Harvey v. State, 766
| Decision Date | 03 March 1982 |
| Docket Number | No. 766,766 |
| Citation | 51 Md.App. 113,441 A.2d 1094 |
| Parties | Reginald HARVEY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Martha Weisheit, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.
Ellen Finkelstein, Asst. Atty. Gen., with
whom was Stephen H. Sachs, Atty. Gen., on the brief, for appellee.
Argued before THOMPSON, MOORE and MacDANIEL, JJ.
On October 22, 1980, in the Criminal Court of Baltimore, Reginald Harvey, appellant, was found not guilty by reason of insanity of assault with intent to rape and related charges and by order of court committed to the Department of Health and Mental Hygiene for an examination and evaluation pursuant to Maryland Annotated Code Article 59, § 25 (1957, 1979 Repl.Vol.). The State concedes that this court order committing appellant to the Department of Health and Mental Hygiene was "lost" or "misplaced" somewhere "in department channels" for approximately five months. Immediately upon its discovery a hearing was promptly commenced before a hearing officer pursuant to Article 59, § 27A(a). Although not clear from the record, it appears that the Clifton T. Perkins clinical staff had completed its examination and evaluation of appellant sometime during this five month delay and was prepared to testify that appellant was still mentally ill and dangerous to himself and others. On March 20, 1981, the hearing officer filed with the court his recommendation that appellant be released for failure of the State to comply with the time limitations set forth in Article 59, §§ 27 and 27A. The State filed exceptions to the hearing officer's recommendations. After hearings held in the Circuit Court of Baltimore City on April 16 and May 26, 1981, the trial court issued an order denying appellant's motion for release and this appeal ensued. 1
Appellant contends, and we agree, that the trial court erred in holding that the time limitations of Article 59, §§ 27 and 27A were directory and not mandatory. This will give little solace to appellant however as we shall further rule that the release of appellant is an improper sanction for a violation of the mandatory time limitations of Article 59, §§ 27 and 27A.
Those portions of Article 59 pertinent to this appeal are:
(c) Purpose of examination and evaluation.-The examination and evaluation is for the purpose of determining whether:
(i) The person has a mental disorder; and
(ii) By reason of that mental disorder, he would be a danger to himself or to the person or property of others if not confined in an institution for in- patient care or treatment or not subject to specific conditions imposed by the court in the event he is not confined in an institution for in-patient care or treatment.
The time limitations referred to by appellant are that portion of Article 59, § 27(d) which states "shall be completed within 20 days" and that portion of § 27A(a) which states "within 30 days after the date of the order specified in 27(b) a hearing shall be conducted." The State concedes factual noncompliance with the time provision of § 27A(a) and, for purposes of this appeal, we shall assume noncompliance with the time provision of § 27(d).
Heretofore, this Court and the Court of Appeals when faced with an interpretation of the word "shall" in a statute or a rule (primarily dealing with time limitations) used the "directory or mandatory" approach to determine what sanction would apply for a violation of the provisions of the statute or rule. In that context we started with the principle of statutory construction that the use of the word "shall" is presumed mandatory unless its context would indicate otherwise. Moss v. Director, 279 Md. 561, 369 A.2d 1011 (1977). Generally, two elements were considered necessary to overcome the mandatory presumption, (1) the purpose of the statute or rule and (2) the absence of a penalty provision. If no penalty provision was provided for a violation of the time requirements and the purpose of the statute or rule indicated otherwise, we generally held the interpretation of the word "shall" to be directory and not mandatory. Once having found "directory," we then would determine whether the sanction of dismissal for a violation was appropriate. Normally we found "dismissal" an improper sanction under these conditions. When we found that the use of the word "shall" was mandatory rather than directory, ordinarily we would then find dismissal an appropriate sanction for a violation of the time provisions of the statute or rule.
Under the above enunciated standards, decisions were reached in Moss v. Director, supra, and Coard v. State, 43 Md.App. 146, 403 A.2d 826 (1978).
Moss concerned a motion to dismiss defective delinquency proceedings filed by the defendant on the ground that his right to a prompt hearing had been violated. The time provision in question actually used the term "shall forthwith," rather than "shall". Here the Court utilized the standard that the use of the word "shall" is presumed mandatory unless its context would indicate otherwise. In spite of the lack of a penalty provision, the Court found that the context of the statute "did not indicate otherwise," that the word "shall" was mandatory, and that the sanction for a violation of this mandatory provision was dismissal of the proceedings.
Coard closely resembles the factual posture of the case sub judice. The primary issue in Coard arose from a consent decree in the United States District Court case of Dorsey v. Solomon, 435 F.Supp. 725 (D.Md.1977), affirmed in part and remanded in part, 604 F.2d 271 (4th Cir. 1979). Dorsey established the right of persons found not guilty by reason of insanity to a post-commitment hearing. The Dorsey decree held: "No insanity acquitted person shall be confined ... without a prior judicial hearing to be held within sixty (60) days after receipt of the evaluation report." In Coard, two appellants, Richard David Coard and Neil Willie English, having previously been found not guilty of certain crimes by reason of insanity, petitioned the court for a judicial release from confinement in a mental hospital. Coard and English argued that because the commitment hearing was not held within sixty days of the receipt of the evaluation report from Clifton T. Perkins Hospital they must be released. We indicated in Coard that the word "shall" as used in the consent decree was directory and not mandatory, and refused to apply the sanction of dismissal for a violation of the time provisions.
Were we to follow the line of reasoning in these prior cases, we would have no difficulty in finding the use of the word "shall" in Article 59, §§ 27 and 27A to be directory and not mandatory, and that the sanction of release of the appellant in the case sub judice to be an inappropriate penalty for a violation of the time requirements.
However, Judge Smith, speaking for the Court of Appeals in In re Dewayne H., 290 Md. 401, 430 A.2d 76 (1981), appears to suggest a much more sensible and reasonable approach to the problem of what sanction, if any, should be imposed when there has been a violation of the time requirements of a rule or statute where the word "shall" has been utilized in that rule or statute. Dewayne H. concerned a provision of Maryland Rule 915 a which states that a "disposition hearing (in a juvenile proceeding) shall be held no later than thirty days after the conclusion of the adjudicatory hearing." Here there was a violation of the 30-day provision which necessitated the Court to determine whether a dismissal of the proceedings would be a proper sanction for this violation. In reference to the word "shall" Judge Smith said at 405, 430 A.2d 76:
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