Vonoppenfeld v. State, 581

• Citation: 454 A.2d 402,53 Md.App. 462
• Decision Date: 07 January 1983
• Docket Number: No. 581,581
• Parties: Rolf Rudolph VONOPPENFELD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 462

53 Md.App. 462

454 A.2d 402

Rolf Rudolph VONOPPENFELD v. STATE of Maryland.

No. 581.

Court of Special Appeals of Maryland.

Jan. 7, 1983.

Alan J. Goldstein, Greenbelt, with whom were Horowitz, Oneglia, Goldstein, Foran & Parker, P.A., Greenbelt, on the brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Robert Greenberg, Asst. State's Atty. for Montgomery County on the brief, for appellee.

Argued before MOYLAN and LOWE, JJ., and THAYER, FREDERICK A., Specially Assigned Judge.

LOWE, Judge.

Md.Transp.Code Ann. § 21-902(a), (b) and (c) (1977, as amended July 1, 1980) prohibits driving while (a) intoxicated or (b) impaired by the use of alcohol or (c) under the influence of drugs or alcohol.

"(a) Driving while intoxicated.--A person may not drive or attempt to drive any vehicle while intoxicated.

(b) Driving while ability impaired by alcohol.--A person may not drive or attempt to drive any vehicle while his driving ability is impaired by the consumption of alcohol.

(c) Driving while under influence of drugs or drugs and alcohol.--(1) A person may not drive or attempt to drive any vehicle while he is so far under the influence of any drug, a combination of one or more drugs, or any combination of drugs and alcohol that he cannot drive a vehicle safely."

On October 10, 1981, Rolf Rudolph Vonoppenfeld was convicted in Montgomery County's District Court of driving while his ability was impaired by the consumption of alcohol. § 21-902(b). He is chagrined because, while originally charged with "Driving a Motor Vehicle While Intoxicated [§ 21-902(a) ] and/or Impaired by the Consumption of Alcohol", the State amended, without objection by the defense, on the morning of trial by striking out the words "and/or Impaired by the Consumption of Alcohol".

The record does not indicate why that amendment was requested or permitted. We can only speculate whether the State had elected to proceed on an "all or nothing" basis, as was indicated in Insley v. State, 32 Md.App. 46, 48, 358 A.2d 246 (1976), ¹ or whether it was a procedural housecleaning amendment merely to abolish surplusage in the light of Md.Transp.Code Ann. § 26-405, which reads in pertinent part:

"If a person is charged with a violation of ... § 21-902 of this article ('Driving while intoxicated, ability impaired, or under the influence'), the court may find him guilty of any lesser included offense under any section of the respective section."

The District Court judge then heard the case and, according to appellant, found him not guilty of driving while intoxicated but, presumably based upon the § 26-405 authority, guilty of driving while impaired. ² No appeal was taken to the Circuit Court within 30 days as permitted by Md.Cts. and Jud.Proc.Code Ann. § 12-401. Four months later, however, on February 10th of the following year, appellant filed a petition in the Circuit Court for Montgomery County for a Writ of Certiorari directed to the District Court on the ground that the District Court had exceeded its jurisdiction by convicting appellant of an offense not charged. No pleadings in that regard, nor any record of the final judgment "appealed from" is before us since bringing that District Court record before the Circuit Court (from which this appeal emanates) is precisely what was denied by denying the writ.

Decisive in this appeal is the question whether the alleged defect by the District Court constituted a jurisdictional question sufficient to obviate the general rule that

"... the writ [of certiorari] will not ordinarily be issued in any case in which by law an appeal is provided, for the plain reason that upon such appeal, the power and jurisdiction of the inferior court can always be easily and satisfactorily inquired into and ascertained." 4 Poe's Pleading and Practice (6th ed.) § 723, citing Weed v. Lewis, 80 Md. 126, 117-128 (1894); Crichton v. State, 115 Md. 423, 430 (1911); State v. Haas, 188 Md. 63, 67 (1947); Moore v. License Com., Pr. Geo's Co., 203 Md. 502, 505 (1954);

see also A.S. Abell Co. v. Sweeney, 274 Md. 715, 719, 337 A.2d 77 (1975). We are also asked to decide whether the action of the District Court so exceeded its jurisdiction as to be a nullity. Because the term jurisdiction as used in both instances means "fundamental jurisdiction", Pulley v. State, 287 Md. 406, 415-416, 412 A.2d 1244 (1980), which was properly acquired by the District Court, we will affirm.

