Incarceration

• Jurisdiction: Maryland

VIII. Incarceration

A. Authority to impose and/or to execute the sentence

In Maryland, for the vast majority of offenses, the legislature gives the trial judge, who becomes the sentencing judge, the authority to (1) impose any sentence, up to the statutory cap; and (b) execute any portion of the imposed sentence. See Md. Code Ann., Crim. Proc. § 6-219(b).

Occasionally, the legislature takes the sentencing imposition decision away from the sentencing judge, in part or totally. For example, the maximum sentence for use of a firearm in the commission of a felony or crime of violence is 20 years, and the sentencing court is required to impose at least five years of the 20-year maximum. Md. Code Ann., Crim. Law 4-204(c)(1).

Under federal law, 18 U.S.C. § 924(c)(1)(A)(iii) provides for a mandatory minimum sentence of 10 years for the discharge of a firearm during a crime of violence, even if the discharge is accidental. See Dean v. United States, 556 U.S. 568, 577 (2009).

Moreover, in addition to the imposition and execution limitations placed by the legislature on the sentencing judge, the legislature may also place limits on the parole commission, i.e., not only must five years be imposed and five years be executed for use of a firearm in the commission of a felony or crime of violence, the parole commission may not parole the defendant for at least five years.

B. Sentencing options for offenses subject to incarceration

In Benedict v. State, 377 Md. 1, 7-8 (2003), the Court of Appeals outlined the options available to a trial court when sentencing a defendant to a crime punishable by incarceration.

1. Impose and execute a sentence, suspending none of the sentence

The trial court may impose a prison sentence, up to the maximum term allowed, and execute the entire sentence. This means that the court suspends none of the sentence. In this scenario, the entire sentence must be served, unless the defendant is released earlier because (a) the defendant is granted parole; or (b) the defendant is not granted parole but based on accumulated diminution credits, the defendant is entitled to release. In either (a) or (b), the defendant will be on mandatory supervision until the entire sentence has been served.

2. Impose a sentence and suspend some or all of the sentence, executing none or some of the sentence

The trial court may impose a sentence, up to the maximum term allowed, and execute none of the sentence, or it can execute part of the sentence but less than the entire sentence. This means that the court suspends some of the sentence or the entire sentence.

If the court suspends part of the sentence and executes part of the sentence, this is referred to as a "split sentence." If the court suspends the entire sentence, the court almost always places the defendant on probation. If the court suspends some of the sentence, the court almost always places the defendant on a period of probation upon release from the unsuspended portion of the sentence. It is possible, but highly unlikely, that the court will impose no sentence and simply place the defendant on probation. In Maryland, the maximum period of probation is five years in Circuit Court and three years in District Court.

It is possible that the defendant will be on both parole and probation at the same time. For example, the defendant is convicted of robbery, and the trial court imposes a sentence of 10 years and suspend all but five years, with five years' supervised probation upon release. Let's assume that the defendant is paroled after three years. For the first two years after release, the defendant is on supervision by a parole officer. For the first five years after release, the defendant is on supervision by a probation agent. Those two supervising...