District of Columbia v. Bosley

• Decision Date: 01 August 1961
• Docket Number: No. 2788.,2788.
• Citation: 173 A.2d 218
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Marvin F. BOSLEY, Appellee.
• Court: D.C. Court of Appeals

173 A.2d 218

DISTRICT OF COLUMBIA, Appellant, v. Marvin F. BOSLEY, Appellee.

No. 2788.

Municipal Court of Appeals for the District of Columbia.

Argued May 22, 1961.

Decided August 1, 1961.

John R. Hess, Asst. Corp. Counsel, Washington, D.C., with whom Chester H. Gray, Corp. Counsel, Milton D. Korman, Prin. Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellant.

Albert D. Brault, Washington, D. C., with whom Laurence T. Scott, Washington, D. C., was on the brief, for appellee.

Before HOOD and QUINN, Associate Judges, and CAYTON (Chief Judge, retired) sitting by designation under Code § 11-776(b).

HOOD, Associate Judge.

Appellee Bosley was charged with two traffic offenses, namely, operating without a driver's license and "turning from a wrong lane." After trial had commenced and some prosecution testimony had been received, the government entered a nolle prosequi on the charge of turning from the wrong lane. A new information was immediately thereafter filed charging appellee with "changing lanes without caution." Trial was then had on the new information and on the information charging operating without a permit. At the conclusion of the trial appellee was acquitted on the charge of operating without a permit, but convicted on the charge of changing lanes without caution and sentenced to pay a fine of $25.¹

Three days later appellee applied to this court for allowance of an appeal, claiming, among other things, that he had been twice placed in jeopardy for the same offense.² Four days after filing his application here, and while his application was still pending here, appellee filed a motion in the trial court for judgment of acquittal or, in the alternative, for a new trial, alleging there, as he had here, that the trial on the second information was a violation of his constitutional protection against double jeopardy. On October 5, 1960, this court denied the application for allowance of an appeal. Thereafter, on December 30, 1960, the trial court entered an order granting appellee's motion for judgment of acquittal on the ground of double jeopardy, and set aside the judgment of conviction and discharged appellee. The government has appealed from this order, asserting that the trial court lacked authority to enter it.

We are first met by appellee's contention that the government has no right of appeal in a criminal case from a judgment of acquittal. We think the government properly answers this contention by saying that this appeal is primarily from the order vacating the judgment of conviction and that if such order was entered without authority then the government has a right to appeal.

Appellee also argues that, if the government may appeal from the order, this appeal is governed by the portion of the statute referred to in footnote 2, and can be only by application for appeal; and that no application for appeal was timely filed by the government. Again, we think the government properly answers by saying it is not appealing from a judgment wherein the penalty imposed is less than $50, but is appealing from an order vacating such a judgment and such appeal is by right and not by application.

Turning to the merits of the appeal we find the question to be this: Did the trial court have authority to enter the order vacating the judgment of conviction and granting judgment of acquittal? For reasons hereafter stated we are of opinion it had no such authority.

When appellee was convicted, he had the right to file a motion in the trial court asking for a judgment of acquittal or for a new trial. Such a motion timely filed would have extended the...