Director of Finance of Prince George's County v. Cole

• Decision Date: 02 September 1983
• Docket Number: Nos. 107,108,s. 107
• Citation: 465 A.2d 450,296 Md. 607
• Parties: DIRECTOR OF FINANCE OF PRINCE GEORGE'S COUNTY, Maryland, et al. v. Richard D. COLE et al. DIRECTOR OF FINANCE OF PRINCE GEORGE'S COUNTY, Maryland, et al. v. Leonard Harold GOLDBERG.
• Court: Maryland Court of Appeals

Page 607

296 Md. 607

465 A.2d 450

DIRECTOR OF FINANCE OF PRINCE GEORGE'S COUNTY, Maryland, et al. v. Richard D. COLE et al. DIRECTOR OF FINANCE OF PRINCE GEORGE'S COUNTY, Maryland, et al. v. Leonard Harold GOLDBERG.

Nos. 107, 108.

Court of Appeals of Maryland.

Sept. 2, 1983.

Robert B. Ostrom, County Atty., and Steven M. Gilbert, Associate County Atty., Upper Marlboro (Michael O. Connaughton, Deputy County Atty., Upper Marlboro, on the brief), for appellants

Alan J. Goldstein, College Park (Horowitz, Oneglia, Goldstein, Foran & Parker, P.A., College Park, on the brief), for appellees.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

We consolidated for purposes of this appeal the two cases of Director of Finance of Prince George's County, Maryland, et al. v. Richard D. Cole, et al. and Director of Finance of Prince George's County, Maryland, et al. v. Leonard H. Goldberg. In both cases we are asked to render an interpretation and construction of Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 264. There are certain procedural obstacles precluding the Court from complying with this request in Goldberg. However, in Cole we shall address the issue of whether a trial court, as part of its criminal proceedings, can order the return of money seized pursuant to an arrest for gambling violations covered by Article 27, § 264.

THE GOLDBERG CASE

In the afternoon of December 7, 1979, Leonard H. Goldberg was arrested at a Contee Road address in Laurel, Maryland, while allegedly taking sports bets over the telephone. The arrest was made pursuant to a search and seizure warrant and $501.00 was seized from Goldberg's person at the time of his arrest. At about the same time the search was being conducted on Contee Road, other officers were executing a search and seizure warrant at Goldberg's home where records of gambling and $3,562.00 in cash were seized.

On May 7, 1980, Goldberg was brought to trial in the District Court of Prince George's County. He pleaded guilty to a gambling violation and received a $1,000 fine and probation before judgment under Maryland Code (1957, 1978 Repl.Vol., 1980 Cum.Supp.), Article 27, § 641. Subsequent to that determination, on August 20, 1980, the County Attorney for Prince George's County informed Goldberg, that pursuant to Article 27, § 264(d), he must make application to the county to be reimbursed for the money seized as a result of his arrest. On August 26, Goldberg's attorney wrote to the county requesting the return of the money plus interest. On September 5, 1980, the County Attorney denied the request.

Thereafter, Goldberg filed a motion for the return of his money in the District Court in which his criminal case had been heard. No notice was given to the Prince George's County Attorney nor to the Director of Finance of Prince George's County, William R. Brown, Jr., who was the local official who had custody of the money seized. On October 8, 1980, a hearing was held in the District Court at which neither the Prince George's County Attorney nor Mr. Brown was present. The result of the hearing was a determination that Goldberg was entitled to recover the money seized; therefore, the District Court judge ordered Brown to return to Goldberg the $4,063.00 held by the county. No appeal was taken from this order.

On November 21, 1980, the District Court order, requiring the Director of Finance to return the money seized from Goldberg, was served on Brown, and on January 27, 1981, Goldberg filed a rule to show cause against Brown in the same criminal case. On February 3, 1981, Brown answered the rule to show cause and Brown and the county filed a motion to revise the order of October 8 under M.D.R. 625. However, Prince George's County and the Director of Finance filed no motion to intervene in this case. On April 3, 1981, the District Court heard the criminal case. At this proceeding, Goldberg argued that, because the county was not a party to the criminal case, the county and its Director of Finance had no standing to file the motion to revise. Goldberg also argued that the October 8 order had not been appealed and thus had become final. In addition, the State's Attorney opposed the presence of the County Attorney, saying that the representation by the State at the October 8 proceeding adequately protected the county's interests. The trial judge orally held the Director of Finance, Brown, in contempt of court for failing to pay Goldberg the money seized, although mentioning no sanction or prescribing a means by which Brown could purge himself of the contempt. The trial court further held that Prince George's County had no standing in the case because it was not a party to the criminal cause.

