PBJ and Subsequent Offender Status

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Below is an argument to prevent the State from seeking subsequent offender status for a defendant whose past matter resulted in a probation before judgment.   It was drafted by Paul J. Notarianni.

Argument

        The Defendant in this matter cannot be subject to enhanced penalties under Maryland Rule 4-245, as he is not a subsequent offender.   When a defendant, who receives Probation Before Judgment, successfully completes his conditions of probation, the court discharges the defendant from probation and that discharge is the final disposition of the matter. (Md Criminal Procedure Section 6-220 (g)).  A discharge of a successful  probationer under Criminal Procedure Section 6-220 is  “without judgment of conviction and is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of crime.”  (Id. at g(3)).  Maryland Rule 4-245, permits enhanced sentences for subsequent offenders in many instances.  By statute, a “subsequent offender” is defined as “a defendant who, because of a prior conviction, is subject to additional or mandatory statutory punishment for the offense charged.”  (Md Rule 4-245 (a)).  In the annotated code, the Maryland Court of Appeals is specifically cited as holding that Probation Before Judgment is “not a conviction where a defendant is satisfactorily discharged from probation because he has fulfilled the terms and conditions of his probation order.”  (Maryland Rule 4-245 Annotated, unnumbered annotation, citing Shilling v. State, 320 Md. 288, 577 A.2d 83 (1990)).  Probation Before Judgment is not a conviction.  A defendant is not a subsequent offender, simply for having a prior Probation Before Judgment.  

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