Ruby v. State

Decision Date01 September 1997
Docket NumberNo. 761,761
Citation121 Md.App. 168,708 A.2d 1080
PartiesCarl Walter RUBY v. STATE of Maryland. ,
CourtCourt of Special Appeals of Maryland
Daniel H. Weiss, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Lawrence V. Kelly, State's Atty. for Allegany County, Cumberland, on the brief), for appellee.

Submitted before SALMON and KENNEY, JJ., and JAMES S. GETTY, Judge (retired), Specially Assigned.

KENNEY, Judge.

Appellant, Carl Walter Ruby, was convicted by a jury in the Circuit Court for Allegany County of driving with a suspended out-of-state license and knowingly giving false accident report information. He was convicted separately by the court of failure to yield the right of way. He was sentenced to consecutive terms of sixty days and one year in the Allegany County Detention Center, plus a fine of fifty dollars and two years unsupervised probation following his release from custody. Appellant's convictions were affirmed by this Court in an unreported per curiam opinion, Ruby v. State, 104 Md.App. 768 (1995).

After we affirmed his convictions, appellant filed a motion for new trial on the basis of newly discovered evidence. The motion was denied, and he again appealed. In a second unreported per curiam opinion, Ruby v. State, 110 Md.App. 752 (1996), we reversed on the ground that the trial court had not inquired adequately into appellant's waiver of counsel and remanded the case to the circuit court for a new hearing on appellant's motion.

The trial court heard appellant's motion for new trial on December 5, 1996, and denied the motion the following day. Appellant seeks to appeal from the denial of his motion for new trial, raising one question for our review:

Did the trial court abuse its discretion by denying the motion for new trial?

Before we can accede to appellant's request, the jurisdictional hurdle must be cleared. About the time that the motion for new trial was filed and argued, the Office of the Public Defender was in the process of transferring appellant's case from one attorney to another within the organization. Neither attorney reported receiving notice of the court's ruling on appellant's motion. Approximately ten weeks after the motion was filed, the public defender to whom appellant's case was transferred examined the court file at the clerk's office to monitor the status of the motion. Only then was it discovered that the time for filing a notice of appeal from the order had expired. In an effort to rectify the situation, appellant filed motions for reconsideration, for belated appeal, and for reconsideration of the denial of his motion for belated appeal, all of which were denied. Thereafter, appellant requested and the court granted to appellant a writ of error coram nobis for the sole and express purpose of permitting him to proceed with a "belated appeal" from the denial of his motion for new trial. The writ stated that appellant was entitled to the belated appeal because the judgment in his case "could not have become final without the Defendant's opportunity to appeal."

The State, however, asks that we dismiss the appeal because, under the circumstances of this case, coram nobis relief is not available to extend the time for filing an appeal with this Court. Therefore, the appeal was not timely filed, depriving this Court of jurisdiction. For the reasons explained below, we will grant the State's motion to dismiss the appeal.

FACTS

The facts upon which appellant was convicted are these: An automobile accident occurred in Cumberland on November 24, 1993. According to prosecution witness, Mary O'Neal, her car was hit by one occupied by appellant and his mother. O'Neal testified that appellant was the driver of the car. She stated that, after the accident, appellant got out of the car from the driver's side and his mother got out from the passenger's side. O'Neal testified that she expressed her desire to call the police, but appellant's mother "just said we didn't need to call The police arrived at the scene while appellant, his mother, and O'Neal were still talking about the accident. O'Neal told Trooper Robert Winninger that appellant had been driving the car and that "they had asked her not to tell [him] that." Appellant told the trooper that his mother had been the driver. At trial, both appellant and his mother testified that she had been driving the car when the accident occurred.

                anybody, that they had good insurance."   When the prosecutor asked if there was anything else discussed "about why they didn't want you to call the police," O'Neal answered, "his license was suspended."
                

At the December 5, 1996 hearing on his motion for new trial based on newly discovered evidence, appellant introduced a report of the Nationwide Insurance Company that named his mother as the driver of the car. The trial court ruled that this report was not newly discovered evidence for the following reasons:

First, Nationwide was Defendant's mother's insurer and, at the time of the incident, Defendant was a member of his mother's household. The report was easily available to him almost from the day of the accident. Second, the information contained in the Nationwide report was obtained from the Maryland State Police accident report which, in turn, was completed based upon information provided by Defendant.

