Taylor v. State, 164

• Decision Date: 08 August 1974
• Docket Number: No. 164,164
• Citation: 323 A.2d 648,22 Md.App. 370
• Parties: Glenn W. TAYLOR v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 370

22 Md.App. 370

323 A.2d 648

Glenn W. TAYLOR v. STATE of Maryland.

No. 164.

Court of Special Appeals of Maryland.

Aug. 8, 1974.

Joseph H. Thomas, Jr., Baltimore, for appellant.

George A. Eichhorn, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City and Michael Glushakow, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and MORTON and GILBERT, JJ.

GILBERT, Judge.

Glenn W. Taylor, appellant, on May 4, 1972, was a prisoner in the Baltimore City Jail awaiting trial on indictments charging him with offenses unrelated to this case. He is alleged to have stabbed, on that date, one Baltimore City Jail guard and assaulted another. An arrest warrant was obtained by the Baltimore City Police for appellant on May 5, 1972. The appellant's attorney visited the City Jail on May 5, 1972 in order to confer with the appellant about the indictments on which appellant was awaiting trial. At that time counsel learned of the assault charges. As a result of his visit to the City Jail the appellant's counsel entered a plea of not guilty by reason of insanity, under the statute, to all six outstanding indictments. The appellant was referred to the Clifton T. Perkins Hospital for an examination. The record is not clear as to where the appellant was confined following his release from Perkins. He was sent either to the Baltimore City Jail or to the Anne Arundel County Detention Center. In any event the May 4, 1972 stabbing victim swore out a warrant on April 10, 1973 charging the appellant with assault with intent to murder. This warrant was in addition to the one that had been obtained by the Baltimore City Police on May 5, 1972. Appellant was indicted on May 25, 1973, and he was served with a copy of the indictment. The case was set for trial on November 14, 1973, however, at that time two attorneys appeared for appellant. One, the present counsel, had been appointed by the Public Defender to represent appellant on the matters for which appellant was awaiting trial on May 4, 1972, and the other attorney was designated by the Public Defender to represent appellant on the assault charge arising out of the May 4, 1972 incident. Neither counsel knew about the other. The case was postponed at the request of defense counsel in order that they might resolve the issue of just who represented appellant in the instant case. The matter came on for trial on January 21, 1974. The lateness of the hour at which the case was called, together with the various preliminary discussions relative to certain pretrial publicity caused the case to be carried over to the next day, January 22, 1974. At that time the appellant, pro se, filed a written motion to dismiss the indictment on the ground that he had been denied a speedy trial. The motion was overruled by Judge Albert L. Sklar, in the Criminal Court of Baltimore. Appellant thereupon entered an appeal to this Court. For the reasons hereinafter apparent we shall not discuss the merits of the appellant's argument relative to the denial of a speedy trial.

In Neal v. State, 20 Md.App. 20, 314 A.2d 710 (1974) we reitereated that no appeal lies from an interlocutory order. We went further, however, and classified both a denial of a motion to dismiss for want of a speedy trial and a denial of a motion to dismiss on a claim of double jeopardy as interlocutory and hence not immediately appealable, 'except in those cases where the trial judge concludes that the constitutional right exists and is applicable but nevertheless refuses to apply it.'

The Court of Appeals granted certiorari, and after oral argument, reversed, in part, our decision. See Neal v. State, Md., 322 A.2d 887, No. 26, September Term, 1973, decided July 29, 1974. The Court said:

'We do not share the view that a determination that double jeopardy does or does not exist involves an exercise of discretion. To us, the defense of double jeopardy is a liminal constitutional issue, raised at the outset, before there is a trial. It can in no way be compared to a finding that a defendant is not in fact indigent. Neither can it be analogized to questions involving the admissibility of evidence, raised during trial, even though constitutional issues are involved.'

It is clear that the opinion of the Court of Appeals in Neal is directed solely to the question of the immediate appealability of a denial of a motion to dismiss that is grounded on double jeopardy. The Court did not address itself to the question of whether a motion to dismiss for lack of a speedy trial was immediately appealable.

The express message of the Court of Appeals in Neal is unmistakable. A denial of a motion to dismiss an indictment on the ground of double jeopardy is appealable immediately. The underlying message of Neal is equally unmistakable, i. e., our decision in Neal v. State with respect to the holding that a denial of a motion to dismiss for lack of speedy trial is interlocutory and thus not immediately appealable is still viable.

We repeat what we said in Neal v. State, supra, 20 Md.App. at 28, 314 A.2d at 715:

'. . . The piecemeal appellate review of immediate, and, with very few exceptions, patently frivolous appeals from a refusal to dismiss an indictment on an allegation of denial of a speedy trial . . . does just what the Court in...