Barnes v. State

• Decision Date: 19 February 1974
• Docket Number: No. 453,453
• Citation: 315 A.2d 117,20 Md.App. 262
• Parties: Roland Douglas BARNES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 262

20 Md.App. 262

315 A.2d 117

Roland Douglas BARNES v. STATE of Maryland.

No. 453.

Court of Special Appeals of Maryland.

Feb. 19, 1974.

DeHaven L. Smith, Baltimore, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City and Peter Ward, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and MORTON and THOMPSON, JJ.

THOMPSON, Judge.

It appears that officials in the trial courts and in the State's Attorneys' offices are not paying adequate attention to the provisions of Md.Code, Art. 27, §§ 616A-616S. These sections were enacted by the Maryland Legislature in 1965. In 1972, the Court of Appeals of Maryland held that the statutes, at least insofar as they affected out of state prisoners, were self-executing; consequently, when the statutes are properly invoked, pending indictments against prisoners who are subject to detainers must be dismissed unless the case is tried within 180 days, absent a continuance in open court for good cause shown. Hoss v. State, 266 Md. 136, 292 A.2d 48 (1972). The instant case involves a prisoner confined within this State, but the statutory provisions pertaining to intrastate prisoners are so similar to the provisions pertaining to prisoners held out of state that Hoss circumscribes our course of action. Therefore, the instant murder indictment must be dismissed with prejudice.

Pertinent provisions of § 616S are:

'(a) Request by prisoner; statement from warden having custody.-Whenever the Department of Correction receives a detainer against any prisoner serving a sentence in any correctional institution under the jurisdiction of the Department or whenever any county or city jail receives a detainer against any prisoner serving a sentence in the county or city jail any such prisoner shall be brought to trial within 120 days ¹ after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State's attorney of the City of Baltimore or of the county in which the indictment, information, or complaint is pending and to the appropriate court; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be filed within 30 days of the prisoner's notification of any untried indictment, information, or complaint and shall be accompanied by a statement from the warden or superintendent having custody, setting forth the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.

'(c) Dismissal when action not commenced.-If action is not commenced on the matter for which request for disposition was made, within the time limitation set forth in subsection (a) above, the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in such case the court shall enter an order dismissing the untried indictment with prejudice.'

The record evinces the following chronological exposition of pertinent facts. On May 26, 1972, intrastate detainer was lodged with the Department of Correctional Services and recited that appellant had been indicted for murder by the Grand Jury of Baltimore City. Appellant was notified of the detainer on May 30, 1972. On June 9, 1972, a letter, with enclosures attached, ² was sent by Certified Mail to Milton B Allen, the State's Attorney for Baltimore City, according to the testimony of the classification counselor at the House of Correction. On the bottom of the letter to the State's Attorney was a notation that a carbon copy was on that same day being sent to the Clerk of the Criminal Court, Courthouse, Baltimore, Maryland. This copy, however, was sent by First Class Mail, in accordance with the policy of the Warden's office at that time. Other than the notation on the letter to the State's Attorney, there was no record of when the copy was mailed to the Clerk of the Court. Under subpoena, the Clerk of the Court searched his files and found, misfiled under 'S', the copy of the letter with enclosures which was mailed to the State's Attorney. There was no stamp or other evidence as to when the clerk's office received its copy.

The letter to the State's Attorney was stamped as having been received at 11:05 a. m. on June 12, 1972. The State's Attorney, in accordance with established procedure, sent the letter with enclosures to the Supreme Bench Criminal Assignment Office, which received the papers at 2:57 p. m. on June 19, 1972.

The case lay dormant for more than 120 days until on November 6, 1972-the 139th day-when the Public Defender's Office appointed an attorney for appellant moved December 14, 1972, the appellant moved for discovery. Counsel agreed, on December 19, 1972, to schedule appellant's trial on February 21, 1973. The State answered appellant's discovery motion on December 20, 1972. Trial commenced on February 21, 1973, and resulted in a verdict of guilty of murder in the first degree.

The appellant timely moved that the murder indictment against him be dismissed under Md.Code, Art. 27, § 616S(c) because 'action' ³ was not commenced within 120 days after the request of the defendant for final disposition of the murder indictment. Having found that the Clerk of the Criminal Court of Baltimore did not receive its copy of the prisoner's request by Certified Mail and absent proof of the exact date that the papers were actually received by the Clerk of the Court, the trial judge ruled that the Act was not strictly complied with. Relying on King v. State, 5 Md.App. 652, 249 A.2d 468 (1969), he denied the motion to dismiss the indictment. In King v. State, supra, we did not direct our attention to the Certified Mail portion of the statute. The language of the opinion indicates quite clearly, however, that if it were shown that proper papers were delivered to the office of the State's Attorney and to the appropriate court, such delivery would effect sufficient compliance with the statute:

'As we construe Md.Code, Art. 27, § 616S, applicable at the time of the appellant's trial, it provides:

1) a warden having knowledge of an indictment pending in this State against a prisoner in his custody, such knowledge having been obtained by notice to the warden of a detainer received by the Department of Correction, shall inform the prisoner in writing, within 15 days of the obtaining of such knowledge, of the source and contents of the indictment and of the prisoner's right to make a request for final disposition of it.

2) the prisoner may, within 30 days of the receipt of such information, make a request, in writing, for final disposition of the indictment and deliver it to the warden.

3) upon receipt of such request the warden shall prepare a statement as to the matters specified in subsection (a) and deliver a copy of the request and...