Westmoreland v. State

• Decision Date: 23 January 1970
• Docket Number: No. 164,164
• Citation: 8 Md.App. 482,261 A.2d 35
• Parties: Walter Lee WESTMORELAND v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 482

8 Md.App. 482

261 A.2d 35

Walter Lee WESTMORELAND v. STATE of Maryland.

No. 164.

Court of Special Appeals of Maryland.

Jan. 23, 1970.

Robert F. Freeze, Baltimore, for appellant.

Donald Needle, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. and Michael E. Kaminkow, Asst. State's Atty. for Baltimore City, respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Appellant, together with two codefendants, was charged by indictment on January 30, 1968 with having, on December 1, 1967, robbed David Sachs with a deadly weapon. He promptly filed, in proper person, two motions to dismiss the indictment on the ground that he was illegally arrested, held in prolonged illegal detention, denied his right to counsel, to bail, and to confront the witnesses against him. He also filed, in proper person, a motion for discovery and inspection and for particulars and a motion for reduction of bail.

On February 19, 1968 appellant was arraigned and counsel was appointed to represent him. On March 13, 1968, appellant again appeared in court, apparently for further arraignment proceedings, at which time he told the presiding judge that he was dissatisfied with his court-appointed counsel. He requested that one of his relatives, who was a lawyer, be appointed to represent him. The court obliged, and newly appointed counsel entered his appearance on March 5, 1968, and promptly thereafter filed a motion for discovery. For some reason not clear from the record, appellant's counsel then struck his appearance. New counsel was appointed and entered his appearance on May 3, 1968, after which, on May 22, 1968, he filed a motion to suppress evidence.

On June 29, 1968, appellant wrote a letter to the court asking that his case be scheduled for trial. The court treated the motion as one for a speedy trial. On August 6, 1968, appellant, through counsel, filed a new motion to suppress evidence. All pretrial motions having been disposed of, the case was heard by a jury on August 14, 1968, Judge Edwin Wolf presiding. A mistrial was declared. On August 23, 1968, the court appointed additional counsel to represent appellant. On Otober 7, 1968, appellant was brought in for trial. Acting through his counsel, he filed a written motion to dismiss the indictments on the ground that his 'constitutional rights to a speedy trial have been violated, by long, unnecessary, and inexcusable delay by the State of Maryland, all to the prejudice of the defendant.' The trial judge, J. Gilbert Prendergast, considered the motion on its merits and denied it. The appellant told the court that he wished immediately to appeal from such ruling and, to this end, he handed an order for appeal to the trial judge who, in turn, according to the record, gave it to the court clerk. The court took the position that under the circumstances the appellant had no lawful right to file an immediate appeal from the court's denial of his motion for a speedy trial. Appellant then told the trial judge that he was not prepared for trial, that his witnesses were not in court because he was advised by Judge Wolf in a letter dated October 3, 1968 that the hearing set for October 7 was only to determine whether his bail should be reduced. Appellant further stated that he had not seen his newly appointed counsel until the morning of October 7, and that he was dissatisfied both with him and previously appointed counsel. He demanded the court appoint new counsel for him. Notwithstanding his protestations, appellant was forthwith required to stand trial and was found guilty by a jury, and subsequently sentenced to twelve years imprisonment.

Appellant contends that the trial judge erred when he forced him to stand trial after he had filed his other for appeal from the court's ruling denying his motion to dismiss the indictment for lack of a speedy trial. He draws attention to Judge Wolf's letter of October 3, 1968, included in the record before us, which shows that Judge Wolf did acknowledge in his letter that 'You are asking for a reduction in your bail,' and that 'we are hereby setting your bail bond hearing for October 7, 1968.'

It is not settled beyond question that an immediate appeal will lie, prior to a trial on the merits, from the refusal to grant a motion asserting the denial of the constitutional right to a speedy trial. Jones v. State, 241 Md. 599, 217 A.2d 367; Harris v. State, 6 Md.App. 7, 249 A.2d 723; Montgomery v. State, 4 Md.App. 473, 243 A.2d 620; Stevenson v. State, 4 Md.App. 1, 241 A.2d 174; Brown v. State, 2 Md.App. 388, 234 A.2d 788. The Court of Appeals in ...