Divver v. State

• Decision Date: 15 October 1999
• Docket Number: No. 19,19
• Citation: 739 A.2d 71,356 Md. 379
• Parties: John Edward DIVVER v. STATE of Maryland.
• Court: Maryland Court of Appeals

739 A.2d 71

356 Md. 379

John Edward DIVVER v. STATE of Maryland.

No. 19, Sept. Term, 1999.

Court of Appeals of Maryland.

October 15, 1999.

Robert L. Flynn, III (David J. Hare, on brief), Rockville, for petitioner.

Gary E. Bair, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and ROBERT L. KARWACKI, (retired, specially assigned), JJ.

RODOWSKY, Judge.

The petitioner, John Edward Divver (Divver), contends that he was denied his constitutional right to a speedy trial in the District Court of Maryland. Before addressing the merits of that contention we must decide whether that issue was unreviewable on petitioner's de novo appeal to the Circuit Court for Howard County and, if reviewable there, in what manner that review was to have been conducted.

On May 25, 1996, at approximately 12:15 a.m., a Howard County police officer arrested Divver for driving while intoxicated or driving under the influence of alcohol in violation of Maryland Code (1977, 1999 Repl.Vol.), § 21-902(a) and (b) of the Transportation Article (TA). He was also charged with failure to stop for a steady red traffic light in violation of TA § 21-202(h). These charges are within the exclusive original jurisdiction of the District Court of Maryland. Md.Code (1974, 1998 Repl.Vol.), § 4-301(a) of the Courts and Judicial Proceedings Article (CJ). Four days after his arrest Divver demanded a speedy trial in the District Court. Sixteen days after his arrest the State served notice on Divver that it was seeking enhanced punishment based on Divver's two prior violations of TA § 21-902(b). Accordingly, Divver faced a potential sentence of three years imprisonment and a $3,000 fine. TA § 27-101(k)(1).

Thereafter, there was no activity in this case until February 20, 1997, approximately nine months after Divver's arrest. On that date the District Court notified Divver that his trial would be held on June 10, 1997, one year and sixteen days after his arrest. There is no evidence that any party to this action had requested a delay in setting the trial date, and there was no earlier trial date from which the case was postponed to June 10, 1997.

In the District Court on June 10 Divver moved to dismiss the charges against him on the ground that he had been denied his constitutional right to a speedy trial. No transcript of the hearing on that motion has been filed in the record, and we would not expect one to have been prepared in view of CJ § 12-401(f) under which appeals from the District Court in criminal cases "shall be tried de novo." The record does show that Divver's motion was denied, that he was found guilty of driving under the influence and of the traffic signal violation, and that he was sentenced on August 19, 1997.

Divver appealed to the Circuit Court for Howard County and demanded a speedy trial in that court. He also moved in the circuit court to dismiss the charges against him based on the denial of a speedy trial in the District Court. In its answer the State averred that

"[t]he delay was necessitated by the fact that the District Court of Maryland, District 10, serving Howard and Carroll Counties, was short 2 judges for a significant time during the applicable period... In addition, the Carroll County District Court had been operating without one judge from May, 1995, until February 1996, placing an additional strain on the Howard County judges."

A hearing was held on that motion, and the record of that hearing was transcribed. It consists of arguments of counsel and of colloquy with the court. No testimony was taken or proffered.

Counsel for Divver represented to the circuit court that the District Court had denied his motion to dismiss after concluding that the delay was not of constitutional magnitude. The prosecutor, based on information received from the prosecutor who had handled the case against Divver in the District Court, agreed, adding that the District Court, in view of its conclusion on the length of the delay, did not engage in any balancing test (see Part II, infra). The circuit court expressed uncertainty as to the period that it was to consider on a de novo appeal for purposes of determining if the right had been denied. Counsel were directed to brief the matter, and the hearing on the motion to dismiss was rescheduled.

At the resumed hearing on the motion to dismiss the circuit court denied the motion, concluding that the relevant period was from arrest to trial in the District Court, but that there was no "unconscionable delay." The circuit court said that it "knows full well" that Divver's trial was set in the District Court at "a time when the District Court [sitting in Howard County] was shy of two judges."

