State v. Peterson

553 A.2d 672, 315 Md. 73, 1989 Md. LEXIS 24

• Court: Court of Appeals of Maryland
• Decided: February 27, 1989
• Docket: 20, September Term, 1988
• Status: Published

Opinions

ELDRIDGE, Judge.

The third sentence of Maryland Rule 4-346(c) provides that a revocation of probation hearing “shall be held before the sentencing judge, whenever practicable.” ¹ We granted the State’s petition for a writ of certiorari in this case to decide whether the Court of Special Appeals had misapplied this provision. Although events subsequent to the issuance of a writ of certiorari have rendered the case moot, we shall nevertheless set forth our views concerning the interpretation and application of the third sentence of Rule 4-346(c).

On January 6, 1984, in the Circuit Court for Baltimore City, Norman Peterson pled guilty to charges of driving while intoxicated and driving on a revoked license. District Court Judge Alan M. Resnick, temporarily assigned to the circuit court, imposed two consecutive sentences of eighteen months imprisonment, as well as a $500.00 fine and court costs. Judge Resniek suspended all but one month of the prison sentences pursuant to Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 641A, and placed Peterson on probation for three years. As conditions of his probation, Peterson was to attend an alcohol program and an alcohol restriction was placed on Ms driver's license.

In September 1986 Peterson was charged with violating the conditions of his probation. On April 6, 1987, a probation revocation hearing was held before Chief Judge Robert LH. Hammerman of the Circuit Court for Baltimore City. At that hearing the following colloquy took place:

“[PETERSON'S ATTORNEY]: ... I notice that this is a violation of a sentence imposed ... by His Honor Judge Resniek while sitting in the Circuit Court on January 6th, 1984, and Judge Resniek is still a member of the judiciary in the same capacity he was on January 6th, 1984, and I question why we are not before Judge Resniek since this is Ms case.

“THE COURT: Because he is not sitting in the same capacity now that he was at that time. At that time he was sitting as a judge of the Circuit Court for Baltimore City. Today he is sitting as a judge of the District Court for Baltimore City. He is not assigned to this bench, and it is the practice of this bench, as authorized by the Maryland Rules, that when the judge who imposed the original sentence is not available for further proceedings it may be assigned to another judge of that bench. Judge Resniek is no longer a judge assigned to the Circuit Court for Baltimore City.

“[PETERSON'S ATTORNEY]: If Your Honor please, for the record, it is my opinion that His Honor Judge Resniek is available. He is still the same associate District Court judge that he was on January, 1984 and I just question why this case is not being presented—

“THE COURT: Well, you are making the same statement and asking the same question you did a moment ago and I can only say I repeat the same answer.

“[PETERSON’S ATTORNEY]: Just officially on behalf of my client, I ask that this matter be referred to Judge Resnick for disposition.

“THE COURT: Your request is denied____”

Following testimony from the probation officer and arguments of counsel, Judge Hammerman revoked Peterson’s probation and reinstated his original sentence, less credit for time served.

Peterson appealed to the Court of Special Appeals, which reversed and remanded. Peterson v. State, 73 Md.App. 459, 534 A.2d 1353 (1988). The intermediate appellate court took the position that “ ‘whenever practicable’ [within the contemplation of Rule 4-346(e)] should be decided on a case-by-case basis with a fact-finding process to determine if it is practicable to have the judge who imposed probation preside at the revocation proceeding.” 73 Md.App. at 467, 534 A.2d at 1357. The Court of Special Appeals held that Judge Hammerman’s ruling, on Peterson’s request that Judge Resnick preside, failed to comply with Rule 4-346(c) because “Judge Hammerman made no findings as to the practicality of having Judge Resnick preside over [Peterson’s] probation revocation proceedings.... ” 73 Md.App. at 469, 534 A.2d at 1358. The court went on to hold that “denying [Peterson’s] request that Judge Resnick hear the case without any determination of the practicality of having Judge Resnick preside violated [Peterson’s] rights under Rule 4-346(c).” Ibid. The Court of Special Appeals concluded that “there is nothing in the record to show, or even suggest, that it was not practical for Judge Resnick to have heard this case.” 73 Md.App. at 472, 534 A.2d at 1360. In fact, pointing to the scope of the order designating Judge Resnick to sit on the Circuit Court for Baltimore City, and to the close proximity of the District Court locations (where Judge Resnick usually sat) to the Circuit Court for Baltimore City, the Court of Special Appeals implied that it had been practicable for Judge Resnick to have presided at the probation revocation hearing. 73 Md.App. at 470-471, 534 A.2d at 1359. The appellate court stated that, “[a]t the very least, it was incumbent upon the court to place a telephone call, inquiring into Judge Resnick’s availability,” 73 Md.App. at 471, 534 A.2d at 1359.²

