Davis v. State

• Decision Date: 18 February 1975
• Docket Number: No. 458,458
• Citation: 332 A.2d 733,24 Md.App. 567
• Parties: Gilbert Glenford DAVIS a/k/a Jimmie Johnson a/k/a James Johnson v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 567

24 Md.App. 567

332 A.2d 733

Gilbert Glenford DAVIS a/k/a Jimmie Johnson a/k/a James Johnson v. STATE of Maryland.

No. 458.

Court of Special Appeals of Maryland.

Feb. 18, 1975.

Certiorari Denied May 23, 1975.

Geraldine K. Sweeney, Asst. Public Defender, Baltimore, with whom were Alan H. Murrell, Public Defender, and Frank Sacks, Asst. Public Defender, Baltimore, on the brief, for appellant.

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

Argued Before THOMPSON, MOYLAN, DAVIDSON and MASON, JJ.

THOMPSON, Judge.

The Grand Jury of Baltimore City indicted the appellant for escape under the names of Gilbert Glenford Davis, a/k/a Jimmie Johnson, a/k/a James Johnson. After a jury trial in the Criminal Court of Baltimore which began on January 15, 1974, appellant was convicted and sentenced to a term of three years consecutive to the sentence he was then serving. He contends on appeal that the trial judge erred in failing to dismiss the indictment with prejudice under the provisions of Md. Code, Art. 27, § 616S, which require trial within 120 days of a prisoner's request in an intrastate detainer situation.

The record shows that on August 9, 1973, the Clerk's Office of the Criminal Court of Baltimore and the State's Attorney's Office for Baltimore City received by certified mail (1) 'Notice of Untried Indictments, Informations or Complaints and of Right to Request Disposition'; (2) 'Inmate's Notice of Imprisonment and Request for Disposition of Indictments, Informations or Complaints'; and (3) A 'Certificate of Inmate Status' as required by the provisions of Md.Code, Art. 27, § 616S(a). All of these papers were on appropriate forms used by the House of Correction and requested that the appellant's indictment for escape be finally disposed of. As shown above, the trial on the escape indictment did not begin within 120 day § after the notices were received by the appropriate court and State's Attorney. We will therefore reverse the judgment of conviction and direct the indictment be dismissed with prejudice in accordance with § 616S(c).

The Court of Appeals in the recent case of State v. Barnes, Md., 328 A.2d 737 (1974) took the occasion to review the statute involved herein in detail and succinctly pointed out its purposes at 743-744:

'It has long been recognized that detainers for untried charges-whether interstate or intrastate in nature-may result in 'undue and oppressive incarceration.' Undue delay in the disposition of such detainers has been recognized as mnimizing the possibility that a defendant incarcerated might receive a sentence at least partially concurrent with the term he is serving and that under the procedures widely practiced, the duration of his imprisonment may be increased and the conditions under which his confinement must be served greatly worsened because of the pendency of an additional charge against him and the potentiality of additional punishment. Similarly, it has been recognized that a long delay in the trial of the detainer charge may impair the ability of the accused to defend himself since he is often in a prison far removed from the place where the added offense allegedly took place, resulting in an impairment of his ability to keep apprised of the whereabouts of witnesses, and isolates him from the ready availability of the assistance of his counsel. It has even been stated that the pendency of such a detainer constitutes a serious impediment to the prisoner's ability to take maximum advantage of the institutional opportunities for rehabilitation. See Smith v. Hooey, 393 U.S. 374, 378-380, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). See also Note, 77 Yale L.J. 767, 769-771 (1968); Note, 18 Rutgers L.Rev. 828, 833-834 (1964). In some jurisdictions the pendency of such a detainer precludes the prisoner from eligibility for parole consideration; in others it excludes him from placement on work-release programs, and it has been known, because of the potentiality of escape, to cause the prisoner to be confined under more strict and harsh security measures than might otherwise be applicable to his case, except for the detainer on file.

'In an effort to ameliorate such conditions, which were found to 'produce uncertainties which obstruct programs of prisoner treatment and rehabilitation' and in order 'to encourage the expeditious and orderly disposition of such charges,' the General Assembly, by Ch. 627 of the Acts of 1965, enacted the Interstate Agreement on Detainer Act (codified as Art. 27, §§ 616A-616R) and complementary thereto, at the same session by Ch. 628, enacted our own version of an Intrastate Detainer Act (codified as Art. 27, § 616S).' (Footnotes omitted).

In that case, the Court determined that the Intrastate Detainer Act should be liberally construed to accomplish its purposes and affirmed the holding of this Court to that effect in Barnes v. State, 20 Md.App. 262, 315 A.2d 117 (1974).

In light of the Court of Appeals' decision in Barnes, it is our holding in the instant case that as soon as the appropriate court and State's Attorney's Office have received notices of the prisoner's request for disposition in proper form, the 120 day period within which the case must be tried begins to run and the indictment must be dismissed with prejudice when the trial is not begun within the 120 days except where the record shows that a necessary or reasonable continuance has been granted by the court in compliance with § 616S(a) of the statute.

The State has advanced four arguments in support of its contention that the statutory remedy of § 616S(c) should not be invoked.

The first contention is that the case was properly continued under the statute on two occasions in September and November of 1973 and therefore under the provisions of Art. 27, § 616S dismissal was inappropriate. The statute provides as follows:

'(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 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 wrden or superintendent having costody, 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.

'(b) Duty to inform prisoner.-The warden, superintendent or county or city law enforcement officer having custody of the prisoner shall inform the prisoner within 15 days in writing of the source and contents of any untried indictment, information, or complaint against said prisoner concerning which the warden, superintendent or county or city law enforcement officer has knowledge, and of the prisoner's right to make a request for final disposition thereof.

'(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.'

It is the State's argument that the trial judge correctly found that the case was properly continued on each of the above occasions because the State showed that a courtroom was not available and because there was confusion in the State's Attorney's Office because of the appellant's use of two names, i. e., Gilbert Davis and James or Jimmie Johnson. The finding that the courtroom was unavailable was based upon the unsworn testimony of the Assistant State's Attorney in argument on the appellant's motion. While we do not at this time pass upon the unavailability of a courtroom as a proper reason to continue a case, it is apparent that the bare statement of a State's Attorney in argument on a motion to dismiss is not adequate to show that such a situation did in fact exist. Dennett v. State, 19 Md.App. 376, 383-384, 311 A.2d 437 (1973), cert. denied, 3/18/74, Md. The record indicated neither appellant nor his attorney was present when the continuances were granted as required by the statute. Thus the continuances, for this reason alone, cannot be invoked to avoid the application of the statute.

The confusion in names requires some explanation. The trial record shows that the appellant had been indicted under the name of Jimmie Johnson for a narcotics violation and that he had escaped from the Baltimore City Jail while waiting trial on that charge. When apprehended, he produced a driver's license and registration card bearing the name of Gilbert Davis. The police officer to whom he presented the documents was not deceived. The officer said he knew the...