State v. Glenn, 694

• Decision Date: 02 March 1983
• Docket Number: No. 694,694
• Citation: 456 A.2d 1300,53 Md.App. 717
• Parties: STATE of Maryland v. Alan Jay GLENN, Michael Lee McKinney and Wayne Melvin Wolfensberger.
• Court: Court of Special Appeals of Maryland

Page 717

53 Md.App. 717

456 A.2d 1300

STATE of Maryland v. Alan Jay GLENN, Michael Lee McKinney and Wayne Melvin Wolfensberger.

No. 694.

Court of Special Appeals of Maryland.

March 2, 1983.

Carmina Szunyog, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Md., Arthur A. Marshall, Jr., State's Atty. and Raymond F. Ciarrocchi, Asst. State's Atty., for Prince George's County on brief, for appellant.

Richard J. Guth, with whom was James LaCorte, Asst. Public Defender, Baltimore, on brief, for appellees.

Argued before GILBERT, C.J., and LISS and BISHOP, JJ.

BISHOP, Judge.

The State of Maryland appeals an order of the Circuit Court for Prince George's County dismissing criminal charges because of violations of Maryland Rule 746.

On April 30, 1981, the appellees were charged in District Court with distribution of obscene matter. Jury trials were prayed. On July 17, 1981, the appellees were arraigned in the Circuit Court. On November 17, 1981, the 122nd day after arraignment, the cases were called for trial. Because of what the State considered a substantive defect in the charging documents, and the refusal of the appellees to agree to an amendment in accordance with Rule 713a, the State, over appellees' objection, nol prossed all three cases and refiled them under new charging documents in the District Court on the same day. On January 11, 1982, all three appellees were arraigned under the new charging document and their counsel entered his appearance. On February 18, 1982, the appellees filed a motion to dismiss based on violations of Maryland Rule 746 and their constitutional speedy trial rights. On March 1, 1982, 226 days after the first arraignment and 58 days after the second, a hearing was held, apparently because the Assistant State's Attorney was concerned about the 180 day period running out on March 5, 1982. The Assistant State's Attorney calculated that the original charges had been pending for 130 days, (actually the correct figure is 122), then added a number of days that the new charges had been pending, 40 days (actually 43 days as of February 23rd), and concluded that he had only 10 days in which to try the cases before State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979), would require dismissal of the charges. In any event, the fact is that on March 1, 1982, the three appellees prospectively waived the 180 day requirement. That waiver had no effect on the basis for their then pending motions to dismiss, which was that they were not brought to trial within 180 days of the first arraignment and entry of counsel's appearance on July 17, 1981. On April 8, 1982, the lower court heard argument on the Motion to Dismiss. On May 5, 1982, the court filed a written order and memorandum dismissing the charges against the three appellees because their trials were not held within the 180 days required by Maryland Rule 746.

The Law

In its opinion the trial court succinctly summarized the contentions of the State:

"The State alleges that each charging document has a life of its own, if the preceding charge was nol pros (sic) because of an intrinsic defect in the document itself. In the alternative, the State argues that in computing the time for this rule, the days counted should only include those where the Defendant was subject to the jurisdiction of this court (i.e. the State does not want to include the time between November 17, 1981 and January 11, 1982). ¹

Judge Woods responded to these issues, with an excellent analysis of Irvin v. State, 276 Md. 168, 344 A.2d 418 (1975) and the interpretation placed on Irvin by this Court in State v. Armstrong, 46 Md.App. 641, 421 A.2d 98 (1980). We adopt that analysis as part of this opinion:

"Essentially both of these contentions rest upon the 'independent life' argument that the State derives from Irvin v. State, 276 Md. 168 (1975). In Irvin, the Court of Appeals held that a second indictment and conviction was valid even though this occurred while an appeal was pending on the dismissal of the original indictment. The court there stated:

There is no question but that a criminal defendant may be indicted more than once for the same offense, and that any irregularity in a prior indictment may be corrected in a later indictment upon which a defendant may be tried.

If an indictment is dismissed, the order is a final judgment as regards that indictment, and is appealable. If the State appeals, the indictment which was dismissed comes within the exclusive jurisdiction of the appellate court, but not an indictment which may be returned later....