The State then filed a petition for a writ of certiorari. This Court granted the petition and issued a writ of certiorari on June 2, 1988.

Despite the issuance of the writ of certiorari, another revocation of probation hearing was held in the Circuit Court for Baltimore City, on August 1, 1988, before Judge Roger W. Brown. Peterson made no request that Judge Resnick preside. At oral argument before us, we were told that Peterson had been quite happy to have been before Judge Brown. The State did not object. Apparently no one told Judge Brown that this Court had issued a writ of certiorari. At the hearing before Judge Brown, Peterson admitted that he had violated his probation. Judge Brown sentenced him to one year imprisonment, less credit for time served, a $500 fine, and court costs. The prison sentence was suspended in favor of five months probation. An alcohol restriction was placed on Peterson’s driver’s license, and he was to attend an alcohol screening and treatment program.

I.

It is clear that the present appellate proceedings have become moot.

When the State and Peterson both acquiesced in appearing before Judge Brown for the probation revocation hearing, the parties, in effect, waived any objection to proceeding before Judge Brown, waived any claim that Judge Resnick was required to preside, and waived any argument that under Rule 4-346(c) Judge Resnick was not required to preside. The issue concerning the practicability of returning Judge Resnick to the circuit court for the hearing disappeared from the case. “[TJhere is no longer an existing controversy between the parties, so there is no longer any effective remedy which the court can provide.” Attorney Gen. v. A.A. School Bus, 286 Md. 324, 327, 407 A.2d 749, 752 (1979). The case is now moot, unless the circuit court was without subject matter jurisdiction to proceed with the hearing at which Judge Brown presided. The State argues that issuance of the writ of certiorari deprived the circuit court of jurisdiction to do so, rendering the proceedings before Judge Brown a nullity.

This Court has consistently taken the view that, when an appeal is taken, the trial court may continue to act with reference to matters not relating to the subject matter of, or matters not affecting, the appellate proceeding; it may also act in furtherance of the appeal. Nevertheless, with regard to matters relating to the subject matter of the appeal, or affecting the appeal, and not in furtherance of it, we at one time took the position that the appellate court “is vested with the exclusive power and jurisdiction over the subject matter of the proceedings, and the authority and control of the lower court with reference thereto are suspended.” Bullock v. Director, 231 Md. 629, 633, 190 A.2d 789, 792 (1963), overruled in Pulley v. State, 287 Md. 406, 416 n. 2, 412 A.2d 1244, 1250 n. 2 (1980). See also, e.g., Staggs v. Blue Cross of Maryland, 57 Md.App. 576, 578, 471 A.2d 326, 327 (1984), overruled in Makovi v. Sherwin-Williams Co., 311 Md. 278, 283, 533 A.2d 1303, 1306 (1987). As pointed out in Pulley v. State, supra, 287 Md. at 416-417, 412 A.2d at 1251, Bullock and similar cases confused the concepts of fundamental jurisdiction with the propriety of exercising jurisdiction. Judge Bigges for the Court explained in Pulley the effect of an appeal as follows (287 Md. at 417, 412 A.2d at 1250):

“In other words, the trial court retains its ‘fundamental jurisdiction’ over the cause, but its right to exercise such power may be interrupted by (i) statute or Maryland Rule, (ii) the posting of authorized appeal bond, or bail following a conviction and sentence, or (iii) a stay granted by an appellate court, or the trial court itself, in those cases where a permitted appeal is taken from an interlocutory or final judgment.”

