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How to Spot an Illegal Sentence for Felony Theft After the Justice Reinvestment Act

In 2016, the Legislature enacted the Justice Reinvestment Act, 2016 Md. Laws Ch. 515, SB 1005, (“JRA”) which, among other criminal justice reforms, reduced the ten (10) year maximum penalty for the non-violent offense of felony theft to five (5) years. The JRA also increased the minimum and maximum property values that define the offense of felony theft. Md. Code Ann., Crim. Law, (“CR”) § 7-104(g)(i)(1) (2018 Suppl.). A defendant currently serving a sentence for felony theft that is greater than five (5) years may be eligible for immediate release or a reduced term of confinement or period of probation.

The Legislature made the reduced penalty provision for felony theft effective for sentences imposed on or after October 1, 2017.  For defendants who are convicted for an act committed after October 1, 2017, there should not be an issue about the application of the reduced penalty provision. However, there are many defendants who are currently serving a sentence originally imposed before October 1, 2017, who may be eligible for the reduced penalty under the JRA.  The key to understanding the proper implementation of the reduced penalty provision of the JRA is the concept of “sentencing.” Because a defendant may be “sentenced” or “resentenced” in a variety of circumstances after an original sentence has been imposed, it is important to closely review an individual defendant’s procedural history to identify the sentence actually being served and whether that sentence was imposed on or after October 1, 2017.

A defendant who is originally convicted and sentenced before October 1, 2017 may still be entitled to the reduced penalty provision for felony theft under the JRA in the following circumstances:

  • The defendant was convicted and originally sentenced in the District Court before October 1, 2017, filed a de novo appeal to the Circuit Court, and was sentenced on or after October 1, 2017;
  • The defendant appealed to the Court of Special Appeals from a conviction and sentence for felony theft following a trial in the Circuit Court before October 1, 2017, and his or her appeal was still pending after on or after October 1, 2017;
  • The defendant was sentenced on remand on or after October 1, 2017, following a direct appeal.
  • The defendant was sentence by a three-judge sentence review panel on or after October 1, 2017.
  • The defendant was sentenced at a modification of sentence hearing on or after October 1, 2017.
  • The defendant was sentenced following an order revoking probation where the imposition of the original sentence was suspended.

A defendant in any of these circumstances who did not receive the benefit of the reduced penalty provision of the JRA may be entitled to relief through a motion to correct an illegal sentence. A motion to correct an illegal sentence cannot be waived and may be filed at any time. There remains a controversy whether the JRA’s reduced penalty for felony theft applies to a defendant sentenced after a judge orders probation revoked where the execution (as opposed to the imposition) of the original sentence had been suspended. Unfortunately, this is likely the largest class of defendants who are being denied the benefits of the reduced penalty for felony theft under the JRA. You should contact an experienced attorney if you or a family member come within this category.

Please note that the information in this article is not legal advice but general information about the potential application of the JRA to your case or  a family member’s case. If you have questions about whether your defense attorney or the sentencing judge may have misconstrued the rules for implementing the JRA’s reduced penalty provision for felony theft to your case or a family member’s case, contact RaquinMercer LLC to speak with an attorney.  The initial consultation is free.

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