Wilson v. State

• Decision Date: 13 June 1974
• Docket Number: No. 898,898
• Citation: 21 Md.App. 557,321 A.2d 549
• Parties: Jack M. WILSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 557

21 Md.App. 557

321 A.2d 549

Jack M. WILSON v. STATE of Maryland.

No. 898.

Court of Special Appeals of Maryland.

June 13, 1974.

Certiorari Denied Sept. 11, 1974.

Benjamin Lipsitz, Baltimore, with whom was Eleanor Jean Lipsitz, Baltimore, on the brief, for appellant.

Harry A. E. Taylor, Asst. Atty. Gen. with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Ford Loker, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Argued before ORTH, C. J., and POWERS and MOORE, JJ.

ORTH, Chief Judge.

The ultimate issue in this case is whether JACK M. WILSON is to be tried in the Criminal Court of Baltimore or in the District Court of Maryland on charges of drunken driving. The resolution of the issue turns on whether he is entitled to a trial by jury. Whether he is entitled to a trial by jury depends upon the punishment to which he is subject upon conviction.

I

Code, Art. 66 1/2, § 11-902 declares it to be unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while:

1) he is in an intoxicated condition, subsection (a); or

2) his driving ability is impaired by the consumption of alcohol, subsection (b); or

3) he is under the influence of any narcotic drug or under the influence of any other drug to a degree which renders him incapable of safely driving a vehicle, subsection (c).

Wilson was alleged to have violated subsections (a) and (b) on 11 May 1973. On that date summonses were issued charging him with 'driving while intoxicated' (#1040998), 'driving while ability is impaired' (#1040999), and 'negligent driving' (#1041000). The offenses charged were misdemeanors. Code, Art. 66 1/2, § 17-101(a). The District Court of Maryland has exclusive original jurisdiction in a criminal case in which a person at least 16 years old is charged with violation of the traffic laws, or in which a person at least 18 years old is charged with the commission of a common law or statutory misdemeanor, Courts and Judicial Proceedings Article (Courts Art.) § 4-301 (1), and concurrent jurisdiction with the circuit court ¹ in a criminal case in which the penalty may be confinement for 3 years or more or a fine of $2500 or more, Courts Art. § 4-302(c). 'The District Court is deprived of jurisdiction', however, 'if a defendant is entitled to and demands a jury trial at any time prior to trial in the District Court.' Courts Art. § 4-302(d)(1). When the summonses came on for trial in the District Court on 8 August 1973, Wilson prayed a jury trial. The action was transmitted to the Criminal Court of Baltimore. On 27 September 1973 the State's Attorney for Baltimore City filed a criminal information in that court, charging that Wilson violated Code, Art. 66 1/2, § 11-902. Maryland Rule 708. The information contained six counts. The first three counts related to subsection (a) of § 11-902, and charged that Wilson drove a motor vehicle 'while in an intoxicated condition, to a degree which renders him incapable of safely driving a vehicle' (1st count), that he attempted to so drive while in such condition (2nd count), and that he had 'actual physical control of a motor vehicle' while in such condition (3rd count). The other three counts related to subsection (b) and charged that he drove a motor vehicle 'while his ability was impaired by the consumption of alcohol, to a degree which renders him incapable of safely driving a vehicle (4th count), that he did attempt to so drive while in such condition (5th count), and that he had 'actual physical control of a motor vehicle' while in such condition (6th count). On 10 December 1973 the information came on for trial. Wilson moved to dismiss it. The motion was denied after hearing. Wilson appealed.

II

The motion to dismiss the information was bottomed on the claim that the Criminal Court of Baltimore does not have jurisdiction over the misdemeanors charged, exclusive original jurisdiction being in the District Court. We set out Wilson's reasoning. 'A defendant may demand a jury trial in a criminal case ² if the penalty for the offense with which he is charged permits imprisonment for a period in excess of three months; . . ..' Courts Art. § 4-302(d)(2). ³ At the time he demanded a jury trial he believed the penalty as authorized by Code, Art. 66 1/2, § 17-101 upon conviction of certain of the offenses with which he was charged to be in excess of 3 months. A further perusal of the statute, however, caused him to conclude that the penalty permitted is not more than 2 months imprisonment or a fine of $500 or both. Therefore, he is not entitled to a trial by jury, his demand for a jury trial was void, and the District Court was not thereby divested of jurisdiction. He contends that the case must be sent back to the District Court for trial. We do not agree. We find that the permissible penalty upon conviction of violating Code, Art. 66 1/2, § 11-902(a) is in excess of 3 months.

