Loveday v. State, 34

Decision Date28 June 1983
Docket NumberNo. 34,34
Citation462 A.2d 58,296 Md. 226
PartiesHarry LOVEDAY, Jr. v. STATE of Maryland.
CourtMaryland Court of Appeals

Martha Weisheit, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

William C. Rogers, III, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

COLE, Judge.

In this case Harry Loveday, Jr. challenges the ruling of the Court of Special Appeals that its decision in his first appeal to that body, and from which he did not petition for certiorari to us, became the law of the case on his second appeal and hence now operates as a complete bar to our review. He also challenges the propriety of the mandatory sentence imposed following the collapse of plea negotiations as violative of due process guaranteed by the Fourteenth Amendment and Art. 24 of the Maryland Declaration of Rights. We shall summarize the facts necessary to place these issues in proper focus.

Loveday was indicted for robbery and related offenses. Prior to trial defense counsel negotiated with the prosecutor for a plea agreement whereby Loveday would plead guilty to robbery and the State would make no recommendation as to sentence. Defense counsel related the agreement to Loveday and further advised that the probable sentence would be 10 years. Loveday rejected the plea agreement and elected a jury trial. A jury found him guilty of robbery. Prior to sentencing, the State filed a motion in the trial court, with notice to Loveday, pursuant to Maryland Code (1957, 1982 Repl.Vol., 1982 Supp.), Art. 27, § 643B(c) and (d) that it was seeking a mandatory sentence of 25 years.

The trial court declined to grant the motion and instead sentenced Loveday to 10 years. The trial court reasoned that it was fundamentally unfair for the State to offer Loveday a substantially lesser sentence in return for his plea and then upon his refusal, to invoke the mandatory penalty statute.

The State appealed and the Court of Special Appeals vacated the sentence, State v. Loveday, 48 Md.App. 478, 427 A.2d 1087 (1981), and held that the provisions of Art. 27, § 643B(c) were mandatory and that the Due Process Clause of the Fourteenth Amendment was not violated because the State failed to give Loveday notice prior to trial of its intent to seek a mandatory sentence. The intermediate appellate court remanded the case for further proceedings consistent with its opinion. Loveday did not petition this Court for certiorari.

At the resentencing hearing it was stipulated between the parties that Loveday had been previously convicted and incarcerated on two separate occasions of robbery. The State again requested the trial court to impose the mandatory 25 year sentence, which it reluctantly did.

Loveday again appealed to the Court of Special Appeals asserting this time that the imposition of the mandatory sentence under the facts of his case was a violation of due process under the Maryland Constitution. The intermediate appellate court, in affirming the lower court, concluded, in an unreported per curiam opinion, Loveday v. State, No. 759, September Term, 1981, filed February 17, 1982, that Loveday's argument "was essentially the same argument previously raised in State v. Loveday...," and that "Appellant's attempt to circumvent the 'law of the case' as it was declared in State v. Loveday, by relying on the due process provisions of Article 24 of the Maryland Declaration of Rights, rather than the due process clause of the Fourteenth Amendment" was without merit. This time Loveday requested our review and we granted his petition for certiorari.

We shall first address the issue of whether the law of the case as determined by the Court of Special Appeals is binding upon this Court. We note initially that prior to the creation of the intermediate appellate court, this Court had established a firm judicial policy against the piecemeal trial of cases. We refused to allow successive appeals in a case that posited the same questions that had been previously decided by this Court in a prior appeal of the same case. We forbade the parties, on any subsequent appeal of the same case, to raise any question that could have been raised in the previous appeal on the record as it existed in the trial court. We stated our position and the reasons therefore rather cogently in Fid-Balto. Bank v. John Hancock, 217 Md. 367, 372, 142 A.2d 796 (1957):

Once this Court has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling becomes the 'law of the case' and is binding on the litigants and courts alike, unless changed or modified after reargument, and neither the questions decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal. Moodhe v. Schenker, [176 Md. 259, 4 A.2d 453]; Smith v. Shaffer, 50 Md. 132; Pasarew Constr. Co. v. Tower Apts., 208 Md. 396, 402 ; Plank v. Summers, 205 Md. 598, 602 ; Carter v. City of Baltimore, 197 Md. 507, 513 ; Cohill v. Canal Co., 177 Md. 412, 421 ; Baltimore v. Linthicum, 170 Md. 245, 249 ; Chayt v. Board of Zoning Appeals, 178 Md. 400, 403, 404 .