--certiorari--

At common law certiorari is a writ issued by a superior court, directed to an inferior tribunal, commanding it to return the record of its proceedings in a cause, to such superior court in order that inquiry may be duly made into the inferior court's authority or jurisdiction. See Williamson v. Carnan, 1 G. & J. 184, 196 (1829). While historically it was a familiar remedy used to restrain inferior courts from going beyond their limited powers, with the enlargement of the right of appeal the necessity for its use is now limited to those few cases where no appeal is provided. Poe, supra, § 723 at 440.

Ordinarily, where the writ will lie at all, it should be applied for and issued before the proceedings have culminated in a judgment, since the chief object of the writ is to stay the exercise of authority by an inferior tribunal until its jurisdiction can be determined. Crichton v. State, 115 Md. 423, 426, 81 A. 36 (1911). That preliminary purpose is not an absolute, however. A writ will limitedly lie after judgment, and "it may [even] issue after judgment executed, for the purpose of quashing the proceedings of an inferior jurisdiction which has transcended its limited authority," but again conditionally, "in cases where no writ of error or appeal will lie." 4 Poe,supra § 725.

Appellant takes exception to the current admonition that a writ of certiorari should be issued only where the lawfulness of the action of an inferior court could not be inquired into upon appeal to a superior court. See A.S. Abell, supra. Relying upon a phrase extracted from Gaither v. Watkins, 66 Md. 576, 580, 8 A. 464 (1887), he points to an exception parenthetically implied by that case permitting the writ to issue "for the purpose of testing the jurisdiction of the tribunal below". Acknowledging that the jurisdiction question could have been raised on appeal, Gaither justified the writ's issuance by pointing out that an appeal of a case like that before the Gaither trial court could have brought with it to the appellate court unrelated but expensive protracted legal questions. Certiorari, on the other hand, in that case, would more efficiently test only the jurisdiction since the jurisdictional question could be decided on the very face of that proceeding. Id. at 581, 8 A. 464.

It should be parenthetically noted that in Gaither, the Court was justifying the Circuit Court's granting of that discretionary writ. There is not the slightest inference that a denial of the writ would have constituted an abuse. In light of the obsolescent need for that archaic remedy we find the absence of any case holding that a denial for any reason was an abuse, significant to signal a proportionate atrophying of the writ's availability with the growing rights of appeal and other similar more contemporary remedies.

The writ then, is not a writ of right but issues if at all as a discretionary exercise. A primary consideration of that determination by the petitioned court would be whether there exists another action--de novo or appellate, at law or in equity--which will provide the relief desired. A.S. Abell Co., supra. Had appellant been able to have foreseen the result here, and prematurely applied for certiorari prior to the culmination of proceedings, a denial of the writ, even then, would not have been an abuse because the question now asked (whether the charging document sufficiently described the offense convicted) was answerable on appeal. Notwithstanding appellant's professed inability to anticipate that issue before the case had culminated in a judgment, the same reasoning applies to his belated appeal. A remedy was available by appeal but was ignored, yet by virtue of the de novo nature of the appeal evidence, § 12-401(d) Md.Cts. & Jud.Proc.Code Ann., it was the ideal place to determine that question appellant asks. The circuit court is the ideal reviewing court because it was an appeal de novo, capable of hearing the evidence necessary to determine whether the amendment was granted as a procedural housecleaning measure or an intentional abandonment of the lesser included offense.

But the right to appeal within 30 days was not taken and, now after even the 90 day revisory power of the court (M.D.R. 770(c)) has expired (some four months after final judgment) appellant grasps at a certiorari lifeline to recover his lost advantage. That is what the trial judge found to be true, and we cannot disagree absent something in the record to indicate otherwise. This alone might have been sufficient for us to affirm his discretionary right to deny the writ. See Gaither, supra at 580, 8 A. 464.

In this case, not only did an appeal lie to test the jurisdictional question but, as suggested, the actual question when sifted of surplusage was not jurisdictional in the requisite sense. The issue is whether the charging document sufficiently described the offense intended to be charged and for which appellant was convicted. The Circuit Court judge pointed out and appellant agrees, that the District Court had jurisdiction over the subject matter expressly charged--drunk driving--as well as the person of the appellant whose degree of sobriety was the only difference of opinion. Appellant has conceded that much, yet that is what is meant by the "jurisdiction" which might have given rise to the privilege of a writ. The privilege is never available, when an appellate remedy is...