Further (287 Md. at 419, 412 A.2d at 1251):

“If the trial court does, however, decide to proceed during the pendency of the appeal, it, absent a stay required by law, or one obtained from an appellate court, has the authority to exercise the ‘fundamental jurisdiction’ which it possesses.”

The issue in the present case is analogous to the issue presented to this Court in In re Special Investigation No. 281, 299 Md. 181, 473 A.2d 1 (1984). There, subpoenas duces tecum were served upon the custodian of certain dental records. The custodian filed a motion to quash the subpoenas; this motion was denied by the circuit court judge. An appeal was filed, but a stay pending appeal was denied. Upon the expiration of the time for production of the dental records, -but before adjudication of the appeal, the custodian was held in contempt. We held that the circuit court’s issuance of the contempt order was proper because the court retained fundamental jurisdiction over the case, notwithstanding the pending appeal. See also Makovi v. Sherwin-Williams Co., supra, 311 Md. at 283, 583 A.2d at 1805 (premature order of appeal does not divest trial court of jurisdiction to enter a final judgment); Stewart v. State, 287 Md. 524, 528-529, 413 A.2d 1337, 1339 (1980) (indictment received by trial court, prior to issuance of mandate by the Court of Special Appeals in an appeal of juvenile court’s waiver of jurisdiction, is not void); Pulley v. State, supra, 287 Md. at 418-419, 412 A.2d at 1251 (trial continued despite defendant’s immediate appeal of an interlocutory order denying defendant’s double jeopardy claim; subsequent trial not void).

The above-cited cases deal with the effect of appeals, but the same principles apply in the context of the issuance of a writ of certiorari. In this case, no stay was granted by this or any court. The Circuit Court for Baltimore City had and retained fundamental jurisdiction, conferred by the Constitution and the General Assembly, to handle a revocation of probation hearing. See Art. 27, § 642. As the circuit court had jurisdiction to act according to the mandate of the Court of Special Appeals, this case is moot.³

II.

Ordinarily, we would end our opinion at this point. “[Generally when a case becomes moot, we order that the appeal or the case be dismissed without expressing our views on the merits of the controversy.” Mercy Hosp. v. Jackson, 306 Md. 556, 562, 510 A.2d 562, 565 (1986). As Chief Judge Murphy stated for the Court in State v. Ficker, 266 Md. 500, 506-507, 295 A.2d 231 (1972), “[a]ppellate courts do not sit to give opinions on abstract propositions or moot questions, and appeals which present nothing else for decision are dismissed as a matter of course.”

Nevertheless, there is no constitutional prohibition which bars this Court from expressing its views on the merits of a case which becomes moot during appellate proceedings. Reyes v. Prince George’s County, 281 Md. 279, 296, 380 A.2d 12 (1977). We will do so, however, “only in rare instances which demonstrate the most compelling of circumstances.” Reyes v. Prince George’s County, supra, 281 Md. at 297, 380 A.2d at 22. In Lloyd v. Supervisors of Elections, 206 Md. 36, 43, 111 A.2d 379, 382 (1954), Judge Hammond emphasized for the Court that “only where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest, will there be justified a departure from the general rule and practice of not deciding academic questions.”

We believe that this is one of those “rare instances” in which the Court should express its views on the merits of a moot case.

