State v. Hicks

• Decision Date: 25 June 1979
• Docket Number: No. 130,130
• Citation: 285 Md. 310,403 A.2d 356
• Parties: STATE of Maryland v. Harley Robert HICKS.
• Court: Maryland Court of Appeals

Page 310

285 Md. 310

403 A.2d 356

STATE of Maryland v. Harley Robert HICKS.

No. 130.

Court of Appeals of Maryland.

June 25, 1979.

On Motion for Reconsideration July 19, 1979.

F. Ford Loker, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, Richard D. Warren, State's Atty., and H. Michael Hickson, Asst. State's Atty., Salisbury, on the brief), for appellant.

Thomas J. Saunders, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.

MURPHY, Chief Judge.

This appeal draws into question the proper application of Maryland Rule 746 which governs the scheduling of criminal cases for trial. The rule provides:

"a. General Provision.

Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance Provision for or Waiver of Counsel), a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance Provision for or Waiver of Counsel).

"b. Change of Trial Date.

Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date."

(1)

The Circuit Court for Wicomico County (Pollitt, J., administrative judge), deeming the provisions of Rule 746 to be mandatory, dismissed an eight-count criminal information filed against the appellee Hicks because it concluded that the case was not brought to trial within the 120-day period prescribed by the rule, and no motion was made setting forth "extraordinary cause" to justify a trial continuance. The State appealed, claiming that a trial date had been set within the 120-day period and a continuance had been granted in open court for the extraordinary reason that Hicks, being incarcerated in a Delaware prison, did not appear for trial on the scheduled date. The State also claimed that the provisions of Rule 746 are directory only, rather than mandatory, and that in any event Hicks suffered no prejudice as a result of the extension of a trial date beyond the 120-day period. We granted certiorari prior to consideration of the appeal by the Court of Special Appeals to determine the important issues raised in the case.

The record reveals that Hicks was serving a sentence in a Delaware prison when, on January 20, 1978, he invoked the provisions of the Interstate Agreement On Detainers, to which Maryland is a party state, to obtain a trial upon criminal charges then pending against him in Wicomico County. ¹ As a result, Hicks was returned to the Wicomico County Jail, tried on April 4, 1978 on the Maryland charges, and subsequently sentenced to three years' imprisonment to run consecutive to his Delaware sentence. On April 21, 1978, while Hicks was still incarcerated in the Wicomico County Jail awaiting return to Delaware, the eight-count criminal information here involved was filed. ² On April 24, 1978, the public defender entered his appearance for Hicks, and a trial date of April 27 was fixed by agreement of counsel. Unknown to either the prosecutor or the public defender, the sheriff returned Hicks to Delaware on April 26. The State thereafter lodged a detainer with the Delaware authorities in connection with the outstanding criminal information filed on April 21, 1978. The criminal assignment office of the Circuit Court for Wicomico County scheduled trial on these charges for August 8, 1978, a date within the 120-day period prescribed by Rule 746.

When the case was called for trial before Judge Pollitt on August 8, 1978, the prosecutor advised the court that "arrangements" had been made to have Hicks in court, but that he was under sentence in a Delaware prison and had not "consented to come." The court responded: "Obviously we can't proceed without him." The prosecutor informed the court that Hicks would finish serving his Delaware sentence in September at which time he would be returned to Maryland to begin serving the three-year sentence imposed upon him on April 4, 1978. The prosecutor told the court that "we will have an opportunity to get custody of him sometime beginning in September." The court ordered the case continued, remarking once again: "Obviously we can't do anything with the man (Hicks) not being here."

On August 25, Hicks filed a motion to dismiss the criminal information on the ground that he had not been tried within the 120-day period prescribed by Rule 746. He contended that the State could have secured his attendance at trial on August 8 by invoking the Interstate Agreement On Detainers or by initiating extradition proceedings but had failed to do either. Hicks argued that the prosecutor made no motion at the August 8 hearing, either in writing or in open court, establishing the existence of "extraordinary cause" justifying a continuance beyond the 120-day period, as required by Rule 746.

A hearing on the motion was held before Judge Pollitt on October 2, 1978. The prosecutor argued that the requisite "extraordinary cause" under Rule 746 was shown at the August 8 hearing to justify the continuance in that the Delaware authorities refused to release Hicks for trial on August 8 unless the State invoked the provisions of the Interstate Agreement On Detainers. The prosecutor did not invoke the Agreement, he said, because "we are not obligated to do so." He explained:

"Our normal office procedure is not to do that unless there are very extraordinary circumstances, because usually there are costs involved and our budget does not provide for these extraordinary circumstances."

The court said that it was concerned with whether Rule 746 was mandatory, and not with who was at fault in not having Hicks present for trial on August 8. Not having the benefit of a transcript of the August 8 hearing, the court remarked:

"I do not know what took place on August the 8th. I don't know if there was a motion made at that time to change the trial date. The docket entry shows that he (Hicks) failed to appear because he was in the Delaware Correctional Center, and the case was continued."

The court concluded that Rule 746 was mandatory and as a consequence the State was required to invoke the Interstate Agreement On Detainers and have Hicks present in court on August 8, or present a motion showing "extraordinary cause" for a continuance. Holding that "(t)here was no such motion," Judge Pollitt dismissed the eight-count criminal information.

(2)

Maryland Rule 746 became effective on July 1, 1977 as part of a complete revision of the Chapter 700 Rules relating to "Criminal Causes" in the circuit courts of the counties and in the Criminal Court of Baltimore. The precursor of Rule 746 was former Rule 740, adopted on June 1, 1972. It provided: "The date of trial and postponements shall be governed by Code, Article 27, section 591." Section 591, enacted by ch. 212 of the Acts of 1971, provided:

"(a) Within two weeks after the arraignment of a person accused of a criminal offense, or within two weeks after the filing of an appearance of counsel or the appointment of counsel for an accused in any criminal matter, whichever shall occur first, a judge or other designated official of the Circuit Court or the Criminal Court of Baltimore City in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than six months from the date of the arraignment of the person accused or the appearance or the appointment of counsel for the accused whichever occurs first. The date established for the trial of the matter shall not be postponed except for extraordinary cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending.

"(b) The judges of the Court of Appeals of Maryland are authorized to establish additional rules of practice and procedure for the implementation of this section in the Criminal Court of Baltimore City and in the various circuit courts throughout the State of Maryland."

In Young v. State, 15 Md.App. 707, 292 A.2d 137 (1972), the Court of Special Appeals held that the provisions of § 591 were intended by the legislature to be directory and not mandatory because it had not explicitly provided the extreme sanction of dismissal of an indictment for administrative noncompliance. We adopted that view by summarily approving the opinion of the Court of Special Appeals. See Young v. State, 266 Md. 438, 294 A.2d 467 (1972).

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 '...