MOTION TO DISMISS THE APPEAL

With very limited exceptions, "Md. Rule 8-202(a) requires that, to perfect an appeal to this Court, a notice of appeal must be filed within 30 days after the entry of the judgment or order from which the appeal is taken." Maxwell v. Ingerman, 107 Md.App. 677, 678, 670 A.2d 959, cert. denied, 344 Md. 117, 685 A.2d 451 (1996). "That requirement has been held to be jurisdictional in nature: 'if the requirement is not met, the appellate court acquires no jurisdiction and the appeal must be dismissed.' Id. (quoting Houghton v. County Comm'rs of Kent Co., 305 Md. 407, 413, 504 A.2d 1145 (1986)). The rule reserves an exception in cases where an extension of the time for filing is "otherwise provided ... by law." Md. Rule 8-202(a) (1998). The power of a court to extend the time for filing notice of appeal is not a matter of discretion; however, it must be conferred by statute, rule, or constitutional provision. Bushey v. State Roads Commission, 231 Md. 154, 157, 189 A.2d 98 (1963). There is no reservation in the Maryland Rules, or elsewhere, authorizing a trial court to extend the time within which notice of an appeal to the Court of Special Appeals shall be filed. Blackstone v. State, 6 Md.App. 404, 406, 251 A.2d 255 (1969); Cornwell v. State, 1 Md.App. 576, 577-578, 232 A.2d 281 (1967).

Although appellant failed to note an appeal within the time limits prescribed by Maryland Rule 8-202, the trial court permitted him to file a notice of appeal on the basis of error coram nobis. This extraordinary grant of relief was based on the stipulation of the parties that appellant "did not receive notice of the Court's December 6, 1996 denial of his Motion for New Trial." 1 The State argues that the trial court could not grant appellant coram nobis relief because error coram nobis only provides relief when facts unknown at the time the judgment was entered would have prevented its entry. Appellant suggests that coram nobis is less restrictive and provides a broad post-conviction remedy in the absence of other statutory relief.

The purpose of the writ of error coram nobis, as stated in Keane v. State, 164 Md. 685, 166 A. 410 (1933), is not to permit a review of the evidence given in connection with the issues actually tried, but to determine "whether facts existed which were unknown to the court at the trial, and were not in issue under the pleadings, but which, if known, would have prevented the judgment." Good v. State, 240 Md. 1, 16, 212 A.2d 487 (1965); See also Madison v. State, 205 Md. 425, 109 A.2d 96 (1954); Bernard v. State, 193 Md. 1, 65 A.2d 297 (1949). As explained in Bernard:

The purpose of the writ of error coram nobis, which is an old common-law writ recognized in this State, is to bring before the court a judgment previously rendered by it for the purpose of modification on account of some error of fact which affected the validity and regularity of the proceedings, and which was not brought into issue at the trial of the case....

Jones v. State, 114 Md.App. 471, 475, 691 A.2d 229, cert. denied, 346 Md. 27, 694 A.2d 950, cert. denied, --- U.S. ----, 118 S.Ct. 304, 139 L.Ed.2d 234 (1997) (quoting Bernard, 193 Md. at 3-4, 65 A.2d 297).

Coram nobis relief has been deemed appropriate to

set aside a judgment obtained by fraud, coercion, or duress, or where a plea of guilty was procured by force, violence, or intimidation, or where at the time of the trial the defendant was insane, when such facts were not known to the trial court when the judgment was entered, or where the accused was prevented by fraud, force, or fear from presenting defensive facts which could have been used at his trial, when such facts were not known to the court when the judgment was entered. The writ will not lie to correct an issue of fact which has been adjudicated even though wrongly determined; nor for alleged false testimony at the trial; nor for newly discovered evidence. The writ will not lie where the accused has another adequate remedy at law, as by motion for a new trial, an appeal to a higher court, or other existing statutory proceeding.

Bernard v. State, 193 Md. 1, 4, 65 A.2d 297 (1949) (citing Hawks v. State, 162 Md. 30, 157 A. 900; Keane v. State, 164 Md. 685, 166 A. 410).

The State argues that appellant was not entitled to coram nobis relief because the only fact affecting the validity and regularity of the proceedings at issue in this case was that appellant did not receive the notice of the denial of his new...

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