Maryland’s trial courts dispose of thousands of criminal cases in any given year. For example, during Fiscal 1988, the circuit courts terminated 52,039 criminal cases and appeals and the District Court processed 144,060 criminal cases (counted by the number of defendants charged). Annual Report of the Maryland Judiciary 1987-1988, Table CC-6.9, at 48; Table DC-7, at 83. Of course, not all these terminations or processings result in convictions, and not all convictions result in probation, but it may safely be. assumed that probation is not an infrequent disposition in criminal cases.⁴ Proceedings for revocation of probation are also numerous.⁵

In the context of the third sentence of Rule 4-346(c), it is important to recognize that sentencing and probation revocation proceedings may occur months or even years apart, and that the judge presiding, in a particular county, at trial and sentencing may not be a resident judge in that county or even a regular judge of the court in which he or she is then sitting. The Chief Judge of the Court of Appeals has broad power to “assign any judge except a judge of the Orphans’ Court to sit temporarily in any court except an Orphans’ Court.” Art. IV, § 18(b), of the Maryland Constitution. See also Maryland Rule 1202 a 1. Moreover, circuit administrative judges possess the authority to provide for intracircuit assignments. Rule 1202 b 1.

The temporary recall of retired judges pursuant to Art. IV, § 3A, of the Maryland Constitution has, in recent years, somewhat diminished the intercircuit assignment of circuit court judges. Compare Annual Report of the Maryland Judiciary 1983-1984, at p. 18, with Annual Report of the Maryland Judiciary 1987-1988, at p. 96. But intracireuit assignment of those judges is common. Ibid. Moveover, during Fiscal 1988, inter-district assignments within the District Court produced 500 judge days. Ibid. In the same time period, the District Court provided the circuit courts with 292 judge days of assistance, 178 of those judge days in the Circuit Court for Baltimore City. Ibid.

Thus, for example, when the sentencing judge who imposes probation is sitting temporarily in the Circuit Court for Baltimore City, but holds his appointment as a judge of the District Court and is resident in Worcester County, it is quite likely that judge will be back in Worcester County (or elsewhere in the State) if and when the defendant is brought into the Circuit Court for Baltimore City for a probation revocation hearing. Under the opinion of the Court of Special Appeals, in these circumstances the defendant would have a “right” under Rule 4-346(c) to have the Worcester County District Judge preside at his Baltimore City circuit court revocation proceeding unless the record demonstrates that it would be impractical, and the presiding judge makes findings to that effect.

Considering the busy dockets of Maryland courts, the administrative complexity of intercourt and intercounty judicial assignments, and the numbers of cases and individuals involved, the issue in this case assumes major public importance. Unlike the questions in Mercy Hosp. v. Jackson, supra, the answers to which would have had no general application and which involved difficult constitutional questions, 306 Md. at 563-564, 510 A.2d at 565-566, the resolution of the issue in this case can be applied throughout our court system. We are presented with a question of rule construction. Our construction of the rule involved will serve to guide judges and assignment officials in trial courts throughout the State. In addition, the rights of probation revocation defendants and the duties of the court system with regard to them will be clarified. Furthermore, it is important that the guidance we provide in this matter be furnished promptly, for the problems presented by this case, as our discussion suggests, may be widespread and frequently recurring.

III.

The third sentence of Rule 4-346(c) states that a probation revocation “hearing shall be held before the sentencing judge, whenever practicable.” The provision, thus, sets forth an uncomplicated flexible standard for the assignment of judges in probation revocation cases. As previously discussed, however, the Court of Special Appeals adopted the view that the provision confers an enforceable right upon the defendant to have the original sentencing judge preside at the probation revocation hearing unless the presiding judge finds that this is not practicable and unless the record supports the finding.

We disapprove of the Court of Special Appeals’ construction and application of the third sentence of Rule 4-346(c). If this case were not moot, we would reverse the Court of Special Appeals’ judgment with directions that the judgment of the circuit court be affirmed.

