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379 3
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MARVIN MANDEL, Governor
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and Probation and considered by the court, unless the
court specifically orders to the contrary in a particular
case. As noted in footnote 16, supra, new Maryland Rule
771 requires that any such report be made available to
the defendant reasonably in advance of his sentencing.
This effectively requires that the report be made
available to him reasonably in advance of the sentencing
proceeding. 18 Section 413(b) requires that the
sentencing proceeding be conducted "before the trial jury
as soon as practicable". The preparation of a
presentence report can require as much as thirty days in
a typical case, and even greater care would presumably be
taken in such a report in a capital case. In light of
the statutory and practical necessity for a prompt
sentencing proceeding, it may well prove desirable or
necessary to begin the preparation of presentence reports
in such cases in advance of the trial. 19 Senate Bill
106 makes no reference to presentence reports, and in
particular does not resolve the question of whether such
a report prepared pursuant to Art. 41, §124(c) must be
presented in whole or in part to the jury if it is to be
considered by the sentencing judge. Section 413(d) and
(e) strongly suggest that the sentencing judge may not
consider matters which were not before the recommending
jury. This is consistent with the apparent thrust of
Gardner v. Florida, supra.
During the recent session of the General Assembly a
question was raised in the debate on Senate Bill 106 as
to the failure to amend §645JC of Art. 27, as was
proposed in the Administration's Bill. Like the
Administration Bill, Senate Bill 106 amends Section 645JA
of Article 27 so as to remove death sentences from the
law authorizing sentence review by three-judge panels.
Section 645JC simply provides for the action which may be
taken by such a panel and, since it is unamended by
Senate Bill 106, would continue to refer to the possible
action of reducing a death sentence to sentence for life
or a term of years. He do not perceive this failure to
amend Section 645JC as posing any significant problem
since we believe that the bill's amendment of Section
645JA deprives these sentence review panels of any
jurisdiction to consider a case in which the death
penalty was imposed. The amendment of Section 645JA
would prevail as the later enactment to the extent of the
inconsistency attributable to the failure to amend
Section 645JC.
A particularly significant problem is presented by
the failure of Senate Bill 106 to identify the standards
or burden of proof by which the jury or judge should
determine the presence of either aggravating or
mitigating circumstances, or the relative balancing of
the two, in order to reach a sentencing decision. The
statute is silent as to whether the State must prove the
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