Todd v. State
| Decision Date | 09 September 1975 |
| Docket Number | No. 1050,1050 |
| Citation | 28 Md.App. 127,343 A.2d 890 |
| Parties | Russell Elliott TODD, Jr. v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
William T. Wood, Rockville, for appellant.
Gilbert H. Robinette, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County, and Steven Shaw, Asst. State's Atty., for Montgomery County, on the brief, for appellee.
Argued before MOYLAN, MENCHINE and LOWE, JJ.
On August 27, 1974, Russell Elliott Todd, Jr. was convicted of armed robbery, use of a handgun in the commission of a felony and of carrying a handgun. He had been tried by a jury in the Circuit Court for Montgomery County. The trial judge ruled that the conviction for carrying a handgun was merged in the offense of using a handgun in the commission of a felony.
A motion in proper person for a new trial, received by the trial judge on September 3, 1974, was filed in the office of the Clerk of Court on September 5, 1974. The State filed a motion ne recipiatur as to the motion for a new trial, contending that the same had not been filed within three days after verdict as required by Maryland Rule 759. The trial judge granted the State's motion ne recipiatur upon the ground that the motion for a new trial was not timely filed.
Appellant then was sentenced to imprisonment for a conditional term of ten years under the provisions of Article 27, § 641A for the armed robbery offense and to imprisonment for five years for the handgun offense, the sentences to run concurrently.
Appellant contends on appeal that the trial court was in error:
1. In refusing to hear appellant's motion for a new trial.
2. In submitting to the jury the question whether a C.O.2 pistol was a handgun within the meaning of Article 27, § 36B(d).
3. In admitting evidence of pretrial identification by photograph and permitting in-court identification at trial.
Assuming that the motion for a new trial was filed at the time of its receipt by the trial judge on September 3, 1974, rather than at the time of its actual docketing and filing in the Clerk's office, it is plain that it was not filed within the time prescribed by Rule 567. 1 Rule 567 is made applicable to criminal trials by Rule 759. 2
Testimony was taken at hearing upon the State's motion ne recipiatur. Appellant testified that he had completed the motion for a new trial on August 29, 1974 'to the best of (his) memory;' that he passed it along to an officer at the detention center on the same date; that he understood that outgoing mail is not mailed until the following day. Sgt. Sarah Boone of the detention center, in general confirmed the testimony of appellant.
The trial judge then rendered the following oral opinion:
'Gentlemen, the Court is of the opinion it lacks jurisdiction to entertain the motion for a new trial. The rule is clear that the motion for a new trial must be filed within three days of the verdict and in this case the verdict was returned on the twenty-seventh. So you would begin counting on the twenty-eighth and that would be the first day, the twenty-ninth would be the second day, and the thirtieth would be the final day for filing, and all of those were regular work days. There is no gap in the filing period. So by the close of business on the thirtieth there had to be filed with the Court, and I would have accepted filing with me as being sufficient. The man was represented by counsel at the time and he is presumed to have known what the law was and he did not get it filed. I have allowed adequate opportunity and a recess here this morning and even suggested further investigation to determine whether there was any willful effort on the part of any State official to delay the transmittal of this letter, which would possibly allow me to consider the motion for a new trial and I find no such, certainly no intentional holdup or delay in the transmittal of this man's mail, but rather handling in the regular course of business of the detention center and according to their own administrative procedures. Now the Court feels that their administrative procedures might be so blatantly improper as to amount to a denial of reasonable access to the Court, but I do not find that in this case. The defendant himself is very unsure as to the time when he may have handed this letter to one of the custodial personnel and indeed it may have been very late in the day on the twenty-ninth when he would not have expected it to be posted until the thirtieth. He made no special request that it be given any favorable handling or that it be hand-carried. He did not attempt to call his attorney and ask him to come over and get it or to file a motion for a new trial on his behalf.