Generally, a litigant has no right to have his case heard before a particular judge. Lane v. State, 226 Md. 81, 93, 172 A.2d 400, 406 (1961), cert. denied, 368 U.S. 993, 82 S.Ct. 611, 7 L.Ed.2d 529 (1962); United States v. Corn, 836 F.2d 889, 892 (5th Cir.1988); Sinito v. United States, 750 F.2d 512, 515 (6th Cir.1984); United States v. Radlick, 581 (9th Cir.1978); United States v. Braasch, 505 F.2d 139, 147 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1562, 43 L.Ed.2d 775 (1975); Hvass v. Graven, 257 F.2d 1, 5 (8th Cir.), cert. denied, 358 U.S. 835, 79 S.Ct. 58, 3 L.Ed.2d 72 (1958); Badertscher v. Badertscher, 10 Ariz. App. 501, 460 P.2d 37, 40 (1969); McDonald v. Goldstein, 191 Misc. 863, 869, 83 N.Y.S.2d 620, 625, aff'd 273 App.Div. 649, 79 N.Y.S.2d 690 (1948).

Consistent with the principle that a litigant has no right to a hearing before a particular judge, courts regularly hold that statutes and rules relating to the assignment of judges ordinarily are not intended to confer enforceable rights upon the parties to the litigation. See, e.g., Sinito v. United States, supra, 750 F.2d at 515-516; United States v. Torbert, 496 F.2d 154, 157 (9th Cir.), cert. denied, 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91 (1974); United States v. Dichiarinte, 385 F.2d 333, 337 (7th Cir.1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968); Levine v. United States, 182 F.2d 556, 559 (8th Cir.1950), cert. denied, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665 (1951); Padie v. State, 566 P.2d 1024, 1027-1028 (Alaska 1977); Kruckenberg v. Powell, 422 So.2d 994, 995-996 (Fla.App. 1982); Stevens v. Wakefield, 163 Ga.App. 40, 292 S.E.2d 516, 518 (1982); State v. Mahoney, 34 Ohio App.3d 114, 517 N.E.2d 957, 960 (1986).

For example, United States v. Dichiarinte, supra, involved a rule “requiring that when a case is dismissed and a second case is filed involving the same parties and subject matter, it is to be reassigned to the judge to whom the original case was assigned.” 385 F.2d at 337. The defendant in that criminal case argued on appeal that his trial, which was before a different judge than the judge assigned to an earlier proceeding, was in violation of the rule and that, therefore, his conviction should be reversed. In affirming the conviction, the United States Court of Appeals for the Seventh Circuit pointed out that such rules were not intended “to create a right in a litigant to have his case heard by a particular judge.” Ibid.

There are, of course, exceptions to the general principle that judicial assignment rales do not create rights enforceable by litigants. These exceptions include constitutional provisions, statutes, or rules requiring the disqualification of particular judges in specific situations, circumstances where a particular judge might appear to be prejudiced, or rales which were manifestly intended to confer enforceable rights upon litigants. The third sentence of Rule 4-346(c), however, falls within none of these exceptions.

The language and history of Rule 4-84@(e),s third sentence refute any argument that the provision was manifestly intended to confer enforceable rights upon the parties to a probation revocation proceeding. The phrase “whenever practicable” is certainly not compatible with the idea that the defendant has a right, reviewable on appeal, to have the original sentencing judge assigned to the probation revocation proceedings. The words “whenever practicable” or “as practicable,” according to our cases, “are of a relative and dependent character, to be controlled more or less by the circumstances of the case, and by no means furnish a definite and fixed rule.” Lankford v. Somerset County, 73 Md. 105, 113-114, 20 A. 1017, 1019 (1890). See Selinger v. Governor of Maryland, 266 Md. 431, 435, 298 A.2d 817, 819, cert. denied, 409 U.S. 1111, 93 S.Ct. 922, 34 L.Ed.2d 693 (1972); Robey v. Broersma, 181 Md. 325, 341, 29 A.2d 827, 830 (1943). See also, e.g., Young v. Travelers Ins. Co., 119 F.2d 877, 880 (5th Cir.1941) (they “are not words of precise and definite import. They are roomy words. They provide for more or less free play. They are in their nature ambulatory and subject ... to the impact of particular facts on particular cases”); Petition of Gally, 329 Mass. 143, 148-149, 107 N.E.2d 21, 25 (1952); Transamerica Ins. Co. v. Parrott, 531 S.W.2d 306, 312-313 (Tenn.App.1975). They obviously are not words which would be employed if Rule 4-846(c) were manifestly intended to confer a specific right upon the defendant to have a particular judge hear his ease.

