Hardy v. State

• Decision Date: 28 February 1977
• Docket Number: No. 37,37
• Citation: 369 A.2d 1043,279 Md. 489
• Parties: Lillian Ann HARDY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 489

279 Md. 489

369 A.2d 1043

Lillian Ann HARDY v. STATE of Maryland.

No. 37.

Court of Appeals of Maryland.

Feb. 28, 1977.

Patrick R. Hudson, Accokeek, for appellant.

Arrie W. Davis, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

ELDRIDGE, Judge.

This case presents a question expressly reserved in Thompson v. State, 278 Md. 41, 53-54 n. 5, 359 A.2d 203 (1976): Does a defendant have a right to a jury trial in the circuit court upon a de novo appeal from a District Court criminal conviction?

Under Maryland's two-tier trial court system, the District Court has exclusive original jurisdiction in a criminal case in which the defendant is charged with one of certain enumerated theft felonies involving less than $500.00 or is charged with a misdemeanor carrying a maximum penalty of less than three years' imprisonment or a fine of less than $2,500.00, Maryland Code (1974, 1976 Cum.Supp.), §§ 4-301 and 4-302(c) of the Courts and Judicial Proceedings Article. If the defendant is charged with a misdemeanor punishable by imprisonment of three years or more or a fine of $2,500.00 or more, the District Court has concurrent judisdiction with the circuit court, § 4-302(c) of the Courts and Judicial Proceedings Article. All other criminal cases are within the exclusive original jurisdiction of the circuit court.

A person charged in the District Court with an offense punishable by imprisonment of three months or less has no right to demand a jury trial but is tried in the District Court without a jury. However, a person charged in the District Court with an offense carrying a maximum penalty of more than three months' imprisonment may, prior to trial in the District Court, elect one of two options: (1) he may demand a jury trial, whereupon the case is immediately removed to the circuit court and becomes a matter within the circuit court's exclusive original jurisdiction, to be tried in the circuit court with a jury, or (2) he may, by failing to demand a jury trial, have his case tried in the District Court without a jury, § 4-302(d) of the Courts and Judicial Proceedings Article. If a defendant is tried in the District Court, he may appeal from the final District Court judgment to the circuit court of the county in which the judgment was entered, §§ 12-401(a) and 12-403 of the Courts and Judicial Proceedings Article. The statute further provides that such 'appeal shall be tried de novo' in the circuit court, § 12-401(c) of the Courts and Judicial Proceedings Article.

Turning to the facts of the instant case, the defendant Lillian Hardy was arrested and charged in the District Court, sitting in Prince George's County, with the misdemeanor of shoplifting goods valued at less than $100.00, in violation of Code (1957, 1976 Repl.Vol.), Art. 27, § 551A. The offense is punishable by a maximum of 18 months' imprisonment, and therefore the defendant was entitled to demand a jury trial before trial in the District Court and have the case removed to the circuit court for a jury trial. The defendant did not elect, however, to exercise her statutory right to a jury trial at this stage. She was tried and convicted in the District Court, and fined $100.00. The defendant took an appeal to the Circuit Court for Prince George's County and requested a jury trial upon her de novo appeal. This request was denied, and she was tried and convicted by the circuit court without a jury. Thereafter, we granted the defendant's petition for a writ of certiorari to consider her claim that she had been denied her statutory and constitutional rights to trial by jury in the circuit court's de novo appellate proceedings.

In Thompson v. State, supra, 278 Md. 41, 359 A.2d 203, this Court held that a defendant charged with a crime in a trial court of general jurisdiction is, absent any statutory provision to the contrary, entitled to the common law mode of trial, i. e., trial by jury. This is true whether the offense be deemed 'petty' or not. Thus, if the instant case had not been within the District Court's exclusive original jurisdiction but had originated in the circuit court, the defendant would clearly have been entitled to a jury trial. The instant case, however, involves an appeal to the circuit court from a District Court criminal conviction, and Thompson expressly reserved comment on the possible existence of a right to a jury trial in circumstances where a circuit court or the Criminal Court of Baltimore is exercising appellate rather than original jurisdiction in criminal cases. Thompson v. State, supra, 278 Md. at 53-54 n. 5, 359 A.2d 203. ¹

Although the circuit court in this case was exercising its appellate jurisdiction rather than its general trial jurisdiction, it is required by statute to try such cases 'de novo,' § 12-401(c) of the Courts and Judicial Proceedings Article. It is generally accepted that 'de novo' means 'afresh' or 'anew.' The central issue of this case, therefore, is whether the Legislature's use of the term 'de novo' requires that the defendant's appeal be treated as if it were entirely an original proceeding, thus including a right to a trial by jury. The State contends that it does not and that 'the de novo aspect of the appeal should only apply to the necessity to present the evidence a second time.' (State's brief, p. 7.)

We disagree. The State's suggested construction of the statutory term 'de novo' is too narrow. This Court has consistently treated de novo appeals as wholly original proceedings, that is, as if no judgment had been entered in the lower court. In Montgomery Ward v. Herrmann, 190 Md. 405, 409, 58 A.2d 677 (1948), this Court, reaffirming a holding first set forth in Borden v. Barry, 17 Md. 419 (1861), stated:

'We reaffirm the rule, in accordance with the prevailing view in other states, that where a defendant appeals from an adverse judgment to a court in which the case is tried de novo, the plaintiff has the same right to take a nonsuit and dismiss his suit as if the action had been originally commenced in the appellate court.' (Emphasis supplied.)

Likewise, concerning the question of whether a higher judgment may be entered for the plaintiff on a de novo appeal than was received in the lower court, this Court in Zitzer v. Jones, 48 Md. 115, 117 (1878), stated:

'On appeals of . . . (this) kind the case is tried de novo, the parties are not restricted to the proof given before the Justice, but the case goes on and is decided as if no judgment had been rendered, and without regard to the question by whom the appeal may have been prosecuted.'

With respect to the specific question of whether an appeal de novo includes a jury trial, in State v. Rutherford, 145 Md. 363, 370, 125 A. 725 (1922), this Court, speaking through Judge W. Mitchell Digges, construed the term 'de novo' in a statute as follows:

'. . . (The ordinance) provides, upon appeal to it the Baltimore City Court shall hear said case de novo and pass such order in the premises as it may deem right and proper. There is nothing in the language used which would indicate the intention of the law makers to prohibit a jury trial, but, on the contrary, it is such language as would be ordinarily used in giving appeals to courts consisting of judge and jury, and, it will be noted, is substantially the same language used in ...