The record fully supports the factual conclusions of the trial judge. * The case of State v. Tull, 240 Md. 49, 212 A.2d 729, is dispositive of this issue. In Tull it was said at 52 (730):
'Maryland Rule 759 a provides that a motion for a new trial in criminal cases, as in civil, 'shall be filed within three days after the reception of a verdict' (such a motion was duly filed within three days after the verdict in the original trial on June 6, 1962, and denied). We held in Giles v. State, 231 Md. 387, 190 A.2d 627, (in which the sequence of events was almost identical to that here, the second motion for a new trial having been made there some two months after the original judgment and sentence had been affirmed here) that the rule meant what it said and was valid. The apposite language in part was:
See also Drehoff v. Warden, 231 Md. 654, 656, 191 A.2d 421; Cook v. State, 225 Md. 603, 608, 171 A.2d 460; Carr v. State, 218 Md. 318, 320, 146 A.2d 192; Johnson v. State, 215 Md. 333, 336-337, 137 A.2d 372.
'The tril court had no power to grant a new trial under Rule 759 a.'
The trial court was without power to consider the tardy motion for a new trial. There was no error in sustaining the State's motion ne recipiatur and the concomitant refusal to consider the appellant's motion for a new trial.
At the time of his arrest a weapon was seized from the glove compartment of a motor vehicle appellant had been operating. The validity of the search and seizure is not contested. The seized weapon was offered by the State and was received in evidence over the objection of appellant. A State's witness had testified that the exhibit
The State now contends that conviction for the handgun offense could be justified and supported by the testimony of a witness who had described the weapon used in the robbery as a .45 calibre pistol. The propriety of such position ordinarily would be beyond cavil. Tangible evidence in the form of the weapon used in an offense certainly is not an essential to proof of the use of a weapon. In the subject case, however, the State offered the object in evidence. The sole basis for its admission was the implicit assurance of the State that it was the weapon used in the robbery. The State may not receive benefits accruing from introduction by it of such tangible evidence and thereafter repudiate the connection of that graphic material evidence and the offense it was offered to support. In such circumstances we believe that the issue whether the weapon falls within the purview of the handgun law is before us for decision.
Evidence as to the precise nature and operation of the weapon was quite sparse, having been limited to the following:
I subsequently, prior to taking it to court in the City of Falls Church, disarmed the weapon.
Appellant contends that the weapon does not fall within the meaning of 'handgun' as the same was used in Article 27, § 36B. We do not agree.
The pertinent parts of Article 27 are as follows:
'(d) Unlawful use of handgun in commission of crime.-Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.'
'(a) The term 'handgun' as used in this subheading shall include any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun and a short-barreled rifle...
To continue reading
Request your trial
-
Brown v. State
...a handgun because it was not a firearm, i.e., it did not propel a missile by gunpowder or similar explosive (abrogating Todd v. State, 28 Md.App. 127, 343 A.2d 890 (1975))); York v. State, 56 Md.App. 222, 229, 467 A.2d 552 (1983) (holding that a firearm that is inoperable and not readily re......
-
Brown v. State, 1632
...empirical examination because it was not recovered. There is no suggestion in any of the three cases [relied on by Couplin-- Todd v. State, 28 Md.App. 127 (1975); Tisdale v. State, supra, 30 Md.App. 334 and Howell v. State, supra, 278 Md. 389, 364 A.2d 797], or in any other brought to our a......
-
Grant v. State
...of Md.Ann. Code art. 27, § 36B(b) (1976 Repl.Vol.). 37 Md.App. at 558, 378 A.2d at 190. We specifically overruled Todd v. State, 28 Md.App. 127, 343 A.2d 890 (1975) which held that a CO sub2 .22 caliber pellet gun was a handgun within the meaning of the statute. Douglas, 37 Md.App. at 558-5......
-
State v. Millett
...the firearm itself be admitted in evidence as an exhibit. State v. Harwick, 220 Kan. 572, 552 P.2d 987, 992 (1976); Todd v. State, 28 Md.App. 127, 343 A.2d 890, 893 (1975) (overruled on other ground); United States v. Liles, 432 F.2d 18 (9th Cir. 1970); Coleman v. United States, 219 A.2d 49......