The Court of Special Appeals correctly indicated that the phrase “whenever practicable” is flexible and depends upon the particular circumstances pertinent to the case.⁶ Peterson v. State, supra, 73 Md.App. at 467, 534 A.2d at 1357. What the intermediate appellate court overlooked, however, is that the relevant circumstances include more than the scope of the original order designating Judge Resnick to sit on the circuit court, Judge Resnick’s normal geographical proximity to the circuit court location, and Judge Resnick’s view of his availability to preside at the probation revocation hearing. The circumstances include the effect upon the judicial assignment system of the Circuit Court for Baltimore City, the judicial assignment system of the District Court, and intercourt assignments of judges under orders of the Chiéf Judge of the Court of Appeals.⁷ In the present case, the relevant circumstances also include the impact upon Judge Resnick’s dockets and the business of the court or courts to which he is presently assigned. More generally, there must be considered the substantial systemic problems which arise when judges must move from court to court and from geographical locations that may sometimes be at a considerable distance from the court in which a probation revocation hearing is to be held. Furthermore, under the Court of Special Appeals’ opinion, in almost every case where the presiding judge at the probation revocation hearing finds that it is practicable for the original sentencing judge to preside, a postponement of the probation revocation hearing will be required. This “circumstance,” and the effect of a multitude of postponements upon the parties, the witnesses, the administration of the judiciary, and the public, must all be considered.

In sum, the circumstances generally include the various facets of the complex administration of two separate trial court systems, both in a particular locality and statewide. In the context of Rule 4-346(c), this is part of the meaning of the words “whenever practicable.” It is a meaning totally at odds with the Court of Special Appeals’ view that the third sentence of Rule 4-346(e) confers a right upon the defendant to have a particular judge hear his probation revocation case and that the judicial assignment in this case violated the defendant’s right.

The history of Rule 4-846(c)’s third sentence was set forth in detail in the Court of Special Appeals’ opinion, Peterson v. State, supra, 78 Md.App. at 464-466, 534 A.2d at 1355-1356, and we shall not repeat that history here. The history shows, however, that the “whenever practicable” language ultimately adopted was purposely more flexible than several proposed alternates.⁸ The “whenever practicable” language was specifically intended to foster the policy of assigning the original judge to the probation revocation hearing, while at the same time allowing flexibility in the assignment of judges. It is entirely in accord with the settled principle that judicial assignment rules do not grant enforceable rights to litigants.

Finally, our determination that the third sentence of Rule 4-346(c) does not confer enforceable rights upon individual litigants, neither minimizes the important policy underlying the provision nor results in an absence of sanctions when that policy is ignored. There are several statutes and rules of judicial procedure which, if violated, do not carry sanctions operating as a benefit or detriment to particular litigants. The appropriate sanctions for violating these rules are normally ones of internal judicial administration. See, e.g., In re Keith W., 310 Md. 99, 107-109, 527 A.2d 35, 40 (1987); State v. One 1980 Harley Davidson, 303 Md. 154, 160-162, 492 A.2d 896, 899 (1985); Farinholt v. State, 299 Md. 32, 40-41, 472 A.2d 452, 456 (1984); In re Dewayne H., 290 Md. 401, 405-407, 430 A.2d 76, 79-80 (1981); State v. Hicks, 285 Md. 310, 335, 403 A.2d 356, 369 (1979). If, in a particular locality, the policy of Rule 4-346(c) is ignored, we are confident that the situation will be remedied by appropriate administrative action.

JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE APRIL 6, 1987, JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE EVENLY DIVIDED.

ADKINS, J., concurs and files an opinion in which COLE and McAULIFFE, JJ., join.

