Curley v. State

CourtCourt of Appeals of Maryland
Citation474 A.2d 502,299 Md. 449
Docket NumberNo. 35,35
PartiesEmerson P. CURLEY, Jr. v. STATE of Maryland. (Adv.) Sept. Term 1983.
Decision Date03 May 1984

Page 449

299 Md. 449
474 A.2d 502
Emerson P. CURLEY, Jr.
STATE of Maryland.
No. 35 (Adv.) Sept. Term 1983.
Court of Appeals of Maryland.
May 3, 1984.

[474 A.2d 503]

Page 451

Domenic P. Iamele, Baltimore (Levy & Iamele, Baltimore, on brief), for appellant.

Carmina Szunyog, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Warren B. Duckett, State's Atty. for Anne Arundel County and Scott Patterson, Asst. State's Atty., Annapolis, on brief), for appellee.



Under Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 591, implemented by Maryland Rule 746, the trial in a circuit court criminal prosecution must commence within 180 days of arraignment or the initial appearance of defense counsel, whichever occurs earlier, unless the time is extended beyond 180 days upon a showing of good cause and by order of the county administrative judge. 1 See generally Farinholt v. State, 299 Md. 32, 472

Page 452

A.2d 452 (1984); Calhoun v. State, 299 Md. 1, 472 A.2d 436 (1984); State v. Frazier, 298 Md. 422, 470 A.2d 1269 (1984), and cases there discussed. The question presented by the instant case concerns the application of § 591 and Rule 746 where the prosecuting attorney files a nol pros prior to the expiration of the 180-day period and thereafter causes the same charge or charges to be refiled against the defendant.


Emerson Paul Curley, Jr., was charged by information with automobile manslaughter, homicide by motor vehicle while intoxicated, reckless driving, and other related offenses, all arising out of an accident in Anne Arundel County on July 19, 1980. On September 22, 1980, counsel for Curley entered his appearance in the Circuit Court for Anne Arundel County. Consequently, the 180-day time period for trial, under § 591 and Rule 746, expired on March 23, 1981. 2

Trial was initially scheduled for November 20, 1980. By letter of November 12, 1980, Curley's counsel requested a postponement of the November 20th trial date because of a scheduling conflict and requested that someone from the circuit court clerk's office contact him regarding a [474 A.2d 504] new trial date. 3 In accordance with the request, the November 20th

Page 453

trial date was postponed. Nevertheless, a new trial date was never assigned. 4

Next, on March 23, 1981, which was the last day for a trial of the case under § 591 and Rule 746, the prosecuting attorney entered a nol pros with respect to all of the charges against Curley. In a letter to defense counsel dated March 23rd, the prosecuting attorney informed defense counsel of the nol pros, stating that "[t]his disposition was made based on the combined factors of the apparent inadmissibility of the blood alcohol content test as performed in this case and upon the request made of the State by the family of the victim." 5

On June 26, 1981, the State filed a second criminal information charging Curley with the same offenses as had been charged under the prior information. 6 Curley's attorney entered an appearance in this second case on July 8, 1981, and shortly thereafter he filed a motion to dismiss on the grounds (1) that Curley had been denied his constitutional right to a speedy trial and (2) that Art. 27, § 591, and Rule 746 were violated. 7

Page 454

The motion to dismiss was heard on August 28, 1981. The circuit judge stated that the State has an "absolute right" to enter a nol pros and an "absolute right" to file charges a second time. The judge went on to note that, notwithstanding the latter "right," prosecution may be barred because of double jeopardy or, in this case, a delay of time. But, according to the judge, a delay in recharging will only bar prosecution where the State entered a nol pros with the purpose of avoiding the mandate of § 591 and Rule 746. Because no evidence of such purpose was shown, the motion to dismiss was denied.

On October 1, 1981, counsel for Curley filed a second motion to dismiss, again asserting that § 591 and Rule 746 were violated. After a hearing, the circuit court filed on October 30, 1981, a memorandum opinion and order, again denying the motion. A third motion to dismiss was filed on November 13, 1981, and denied on December 11, 1981.

Trial commenced on December 15, 1981. This was 449 days after the initial appearance of counsel under the first information, 172 days after the filing of the second information, and 160 days after the formal appearance of counsel under the second information. The trial concluded on December 18th, and the jury returned guilty verdicts as to automobile manslaughter, driving while impaired, reckless driving, negligent driving, driving at a speed greater than reasonable and failing to drive in a single lane. The jury acquitted Curley of homicide by motor vehicle while intoxicated and driving while intoxicated. The trial court imposed a three year sentence on [474 A.2d 505] Curley for the automobile manslaughter conviction, with all but three months of weekends at the County Detention Center suspended, and a $1,000 fine. On the count of driving while impaired, the court imposed a two month suspended sentence, to run concurrently with the first sentence, and a $100 fine. On the remaining three counts the court imposed $100 fines.

