Telak v. State

• Decision Date: 01 September 1987
• Docket Number: No. 56,56
• Citation: 556 A.2d 225,315 Md. 568
• Parties: Robert TELAK v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 568

315 Md. 568

556 A.2d 225

Robert TELAK v. STATE of Maryland.

No. 56, Sept. Term, 1987.

Court of Appeals of Maryland.

April 7, 1989.

Kevin B. Kamenetz (Moore, Libowitz & Thomas, on the brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ELDRIDGE, Judge.

Maryland Code (1974, 1984 Repl.Vol.), § 12-401(a) of the Courts and Judicial Proceedings Article, authorizes an appeal by the State from the final judgment in a District Court criminal case "if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code." Section 12-401(c)(1) provides that an appeal from a District Court judgment "shall be taken ... within 30 days from the date of the final judgment from which appealed." The issue before us in the present case concerns the timeliness of the State's appeal in a District Court criminal case.

On April 21, 1986, Robert F. Telak was arrested in Baltimore County on charges of driving while intoxicated and negligent driving. On July 24, 1986, after trial and after a verdict of guilty was entered on both charges, the District Court of Maryland, pursuant to Code (1957, 1987 Repl.Vol.), Art. 27, § 641, struck the guilty verdicts and imposed probation before judgment, two years supervised probation, a fine, and a requirement of alcohol related treatment. Neither side filed a notice of appeal during the thirty-day period following the District Court's July 24th order.

On August 15, 1986, the State filed in the District Court a "Motion to Correct an Illegal Sentence." The State argued in its motion that the court could not impose probation before judgment because Art. 27, § 641(a)(2), prohibited placing a person on probation for a second or subsequent violation of driving while intoxicated or driving under the influence of alcohol. Telak had previously been given probation for driving under the influence. The District Court denied the State's motion on September 18, 1986.

On September 30, 1986, twelve days after its motion had been denied, but 68 days after the District Court's July 24th order, the State filed a notice of appeal to the Circuit Court for Baltimore County. Telak moved in the circuit court to dismiss the appeal on the ground that it was not filed within 30 days of final judgment as required by § 12-401(c)(1) of the Courts and Judicial Proceedings Article.

After hearing oral argument, the circuit court denied Telak's motion to dismiss the appeal. Later, the circuit court issued a "mandate" which recited that the "State's Motion to Correct Illegal Sentence be granted" and that the "Cause Is Remanded" to the District Court. The defendant Telak then filed in this Court a petition for a writ of certiorari, challenging the timeliness of the State's appeal. We granted the petition, and we shall reverse on the ground that the State's appeal was untimely. ¹

The State insists that its notice of appeal in this case was timely even though the notice was filed more than thirty days from the order of the District Court disposing of the case. Before addressing the State's theory as to why its appeal was timely, it would be useful to review some background concerning the provision in § 12-401(a) of the Courts and Judicial Proceedings Article authorizing an appeal by the State in a criminal case if the trial court allegedly "failed to impose the sentence specifically mandated by the Code."

Prior to the enactment of the Courts and Judicial Proceedings Article of the Code, which generally became effective on January 1, 1974, the State had no right to appeal in a District Court criminal case; it had a somewhat limited right to appeal in a circuit court criminal case. Thus, Code (1957, 1973 Repl.Vol.), Art. 26, §§ 156(c) and (d), provided that "[i]n a civil case, any party aggrieved by the judgment of the District Court may take an appeal" but that "[i]n a criminal or traffic case, the defendant may take an appeal from the judgment of the District Court" (emphasis added). With regard to circuit court criminal cases, however, Code (1957, 1968 Repl.Vol.), Art. 5, § 14, stated:

"The State may appeal to the Court of Special Appeals from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment, information, presentment or inquisition in a criminal action, but the State shall have no right of appeal in any criminal action where the defendant has been tried and acquitted."