III

We think that the punishment permitted to be imposed upon every person who is convicted of a first violation of any of the three offenses proscribed by Code, Art. 66 1/2, § 11-902(a) is imprisonment for not more than 1 year or by fine of not more than $1000 or both fine and imprisonment. We believe this to be the intent of Code, Art. 66 1/2, § 17-101. We find that the statute as in effect for the period of 5 July 1971 ⁴ to 30 June 1973 and as effective on and after 1 July 1974 expressly so provides. We find that the statute as effective for the period 1 July 1973 to 30 June 1974 implicitly so provides. It is an alleged conflict in the penalty provisions of the statute as amended by Acts 1973, ch. 207, effective 1 July 1973 and which will be the law until 1 July 1974, the effective date of Acts 1974, ch. 30, on which Wilson predicates his argument. As indicated, we see no conflict, finding the Legislative intent to be clear. It is necessary to trace the history of the penalty statute to explain why we reach this conclusion.

Chapter 534, Acts 1970, repealed Art. 66 1/2 and enacted a new Art. 66 1/2 in lieu thereof, effective 1 January 1971. As amended by chapters 423 and 471 Acts 1971, § 17-101 read, as of 5 July 1971:

'(a) It is a misdemeanor for any person to violate any of the provisions of this article unless the violation is by this article or other law of this State declared to be a felony.

(b) Every person convicted of a misdemeanor for a violation of any of the provisions of Subtitles 10, 11, 12, 13 or 14 for which another penalty is not provided shall be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment for not more than 2 months or by both fine and imprisonment; except that:

(i) Every person who is convicted of violation of Section 6-303 or of subsection (a) of § 11-902 shall be punished by imprisonment for not more than one (1) year or by fine of not more than one thousand dollars ($1,000.00) or by both fine and imprisonment.

On a second or subsequent conviction he may be punished by imprisonment for not more than two (2) years, and in the discretion of the court, a fine of not more than one thousand dollars ($1,000.00.)

(ii) Every person who is convicted of a violation of subsection (b) of Section 11-902 shall be punished by a fine of not more than five hundred dollars ($500.00).

On a second or subsequent conviction he may be punished by imprisonment for not more than one (1) year, and in the discretion of the court, a fine of not more than five hundred dollars ($500.00).

(c) Unless another penalty is in this article or by the laws of this State provided, every person convicted of a misdemeanor for the violation of any other provision of this article shall be punished by a fine of not more than $500 or by imprisonment for not more than 2 months, or by both fine and imprisonment.'

There is no ambiguity or conflict in the provisions of this statute. The punishments upon conviction for violation of the three subsections of § 11-902 are expressly provided, thus excluding them from the general penalty provisions declared in subsection (b) as explicit exceptions in paragraphs (i) and (ii):

1) for a first conviction of driving, attempting to drive, or being in actual physical control of any vehicle while in an intoxicated condition, § 11-902(a)-not more than 1 year or not more than $1000 or both, § 17-101(b)(i);

2) for a second or subsequent conviction of such offenses-not more than 2 years, and, in the discretion of the court, not more than $1000, § 17-101(b) (i);

3) for a first conviction of driving, attempting to drive, or being in actual physical control of any motor vehicle while driving ability is impaired by the consumption of alcohol, § 11-902(b)-not more than $500, § 17-101(b)(ii);

4) for a second or subsequent conviction of such offenses-not more than 1 year, and, in the discretion of the court, not more than $500, § 17-101(b)(ii);

5) for a conviction of driving, attempting to drive, or being in actual physical control of any vehicle while under the influence of any narcotic drug, or any other drug to a degree which renders the accused incapable of safely driving a vehicle, § 11-902(c)-not more than 2 months or not more than $500, or both, § 17-101(b).

It is patent that subsection (c) of § 17-101 does not apply to § 11-902.

The alleged confusion arose with the amendments made by ch. 207, Acts 1973, effective 1 July 1973. The 1973 amendments rewrote the first paragraph in subsection (b), added § 11-904 in the first sentence of paragraph (i) of that subsection, rewrote paragraph (ii), added paragraphs (iii) and (iv) and eliminated former subsection (c). Section 17-101 then read:

(a) It is a misdemeanor for any person to violate any of the provisions of this article unless the violation is by this article or other law of this State declared to be a felony.

(b) Every person convicted of a misdemeanor for the violation of any provision of this...