Id. at 172-73 (citations omitted). Broadly construing this language, it seemingly indicates that each indictment or charging document is independent of all others.

Such a broad interpretation of Irvin was rejected in State v. Armstrong, 46 Md.App. 641 (1980), however the State still has salvaged an argument for the 'independent life' of indictments from the dicta there. In Armstrong, the court held that a second indictment should be dismissed when a previous indictment on the same charge had been adjudicated on the basis of Hicks. In the instant case, the State stresses the distinction that Armstrong drew between that case and Irvin. On this point, the court comments:

Hopefully with tongue in cheek, the State suggests that the only difference between Irvin and the cases sub judice is that the State's appeal was still pending in Irvin when the new indictments were returned. That, of course, is a crucial difference. The jurisdictional issue which was all that was considered and decided in Irvin, is simply not present when the appeal has been dismissed prior to the return of the subsequent indictment. That alone serves to distinguish Irvin and render it inapposite.

More, perhaps, than the holding of Irvin, however, the State seeks succor from some of the language used in the Opinion--that quoted above. Those general statements, while inherently true, cannot be read out of context. Whether a new indictment can properly be returned depends, to a large extent, on the circumstances under which the first indictment was dismissed. Irvin referred to a dismissal based upon an irregularity in the indictment itself, and did not address at all, even in the limited context before it, the situation of a dismissal for some more substantive extrinsic reason--by reason of a speedy trial violation, for example, or because the defendant had already been placed in jeopardy for the same offense, or because the statute of limitations had run on the prosecution.

All that was determined in Irvin was that the mere pendency of an appeal did not preclude a new indictment. The issue here, of course, is whether the dismissal of the appeal, leaving the lower court judgment intact, also had that effect, particularly where the judgment rested upon the purported violation of a speedy trial requirement.

State v. Armstrong, 46 Md.App. at 647-48 (emphasis added). Further, the Armstrong case suggests that the indictments in Irvin were dismissed primarily because they failed to charge a criminal offense.

The State argues, based on the underlined language above, that the indictments for Hicks purposes are independent of each other when they are nol pros for reasons intrinsic to the charging document itself. However, the State has failed to read both the preceding and subsequent paragraphs which interpret Irvin as being limited to questions of jurisdiction. The court believes that Irvin must be limited to matters of jurisdiction, as the extension of this concept into Hicks calculations would produce a myriad of inconsistencies."

We do not agree, however, with the trial court when it concludes that:

"The underlying consideration in both Rule 746 and speedy trial requirements is to prevent the defendant from suffering undue delay or harrassment.... It is difficult to contend that the defense is less prejudiced by a delay because the State is of pure intent in one instance while in another it is trying to circumvent Rule 746."

The underlying purposes for Maryland Rule 746 and the constitutional right to a speedy trial are different. In State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979) the Court of Appeals discussed in detail the purposes for Maryland Rule 746 when that Court stated with great clarity:

"Section 591 is plainly a declaration of legislative policy designed to obtain prompt disposition of criminal charges; its enactment manifested the legislature's recognition of the detrimental effects to our criminal justice system which result from excessive delay in scheduling criminal cases for trial and in postponing scheduled trials for inadequate reasons. Judge Jerrold Powers, speaking for the court, in Guarnera v. State, 20 Md.App. 562, 318 A.2d 243 (1974), highlighted the problem underlying enactment of § 591 in these forceful words:

'Postponement of cases from dates scheduled for trial is one of the major factors contributing to delay in the administration of justice, civil as well as criminal. Courts and court supporting services spend substantial time "spinning their wheels", in rescheduling cases. Available court time is lost. The time of attorneys and witnesses is lost. Witnesses themselves are lost. Those who are not are put to severe inconvenience as well as actual loss, and end up in despair at the frustrations of being involved in the trial of a case in the courts. The very image of the judicial system is in serious jeopardy. Public confidence in the courts as instruments of the people is impaired. Judges and lawyers cannot blame the "system", for they are the people who run that system.

When the Legislature has expressed the will of the people [in § 591] by saying that the date established for the trial of a criminal case shall not be postponed except for extraordinary cause, and has denied all judges but the administrative head of the court authority to exercise even that curtailed power, the message should be...