(a)Scope. This Rule applies to a motion by a State’s Attorney pursuant to Code, Criminal Procedure Article, § 8-301.1 to vacate a judgment of conviction or the entry of a probation before judgment entered in a case prosecuted by that office.
Committee note: Rule 4-102 (l) defines “State’s Attorney” as “a person authorized to prosecute an offense.” That would include the State Prosecutor and the Attorney General with respect to cases they prosecuted.
(b)Filing. The motion shall be filed in the criminal action in which the judgment of conviction or probation before judgment was entered. If the action is then pending in the Court of Appeals or Court of Special Appeals, that Court may stay the appeal and remand the case to the trial court for it to consider the State’s Attorney’s motion.
Committee note: Code, Criminal Procedure Article, § 8-301.1(a) permits the State’s Attorney to file the motion “at any time after the entry of a probation before judgment or judgment of conviction,” and permits “the court with jurisdiction over the case” to act on it. If an appeal is pending in the Court of Appeals or Court of Special Appeals when the motion is filed, that Court would have jurisdiction over the case but no practical ability to take evidence with regard to the State’s Attorney motion. If the appeal is successful, it could make the motion moot, but if the motion were to be granted and the State’s Attorney then enters a nolle prosequi, the appeal may become moot, at least with respect to the judgments vacated. The simplest solution in most cases would be for the appellate court to remand the case for the trial court to consider the motion. Rule 8-604 (d) permits the appellate courts to remand cases “where justice will be served by permitting further proceedings.”
(c)Timing. The motion may be filed at any time after entry of the judgment of conviction or probation before judgment.
(d)Content. The motion shall be in writing, signed by the State’s Attorney, and state:
(1) the file number of the action;
(2) the current address of the defendant or, if the State’s Attorney after due diligence is unable to ascertain the defendant’s current address, a statement to that effect and a statement of the defendant’s last known address;
(3) each offense included in the judgment of conviction or probation before judgment that the State’s Attorney seeks to have vacated;
(4) whether any sentence or probation before judgment includes an order of restitution to a victim and, if so, the name of the victim, the amount of restitution ordered, and the amount that remains unpaid;
(5) if the judgment of conviction or probation before judgment was appealed or was the subject of a motion or petition for post judgment relief, (A) the court in which the appeal or motion or petition was filed, (B) the case number assigned to the proceeding, if known, (C) a concise description of the issues raised in the proceeding, (D) the result, and (E) the date of disposition;
(6) a particularized statement of the grounds upon which the motion is based;
(7) if the request for relief is based on newly discovered evidence, (A) how and when the evidence was discovered, (B) why it could not have been discovered earlier, (C) if the issue of whether the evidence could have been discovered in time to move for a new trial pursuant to Rule 4-331 was raised or decided in any earlier appeal or post-judgment proceeding, the court and case number of the proceeding and the decision on that issue, and (D) that the newly discovered evidence creates a substantial or significant probability that the result would have been different with respect to the conviction or probation before judgment, or part thereof, that the State’s Attorney seeks to vacate, and the basis for that statement;
(8) if the basis for the motion is new information received by the State’s Attorney after the entry of the judgment of conviction or probation before judgment, a summary of that information and how it calls into question the integrity of the judgment of conviction or probation before judgment, or part thereof, that the State’s Attorney seeks to vacate;
(9) that, based upon the newly discovered evidence or new information received by the State’s Attorney, the interest of justice and fairness justifies vacating the judgment of conviction or probation before judgment or part thereof that the State’s Attorney seeks to vacate and the basis for that statement; and
(10) that a hearing is requested.
(e)Notice to Defendant. Upon the filing of the motion, the State’s Attorney shall send a copy of it to the defendant, together with a notice informing the defendant of the right: (1) to file a response within 30 days after the notice was sent; (2) to seek the assistance of an attorney regarding the proceeding; and (3) if a hearing is set, to attend the hearing.
Committee note: Although the defendant may not seek affirmative relief under this Rule, nothing in the Rule precludes the defendant from contemporaneously seeking affirmative relief under any other applicable Rule. The court, on motion, may consolidate the two proceedings.
(f)Initial Review of Motion. Before a hearing is set, the court shall make an initial review of the motion. If the court finds that the motion does not comply with section (d) of this Rule or that, as a matter of law, it fails to assert grounds on which relief may be granted, the court may dismiss the motion, without prejudice, without holding a hearing. Otherwise, the court shall direct that a hearing on the motion be held.
(g)Notice of Hearing
(1)To Defendant. The clerk shall send written notice of the date, time, and location of the hearing to the defendant.
(2)To Victim or Victim’s Representative. Pursuant to Code, Criminal Procedure Article, § 8 301.1(d), the State’s Attorney shall send written notice of the hearing to each victim or victim’s representative, in accordance with Code, Criminal Procedure Article, § 11-104 or § 11-503. The notice shall contain a brief description of the proceeding and inform the victim or victim’s representative of the date, time, and location of the hearing and the right to attend the hearing.
Committee note: Because a motion under Code, Criminal Procedure Article, § 8-301.1 may be filed years after the judgment of conviction or probation before judgment was entered, locating defendants, victims, and victim’s representatives may be difficult. Reasonable efforts, beyond merely relying on the last known address in a court record, should be made by the State to locate defendants, victims, and victims’ representatives and provide the required notices.
(h) Conduct of Hearing
(1)Absence of Defendant, Victim, or Victim’s Representative. If the defendant or a victim or victim’s representative entitled to notice under section (g) of this Rule is not present at the hearing, the State’s Attorney shall state on the record the efforts made to contact that person and provide notice of the hearing.
(2)Burden of Proof. The State’s Attorney has the burden of proving grounds for vacating the judgment of conviction or probation before judgment.
(3)Disposition. If the court finds that the State’s Attorney has proved grounds for vacating the judgment of conviction or probation before judgment and that the interest of justice and fairness justifies vacating the judgment of conviction or probation before judgment, the court shall vacate the judgment of conviction or probation before judgment. Otherwise, the court shall deny the motion and advise the parties of their right to appeal. If the motion is denied and the defendant did not receive actual notice of the proceedings, the court’s denial shall be without prejudice to refile the motion when the defendant has been located and can receive actual notice. The court shall state its reasons for the ruling on the record. Cross reference: For the right of a victim or victim’s representative to address the court during a sentencing or disposition hearing, see Code, Criminal Procedure Article, § 11-403.
Cross reference: For the right of a victim or victim’s representative to address the court during a sentencing or disposition hearing, see Code, Criminal Procedure Article, § 11-403.
(i)Post-Disposition Action by State’s Attorney. Within 30 days after the court enters an order vacating a judgment of conviction or probation before judgment as to any count, the State’s Attorney shall either enter a nolle prosequi of the vacated count or take other appropriate action as to that count.
Adopted 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).
