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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1786 SEPTEMBER TERM, 2000 ______________________________

LEON EUGENE TONEY

v.

STATE OF MARYLAND

______________________________

Hollander, Sonner, Adkins, JJ. ______________________________

Opinion by Hollander, J. ______________________________

Filed: September 27, 2001

In the Circuit Court for Prince George's County, Leon Eugene Toney, appellant, he pled guilty to to second a term degree of five assault. years'

Thereafter,

was

sentenced

incarceration; all but 18 months of the sentence was suspended. The court also gave Toney credit for 188 days of pre-trial incarceration. The sole issue in this appeal is whether, in

sentencing appellant, the court erroneously failed to credit him with an additional 98 days that he served in pre-trial home detention. Appellant was incarcerated before trial from August 18, 1999, until December 13, 1999, when he was granted pre-trial release. From December 13, 1999, until his sentencing on April

20, 2000, appellant was on pre-trial release in a home detention program. On May 26, 2000, after his sentencing, appellant filed

a Motion to Correct Illegal Sentence, alleging that the court erred by failing to credit him with the 98 days that he spent in a pre-trial home detention program. motion, appellant noted this appeal. DISCUSSION Maryland Code Ann. (1996 Repl. Vol., 2000 Supp.), Article When the court denied the

27, Section 638C(a), mandates that when an individual is in custody before trial and is subsequently convicted on the charge for which he or she was held, the time spent in custody prior to the imposition of sentence must be credited against the sentence

imposed.

The

intent

of

the

statute

is

to

insure

that

a

defendant receives as much credit as possible for time spent in custody, consistent with constitutional and practical

considerations.

See Dedo v. State, 343 Md. 2, 9 (1996); Fleeger

v. State, 301 Md. 155, 160-165 (1984). In support of his contention, appellant relies on Dedo.

There, the Court of Appeals held that a defendant was entitled to credit for time spent before trial in a home detention program. The Court reasoned that the restraints placed upon the

defendant were "sufficiently incarcerative" so that the effect was custodial, even though the defendant was not housed in a jail or prison. on the In reaching that conclusion, the Court focused factors: The home detention contract

following

characterized Dedo's confinement as incarceration; Dedo could have been charged with escape for any unexcused or unexplained absence from his home during curfew hours; he was subject to the control of the warden of the detention center and the home detention staff; any violation of home detention would have led to Dedo's immediate imprisonment; Dedo's movements and

activities were electronically monitored; he was required to permit home detention staff to enter his home at any time; and Dedo was subject to alcohol restrictions and random drug and alcohol testing. Dedo, 343 Md. at 12-13. -2-

Analogizing to Dedo, appellant argues that the conditions of his home detention were "sufficiently incarcerative" so as to merit custodial credit. Under the applicable "Conditions of

Release," appellant was subject to "electronic monitoring," and he was not permitted to leave his residence without permission from his case manager. Further, appellant was required to have He was

regular contact with a case manager at designated times.

also obligated to notify the authorities if he changed his address, planned to leave the area, had further involvement with the criminal justice system, or received a continuance of his trial. Additionally, Toney was to report for drug testing and After the list of

was precluded from contacting the victim. conditions, the following language appears:

WARNING: THE COURT REQUIRES US TO SUBMIT A REPORT SETTING FORTH YOUR RECORD OF COMPLIANCE WITH THE ABOVE CONDITIONS OF PRETRIAL RELEASE. YOUR FAILURE TO COMPLY WITH THESE CONDITIONS MAY RESULT IN THE ISSUANCE OF A BENCH WARRANT FOR YOUR ARREST. The State also cites Dedo, 343 Md. at 12, but argues that the conditions of release here were not "sufficiently

incarcerative to satisfy the custody requirement of Art. 27,

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