At the trial de novo, Divver pled not guilty, and the parties agreed on what the testimony of the arresting officer would be had he appeared in person. Divver did not contest the officer's stipulated testimony. Included in the evidence that the officer would have given were statements made by Divver that he knew he had run the red light, that he had had ten beers to drink, and that he was too drunk to perform certain field sobriety tests.

Divver was convicted in the circuit court and sentenced. He petitioned this Court for the writ of certiorari which we granted.

I

The State contends that Divver's claim of denial of a speedy trial in the District Court is, in effect, unreviewable. This result, the State submits, is a byproduct of the de novo review. Because this State has a two tier trial system as the method of judicial review for persons convicted in the District Court, no transcript of the District Court proceedings is ordered and prepared, and, as the State sees it, there can be no review of the District Court's ruling on Divver's motion to dismiss.

The premise of the State's argument is that the circuit court could determine whether Divver's right to a speedy trial was violated in the District Court only on a record made in the District Court. From this the State concludes that the speedy trial clock starts again with the de novo appeal and that the only issue in the circuit court is whether the appellant has been denied a speedy trial in the circuit court, measured from the noting of the de novo appeal. We reject the State's premise and its conclusion. Under the appeal statute, CJ § 12-401(f), the Maryland Rules of Procedure, and practice under those rules, the issue may be redetermined on de novo appeal. There is nothing to prevent a circuit court from deciding whether an appellant's right to a speedy trial was denied in the District Court based upon a record that is made in the circuit court.

CJ § 12-401(f) confers a right of appeal on defendants convicted in criminal cases in the District Court. The appeal is to the circuit court of the county in which the judgment was entered. CJ § 12-403. The "appeal shall be tried de novo." CJ § 12-401(f). There are only two instances in which an appeal in a criminal case may be taken from the District Court to a circuit court on the record made in the District Court. The first is an appeal permitted under limited circumstances to the State. CJ § 12-401(b) and (c). The other is "in any case in which the parties so agree." CJ § 12-401(f); Maryland Rule 7-102(a)(3). Under the State's argument in this case, an accused who, by a motion made in the District Court, unsuccessfully asserts a denial of a constitutional right may have review only in those cases in which the prosecutor at any given time chooses to agree to an appeal on the record of the motions hearing. There is no textual, historic, or public policy basis for that interpretation.

A motions practice in the District Court is permitted under Maryland Rule 4-251(a). If the motion is filed before trial, it is to be in writing, unless the court otherwise directs, and it is to state the grounds upon which it is made and the relief sought. Rule 4-251(a). Motions to suppress or exclude evidence that are filed before trial are by rule deferred for determination at trial. Rule 4-251(b). Otherwise, "motions may be determined at any appropriate time." Id. Consequently, Divver was in compliance with the Rules when he orally moved to dismiss in the District Court.

Rule 7-112 applies to all "appeals heard de novo in the circuit court." In the circuit court, with certain exceptions not relevant in this case, the appeal proceeds "in accordance with the rules governing cases instituted in the circuit court." Rule 7-112(c)(3). Under motions practice in the circuit court Divver's motion to dismiss based on denial of a speedy trial in the District Court was a motion asserting a "defense ... capable of determination before trial without trial of the general issue," and, as such, could "be raised by motion filed at any time before trial." Rule 4-252(d). Indeed, Rule 4-252(g) specifically addresses the "determination of a motion to dismiss for failure to obtain a speedy trial," and gives the circuit court a discretion to defer that determination until after trial.

Under the State's argument in the case before us, there could be no motions practice in the circuit court on de novo appeals where the determination of the motion required taking some evidence on the same issue on which the District Court had taken evidence. Thus, an accused who was convicted in the District Court, after a motion to suppress evidence had been denied, would be unable to obtain a ruling in the circuit court that evidence was unlawfully obtained by the State, because there would be no record of the testimony taken in the District Court. This construction of the de novo appeal statute makes a hollow shell of Rules 7-112(c)(3) and 4-252. Rather, on a de novo appeal, where it is necessary to take evidence in order to determine a pretrial motion, that evidence is taken anew in the circuit court.

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