Curley appealed to the Court of Special Appeals. Pursuant to Maryland Rule 1015, the Court of Special Appeals

Page 455

certified the case to this Court on May 4, 1983. We accepted the certification application and issued a writ of certiorari bringing the entire matter here. See Rule 815.


The broad issue presented in this case is not addressed by either the language of § 591 and Rule 746 or by any prior opinions of this Court. An examination of cases in other jurisdictions which have considered the interaction of a nol pros, or its functional equivalent, with a statute or rule setting a time limit for the trial of criminal cases, reveals no uniformity in approach. 8 This may sometimes be due, at least in part, to factors which vary among the states, factors which include the language of the state statute or rule, the supervisory control (or lack thereof) which the court may exert over the entry of a nol pros, whether a dismissal for violation of the state speedy trial state or rule is with prejudice, and the principal purpose of the state statute or rule prescribing a time limit for criminal trials. Despite these variables, however, the approaches taken in other jurisdictions can be divided into three broad, if not always clearly bounded, categories. 9


The first category is comprised of cases in which the running of the statutory period for trial begins on the date of the original charging document (or arraignment or first appearance of counsel), is neither tolled nor ended by the

Page 456

entry of a nol pros, and the same period continues to run when the defendant is re-indicted for the same charge. See, e.g., Wright v. State, 387 So.2d 1060, 1062 (Fla.App.1980); 10 Hurt v. State, 62 Ga.App. 878, 10 S.E.2d 136, 137 (1940); 11 State ex rel. Back v. Starke Circuit Court, 271 Ind. 82, 390 N.E.2d 643, 644 (1979). 12 The holding of the Maryland Court of Special Appeals in State v. Glenn, 53 Md.App. 717, 456 A.2d 1300 (1983) (in which we have rendered a decision today, State v. Glenn, 299 Md. 72, 472 A.2d 472 (1984)), falls into this category. See also People v. Scott, 200 Colo. 365, 615 P.2d 680 (1980). 13

[474 A.2d 506] The rationale for this approach appears to be that the state should not be permitted to avoid the effect of the running of the speedy trial period through the entry of a nolle prosequi. These cases take the view that where the identical charge is refiled, " 'it must be regarded as if there had been no dismissal of the first [complaint] ..., or as if the second ... had been filed on the date of the first.' " State ex rel. Back v. Starke Circuit Court, supra, 390 N.E.2d at 644.

Page 457


The second category consists of jurisdictions which look to the date of the first charge, but toll the running of the statutory time for the period during which no indictment is outstanding. See, e.g., United States v. Dennis, 625 F.2d 782, 793 (8th Cir.1980); United States v. Sebastian, 428 F.Supp. 967, 973 (W.D.N.Y.1977), aff'd, 562 F.2d 211 (2d Cir.1977), aff'd, 578 F.2d 1372 (1978); 14 State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); 15 People v. Sanders, 86 Ill.App.3d 457, 459, 41 Ill.Dec. 453, 407 N.E.2d 951 (1980); State v. Ransom, 233 Kan. 185, 661 P.2d 392 (1983); 16 State v. Stephens, 52 Ohio App.2d 361, 370 N.E.2d 759, 766 (1977); 17 Commonwealth v. Leatherbury, 499 Pa. 450, 453 A.2d 957, 958 (1982); Cole v. State, 650 S.W.2d 818 (Tex.Cr.App.1983). 18

Courts adopting the tolling approach have reasoned that it "would undercut the implementation of the speedy trial statute unless, in computing time under ... [the statute],

Page 458

the defendant's time pending trial under the original indictment is included with time pending trial under the reindictment." State v. Stephens, supra, 52 Ohio App.2d at 371 [370 N.E.2d 759]. It has been said that refusing to include the the time under the earlier indictment "would subvert the policy of the speedy trial statutes by automatically providing prosecutors a new ... period in which to bring an accused to trial, irrespective of the amount of ... delay involved in the prior ... proceedings." State v. Bonarrigo, 62 Ohio St.2d 7, 10, 402 N.E.2d 530 (1980).

On the other hand, the cases taking the tolling approach hold that the period of time between the two indictments should not be counted because, "[w]hen a charge is nolle prossed ..., there is no charge pending against" the defendant, and that "the speedy trial statute runs only when a charge is pending against a defendant," People v. Sanders, supra, 86 Ill.App.3d at 469 [41 Ill.Dec. 453, 407 N.E.2d 951].


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