State v. Simms, 175 A.3d 681

Leonard Lee Simms was convicted and sentenced in Anne Arundel County for conspiracy to distribute MDMA (count seven); the State nol prossed the other six counts at sentencing.
Simms filed a timely appeal to the Court of Special Appeals challenging sufficiency of the evidence and denial of a suppression motion.
While the appeal was pending (before briefing by the State), the State filed a nolle prosequi in the trial court as to the conviction-producing count.
The State moved in the Court of Special Appeals to dismiss the appeal as moot based on its nol pros; the Court of Special Appeals rejected that motion, held the nol pros ineffective, and reversed on the merits for insufficient evidence.
The Court of Appeals granted certiorari to decide whether the State may enter a nolle prosequi after conviction and sentencing and, if so, whether the appeal became moot.
The Court of Appeals held that the State lacks authority to nol pros a charge after entry of final judgment (conviction and sentence); final judgment ends the trial court’s case and transfers exclusive jurisdiction to the appellate court.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Simms)	Held
Whether the State may enter a nolle prosequi on a charge after conviction and sentencing (while appeal pending)	State argued its broad prosecutorial discretion and Rule 4-247 permit nol pros at any time, including on appeal; absent explicit rule prohibition, State may abandon prosecution to effectuate dismissal	Simms argued the appeal is a statutory right from final judgment; the State cannot use a nol pros to erase a final judgment or deprive him of appellate review	Court held State may not nol pros a charge after final judgment; once convicted and sentenced, the State’s nol pros authority ends and the appellate court has exclusive jurisdiction

Friend v. State, 175 Md. 352 (1938) (nol pros entered during appeal was ineffective; State cannot unilaterally dismiss an appeal and doing so produced double jeopardy)
Hooper v. State, 293 Md. 162 (1982) (nol pros is final termination of a charging document; State cannot withdraw a nol pros once entered)
Ward v. State, 290 Md. 76 (1981) (nol pros applies to particular charging documents and does not acquit the underlying act; explains timing and double jeopardy implications)
Gilmer v. State, 389 Md. 656 (2005) (definition of nolle prosequi as State’s declaration not to pursue charges; discusses effect when entered prior to sentencing)
Barrett v. State, 155 Md. 636 (1928) (nol pros is abandonment of prosecution and cancels the indictment, restoring defendant’s position)
Commonwealth v. Dascalakis, 140 N.E. 470 (Mass. 1923) (prosecutor’s power to enter a nol pros ends once the case has come to final judgment; entry after sentence is improper)