The provisions of Art. 5, § 14, were construed by the Court in State ex rel. Sonner v. Shearin, 272 Md. 502, 520-526, 325 A.2d 573 (1974). In that circuit court case, the trial judge suspended three years of a five year prison sentence for use of a handgun in commission of a felony, even though the statute mandated a minimum sentence of five years imprisonment. The State, believing that it had no right to a direct appeal, did not file a notice of appeal within 30 days of the judgment in the criminal case. Nevertheless, the State did, within 30 days of the judgment, file in this Court a petition for a writ of mandamus, writ of certiorari, "or other appropriate relief." This Court passed an order directing that the State's petition be held in abeyance pending application by the State to the circuit judge for an order nullifying the suspension of three years of the sentence. The State then filed such a motion with the circuit court. When the motion was denied by the sentencing judge, the State took an appeal to the Court of Special Appeals. The notice of appeal was filed within 30 days of the denial of the motion but more than 30 days from the judgment in the criminal case. This Court granted the State's petition for a writ of certiorari prior to any proceedings in the Court of Special Appeals. We held that the appeal by the State would be allowed and that it was timely. On the merits, we remanded the case to the circuit court for the imposition of a proper sentence.

We noted in the Sonner opinion that, as the case had been commenced prior to January 1, 1974, the applicable statute was Art. 5, § 14, rather than § 12-302(c) of the Courts and Judicial Proceedings Article. 272 Md. at 526 n. 6, 325 A.2d at 586 n. 6. After reviewing Art. 5, § 14, and several predecessor statutes and earlier cases, we held in Sonner that Art. 5, § 14, did not limit the State's right of appeal in criminal cases to the situation where the circuit court dismissed the charging document. We stated that the statutory language permitted "an appeal from the imposition of an illegal sentence, since the issue of the trial court's jurisdiction is involved in the sense of whether it exceeded the powers vested in it by prescribing a penalty contrary to law." 272 Md. at 526, 325 A.2d at 586. To the same effect as Sonner, see State v. Wooten, 277 Md. 114, 115-116, 352 A.2d 829 (1976).

As previously indicated, appeals in criminal cases which commenced on or after January 1, 1974, were governed by the new Courts and Judicial Proceedings Article of the Code. That Article, as initially enacted, made no change concerning the right of appeal in District Court criminal cases; under § 12-401(a), the State had no right to appeal in a District Court criminal case. With regard to circuit court criminal cases, however, § 12-302(c) of the Courts and Judicial Proceedings Article, as originally enacted, did depart from former Art. 5, § 14. Section 12-302(c) provided: "In a criminal case, the state may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case." (Emphasis added). As Judge Rodowsky recently stated for the Court in State v. Hannah, 307 Md. 390, 399, 514 A.2d 16 (1986), "[t]he Revisor's Note to § 12-302(c) in Code (1974) explained that the ... language from former § 14 had been omitted 'since the state may only appeal in the limited situations set forth in the section in any event.' " Judge Rodowsky went on to point out that § "12-302(c), as enacted, placed in serious question, if it did not completely eliminate, the State's right to appeal an illegal sentence as recognized in the earlier cases and reiterated in Sonner." Ibid.

The restriction imposed by the 1974 Courts and Judicial Proceedings Article, upon the State's right to appeal in circuit court criminal cases, was addressed by Ch. 49 of the Acts of 1976. Also that statute, for the first time, gave the State a right to appeal in District Court criminal cases. Ch. 49 added § 12-302(c)(2) to the Courts and Judicial Proceedings Article, which authorized the State to appeal from a final judgment in a circuit court criminal case if the trial judge allegedly failed to impose the sentence specifically mandated by the Code. Ch. 49 of the Acts of 1976 also added the language to § 12-401(a) which is at issue in the present case, and which authorizes the State to appeal from a final judgment in a District Court criminal case in the same situation. ² Turning to the present case, the State's theory is that the enactment of Ch. 49 of the Acts of 1976 placed the State in the same position that it had under the Sonner decision, with respect to both the right of appeal and the procedure for taking an appeal. According to the State, as long as its notice of appeal is filed within 30 days of the denial of the motion to correct an allegedly illegal sentence (which was the situation in Sonner and in the present case), the State's appeal is timely even though the notice of appeal is filed more than 30 days from the order disposing of the criminal case (which also was the situation in Sonner and in the present case). The State asserts: "The State enjoys the same right to appeal an illegal sentence that it had under the controlling law in Sonner" (respondent's brief, pp....