as a subsequent offender is in the sentencing power of the court and not a matter for the jury. The burden of establishing the prior offense rests with the State. Sullivan v. State, 29 Md.App. 622, 349 A.2d 663 (1976); Moore v. State, 17 Md.App. 237, 300 A.2d 388 (1973); Towers v. Director, Patuxent Institution, 16 Md.App. 678, 299 A.2d 461 (1973).