Davidson v. State
| Decision Date | 04 June 1973 |
| Docket Number | No. 522,522 |
| Citation | 305 A.2d 474,18 Md.App. 61 |
| Parties | Glenn David DAVIDSON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Donaldson C. Cole, Jr., State's Atty., for Cecil County, on the brief, for appellee.
Argued before POWERS, CARTER and GILBERT, JJ.
The appellant, Glenn David Davidson, was convicted by a jury in the Circuit Court for Cecil County of assault and grand larceny and was duly sentenced. He contends (1) the indictment should have been dismissed with prejudice because: (a) the State failed to bring him to trial within 180 days after his request for final disposition was 'caused to be delivered' to the Maryland authorities in accordance with the requirements of the Interstate Agreement on Detainers, 1 (hereafter referred to as IAD), (b) he was denied his constitutional right to a speedy trial; and (2) the evidence was legally insufficient to establish the market value of the stolen goods at $100 or more.
The appellant was indicted by the Grand Jury for Cecil County on December 15, 1970, and arraigned on December 22, 1970. Soon thereafter he escaped from the Cecil County jail and was arrested in Delaware for criminal acts committed in that State. After his arrest the officials of Cecil County placed a detainer against him with the prison authorities in Delaware. While imprisoned awaiting trial, he wrote Judge H. Kenneth Mackey of the Circuit Court for Cecil County on February 16, 1971, requesting a speedy trial of the charges then pending against him in Maryland. Judge Mackey replied on February 18, 1971, and advised him to proceed under the IAD and that he could probably obtain the necessary forms to do so from the authorities at the Delaware institution where he was imprisoned. The State's Attorney for Cecil County was informed by the court of the contents of the correspondence.
After the appellant was tried and sentenced on the Delaware charges, he executed the notice and request that is required by § 616D(a) of the IAD (form II). This form was dated July 13, 1971 2 and addressed to the State's Attorney for Cecil County and to the Circuit Court for that County. The executed form identified the institution in Delaware where the appellant was imprisoned and requested that he be returned to Maryland and promptly tried on the charges here pending against him in accordance with the requirements of § 616D(a). According to the understanding which he had with the Delaware authorities, they were to forward his executed form II, together with other necessary papers, to the Circuit Court and State's Attorney for Cecil County. The Delaware authorities failed to do so. On April 3, 1972, the appellant filed a motion to dismiss the indictment pending against him in Cecil County, claiming that the State of Maryland had failed to bring him to trial within 180 days from the date he executed and 'caused to be delivered' the notice and request on July 13, 1971, as require by § 616F(c) of the IAD. The time elapsing between July 13, 1971 and April 3, 1972 was 264 days.
At the preliminary hearing on the motion the appellant testified that he had received a copy of a certified letter dated July 14, 1971, that appeared to have been sent by the Delaware authorities to the State's Attorney for Cecil County. He claimed the copy he received showed that form II executed by him other papers executed by the Delaware authorities were enclosed with the letter. He did not produce his copy of the letter, however, and the copy that was proffered was not admitted in evidence because of a failure to establish its authenticity. The appellant further testified that he had a receipt signed by the secretary of the State's Attorney for the certified letter allegedly forwarded. No such receipt, however, was produced at the hearing.
The State's Attorney for Cecil County also testified at the hearing and categorically denied ever receiving any forms, notice, or request from the Delware authorities or the appellant concerning disposition of the Maryland charges other than the appellant's letter to Judge Mackey in February 1971. He further denied any knowledge of the receipt by his secretary of a certified letter from the Delaware authorities. At the time of the hearing, the secretary was no longer employed by the State's Attorney and did not testify. A Deputy Clerk of the Circuit Court denied that office had ever received any notice or request from the appellant or the Delaware authorities in regard to the Maryland charges other than the letter to Judge Mackey.
On June 5, 1972, the court denied the motion and on June 29-30, 1972, the appellant was tried on the Maryland charges and convicted.
Maryland adopted the IAD with supplemental provisions by Chapter 627 of the Acts of 1965 (Md.Code, Art. 27, §§ 616A-616R). At the time the appellant was imprisoned in Delaware, that State had also adopted the IAD. See 11 Del.Code, §§ 2540-2550 (1969). Md.Code, Art. 27, §§ 616A-616R provides in pertinent parts:
' § 616D. Request for disposition of untried indictment, etc.
'(a) Notice of imprisonment and request for disposition; time of trial; continuance; certificate of official having custody.-Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for final disposition to be made of the indictment, information or complaint: * * *. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of 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 time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. (emphasis added) '(b) To whom notice and request sent.-The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
' § 616F. Temporary custody for prosecution.
'(c) Dismissal of indictment, etc.-* * * (I)n the event that an action on the indictment, * * * on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III * * * hereof (180 days), the appropriate court of the jurisdiction where the indictment, * * * has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
' § 616Q. Notice not deemed to have been given until actually received.
As to any request by a person imprisoned in another party state for trial in this State, written notice shall not be deemed to have been caused to be delivered to the prosecuting officer and the appropriate court of this State in accordance with § 616D(a), * * * until such notice or notification is actually received by the appropriate court and by the appropriate State's attorney of this State, his deputy, an assistant, or any other person empowered to receive mail on behalf of the State's attorney. * * *' (emphasis added) Section 616Q of Article 27 is peculiar to Maryland and was a supplemental provision to the IAD at the time the IAD was adopted in this State. We think it clear from the language employed in § 616Q that the legislative intent in adopting it was to restrict and clarify the notice provision of § 616D(a). That is, to restrict this provision so that the 180 day period referred to therein should not begin to run until the prisoner's notice and request are actually received by the appropriate prosecuting officer and court in this State. Without such specification, the notice provision is unclear as to whether the 180 day period begins to run (1) when the prisoner delivers his notice and request to the warden of the institution where he is imprisoned in the party state, as required by § 616D(b), or (2) when the warden sends the notice and request to the prosecutor and the trial court in the State issuing the detainer, as also required by § 616D(b), or (3) when the notice and request are actually received by the prosecutor and the appropriate court in the State issuing the detainer. This supplemental section also prevents a prisoner from becoming entitled to a dismissal of charges against him in situations where the prosecutor and the trial court do not have actual notice of his request. A contrary result has been reached by the interpretations placed on the IAD in other jurisdictions that have not adopted supplemental provisions comparable to § 616Q. 3
The appellant's contention that his letter to Judge Mackey requesting a prompt trial constituted sufficient notice to comply with the requirements of § 616D(a) is without merit. At the date of this letter the appellant had not 'entered upon a term of imprisonment in a penal or correctional institution of a party state', which is made a condition precedent to his...
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