Moon v. State

Decision Date02 August 1967
Docket NumberNo. 161,161
PartiesDennis Mullene MOON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Robert A. Jacques, Rockville, for appellant.

Thomas A. Garland, Asst. Atty. Gen., Baltimore, Francis B. Burch, Atty. Gen., Baltimore, William A. Linthicum, Jr., State's Atty. for Montgomery County, Judson R. Wood, Asst. State's Atty. for Montgomery County, Rockville, on the brief, for appellee.

Before MORTON, ORTH and THOMPSON, JJ., and E. MACKALL CHILDS, and DANIEL T. PRETTYMAN, Special Judges.

PER CURIAM.

Dennis Mullene Moon, the appellant, appeals from a conviction for armed robbery in the Circuit Court for Montgomery County after a trial before a jury. He was sentenced to imprisonment in the Maryland Penitentiary for a period of twenty years. 1 Credit was given for the time served since the date of his arrest.

It appears that at a former trial the defendant was convicted of armed robbery, but before the decision became valid he elected to void the indictment under Schowgurow v. State, 240 Md. 121, 213 A.2d 475. At the former trial he was sentenced to imprisonment for twelve years. The present appeal arises from the subsequent indictment and trial.

The question presented is: Does the due process clause of the Fourteenth Amendment of the Constitution of the United States, or the common law as applied in Maryland, preclude a greater sentence at the second trial than at the former.

Tate v. State, 236 Md. 312, 203 A.2d 882, and State v. Barger, 242 Md. 616, 220 A.2d 304, make clear that where an indictment is invalid, a defendant can be retried since he has not previously been put in jeopardy. It would seem obvious that in such an event his punishment could be greater than at the prior trial. Although the question of the validity of the indictment was not involved, in Hobbs v. State, 231 Md. 533, 191 A.2d 238, cert. den. 375 U.S. 914, 84 S.Ct. 212, 11 L.Ed.2d 153, the Court of Appeals of Maryland held that on a retrial under the same indictment, after a reversal by an appellate court, the trial judge could impose a greater punishment than had been previously imposed. This doctrine insofar as it relates to retrials under the same indictment has been considered recently by three United States Courts of Appeal with differing results.

In Marano v. United States, (1st Cir.) 374 F.2d 583, the first circuit held that a greater sentence could not be imposed. In Patton v. State...

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15 cases
  • Whitfield v. Warden of Maryland House of Correction
    • United States
    • U.S. District Court — District of Maryland
    • February 20, 1973
    ...not binding upon state courts, was correct. See also Greene v. State, 11 Md.App. 106, 110, 273 A.2d 830 (1971), and Moon v. State, 1 Md.App. 569, 571, 232 A.2d 277 (1967), holding that Maryland courts are not bound by the decisions of the United States courts of appeal or the United States ......
  • Hartley v. State
    • United States
    • Court of Special Appeals of Maryland
    • July 1, 1968
    ...the appellant chose to avail himself of the relief afforded him thereunder and was reindicted on December 21, 1965. In Moon v. State, 1 Md.App. 569, 232 A.2d 277 (1967), the question presented was: Does the due process clause of the Fourteenth Amendment of the Constitution of the United Sta......
  • State v. Stafford, 495
    • United States
    • North Carolina Supreme Court
    • December 9, 1968
    ...See Jack v. United States, 387 F.2d 471, 474 (9th Cir. 1967); United States v. White, supra, 382 F.2d at 448; Moon v. State, 1 Md.App. 569, 571, 232 A. 272, 278 (1967). The divergence between our views and those of the Court of Appeals for the Fourth Circuit, by whose decisions all federal ......
  • Reeves v. State
    • United States
    • Court of Special Appeals of Maryland
    • February 19, 1968
    ...Hobbs v. State, 231 Md. 533, 191 A.2d 238; Moulden v. State, 217 Md. 351, 142 A.2d 595. More recently, this Court in Moon v. State, 1 Md.App. 569, 232 A.2d 277, followed the views expressed in Hobbs, supra, and approved a sentence of twenty years for armed robbery which was imposed in a sec......
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