Appeal No. 507(76) from Circuit Court for Prince George's County, In re

• Decision Date: 05 January 1977
• Docket Number: No. 507,507
• Citation: 34 Md.App. 440,367 A.2d 553
• Parties: In re APPEAL NO. 507(76) FROM the CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, sitting as a Juvenile Court.
• Court: Court of Special Appeals of Maryland

Page 440

34 Md.App. 440

367 A.2d 553

In re APPEAL NO. 507(76) FROM the CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, sitting as a Juvenile Court.

No. 507.

Court of Special Appeals of Maryland.

Jan. 5, 1977.

Harry B. Allen, Oxon Hill, with whom were Allen & Marzetti, Oxon Hill, on the brief, for appellant.

Bruce C. Spizler, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Albert Gallatin Warfield, III, Asst. Atty. Gen., on the brief, for appellee.

Argued before THOMPSON, LOWE and MELVIN, JJ.

LOWE, Judge.

We dismiss sua sponte an attempt to appeal the Circuit Court for Prince George's County's refusal to waive its jurisdiction to try a 16 year old defendant for armed robbery and related offenses. We hold that the waiver denial was not a 'final judgment', ¹ which is prerequisite to the exercise of the statutory right of appeal. ² Md.Code, Cts. Art., § 12-301; Eastgate Associates v. Apper, 276 Md. 698, 701, 350 A.2d 661.

Appellant was indicted jointly with 3 codefendants for:

1. robbery with a deadly weapon,

2. attempted robbery with a deadly weapon,

3. robbery,

4. attempted robbery,

5. assault with intent to rob,

6. assault and battery,

7. larceny,

8. receiving stolen goods,

9. carrying a handgun; and,

10. use of a handgun in the perpetration of a designated felony.

Although appellant was 16 years of age at the time of the alleged offenses, the juvenile court did not have exclusive original jurisdiction over him because of the nature of the crime. Md.Code, Cts. Art., § 3-804(d)(4) specifies that the juvenile court has no jurisdiction over a child 16 years old or older who is alleged to have committed the crime of robbery with a deadly weapon. The problem before us stems from a petition by appellant seeking the advantage of an exception to that statute which permits the removal of the proceedings to the juvenile court, pursuant to Md.Code, Art. 27, § 594A. This latter section authorizes 'the court exercising jurisdiction' by virtue of the § 3-808 ³ exclusion to transfer the case to the juvenile court 'if waiver is believed to be in the interests of the child or society.' Appellant petitioned the Circuit Court for Prince George's County to waive its jurisdiction and so transfer appellant's case. An immediate appeal was filed, before trial, when Judge Robert B. Mathias denied the petition. ⁴

Appellant's appeal first questions the circuit court's 'jurisdiction' by charging that the trial judge abused his discretion when he denied the petition to transfer appellant to juvenile jurisdiction. If the issue is whether the appellant's unsuccessful challenge under the statutory procedure to the circuit court's 'jurisdiction' is immediately reviewable on appeal, Eisel v. Howell, 220 Md. 584, 586, 155 A.2d 509, is dispositive. The Court of Appeals there held that the failure of jurisdictional attacks are not immediately appealable because:

'The denial of a challenge to the jurisdiction does not settle or conclude the rights of any party or deny him the means of proceeding further. It settles nothing finally. An order which does none of these things is not appealable.' Id. at 586, 155 A.2d at 510.

See also Raimondi v. State, 8 Md.App. 468, 216 A.2d 40.

Although a decision as to jurisdiction is immediately appealable where a court waives its jurisdiction, because nothing further could happen in that court, see Md.Code, Cts. Art., § 3-817(f) ⁵; Matter oF trader, 20 mD.app. 1, 7, 315 A.2d 528, rev'd on other grounds, 272 md. 364, 402, 325 A.2d 398; an order refusing to waive jurisdiction maintains the status quo, permitting the case to proceed. In the latter case, the accused's rights are not concluded and he is not denied the means of further defending his case. See Hazlehurst v. Morris, 28 Md. 67, 71-72; see also Waters v. Smith, 277 Md. 189, 195, 352 A.2d 793.

Because of the bastard nature of a juvenile proceeding, wherein the circuit court has 'jurisdiction' but sits as a juvenile court (except in Montgomery County) the issue before us might be characterized as an attack upon the judge's discretion in selecting one of two available forums rather than as a jurisdictional issue. ⁶ That view would avail appellant nothing. Lee v. State, 161 Md. 430, 157 A. 723, points the direction we are compelled to follow even then. Lee held that the selection of the forum to which a capital case had been removed was within the lower court's discretion, and was not a final order immediately reviewable on appeal. The Lee Court recognized that the refusal of certain constitutional rights would have amounted to an appealable final judgment on that constitutional issue: ⁷

'But only decisions on claims of such absolute constitutional rights have been held reviewable at once, and there has been a decision on the precise point that orders within the discretion of the lower courts are, on the contrary, not final orders within the meaning of the rules governing the jurisdiction of this court, and are therefore not immediately reviewable, if reviewable at all. Tidewater Portland Cement Co. v. State, 122 Md. 96, 89 A. 327. And see City of Annapolis v. Howard, 80 Md. 244, 30 A. 910.' Id. at 433, 157 A. at 724.

The Court pointed out the impractical, if not prohibitive, consequences of piecemeal appeals:

'If, on a question left to the court's discretion, upon a suggestion for removal, a prisoner is permitted to take an immediate appeal, then proceedings in every criminal case, great or small, may be stopped and delayed while the accused prosecutes an appeal on this preliminary matter of venue. And this would add just so much to the resources of those who might find vexatious delays advantageous, and would multiply appeals in criminal cases, often when acquittals, in the end, would render them profitless.' Id. at 434, 157 A. at 724.

However viewed, there is no finality of proceedings in the instant case. The order denying waiver does not comply with the statutory prerequisite for appeal in Md.Code, Cts. Art., § 12-301:

'Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended.' (emphasis added).

Nor is there any pertinent exception in Md.Code, Cts. Art., § 12-303, permitting certain interlocutory orders to be appealed immediately; and, with exceptions such as those noted in State Department of Assessments and Taxation v. Clark, Md.App., 367 A.2d 69 (filed December 7, 1976), there is no right to appeal other than that granted by statute.

We have no jurisdiction to entertain the merits of this appeal. ⁸ The order appealed from was not a final order and does not fall within the category of interlocutory orders from which an appeal may be maintained. See Blocher v. Harlow, 268 Md. 571, 578, 303 A.2d 395.

APPELLANT'S MOTIONS NE RECIPIATUR AND TO STRIKE, DENIED.

APPEAL DISMISSED.

COSTS TO BE PAID BY APPELLANT.

1 Md.Code, Cts. Art., § 12-101(f) provides: "Final judgment' means a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans' court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.'

2 There are exceptions for circumstances where appeals are permitted from interlocutory judgments, but they are not here relevant.

3 Title 3, Subtitle 8, of Md.Code, Cts. Art. was repealed and reenacted as amended by Ch. 554, Laws of 1975, effective July 1, 1975. The provisions of Cts. Art., § 3-808 are now found in § 3-804.

4 Contending that the order denying the petition is interlocutory and therefore not appealable, the State...