See Condry v. Laurie, 186 Md. 194, 46 A.2d 196 (1945); Marx v. Ensor, 146 Md. 603, 127 A. 480 (1924); Diggs v. Smith, 130 Md. 101, 99 A. 952 (1917); McLaughlin v. Barnum, 31 Md. 425 (1869); Preston v. Leighton, 6 Md. 88 (1854). However, the establishment of the Court of Special Appeals as an additional step in the appellate procedure of this State presents a novel issue as to the application of the law of the case doctrine. We must determine whether a judgment of the Court of Special Appeals on an earlier appeal in the same case constitutes the law of the case on review by this Court of a second judgment in the same case where the first judgment was not appealed.

While novel to us, the issue has been decided by our sister states and the U.S. Supreme Court. Some states have held that the prior decision of the intermediate court becomes the law of the case and binds the court of last resort. See R.O.A. Motors Inc. v. Taylor, 220 Ga. 122, 137 S.E.2d 459 (1964); South Bend Home Tel. Co. v. Beaning, 181 Ind. 586, 105 N.E. 52 (1914); Clore v. Davis, 19 Ky.L.Rptr. 353, 40 S.W. 380 (1897); Huntington v. Westerfield, 119 La. 615, 44 So. 317 (1907); Chandler v. Lafferty, 282 Pa. 550, 128 A. 507 (1925); Life & Casualty Ins. Co. v. Jett, 175 Tenn. 295, 133 S.W.2d 997 (1939).

Other states have concluded that a judgment of an intermediate appellate court is not binding on the highest court. See City of Pueblo v. Shutt Inv. Co., 28 Colo. 524, 67 P. 162 (1901); Relph v. Bd. of Ed. of DePue, etc., 84 Ill.2d 436, 50 Ill.Dec. 830, 420 N.E.2d 147 (1981); Weiner v. Pictorial Paper Package Corp., 303 Mass. 123, 20 N.E.2d 458 (1939); Jones v. Keetch, 388 Mich. 164, 200 N.W.2d 227 (1972); Orleans Dredging Co. v. Frazie, 179 Miss. 188, 173 So. 431 (1937); Spartan Leasing, Incorporated v. Brown, 285 N.C. 689, 208 S.E.2d 649 (1974); New Amsterdam Casualty Company v. Popovich, 18 N.J. 218, 113 A.2d 666 (1955); Walker v. Gerli, 257 A.D. 249, 12 N.Y.S.2d 942 (1939); Roach v. Los Angeles & S.L.R. Co., 74 Utah 527, 280 P. 1053 (1929).

The New York case of Walker stresses that the principle of the law of the case is not a hard-and-fast rule:

The law of the case, like the principle of stare decisis, is a rule of comity or convenience. Since from its very nature, it involves the effect of orders which are interlocutory, it must be distinguished from res adjudicata. Accordingly, its effect is limited to a court of co-ordinate jurisdiction which ordinarily should not disregard an earlier decision on the same question in the same case.... The rule does not apply in a court which is required to review the later order on appeal and which, therefore, ought not to be concluded by an earlier decision, interlocutory in character, made by a court of subordinate jurisdiction from which no appeal was taken. [Id. at 944 (citations omitted).]

The United States Supreme Court has been steadfast in ruling that prior decisions of intermediate appellate courts cannot bind it upon a subsequent appeal. In Panama Railroad v. Napier Shipping Co., 166 U.S. 280, 17 S.Ct. 572, 41 L.Ed. 1004 (1897), a libel was filed to recover damages sustained by the libellant through injuries received by its steamer. The District Court for the Southern District of New York dismissed the libel whereupon an appeal was taken to the Circuit Court of Appeals for the Second Circuit which reversed the judgment and remanded for assessment of damages. The Supreme Court rejected the assertion that it was limited solely to the question of damages because the writ of certiorari was issued after the decree of the trial court had been reversed and remanded and a second appeal had been taken to the Circuit Court of Appeals. The Court stated:

If, under such circumstances, this court were powerless to examine the whole case upon certiorari, we should then be compelled to issue it before final decree, whereas as was recently said ... it is and generally should be issued only after a final decree.... [W]hile the Court of Appeals may have been limited on the second appeal to questions arising upon the amount of damages, no such limitation applies to this court, when, in the exercise of its supervisory jurisdiction it issues a writ of certiorari to bring up the whole record. Upon such writ the entire case is before us for examination. [Id. at 284, 17 S.Ct. at 574 (citations omitted).]

In Hamilton-Brown Shoe Co., v. Wolf Brothers Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916), an Ohio corporation brought suit in the Circuit Court of the United States for The Eastern...

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