The clerk of the District Court noted on the docket as of April 2, 1981 that "Motion to revise judgment denied and Mr. Brown held in contempt per Judge DiTrani." However, the District Court judge did not sign a formal order of contempt until April 3, 1981.

On April 2, 1981, Prince George's County and Brown appealed from the District Court denial of the motion to revise and Brown appealed from the order holding him in contempt to the Circuit Court for Prince George's County. In September, 1981, the circuit court affirmed the District Court order and directed that the money involved be paid to Goldberg. The Director of Finance of Prince George's County and Prince George's County filed a petition for certiorari which we granted.

That petition presented the following issue:

In a Criminal Gambling Case Where Money Was Seized, Was the Trial Court Authorized To Order the Payment of That Money to the Criminal Defendant, Who Pleaded Guilty and Received Probation Prior to Judgment, Without (a) Notice to the Seizing Jurisdiction, or (b) Trial of the Issue Whether the Money Was Contraband?

However, having closely examined the course this action has taken in the District Court, we now conclude that certain jurisdictional and procedural principles preclude us from addressing this issue.

Two separate appeals were presented in the Goldberg case--one from the contempt order and one from the denial of the motion to revise. However, both of these appeals should have been dismissed by the circuit court.

An appeal from the contempt "order" is improper because the appeal was noted on April 2, 1981--before there was a completed written contempt order. The trial judge's oral ruling and the docket entry evidencing the same do not constitute a contempt order from which an appeal may properly be taken. At that time, the court noted no sanction or purging provision, both essential elements of a valid contempt The only appealable contempt order was signed by the trial judge on April 3, 1981. This order did contain a sanction and proper purging provision. However, the only order of appeal was filed on April 2, 1981. Because the appeal was premature, being filed before the final judgment, the appeal must be dismissed. See Merlands Club v. Messall, 238 Md. 359, 208 A.2d 687 (1965); Md., Del. & Va. Rwy. Co. v. Johnson, 129 Md. 412, 99 A. 600 (1916).

                order.   See Elzey v. Elzey, 291 Md. 369, 374, 435 A.2d 445 (1981);   see generally State v. Roll and Scholl, 267 Md. 714, 298 A.2d 867 (1973).   Thus, Brown could not appeal from the contempt order as of April 2, 1981
                

There also has been no proper appeal taken from the original judgment entered in the criminal case on October 8, 1980. The county and its Director of Finance did attempt to appeal from the trial court's refusal to revise this order; however, this motion to revise was never properly before the District Court. Neither the county nor Mr. Brown could petition the court to revise its order because they were never parties in the criminal case. At no time did either file a motion to intervene in the case even though the proper role of the county in the proceeding was argued at the April 2nd hearing. Because the county and Mr. Brown are not now, and never have been, parties to this case, they were not entitled to file a motion to revise under M.D.R. 625. ¹ Consequently, they could not appeal from the denial of the motion. Therefore, we must vacate the order of the circuit court and remand the case to that court with instructions to dismiss the appeals.

THE COLE CASE

Richard D. Cole and several other persons were arrested on gambling charges in College Park, Maryland on October 31, 1977. At the time of the arrest, which was conducted by Prince George's County Police acting pursuant to search warrants, evidence of gambling and a sum of $15,500.00 were seized. Subsequently, criminal charges were filed against Cole in a one count charging document in the District Court for Prince George's County. Cole prayed a jury trial and the case was transferred to the Circuit Court for Prince George's County. In the circuit court the State filed a motion to amend the charging document under which Cole was charged. The motion was denied. The State thereupon brought a seven count criminal information against Cole in the District Court for Prince George's County. Thereafter, the State moved to voluntarily dismiss its charges in the circuit court and the motion was granted. In the District Court Cole filed a motion to suppress the evidence seized. The motion was granted and the State subsequently nol prossed its charges in January, 1980.

On March 21, 1980, within ninety days of the State's entry of nol pros in the District Court, Prince George's County filed a petition in the Circuit Court for Prince George's County to forfeit the monies seized from Cole purportedly in conformance with Article 27, § 264. Cole demurred to the petition and requested the circuit court to return to him the money seized. The circuit court sustained the demurrer and ordered the county to pay the money to Cole. This order requiring payment was entered without hearing testimony, receiving evidence, or making findings of fact. It was based on the...