1 . Rule 4-346(c) in its entirety provides as follows (emphasis added):

“(c) Hearing on Violation of Conditions. — On motion of the State’s Attorney or by its own order, the court may hold a hearing to determine whether any condition of probation has been violated. The motion or order shall state each violation of conditions charged and shall be served on the defendant in sufficient time before the hearing to permit a reasonable opportunity to rebut the charges. The hearing shall be held before the sentencing judge, whenever practicable. The provisions of Rule 4-242 do not apply to an admission of violation of conditions of probation.”

2 . The Court of Special Appeals also held that the third sentence of "Rule 4-346(c) severely limits the authority granted by Art. 27, § 642,” 73 Md.App. at 467, 534 A.2d at 1357. Section 642 of Art. 27, first enacted by Ch. 398 of the Acts of 1927, relates generally to decisions not to impose sentences, the suspension of sentences, probation, and violations of probation. Among other things, the statute does authorize the "judge who is then presiding in that particular court” to hear an alleged violation of probation. In light of the conditions existing when the statute was passed, and the wording of the statute, we doubt that the principal focus of § 642 concerns which of several possible judges should be assigned to hear a probation revocation charge. In any event, our construction of Rule 4-346(c) in Part III of this opinion removes any possibility of a conflict between § 642 and Rule 4-346(c).

3 . Whether it was proper for the circuit court to have proceeded after we issued a writ of certiorari, as opposed to whether it had the power to do so, is not before us. We think that a trial court ordinarily should not proceed with a hearing in the circumstances here, thereby mooting an issue before an appellate court. We have no doubt that, had Judge Brown been informed of the procedural posture of the case, or had there been an objection based on that posture, he would not have held the hearing.

4 . In Fiscal 1986, the Division of Parole and Probation received 39,823 probationers from the circuit courts and the District Court. Maryland Division of Parole and Probation Annual Report Fiscal Years 1985 and 1986, at 69.

5 . In Fiscal 1988 there were 5,605 probation revocation hearings in the circuit courts. Letter from Robert Givson, Administrator of the Maryland Office of Research and Statistics, to Peter Lally, Assistant State Court Administrator (Nov. 15, 1988).

6 . The particular circumstances of the case, of course, must be viewed in light of the policy embodied in Rule 4-346(c) favoring the original sentencing judge as the presiding judge at the probation revocation hearing. This policy is particularly strong, although not absolute, when the original sentencing judge notes on the record that he or she wishes to preside at any revocation hearing. Such action underscores the sentencing judge’s particular concern for the defendant and the effectiveness of the probation.

7 . We have previously discussed in detail the complex and intricate nature of judicial assignment, and case scheduling systems. See State v. Frazier, 298 Md. 422, 470 A.2d 1269 (1984).

Presumably, under the Court of Special Appeals opinion in this case, a determination by the presiding judge at a probation revocation hearing, that it is "practicable” for the original sentencing judge to conduct the hearing, overrides assignment orders by the circuit or county administrative judges pursuant to Rule 1202, overrides assignment orders by the Chief Judge and administrative judges of the District Court pursuant to Code (1974, 1984 Repl.Vol.), §§ 1-605 and 1-607 of the Courts and Judicial Proceedings Article, and overrides assignment orders of the Chief Judge of the Court of Appeals pursuant to Art. IV, § 18(b), of the Maryland Constitution.

8 . The Rules Committee of the Court of Appeals rejected the originally proposed rule, which simply stated: "The hearing should be held by the sentencing judge.” Peterson v. State, supra, 73 Md.App. at 464, 534 A.2d at 1355. The Committee also rejected proposed language saying that the sentencing judge should preside unless he "has been removed from office, has died or resigned, or is otherwise incapacitated ... that "the [revocation] hearing should be held by the sentencing judge providing he is not disabled or deceased”; and that the trial judge should preside "unless there are compelling reasons in a specific case to provide otherwise.” Peterson v. State, supra, 73 Md.App. at 465-466, 534 A.2d at 1356.