State v. Ferrell

• Decision Date: 01 September 1985
• Docket Number: No. 1239,1239
• Citation: 67 Md.App. 631,508 A.2d 1023
• Parties: STATE of Maryland v. Raist Vernon FERRELL. ,
• Court: Court of Special Appeals of Maryland

Page 631

67 Md.App. 631

508 A.2d 1023

STATE of Maryland v. Raist Vernon FERRELL.

No. 1239, Sept. Term, 1985.

Court of Special Appeals of Maryland.

May 19, 1986.

Jillyn K. Schulze, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Sandra A. O'Connor, State's Atty. for Baltimore County and Scott Nevin, Asst. State's Atty. for Baltimore County, on brief, Towson), for appellant.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellee.

Argued before BISHOP, ALPERT and KARWACKI, JJ.

KARWACKI, Judge.

In this case we shall hold that the appellee's prosecution for use of a handgun in the commission of a felony or crime of violence was barred by his former conviction of robbery with a deadly weapon ¹ where both prosecutions were based upon a single act of robbery with a handgun. Accordingly, we shall affirm the decision of the Circuit Court for Baltimore County which granted the appellee's motion to dismiss the second prosecution.

The issue arose under facts which can be briefly stated. On December 30, 1984, Raist Vernon Ferrell, the appellee, was a participant in the robbery of Samuel Smith and others at a playground of the Woodmoor Elementary School. One of the appellee's accomplices in this crime was armed with a handgun. No other weapon was displayed by the robbers.

The appellee was indicted on January 31, 1985 for the armed robberies of Samuel Smith and the other victims. That indictment included counts charging the lesser included offenses within the charges of the armed robberies of the several victims but did not include any counts alleging use of a handgun in the commission of a felony or crime of violence prohibited by Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 36B.

As the scheduled trial date of June 19, 1985 approached, the Assistant State's Attorney assigned to prosecute the case and the appellee's counsel began plea negotiations. It was then that the prosecutor discovered that a handgun count had inadvertently been omitted from the armed robbery indictment. In an attempt to remedy this oversight, the State's Attorney instituted a second criminal proceeding by criminal information charging the appellee with violation of Md.Code, supra, Art. 27, § 36B.

On June 19, the armed robbery indictment was called for trial before Judge William R. Buchanan after Judge Edward A. DeWaters, Jr., the county administrative judge, had denied the State's motion for a continuance. Before the trial began the State and the appellee, who was then aware of the pending handgun prosecution which had been instituted by criminal information the day before, concluded a plea agreement which made no mention of the handgun charge. The appellee agreed to plead guilty to a single count in the indictment charging his armed robbery of Samuel Smith in exchange for the State's nolle pros of all other charges in the indictment and Judge Buchanan's acceptance of a recommendation that the appellee's sentence not exceed three years' imprisonment. The plea was then entered and the court ordered a presentence investigation.

A sentencing hearing was not held until October 1, 1985. In the meantime, on July 10, the appellee was arraigned on the information charging the handgun violation. On August 8, he filed a motion to dismiss that information. As alternatives, he asked the court either to enforce his plea agreement entered in the armed robbery case as a disposition of all charges growing out of his criminal conduct on December 30, 1984, or to permit him to withdraw his plea to the armed robbery of Samuel Smith. That motion was filed in the armed robbery case as well as in the handgun proceeding.

When the armed robbery case came before Judge Buchanan for a sentencing hearing on October 1, the appellee advised the court that notwithstanding the pending handgun case, he would withdraw his alternative motion to strike his plea and submit to sentence on his guilt of the armed robbery to which he had pleaded. Because of a very favorable presentence report on the appellee, an 18 year old with no prior criminal or juvenile record, the court imposed a five year sentence, but suspended all but six months thereof and placed the appellee on a five year supervised probation following his release from incarceration. The appellee did not seek leave to appeal from that judgment pursuant to Md.Code (1974, 1984 Repl.Vol.), § 12-302(e) of the Courts and Judicial Proceedings Article.

Judge Joseph F. Murphy, Jr., after hearing argument of counsel on October 14, 1985, granted the appellee's motion to dismiss the criminal information charging him with the handgun violation reasoning that the appellee's prosecution thereunder was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

The pertinent language of the fifth amendment provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." This protection has been incorporated within the due process clause of the fourteenth amendment and is binding upon the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). We therefore are bound by the decisions of the Supreme Court of the United States interpreting the reach of the clause.

The State's challenge of the dismissal of its criminal information is grounded on the theory that since the double jeopardy clause would not have prohibited cumulative punishments for armed robbery and the use of a handgun arising from the same incident within a single trial, Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Whack v. State, 288 Md. 137, 416 A.2d 265 (1980), appeal dismissed, 450 U.S. 990, 101 S.Ct. 1688, 68 L.Ed.2d 189 (1981), the clause presents no bar to successive prosecution of the crimes. The basic flaw in this reasoning is the State's failure to recognize the pluralism of the protection provided by the double jeopardy clause. As is observed in Gilbert and Moylan, Maryland Criminal Law: Practice and Procedure § 37.0 at 429 (1983):

Double jeopardy, today at least though not originally, is hydra-headed. It is an umbrella term--a broad genus. That genus today embraces four distinct species: (1) former jeopardy (with, in turn, its subspecies of (a) former acquittal and (b) former conviction); (2) simultaneous jeopardy; (3) retrial following mistrial; and (4) collateral estoppel. Each of these four distinct species grew up at a different point in time in response to different needs. Each species has its own rules of procedure and its own body of case law precedent. Each species serves a distinct purpose.

In Missouri v. Hunter, supra, the Supreme Court held that the double jeopardy clause did not prohibit the imposition of the cumulative sentences for first degree robbery (robbery committed with a deadly weapon) and armed criminal action after the determination of the defendant's guilt of each in a single trial. The Missouri statute proscribing armed criminal action provided:

[A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years.

Mo.Rev.Stat. § 559.225 (1969, 1976 Supp.).

Emphasizing the significance of the fact that the defendant who was cumulatively sentenced had been subjected to simultaneous jeopardy for both offenses rather than successive jeopardies, the Court explained:

The Double Jeopardy Clause is cast explicitly in terms of being "twice put in jeopardy." We have consistently interpreted it " 'to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.' " Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978), quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Because respondent has been subjected to only one trial, it is not contended that his right to be free from multiple trials for the same offense has been violated. Rather, the Missouri court vacated respondent's conviction for armed criminal action because of the statements of this Court that the Double Jeopardy Clause also "protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Particularly in light of recent precedents of this Court, it is clear that the Missouri Supreme Court has misperceived the nature of the Double Jeopardy Clause's protection against multiple punishments. With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.

In Whalen v. United States, [445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) ], we addressed the question whether cumulative punishments for the offenses of rape and of killing the same victim in the perpetration of the crime of rape was contrary to federal statutory and constitutional law. A divided Court relied on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in holding that the two statutes in controversy proscribed the "same" offense.

The opinion in Blockburger stated:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory...