*1 A.2d 11 Laura Beth CARDINELL Maryland.
STATE Term, 32, Sept. 1992. No. Maryland. Appeals of
Court of July *2 Colvin, Harris, (Stephen Mark Asst. Public Defender E. Bernhardt, Doyle Public Defender and Julia Asst. Public Defender, brief), Baltimore, for petitioner. both (J. Ince, Curran, Jr., Ann
Mary Atty. Joseph Asst. Gen. Gen., brief), Baltimore, Atty. both on for respondent. MURPHY, C.J., ELDRIDGE, Argued and before RODOWSKY, McAULIFFE,* CHASANOW, KARWACKI BELL, JJ.
McAULIFFE, Judge. principal questions: This case involves two did the trial judge authority have to reduce the defendant’s sentence when did; not, he and if any right did the State have action to of Special Appeals? question the Court The first is readily negative; answered under the facts of this case * McAuliffe, J., retired, participated hearing now in the and conference of Court; being- this case while an active member of this after recalled Constitution, IV, 3A, pursuant participated to the Article Section he also adoption opinion. in the decision and of this modify the sentence. authority had no judge the trial difficult, that we exam- requires more question second of the State law and trace a common ine jurisdiction. court acted without when the lower criminal cases of that applicability that we consider the requires It also case, and determine whether to the facts of this doctrine legislature. extinguished by has been
I. Court for pled guilty the Circuit Laura Beth Cardinell of cocaine and two to one count of distribution County Garrett impris- of cocaine. She sentenced possession counts of timely motion years. of three She filed onment for a total Rule pursuant Maryland for revision sentence seven months after sentence Nearly motion was denied. *3 for “supplemental” motion the defendant filed imposed, day on granted motion was of the sentence. This revision filed, execution of the judge the trial ordered that it was imprisonment three-year sentence portion unserved supervised placed and that the defendant be suspended, later, years. days appar- Two probation three court, action taken filed an answer ently unaware of the motion, court no arguing that had to the defendant’s on the motion. jurisdiction to entertain or act timely appeal Special filed a to the Court The State held, trial among things, That court other Appeals. in excess of his judge authority acted without and therefore and that the jurisdiction, appeal, that the State was entitled must be vacated. modifying trial court’s order the sentence Cardinell, Md.App. We to consider the petition the defendant’s for certiorari granted questions presented: two holding Special Appeals
1. the Court of erred Whether had a the lower court’s the State (1974, [Maryland clear Code despite language order Article,] Proceedings Courts and Judicial Repl.Vol.), 12-302(c)(2)? Special Appeals holding the Court of erred Whether revisory power the trial court lacked over the sen- tence? order. questions address these reverse
We
II. authority to modi clearly The lower court was without fy or reduce the defendant’s sentence when it did so. The sequence of relevant events is as follows: imposed.
4 Oct 90 Sentence 27 Dec 90 Defendant’s Motion for Revision of Sentence filed. denying
3 Jan 91 Order filed defendant’s motion. May motion for revision “supplemental” Defendant’s of sentence filed.
1 May granting “supplemental” 91 Order filed defendant’s reducing
motion and sentence. Maryland provided,1 pertinent part, Rule 4-345 as follows: (a) Illegal may illegal Sentence.—The court correct an sentence at time.
(b) Modification or Reduction—Time court for.—The revisory power upon has and control over a sentence days motion filed within 90 ... imposition after its court, an appeal circuit whether or not has been filed. The strike, may modify or reduce or but not increase *4 1, 1993, 4-345(b) January 1. Effective Rule was amended to read as follows: (b) revisory Modification or Reduction—Time For.—The court has power upon and control over a sentence a motion filed within 90 Court, (1) days imposition in the after its District if an has not (2) court, perfected, been and in a circuit whether or not an Thereafter, revisory power has filed. been the court has and control fraud, mistake, irregularity, over the sentence in case of or or as (d) provided may in section Rule. this The court not increase a imposed, except may sentence after the sentence has been that it correct an evident mistake in the announcement of sentence if the correction is made on the record before the defendant leaves the following sentencing proceeding. courtroom Thereafter, has reviso- the court of, a sentence. length fraud, in case of the sentence control over ry power mistake, irregularity----
(c)
modify, re
Hearing.—The
may
court
Open Court
court
open
only on the record
duce,
a sentence
or vacate
heard.[2]
opportunity
and an
be
parties
to the
after notice
of sentence
motion for modification
first
The defendant’s
however,
that
motion,
point,
At
was denied.
timely. That
following
imposi-
90-day period
when the
and thereafter
The so-
pending.
motion was
expired, no
tion of sentence
was filed
motion for modification
“supplemental”
called
under the Rule.
later,
efficacy
had no
simply
months
a common law or inherent
enjoy
judge
The trial
did
imposed.
he had
legal
sentence
modify
to reduce or
has, however, been
revisory power
common law
A limited
out for this Court
Judge Digges pointed
As
recognized.
State,
“[i]n
entered,
during
they
are
the term which
during
court
inherent
out or
power to strike
the court has
that
time
criminal cases.” Madi-
civil and
modify judgments
both
In
425, 431,
son
or rescind-
modifying
or rule either
of a statute
the absence
authority survives.
ing
power,
this
such
(some
omitted).
A.2d 1150
citations
Id. 291 Md.
114, 123,
supplanted by Rule the principle applica- would not be ble here because sentence was imposed September, court, expired term which when the new term of court March, began Monday on the second 1991.4 The order reducing May, the sentence was not entered until 1991.
III. Having judge determined that the trial lacked the power did, this reduce defendant’s sentence when he we turn to question of whether this Court is authorized to IV, § entertain the noted the State. Article Maryland the Constitution of provides part that “[t]he Appeals of the Court of shall be co-extensive with the limits of may the State and such as now is or hereafter be A prescribed by part law.” of the law of which that constitu provision tional speaks is the common law as it existed in England and in this colony day July, on the 4th and is not inconsistent with the constitution of the State or its new See Declaration of institutions. political Rights Maryland, Buchanan, State v. 5; Article 5 H. & J. majority
A
of Special Appeals’
panel consider
ing
statute,
case held that
was permitted by
the alternative was permitted under the common law
that
principle
appellate
entertain an
review contention that an inferior court acted in excess of its
Cardinell,
State v.
jurisdiction.
supra, Md.App.
1123.
agree
We do not
that
enough
the statute is broad
to authorize the State’s appeal,
agree
but we do
pursuant
will lie
to common
principles
law
that have
not been
legislature.
abolished
S.,
510, 514,
(1982)
3.
In re
(suggest-
Glenn
(c) case, provided In a the State criminal in this subsection.
[*]
(2)
if the
judgment
from a final
may appeal
The State
impose
failed to
alleges
judge
the trial
State
that
mandated
the Code.
specifically
by
sentence
panel
reasoned
majority
Special Appeals’
A
of the Court
law,5
the force of
by this Court have
promulgated
that rules
authority granted
him
judge
trial
acted outside the
that the
4-345(b), and that
modified sentence was
Maryland Rule
Cardinell,
State
“by
not authorized
Code.”
therefore
458-60, 601
1123. This
Md.App.
at
broad
in the
that
was
belief
interpretation
adopted
the statute
a
have
that the State have
legislature must
intended
“[t]he
as these
under circumstances such
where
contrary
that
to law.” Id.
imposed
trial court
a sentence
was
that the
Although
agree
legislature
The State Buchanan, In under these circumstances. Constitution, IV, 18(a). Maryland Article supra, 5 H. & J. at our predecessors noted that even statute, in the absence of a King might case; have a writ of error in a criminal since
it would be absurd to that a say man who had obtained judgment acquittal indictment, for a defect or on a verdict, special could again never be indicted for the same offense, until error, if reversed writ a writ of error not would lie.
Pointing out that Attorney General Luther Martin had prose-
cuted writs of
criminal
error on behalf of the State in various
Oyer
Terminer,
cases tried
the Court of
& c. for
County,
Baltimore
the Court said:
And there is no
why
sufficient reason
the State
should
be entitled to a
writ
error
a criminal
It
case.
*7
perhaps
exercised,
a
that should be seldom
and never
for
purpose
oppression,
the
of
or
necessity;
without
which
rarely,
can
and it is supposed
happen,
would never
would not be
by public
tolerated
But as
feeling.
the State
offender,
has no
in
punishment
interest
the
of an
except for
the
purpose
general
justice
public
connected with the
welfare, no such
is to be apprehended;
abuse
and as the
power of revision is calculated to produce
uniformity
decision,
it is
proper
that
the writ should
for
lie
the
in the
proportion
same
as it is essential to the due
justice,
administration of
the criminal
law
the land
known____
should be certain and
Id. In Rayner
(1879),
It only where the Circuit proceeded Court has without jurisdiction right or to hear and decide the case that an appeal or writ of error may be taken to this court to reverse judgment the thus unwarrantably rendered.
Id. at 374. Judge Alvey further stated:
If judgment the of the court below had been rendered power jurisdiction case; without or to hear and decide the instance, for law, if the not appeal had been authorized by or if judgment had against been rendered the party his notice, of defend- opportunity or legal and without absence had, in rights, court the asserting or his or the himself ing jurisdic- the limited of its transcended judgment, rendition preju- the it; party in all such cases conferred upon tion appeal. would have had the the diced words, have would been want In other there judgment, and for Court to render the in the Circuit would exist. the of review reason Id. at 376. legislature provid- Laws of Chapter
By
proceedings were entitled
parties
ed that the
to criminal
proceedings,
civil
exceptions
the same manner
bills
cases
taken in the same
in criminal
could be
appeals
and that
Markell,
for
Judge
writing
in civil
the Court
manner as
cases.
Adams,
(1950),
noted
State
Act,
“presents
only
not
that under
review
questions
also
questions presented by
exceptions
bills
but
record,
only
formerly
on the
reviewable
appearing
face
on writ of error.”
Fisher,
In State authority judge challenged suspend the trial This sentence. Court said: [Sjtate challenge suspension form of does
order; it creating contends that Statute misdemean- sentence, power of all stripped suspend specified on the conditions the Statute itself. except appears statutory it the face of Since the record *8 met, question were the the legality conditions jurisdictional.... is suspension While State’s chiefly “as on” in has Maryland writ of error been quashed, in was we recognized cases where indictment application, and has a somewhat wider principle think in instant lies the circumstances of the case. 312, 104 Id. at A.2d 403. 1957, Maryland provided that January
Effective
Rule
securing
by
method of
review
this Court was
the sole
law,
except
permitted by
appeal,
where certiorari
that writs of error
A
were abolished.
committee note to the
Rule stated that writs of error had been abolished because
they
disuse,
had fallen into
Poe,
and cited 2 John Prentiss
(5th
Pleading and Practice
1925)
at 782
Tiffany
ed.
for
proposition
is no
“there
distinction in principle be-
tween writs of error
In Liquor Board v.
appeals.”
Handelman,
152, 161,
(1957),
In
(1964),
No question
presented
with regard
to- the
magistrate
case;
the trial
to try the
his power to
dispose
it by probation
issue,
this,
without verdict
is in
we
think, presents a question which is essentially
juris-
one of
diction, rather than of mere
irregularity
the proceedings.
Id. (footnote omitted).
More
recently,
391 Court, This appeal. to of State suspended, and punish- to and fix the authority “the define recognizing that States, 242 legislative,” Ex Parte United for crime is ment that the trial L.Ed. 129 held 37 S.Ct. U.S. Concerning of the authority. his judge had exceeded to this Court said: appeal, Fisher, light language of the holding in considered [T]he Handelman, supra, and the subse- Board v. Liquor used Jacob, from for an authority is quent holding sentence, the issue of the trial illegal since imposition of it jurisdiction involved in the sense of whether court’s is prescribing penalty powers vested it exceeded thus exceeds its contrary to law. A lower court which it of last resort. Were must be bridled power otherwise, could Assembly mandates of the General public only protection and the impunity defied with which process judicial be the torturous of removal would error. correcting specific would not have effect clear, Sonner, It is supra, 272 Md. at therefore, Sonner, the common up that at least to the time of to from an action of lower law the State remained in- jurisdiction court that was outside that court’s tact. case us no judge
The trial
in the
before
had
inherent
authority,
any authority by
common law
nor
virtue of
or
rule,
or
at the time
statute
reduce
defendant’s sentence
power
so.
in this case
authority
he did
The absence
jurisdiction,
as that
judge
means
the trial
acted without
dealing
has
used
cases
with
State’s
term
been
(absence
See,
at
e.g., Rayner, supra, 52 Md.
appeal.
Fisher,
jurisdiction);
equated
supra,
to absence of
power
(where
stripped
at
Where the sentence has been decreased term, the the after cases which reported we have been able to find discuss the court, that point beyond hold this is also of the power upon the generally ground when a sentence has been enrolled, and has passed, jurisdiction become court concluded and the court is has no further authority. in original). (Emphasis
Federal cases are in accord. Rule
“virtually
4-345 is
identi-
35(b).6
cal” to
former Federal Rule
Criminal Procedure
Johnson v.
29, 39,
(1975).
Similarly, 3 Charles (2d 1982) the author concludes: at 410 ed. dure 35(b) jurisdictional; if are limits of Rule time rule sentence is a untimely motion is under the and the one, act. powerless lawful *11 omitted). (Footnote important and the limited have examined traced but
We
has
from the earliest
right
appeal
law
that
existed
common
Sonner,
we
time of
and
have
through
of this State
days
sufficiently
that it is
broad
embrace
determined
that,
although
in this case.
taken
We note
Court,
jurisdic-
appellate
exclusive initial
originally
was
to the Court of
in this
of case has been transferred
type
tion
(1974,
Repl.Vol.),
Appeals.
Maryland
Code
Special
Article, §
Proceedings
(providing
and
12-308
Judicial
Courts
has
initial
Special
appel-
“the Court of
exclusive
Appeals
that
decree,
any
judgment,
order
late
over
renewable
...”
a circuit
for the limited
except
or other action of
12-307).
pursuant
to this
We
jurisdiction reserved
has,
question
legislature
then to the
of whether the
now turn
Sonner,
that
any
right.
statute enacted since
abolished
(1957,1968
in
applied
The statute that
Sonner
Md.Code
provided:
§ 14.
RepLVol.), Art.
That section
may appeal
Special Appeals
to the Court of
State
dismiss,
judgment granting
from a
or
a motion
final order
information,
indictment,
dismissing
quashing
any
pres-
or
or
action,
inquisition
in a criminal
but
entment
have
in
criminal action where
shall
no
acquitted.
has been
the defendant
tried
statute,
That
in
first enacted
this form by Chapter 399 of the
Acts
defined certain instances when the State could
expressly stated when the State could not appeal.
Sonner
This Court considered
that statute
said
5, §
“Art.
14 specified some
instances
which there was a
right of appeal by the State.
It did not purport
to limit the
of appeal.”
As a process, Code revision the laws governing appeals were recodified in the Courts and Judicial Article, See Chapter Proceedings 1,1974. effective January 1,§ Acts of the First Extraordinary Session of 1973. Section the Courts Article granted general rights of appeal. 12-302(c) Section contained the following exception applicable to the State’s a criminal case: case,
In a criminal appeal only [S]tate from a final granting motion to dismiss or quashing or indictment, dismissing any information, presentment, or in- quisition a criminal case. 12-302(c). Art., §
Md.Code Cts. & Jud.Proc. There is no indication legislature intended to change the meaning the law this change language. We have said repeatedly
[rjecodification presumed of statutes is to be for the purpose of clarity change Thus, rather than of meaning. even a change in phraseology of a statute a codification will *12 not ordinarily modify the law unless the change is so material that the intention of the General Assembly to modify the law appears unmistakably from language the the Code. 236, Special
In re
Investigation
No.
573, 576-77,
295 Md.
458
(1983).
See also Monumental
A.2d 75
Ins.
v. Co. Trust
Life
ees,
442, 449,
(1991);
322 Md.
State v. Burning
Chapter Acts of the First as not be read Thus, § like 12-302 should predecessor, its appeal. Even an limitation on State’s absolute cannot now “only” in the new statute inclusion of the word limiting, that word reading mandate a of the statute Laws 49 of the Chapter 1976. See deleted amendment again amended of 1976. When the statute was that “only,” but again bill once included word proposed 493 of the prior Chapter to enactment. See word was deleted are deter- Laws in mind that we bound Keeping of 1982. legislature, mine the intent of the Jones and enforce 398, 405, think facts A.2d 471 we these legislature codify indicate enacted circumstances, but not to appeal in certain State’s by common law. strip rights already established State it significant is also articulated The amendment bring appeal. another instance which State 1976 version read:
(c) case, may appeal: In a criminal the State (1) a motion to judgment granting From a final dismiss information, indictment, pres- dismissing any or or quashing entment, inquisition;
(2) alleges final if the From a mandat- judge impose specifically the sentence trial failed ed Code. *13 (1974,1976 Art., §
McLCode Cts. 12- Cum.Supp.), & JucLProc. change 302. This is consistent approach with the taken legislature it right whenever has dealt with the State’s appeal: specific out spelling may instances when the State abolishing right without the common law to jurisdiction. has when the lower court acted outside its Those provisions of the essentially statute have remained the same nothing intent, since 1976.9 We see legislative to indicate a or strip either 1976 to to State of the recognized fact, In in Fisher. language the statute and subsequent its amendments indicate that it not should 12-302(c), construed a limit right. as State’s Section predecessor, § like its Art. lists instances where the may may appeal. not said in What we 14§ § Sonner about Art. to applies equally 12-302: “It did to purport appeal.” not limit the 272 Md. at § to say A.2d 573. That is not 12-302 should be used as finding rights a basis for of appeal; merely new we hold that § 12-302 operate did eliminate the long-standing State’s firmly of appeal judgment established from a final involving action outside the of the lower court. statute, above, legislature again 9. As mentioned amended the time, 1982. At that it identified another circumstance in which the appeal. State has the The amended statute also contained reads, language changes. part, minor It in relevant as follows: (c) case, may appeal provided In a criminal the State in this subsection. (1) may appéal judgment granting The State from a final a motion indictment, information, quashing dismissing or dismiss or presentment, inquisition. (2) may appeal alleges The State from a final if the State judge impose specifically that the trial failed sentence mandat- ed the Code. (3)(i) involving a case In crime of violence as defined 643B Article the State from a decision of a trial court requires that excludes evidence offered the State or the return of property alleged to have been seized violation of the Constitution States, Maryland, Maryland United the Constitution of or the Rights. Declaration of (1974, Jud.Proc.Art, Repl.Vol., Cum.Supp.), Md.Code Cts. & § 12-302. *14 in which this recent decisions acknowledge In we holding, so right concerning the State’s questions has entertained State, 288, 83 v. 577 A.2d Shilling 320 Md. See appeal.10 of State, State (1989); 568, (1990); Telak v. A.2d 225 315 Md. 556 Hannah, cases 390, 514 A.2d Those v. Md. 16 307 “ if it question, in serious ‘placed the statute contain dicta that an eliminate, right appeal to the State’s completely did not and reiterat in the earlier cases illegal recognized sentence ” Telak, 573, 225 at 556 A.2d Sonner.’ 315 Md. ed 16). Hannah, supra, 307 Md. 514 A.2d (quoting 83. now Shilling, supra, also Md. at 577 A.2d We 320 of right appeal law the limited common make clear that State’s the was not abolished have described herein which we thereto. subsequent §of 12-302 or amendments enactment criminal, occasions, civil11 and many Court has on both This of means curtail- recognized that there must be some effective beyond the gone completely who bounds ing judge trial has just to judicial authority. applies, of Judicial review errors, of prevent usurpation power. legal correct but to the post-Sonner legislation that codified certain of The fact to, mean it intended rights appeal State’s to does not that was appropriate at this 10. A word about the basis those decisions Hannah, (1986) juncture. In v. 514 A.2d State (1990), Shilling appealed 577 A.2d judge impose judgment probation to before decision of trial Thus, despite statutorily cases mandated sentence. both those 12-302(c)(2) express § appeal an in the statute. relied to find Although legislative respect scope both discussed intent with to statute, required go beyond the neither was statute. Likewise, we 556 A.2d in Telak untimely. was based on the fact was Our decision ruled judgment” “final based on Hannah to the extent that it found that the order, probation purposes and not the later order was Thus, denying illegal an Telak was the motion to correct sentence. too exclusivity alleged something than the based on other presented directly question here. did not rule on the McNeece, See, County e.g., Montgomery (“[Ejven (1987) conferring of a the absence statute appeal, appellate an entertain an to review a conten- court its appellate an trial acted in excess of tion that inferior or jurisdiction.”). did,
or abolish the challenge beyond jurisdiction of an inferior court.
IV.
Conclusion judge The trial authority power had no to reduce a pursuant criminal sentence to a motion filed seven months This imposition after sentence. defect is not simply procedural, jurisdictional. it is The State has a continuing common law action was outside the court, jurisdiction of the lower and this case was therefore *15 of properly Special Appeals. before the Court THE JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.
ELDRIDGE, BELL, JJ, RODOWSKY dissent. ELDRIDGE, Judge, dissenting.
I agree (1974, with the that majority Repl.Vol.), Code 12-302(c)(2) Proceedings Article, of Courts and Judicial not does authorize the in I appeal State’s this case. totally with the disagree majority’s holding does, “[t]he however, a common to enjoy right law under these By circumstances.” a “common law to finding right appeal” pertinent under circumstances statutory provisions where provide right do not appeal, of majority has overruled a of Maryland multitude and ignored legal princi- cases settled ples. Moreover, Maryland history neither nor the cases relied by the majority support the majority’s position. The Court, in order reach what it as a regards desirable result case, in particular roughshod rides years over more than 200 Maryland jurisprudence.
I. in Numerous cases this Court firmly have established the today, there is no principle that, common appeal. law authorized, Except constitutionally Judge As Smith dependent upon statutes.1 entirely is wholly stated, “[t]he recently for the Court expressly Therefore, Assembly must statutory. the General JJM, Inc., County Howard grant right.” such a 256, 261, A.2d (1980), 1021, 1024 143, 147,422 Bailey, A.2d
State v. sought appeal, in which the State a criminal case for the Court stated: Judge Cole any right recognizing begin our consideration
“We case, must find criminal its a civil or appeal, either legislature.” in an act of the source 1055, 1057(1984), In Jones this Court held: law the State’s Maryland
“Under limited; may only so when authorized it do criminal case is statute.” Special Appeals to the Court the State’s Because statute, reversed the authorized we Jones had been Appeals and instructed Special Court appeal. court to dismiss the 113, 116, Sprenkle
Similarly Lohss and Court directed saying appeal, to dismiss the State’s Appeals Special *16 Levine: by Judge opinion IV, 22, Constitution, expressly § autho- Maryland Article does
1. The in banc,” although any right of appeals to a "court in additional rize losing appellee is before the court in appeal in such cases limited to banc, appeal "to Court of to in which an and is limited those cases makes Appeals may allowed Law.” While the Constitution places, appellate jurisdiction in other appeals to or reference II, (Article original jurisdiction Appeals, of on the Court confers certain IV, III, 5, 4B(b)), explicitly § § 6(g), and Art. it does Article Nevertheless, right cases. one to other confer "on the basis of our this has found a to instance judicial power repository constitutionally the final created status as Washabaugh Washa- Maiyland conclusive.” v. whose decisions are 1027, 393, 402, (1979). baugh, 1032 See also 285 Md. 404 A.2d bar, 5, Case, (1824). majority Ringgold’s 7 the case at 1 Bland In appeal. authority grant of for the State’s does not find a constitutional 400 question presented
“Our consideration
here neces-
sarily
recognition
commences with a
that in
principle
jurisdiction
Maryland, appellate
dependent
is
upon a statu-
power, Mace
v.
Attorney,
Produce
State’s
grant
tory
251
503, 508-09,
(1968);
Subsequent
Md.
248
Injury
A.2d 346
Pack,
v.
306, 309,
Fund
242
(1968);
250 Md.
506
McShain,
Switkes v. John
340, 343,
202 Md.
401 an prosecute or agency no entirely statutory, person ” Subse statute,’ quoting given by is unless the 506, Pack, 306, 309, 242 A.2d v. Fund 250 Md. quent Injury 468, State, 89, 93, 162 A.2d v. (1968)); 223 Md. Woodell 509 statute”); (1960) (“the is a creature 471 406, 400, 76 Appeals, 196 Md. Zoning v. Board Johnson (“It (1950) course, is, accepted principle an 736, A.2d 738 appeal except will entertain Appeals the Court law, to review before it undertakes prescribed by when tribunal, must authority of a subordinate proceedings 22, v. Md. Stationery Bank Co. 196 Amer. shown”); (1950) (“ statutory right 28-29, 86, A.2d 88 ‘Where 75 ” Anne exclusive,’ quoting is remedy granted, 689, 348, 692 342, 46 A.2d County Snyder, Arundel v. 186 Md. Anderson, 17, 25, 575 also, v. (1946)). e.g., State 320 Md. 396, v. (1990); 312 Harper 1227, 1231 Md. A.2d Elza, 208, 211- v. (1988); Md. Clark 124, 127-129 286 540 A.2d Apper, Associates v. (1979); Eastgate 212, 922, 406 A.2d 924 Eisel v. (1976); 661, 698, 700-701, 663 350 A.2d 276 Md. Howell, v. (1959); Switkes 587, 509, 584, 511 220 Md. 155 McShain, 617, 340, 343-345, 96 A.2d Md. John 202 (1951); Barshack, 543, v. (1953); A.2d 32 State 197 Md. 80 Rosen, (1942); v. 167, 169, 829 Md. 181 (1929); 160, 164, 145 Sprague, Brooks v. 157 A. 377 Md. Co., 577, 581, 95 A. v. Hendrickson Standard Oil Ault, v. 635, 84 61 Peoples (1915); A. Md. Co., Ins. (1912); 394- Dillon Conn. Mutual Life Rosenfeld, Barth (1876); all cases and ignores the above-cited majority simply Nevertheless, innumerable same effect. many others that a common law clearly cases in this Court establish appeal does not exist. right fact, In of a common law majority’s recognition by the specifically in an addressed appeal, area particularly present problems. constitutional Assembly, may well General Johnston, al., et years ago, Wylie More than 100 court, sitting circuit claimed that the appellant by issuing an order authority had its equity, exceeded *18 decree, reopening a final as two against appellees, allegedly the of after term court at which the decree was rendered had (29 301). at In
expired dismissing Md. the the statute, ground that it was not authorized the applicable (id. 302): Court out initially pointed this at “The powers Appeals, and duties of the Court of are defined and limited. It cannot appellate jurisdic- entertain except prescribed tion when law. it by the under- Where tribunals, takes to review the proceedings of subordinate authority the must be shewn.” that, The Court on to went state if it were to entertain an statute, appeal not authorized by its decision would violate the (id. 303-304): separation powers constitutional principle “In regard cases where appeals are allowed from Equity, Courts of from law the Code to which we have adverted, very specifically defines boundaries of our appellate jurisdiction. For beyond this Court to it extend range, would be to Legislative invade the domain of the Department Government, its and exercise functions. It is not for us to go legislation.” outside of the limits Moreover, the law appeal recognized common majority in this a right case is to the Court of Special Appeals. of Special Appeals The Court anis interme- appellate IV, pursuant 14A, diate court created to Article Maryland Constitution. That provision constitutional added): states as (emphasis follows “Section 14A. Creation of intermediate of appeal; courts jurisdiction
prescribing and powers. “The General Assembly by law create such interme- appeal, may diate courts of necessary. The General Assembly may prescribe the intermediate appellate juris- diction these appeal, courts and all powers other necessary for the operation of such courts.” Under the constitutional language, appellate jurisdiction Court of Special Appeals appear would be entirely Assembly may prescribe.2 what the General dependent upon 14A, IV, § of Article language have indicated We upon may be conferred which jurisdiction delimits v. Supervisor, Shell Oil Co. Special Appeals. Court of Superintendent See also (1980) 426, 429, 1220, 1222 Zeserman, Md.App. it is (“we any case unless to review power not have do To the extent legislature”). granted jurisdiction nonstatutory appellate recognize any might such would judgments, review circuit *19 Instead, this of likely Special Appeals. in the Court vest to be invoked within jurisdiction would have appellate Court’s judgment or order the circuit court’s prescribed the time after Washabaugh taken. See Wa appeal from which the was 1027, 393, 9, 1032 n. 9 402 n. 404 A.2d 285 Md. shabaugh, (1979). in the Washabaugh, in the State appellant Unlike the jurisdiction case not invoke this Court’s within present did thirty appealed from.3 days of the order 14, Constitution, IV, relating language § Compare of Article Court, jurisdiction jurisdiction stating "[t]he of to the of this that Appeals be co-extensive with the limits of the State the Court shall Thus, prescribed may by or be law.” and such as now is hereafter Special Appeals's jurisdiction prescribed is while the Court Assembly,” jurisdiction “prescribed this Court’s is as “General law.” majority opinion suggests over the common law 3. The right appeal, majority today recognizes, first which the for the time Special Appeals by Assembly the General vested in the Court of (1974, Repl.Vol.), § 12-308 of the Courts when it enacted Code Proceedings Article. Section 12-308 states that "the Court Judicial appellate jurisdiction Appeals over Special has exclusive initial decree, a judgment, action of circuit reviewable order other 12-308, § Revisor’s Note to contained in the 1974 court....” The Article, Proceedings indicates that of the Courts and Judicial edition § dealing right has “other statutes with the to 12-308 reference to Therefore, application appeal.” to law it would have no a common spoke of appeal. Legislature, that the when it It seems obvious referring § judgment” in was not to "reviewable appealable. Legislature 12-302 had determined was not which Moreover, Washabaugh, Washabaugh 285 Md. this Court §of n. 1032 n. 9 made no mention court, that an from a circuit not authorized when it indicated Nevertheless, statute, directly would to taken to this Court. have Regardless what have been the law at earlier period history with to from respect appeals the trial courts Court, it is now settled that from circuit court Special wholly to the Court of is Appeals statuto- ry. Since the Court holds that the State’s in this case authorization, did not fall statutory within the Court of Special Appeals should appeal. be instructed dismiss the
II.
In addition to
overruling
myriad
holding
cases
entirely
is
dependent upon statutory
authorization, the
also
majority
overrules our
opinions
recent
concerning
State’s
in criminal cases under
present statutory
provisions.
majority opinion
flatly inconsistent with our interpretation of
those statutes
(1990);
Shilling
The majority today acknowledges some inconsisten- Telak, Hannah, with cy opinions Shilling, but the *20 majority characterizes the pertinent portions opinions of those “dicta.” portions as The of those opinions which undermine majority’s today Rather, the view are not they “dicta.” are integral of parts holdings in those cases. point
The starting any discussion of present statuto- ry provisions governing the State’s to a crimi- right appeal in Shearin, 502, nal case is rel. State ex Sonner v. (1974). Sonner, course, A.2d 573 of did not concern the present statutory provisions but was decided under former (1957, 5, RepLVoL), § Code Art. Washabaugh fully cognizant § Court was 12-308 at the On the time. filed, day Washabaugh opinion same Estep was we filed 416, 4,
Estep, 1040, (1979), 420 n. 1042-1043 n. in § Washabaugh Estep which 12-308 was discussed. Both were Judge Dudley Digges. authored J. III opinion, prior more detail in Part of this discussed in As 14, 5, § Acts by Ch. 399 to of former Art. the enactment in a 1957, literally gave parties all pertinent statute (1951), 5, Art. appeal. case a Code criminal broad as 86, part § in relevant follows: thus stated to be entitled criminal shall parties proceedings “The to proceed- in civil in the manner as exceptions same bills in cases may criminal appeals judgments from ings, cases____” manner in civil in the as taken same encompassed appeal by statutory clearly language The sentence, and held illegal this Court had challenging an State 311-312, 104 Fisher, Nevertheless, lie. Ch. appeal that such an would all of Article 5 of repealed § the Acts of 1957 former parties” “the to Code, including broad general 399, 4,§ a new enacted section criminal cases. Ch. (Art. 12) to containing general right § a broad appeals by was to defendants. criminal cases limited which 14, which 399, § Art. read also enacted new Ch. follows: By Right Appeal
“14. State. Of Appeals the Court of from “The State dismiss, or or a motion judgment granting final order indictment, information, dismissing pres- or any quashing action, criminal but the State inquisition entment criminal action where have no shall acquitted.” the defendant has been tried Shearin, right of issue in State ex rel. Sonner The 583-586, A.2d at was whether 272 Md. at change intended prior of the Acts of was Ch. 399 from an illegal which to appeal law under the State had a impose court in had sentence. trial Sonner refused Code, by and thus the sentence there sentence mandated Court, This the cases and the examining imposed illegal. *21 to a particularly with reference Rules Com- legislative history, 5, 14, § new Art. see proposed mittee discussion 584-585, 522-523, A.2d at concluded that the 1957 Md. at statute was intended to abolish the State’s right Furthermore, from an illegal sentence. the Court in Sonner held that the State could file the circuit court a motion to sentence, correct illegal an and could file a timely appeal from the circuit court’s on that ruling motion. majority
The
opinion today states that Sonner left “intact”
right
“common law
the State to
from an action of
”
the lower court that was outside
jurisdiction....
that court’s
of the Sonner opinion dealing with
portion
appeal,
520-526,
583-586,
at
325 A.2d at
at no time
refers to a “common law right of appeal.”4
recognized
As
cases,
in subsequent
Sonner the'
holding
upon
interpretation
5,
based
an
§
of Code
14. Art.
Shilling
supra,
294,
As 573, 227, A.2d at cases, § 12- ... to circuit court criminal regard
“[w]ith Article, as 302(c) Proceedings and Judicial of the Courts 5, § 14. Art. enacted, depart from former did originally 12-302(e) case, ‘In state criminal the provided: Section to a motion only judgment granting from a final indictment, informa- or quashing dismissing or dismiss (Em- in a criminal case.’ tion, inquisition presentment, added).” phasis 12-302(c), the of referring § to omission
The Note to Revisor’s 5, § Art. that “the former stated language certain from in the in limited set forth may only appeal situations state ” 12-302(c), § as original The section.... enactment Rodowsky in State by Judge for the pointed out in Hannah, “placed at 514 A.2d at eliminate, if completely the State’s question, serious it did in the earlier recognized an sentence as illegal Later, Shilling in and reiterated Sonner.” cases Judge opinion by 577 A.2d at in an supra, 320 Md. “[sjection 12-302, as Cole, position took the flatly we enacted, 5, § 14 virtually from by Art. originally departed illegal an sentence ehminating the State’s .”5 documented Sonner bar, arguing majority opinion case at that the enactment in the 1, 1974, 12-302(c), change January right of §of did not effective sentence, general illegal rule invokes presumed is to be statutory that recodification of statutes construction clarity change meaning, that a purpose rather than by phraseology will not "ordinari- change in of a statute recodification course, majority ly” forth modify the law. Of rule set process does result in recognizes that sometimes the recodification § example, change 12-301 of in the law. For enactment Proceedings changed respect to Judicial Article the law with Courts and special exercising a limited a circuit court was when statutory jurisdiction. v. Glen See the discussion in Litton Bionetics Co., Construction Moreover, change statutory language as a result sometimes
The critical statutory change, for purposes of the issue case, brought about Ch. 49 of the Acts 1976. In the Sonner case obvious response very and the restrictive 12-302(c) §in language of the Courts and Judicial Proceed- Article, ings and for the purpose of authorizing a State appeal when a trial judge failed to impose a sentence specifically (which mandated statute actually what happened in Sonner), 12-302(c)(2) Ch. 49 enacted new which authorized *23 the State to appeal a criminal case
“(2) From a final if alleges State trial judge impose failed to the sentence specifically mandat- ed by the Code.” majority opinion
The states that nothing original Courts and Proceedings Judicial Article or in 49 of Ch. Acts of 1976 was intended to change the law concerning the State’s right appeal to an illegal sentence which had been Sonner and earlier cases. recognized 2 Section of Ch. 49 of 1976, however, the Acts of stated as follows: “SECTION 2. AND BE IT ENACTED, FURTHER That this Act shall be construed only prospectively not applied be or interpreted to have effect upon or application to any event or happening occurring to prior effective date of this Act.” The Title of Ch. 49 read as follows: purpose
“FOR the of extending the right of the State to cases; in certain criminal giving the extension only prospective effect.”
Obviously the General Assembly believed that original 12-302(c) as well as 49 changed Otherwise, Ch. the law. there would have been no need for 2 section of Ch. 49. Moreover, the Title legislative shows a intent to extend the change recodification will be construed to the law even in the absence calling See, of a revisor or recodifier specific change. attention to the Gernert, 322, 323-325, e.g., Covington 624, 280 Md. 373 A.2d Redmiles, 137, 4, and Dean v. 161-162 n. 374 A.2d (1977), dealing 342-343 n. 4 change with a resulting in the law from a
recodification of the Motor Vehicle Code.
409
judge
the trial
to
situation where
State’s
Code.
mandated
impose
specifically
a sentence
failed
that,
aas
result
Assembly’s position
reflects the General
This
original
Judicial Proceed-
of the
Courts and
of the enactment
Article,
an
illegal
had no
the State
ings
sentence,
type
involved
illegality
even if the
law
cannot
simply
The
majority’s view
Sonner.
49 of the Acts of
language
Ch.
with the Title
reconciled
that,
principle
also violates the
where
majority’s view
specified
under
particular
allows
action
expressly
statute
circumstances,
legislature
it
a reasonable inference that
circumstances.
the action under other
to allow
intended
Md.,
County,
329
See,
Montgomery
Md.
Mossburg v.
e.g.,
(1993);
Employees
892
&
A.2d
Prof.
Office
MTA,
(1982);
88, 96,
453 A.2d
Int’l
155, 162-163,
Montgomery
212, 218,
(1981);
re
No.
In Appeal
illegal
sentence
By allowing
circumstances,
in
Legislature obviously
specified
under
if
illegal
of an
sentence
preclude
a State
tended
*24
Otherwise,
lan
present.
were not
the
those circumstances
12-302(c)(2)
§
no
guage
purpose.
would have
and Judicial
Our cases since the enactment
Courts
have
Proceedings Article and Ch. 49 of the Acts of 1976
made
does not have the same broad
it clear
the State
was
illegal
recog-
from circuit court
sentence which
Sonner,
limited
the
in
and that the State’s
nized
impose
trial
failed to
a sentence
judge
situation where the
Thus,
Hannah,
by the
in State
specifically mandated
Code.
two
were
the
the
determinative issues
whether
State’s
supra,
the trial judge
was from a final
and whether
mandated
specifically
failed to
a sentence
the
impose
had
399-400,
out,
initially pointed
307 Md. at
Code. We
upon
the
dependent
State’s
Ch.
1976. We went on to hold that the trial
49 of
Acts of
imposition
for
judge’s
probation
judgment,
par-
before
involved,
there
Handgun
violation of the
Act
ticular
constituted a failure to impose
five-year
minimum sen-
Code,
402-403,
tence mandated
In Telak v.
judge
the trial
imposed
had
an
Sonner,
sentence,
illegal
and the
like it
did
filed a
motion to
illegal
correct the
sentence. Thereafter
the trial
Sonner,
judge denied the motion. As in
took a
timely appeal from the denial of its motion to correct
Sonner,
sentence,
illegal
although, again as in
the State’s
appeal was not within
days
the trial
original
court’s
Telak was essentially the
judgment. The
argument
State’s
bar,
same as the
majority’s position
the case at
namely that
“the State
position
the same
it
[was]
under
[was]
Sonner
decision,”
‘The State the same to appeal illegal sen tence that it had under the controlling law in Sonner 12-13).” brief, Ibid. (respondent’s pp.
In rejecting argument, and directing that the intermedi- appellate ate court dismiss the State’s appeal, we held Telak (315 225): as follows Md. at “Moreover, of the Sonner and earlier opinions language would authorize the State to appeal where there was an ‘illegal’ 49, however, sentence. Ch. specifies type illegality which must be alleged the State to be entitled appeal.
“Ch. 49 of
Acts of 1976
embody
also did not
procedure which was deemed permissible in Sonner. Al-
though Sonner
position
had taken the
that the State’s right
to appeal
stemmed from Art.
and predecessor
*25
statutes,
the Sonner
opinion
also indicated that the appeal-
able
was the order denying the motion to correct
sentence,
the
and that
the thirty-day period for
a
filing
of appeal
notice
ran from that order. Under
language
the
by
Article
Ch.
Proceedings
to the
and Judicial
added
Courts
1976, however,
clearly is to
appeal
the
of the Acts of
verdict,
order,
which
after the
from the trial court’s
taken
”
in the
case....
a
criminal
imposes
sanction
293-296, 577
supra, Md. at
A.2d at
Shilling
In
maintain an
was entitled to
we held that the State
because,
had
because,
judge
the trial
failed
only
appeal
by
mandated
statute. We
specifically
the sentence
impose
Sonner
that,
cases would
“although
it clear
earlier
made
there was an
right
appeal
a
where
have allowed the State
12—302(c)(2)
§
sentence,
seeks to
the enactment
‘illegal’
when
trial
does
appeal
that the State
specify
clearly
has
mandated.”
legislature
impose
not
sentence
Anderson,
also
86. State
at
at
(“The
right of
Since Proceedings of thé and Judicial §§ 12-301 and 12-302 Courts Article, dismissal of the require the above-discussed cases appeal.
III. case, finding law in this right In a common history, into majority particularly reaches back al., course, v. Buchanan et H. & J. Of Maryland if a common had existed at even law case, the Buchanan today it is clear the time not entirely statutory and that the relevant statutes do Nonetheless, appeal by the State. present authorize little Maryland furnishes or no history In nonstatutory appeal. reviewing for basis support find, suggested by majority one history, does of a law recognition common opinion, statutory language provide failed to situations where Rather, statutory language one finds broad autho- appeal. *26 412 judicial
rizing appeals and decisions which often construe the narrowly. statutes
At very early period English law, in the common of appellate upon review writ of appears error to have been recognized civil actions at law. In century, the fifteenth if however, earlier, the matter of appeal provided was for regulated In Maryland, statutes. as early as Ch. 6 of regulation the Acts of of appeals statutory. was For a detailed discussion of history of statutes authorizing appeals England Maryland, see Chancellor Bland’s Case, (1824). 1 opinion Ringgold’s Bland Another early excellent discussion of the Maryland history is contained Bond, in Carroll T. The Appeals Court Maryland, 5-57 (1928).
The statute during period the colonial most often referred is Ch. of the Acts of which related to appeals and writs of error from judgments of the Provincial Court and courts, county and, setting after forth procedural certain requirements, broadly §in provided all appeals “[t]hat made in manner aforesaid shall be admitted and allowed by the superior made, courts to whom such appeal shall be as afore- error____” said, in nature of a writ of A series of statutes shortly thereafter authorized appeals from the Court of Chan- Case, cery. See Ringgold’s Bland at 13. See also M’Kim, Thompson 6 H. & J. After the Revolution, 87 of Ch. the Acts of broadly granted power the “full appeal” “any party parties or aggrieved by any judgment or determination any county action, court in any civil suit or or prosecution fine____” recovery added). any penalty, (Emphasis [or] early history criminal cases is somewhat only reported obscure. The pre-Revolutionary War case is apparently v. Lord Proprietary, 1 H. & McH. Jenifer (Provincial 1774). Jenifer, Daniel the former Sher- iff of County, Charles was convicted of receiving unlawful fees as sheriff and was fined 5,000 the value of the fees plus pounds Court, tobacco. He appealed the Provincial which heard Jennings Attorney General April 1770 term. argument at its dismissed, as no argued that the case should or the common law English statutes under either the allowed Thomas 1 H. & McH. at 536-538. or Act of Independence, Stone, signer of the Declaration later writ of error lies argued “[a] representing appellant, and that felony,” under except in all in treason cases *27 lies.” lie a writ error appeal Act “an will whenever Chase, signer also later a McH. at 538. Samuel See 1 H. & Judge as Chief well Independence the Declaration Supreme United States justice Court a the General in that of error all criminal Court, proper a writ was argued an 1 H. & at 539. The Court appeal, not McH. cases but term then September case its the until continued no would holding that appeal, apparently dismissed the lie. Ibid. the reported criminal after Act of
The first (General State, 4 H. Peter v. McH. Court seems to be The & 1797), appeal by the General Court entertained where error, defendant, contending on writ of with the defendant Court, that on its face violated a statute. The the indictment of error agreed that writ opinion, apparently without sound, it was argument would lie and the defendant’s later, county years A few court. reversed (General State, 1 H. in & J. 340 Court Cummings The 1802), writ of in a criminal case was availability of a error Court, the writ was again argued before the General but quashed procedural ground. on a opinion by in reported first discussion of the issue a
The (June Queen J. 232 Term Court in v. The 5 H. & was 1821), held that an writ of error where question in a of law was criminal case to review authorized exceptions apparent on the record but that bill holdings squarely upon The authorized. Court based these give of 1785 does not saying the Act of Act “[t]he enumerated,” in criminal there but exceptions bill of cases record,” “the that, Legislature “if on the then appeared error gave the party complaining an election to carry up the case either appeal____” writ error or 5 H. & J. at 234. this Court in The State v. term, Later at its December al., supra, Buchanan et 5 H. & J. at held that a writ of error in a criminal case would lie at the instance of the State where county had quashed the indictment. majority opinion case cites Buchanan as its present principal authority for a “common law to appeal.” Noth the Buchanan ing opinion however, suggests statute; fact, that case was not authorized Court at no time refers the common law as the basis for the appeal. As Buchanan was decided several months after Queen v. The the source of the right Buchanan would seem to be the Act of 1785. recognized the Buchanan Moreover, opinion specifically also relied on the Clarke, of 1713. See 5 H. & at Act 331. But Isaac v. J. cf. (1837) (stating G. & J. 107 that the Act of 1713 applies civil While the Buchanan opinion did cite some only). cases English authorities and unreported cases, General Court purpose of such apparently citations was to counter the defen *28 dant’s common jeopardy law double argument and the defen dant’s attempt to draw a distinction by between appeals appeals by 1785, State and the defendant. The Act of howev er, drew no such distinction. right
The broad of appeal set forth in the Act of 1785 was continued in later (1860), 5, statutes. For example, Code Art. 3,§ “any party” authorized to to appeal the Court of Appeals alia, “any prosecution in, inter for recovery of any penalty fine,” [or] stated that “writs of error may be sued out cases____” in civil or criminal Ch. 316 of the Acts of 1872 added a Code, new section to Article 5 of the which provided as follows:
“In all upon any trials or presentment indictment in any court of this State having jurisdiction, criminal it shall be accused, lawful for party or for the Attorney, State’s behalf of Maryland, the State of to except any ruling court, determination of the and to tender the court a bill of exceptions, which shall signed sealed the court exceptions, may ...; tendering such bill party and the or determination to the Court ruling from such ” Appeals.... cases, by in criminal both general right A broad statutorily provided continued to be defendants 5, 78; See, (1888), §§ 77 and Code Art. e.g., for until 1957. (1924), 87; (1939), §§ Art. §§ Art. 86 and Code 86- Code 88; 5, §§ Code Art. 86-89. cases, in a few criminal such
Consequently, when the Court
Fisher,
204 Md.
104 A.2d
relied on
supra,
v.
State
case,
majority
present
upheld
in the
by the
by statute.
clearly
it was
conferred
appeal,
State
majority supports
None of the cases relied
of statute. As
independent
common law
mentioned,
of the decisions
general
tendency
previously
the State in criminal
preclude
was to
literally
which
seemed to
despite statutory language
cases
See,
Adams,
v.
196 Md.
appeal.
e.g.,
authorize an
State
(1950);
158,
IV.
Finally,
asserting
right,”
there is a “common law
statute,
from an action of
independent
“to
the lower
jurisdiction,”
majority
court that was outside that court’s
Alvey’s
opinion quotes
portions
Judge
opinion
selected
majority
“It is true
may entertain an
appellate
an
court
appeal,
or
appellate
contention that an inferior
to review a
appeal
Pr. Geo’s Co.
jurisdiction.
its
court acted in excess of
trial
Federation,
Apparently Court’s Condon, Susq. & R.R. Co. & J. Wil. G. from a applied rule was to dismiss an where the
417 concerning jury inquisition a judgment reviewing county court a railroad. The for use of lands condemned the value (8 448): stated G. & J. there Court Appeals, the Court of given to appeal expressly is no “There with County Court Assembly, investing Act of under the aside setting reviewing confirming, of power nature and course From the present. like the inquisitions subject for is a fit power of review proceedings, of their Court, to wholly inappropriate is County a but litigation juris- It limited special of this Court. jurisdiction Court, from the decision of County to the given diction other no lies tribunal.” which county of a court judgment to the applied The rule was in Savage a road exercising statutory jurisdiction open (1846) (“It is a 3 499 Owings, Co. v. Gill Manufacturing rule, will not lie to a sound that a writ error general and does not jurisdiction, and which special vested with Court law”). The to the forms of the common proceed according county of the courts applied judgments rule was same justices peace, reviewing courts decisions the circuit Mister, Parke, (1848); 5 Md. 7 237 State v. Crockett v. Gill (1863); (1853); Md. 451 Kelsey Gray, v. & 19 Hough 15 Adams, (1874); judgment Md. 309 to a Herzberg v. People’s City reviewing Court
Baltimore
Herrmann,
v.
City, Montgomery
of Baltimore
Ward
(1948);
405, 408-411,
to judg-
58 A.2d
678-680
190 Md.
reviewing
courts and the circuit courts
county
ments of the
officials,
Cockey,
v.
government
of local
Webster
decisions
(1850);
Jay,
Co. Commrs.
Co.
Gill
Harford
(1914);
Crisfield,
v. M. & C.
Stephens
“That or any party Court, in civil suit or any County any of determination action, any recovery any penalty, or for the of prosecution damages, power shall have full and fine or determination to the General judgment from such Court.” Court, appellate jurisdic- the its
Upon the abolition of General of Appeals, to the Court of Ch. 55 the tion was transferred Parke, 239-240, supra, In Crockett at Acts of 1804. Gill of from a involving attempted appeal Appeals an the Court justice of county reviewing of a a decision of a acknowledged literally this the peace, the statute, that, the Court held be- was authorized the but decisions, judicial of the 1785 act would prior cause Judge Dorsey to authorize the Chief appeal. construed (7 Court, after Ch. 87 of the Acts of stated quoting the 239-240): atGill Assembly, Act of ... of
“Literally interpret this in civil judgments exists from all or determinations of County yet passage of a Court.... And from the actions present day, judicial interpreta- Act ... down to the its cases, denied, the existence of the of tion has such to the of this appeal. appellate power So also a like denial Court, Court, again again pronounced by has and been judgments County it from the of appeals brought before justices of appeals judgments Courts on from the Assembly speedy under the Acts of for the peace, rendered decisive recovery principle, equally of small debts. And a us, against case against of before adjudicated Act of the literal construction Wilmington Appeals, the Court of the case Condon, vs. & J. Susquehanna Company Railroad 8 G. vs. Company Manufacturing Savage The case of [at], 498.” 3 Gill Owings, times, the rule more recent through early cases
From were circuit courts in cases where concerning appeals was based statutory jurisdiction limited special within a acting appeals. authorizing statute general a construction upon cases, my to the best special of these None “common law” rule as a to the ever referred knowledge, Zoning Appeals, Board Thus Johnson principle. of the cases one Md. at explained again this Court opinion, in McNeece upon relied construction, stating: statutory rule was result that the the Court course, principle that is, accepted an “It prescribed except when not entertain will Appeals proceedings to review the law, it undertakes and before tribunal, must be shown. authority of a subordinate law from courts of authorizing appeals statute general any judgment or determination ‘From provides: *32 prosecution in any or action or any civil suit court of law any damages, or fine or of recovery penalty for the ** *.’ Code Appeals of appeal to the Court party mean that 5, this statute to 1939, construe art. sec. We or determination any judgment from can be taken an therein, originating in an action of law entered of a court of the court from a decision cannot be taken an but exercising a or when sitting appellate as an tribunal when an is authorized jurisdiction, unless statutory special Parke, 237, 240; Baltimore & 7 Gill v. by statute. Crockett Co., Ry. v. Northern Central Turnpike de Co. Havre Grace 190, A. 122 Md. 89 193; City Crisfield, v. Stephens 15 Md. of Jay, v. 122 County 429; County Com’rs Board Harford of of v. 327, 715; & Co. 324, Montgomery A. Ward Md. 89 677; Herrmann, 405, Berlinsky v. Eisen- 58 A.2d 190 Md. 327; Md. Robb v. 190 59 A.2d berg, A.2d 211. 60 exists to
“So, that no hold specifically we sitting appellate as an Circuit Court review a decision 420 case, zoning Legislature
court in a unless the has authorized appeal.” an also, Peco, 200, 202, Pharmacy Md. Board v. e.g., (“It (1964) provisions 274 is well settled that the apply
of Art. sec. do not to cases where the trial court special exercises a or limited conferred statute jurisdiction”); ... the trial court exceeds its v. Sugar [unless] Church, 498-500, Balto. 164 at supra, North M.E. 165 A. Meline, 707-708; 370, 371, at 38 A. Goldschmid Cumberland, (1897); Swann v. M. & C. 154 Gill 1925). (1849); Poe, Practice, § Pleading (Tiffany ed. carved an out of Consequently, exception Court general authorizing appeals statutes to this cases courts, courts, county which the and later the circuit were acting special statutory jurisdiction. within a limited grant If statutory the circuit court exceeded this limited special i.e., jurisdiction, if it acted special outside limited statutory jurisdiction, longer its action would no be within exception general carved out of the appeal statute. Therefore See, general appeal under the statute would lie. Johnson v. Board e.g., Zoning Appeals, supra, 196 Md. 406-410, 738-740; 76 A.2d at v. M. & Stephens Crisfield, C. 429-430; supra, Md. at 89 A. at Manu- Savage facturing Owings, Co. v. at 499. supra, Gill earlier,
As out pointed Rayner supra, upon relied today, the majority furnishing and the authorities the basis previously quoted Montgomery County for the statement McNeece, all concerning appeals involved the rule from exercising special jurisdiction. lower courts limited statutory In Rayner, justice the defendant had been convicted before peace fishing County in Charles with an illegal trap *33 fishing or net and of without a license. He was and fined his and nets boat were confiscated. The defendant took an to the County Circuit Court Charles which affirmed. The error, sought defendant then review this Court on writ of statute, contending pertinent that the which drew distinctions residency, on In opinion by based was unconstitutional. an (52 stating Md. appeal, the Alvey, this Court dismissed Judge added): 375-376, emphasis at upon the hearing adjudicating in and Circuit Court
“[T]he ordinary of its common law was not in the exercise limited special as Court of acting but jurisdiction, provisions the and conform to jurisdiction, bound observe statute, if, the was valid. Its judgment, in its statute however, the spe within limits rendered the judgment, only binding, conferred,, is not but jurisdiction cial final. it, consequently review the power This Court has no and The cases of the of errors must dismissed. assignment be Mister, Md., Md., 11, and State vs. Bogue, State vs. R. Susq. Co. vs. following cases of Wilm. & previous Condon, Gill, 92, J., Cockey, 9 & and vs. Gill Webster Hough vs. in all of this. also respects are conclusive Md., Kelsey Gray, & 451.” on, quoted part by majority in language
The Court went had today, out if the circuit court acted point opinion jurisdiction, or had “tran- special statutory limited outside (id. 376), it” at upon the limited conferred scended Appeals. there in the Court of then would be review Rayner suggest Court did Instead, law” right. be a “common
such situation would be longer would lie case would no within because the Condon, which & R. Co. v. Susq. the area the Court Wilm. Parke, carved out of the supra, Crockett had portion opinion final general statute. The Rayner entirely made it clear the decision was based statutory concerning construction rule the exercise of statutory jurisdiction. Alvey Judge limited concluded special (52 added): 376-377, emphasis follows that, rights urged personal liberty “It has been as the involved, it private strange be a property are would law, if the great hardship, party defect resorting denied the to this have statute, under question constitutionality which invaded, supposed rights his unjustifiably it is have been But, finally though party may decided. be denied *34 right of such resort in the mode and under the circum- case, stances of this it does not follow the law denies to a himself party feeling aggrieved reaching the means of Court, If, on such a question, by proper proceeding. statute, instead of the under party had certiorari, applied for the writ of upon specific ground statute, unconstitutionality of the and the consequent power jurisdiction want of and magistrate proceed to it, the Circuit Court then would have been in the under exercise, not the special jurisdiction, limited but its ordinary jurisdiction; common law and from its judgment in the premises writ of error or an could have been State, this Court. Hall vs. The prosecuted J., 12 Gill & c., Cumberland, 329; Mayor, Swann vs. & Gill, 150, 155.”6
See also
510, 512-513,
28 A.
Judefind
McNeece,
Rayner,
Like
the cases relied on in
for the
statement
concerning
when
the lower
jurisdiction,
exceeds its
all involved the
relating
special
rule
Pr.
jurisdiction.
limited statutory
Geo’s Co. v.
For
example,
procedural
obtaining
justice
6. The
method for
this Court’s review of a
peace’s jurisdiction,
by Judge Alvey
of the
which was recommended
Jacob,
Rayner, was followed in State v.
424
There is no “common law”
simply because
Rather,
“jurisdictional.”
is
issue
as the cases discussed earlier
hold, today
of appeal
entirely dependant upon
grant
statutory
authority.
or constitutional
Under
decisions,
Court’s
a claim that an
“jurisdictional”
issue is
does
appellate
not entitle an
if
entertain an
See,
e.g.,
pertinent
is not authorized
statutes.
supra,
Jones
sions áre Supp.), authorized. Code 10- *36 223 of the State Government Article. bar, majority opinion very In the case at takes a broad view of "jurisdictional." majority, is what like a few older cases in this Court, tribunal, appears by to view decision a which is inconsistent with, rule, by, beyond or unauthorized a statute or to be the tribunal’s subject jurisdiction. basic matter The more recent cases in this Court See, Ward, rejected position. e.g., Montgomery County have such a 521, 526-528, (1993) (administrative agen- 331 Md. 629 A.2d 622 cy’s setting rehearing, allegedly statutory a case for after the time for rehearings expired, beyond jurisdiction); agency’s had is not Transit, 225, 233-235, Comm’n on Human Rel. v. Mass 294 Md. 449 (1982). State, generally Pulley A.2d 389-390 See 287 Md. 412 A.2d 1248-1251 This Court in First Feder- Comm’r, 329, 335, (1974), ated Com. Tr. v. 322 A.2d opinion by Judge Dudley Digges, in an J. stated as follows: court, authority judicial "If that law which defines the of the a body given power to render a over that class of cases falls, particular within which a one then its action cannot be assailed subject jurisdiction.” want for matter test, present Under this the trial court’s order in the case was not beyond jurisdiction. the court's case, Court, language directly applicable present In speak- to the Cole, 11, 16-17, ing through Judge said in Parks v. (1980): period "A statute which seeks to limit the in which a court should Thus, authority deprive jurisdiction.... exercise its does not it of if V. recognizes history, in its the first time today, The Court Furthermore, appeal. law” a “common applies regard to right with this common law recognizes Court legisla- subject comprehensive which has been matter twenty during past Assembly General enacted tion 12-302(c)(l) (right §§ (1974, Repl.Vol.), Code years. dismissing charging an order from State to of the 12-302(c)(2) specified to appeal document), (right 12-302(c)(3) sentences), (right the State illegal types conditions, from circumstances particular under appeal, returning proper- excluding evidence of a court decision seized), 12- unconstitutionally it was ground that ty on the most orders 302(f) side from by either (appeal permitted Nevertheless, upholds the Court panel). of a sentence review statutory these circumstances where under Finally, the Court appeal. not authorize an do provisions appel- intermediate to an law finds a common Constitution, only has which, Maryland under the late court jurisdiction. appellate statutorily prescribed discovered law the common Although scope, limited to be of a somewhat today may appear majority far-reaching majority could have approach the basic out for Judge Murphy pointed As Chief consequences. 442, 460, of Educ., Bd. in Harrison v. Mont. Co. judg- period, its power prescribed exercises its outside the court only thereby void but voidable.” is not rendered ment 266, 269-270, In Block v. guilty verdict in a criminal judge’s revision of a held that a district we *37 case, Maryland District Rule expired under former the time had after verdict, revisory power did not constitute exercising over a 770 for holding present majority’s in the case jurisdiction.” "lack of the or Block. The ramifications reconciled with Parks cannot be “jurisdictional” be concerning what is could majority’s present position substantial, lacking jurisdiction by is rendered a court quite as an order absolutely void. Nonetheless, the circuit court my does not matter whether view it subject jurisdic- matter present in excess of its basic in the case acted statute, by it should be appeal is not authorized Since the State’s tion. "jurisdictional.” regardless whether the issue is dismissed static; 456 A.2d “the common law not its life dynamism—its ability keep pace and heart is its to with the just world constantly searching while and fair solutions to Thus, pressing problems.” societal a “common law ... doc- Maryland subject judicial trine in is ... to modification by Adler v. American decision,” 31, 42, Corp., Standard If a common law to of Special Appeals today, presumably the Court exists it could by judicial extended to encompass be decisions various situa- tions an is not by where authorized statutes but where may justify appeal. circumstances be deemed to Moreover, approach majority utilized would not appeal. many seem be confined to the There are which, other areas of the law at an earlier period history, governed by equity principles, were common law or which but today generally entirely statutory. are considered to be Pre- areas, sumably, of these if circumstances arise under which a of this majority Court does like the result of applying statutory provisions, current the Court can in- pre-statutory judicial voke I simply decisions. cannot sub- scribe the view that this Court reach into a repository of alleged “common law” doctrines whenever it desires ignore limitations set forth the General Assembly. case, to the facts
Turning present agree I with the majority that the circuit court’s action was inconsistent with Maryland If Assembly Rule 4-345. the General had autho- circumstances, rized an State under these I would agree the circuit court had committed reversible join error and would judgment. this Court’s Because the Assembly General has not authorized an appeal by the State case, in this we should vacate the Special Appeals and direct be dismissed.
Nevertheless,
if the issue on the merits is
deemed
sufficiently important, we could set forth our views even while
directing
be dismissed. Although
portion
opinion setting
forth such views
not technically
would
case,
constitute the
holding
it would advise trial judges,
*38
accomplish
likely
and would
and others
law
lawyers,
has
action
This course of
holding.
as a
purpose
same
For
past.
by this Court
occasionally been taken
510, 28 A.
example,
Judefind
constitutionality of the
merits concerned
the issue
required to
Sundays. While
certain work on
prohibiting
laws
appellate
lack of
appeal because
dismiss the
Court,
express
opinion
on to
went
predecessors
in this
our
513-516, A.
constitutional, Md.
were
that the statutes
also,
Refuge,
Boyle v. House
e.g.,
Roth and
at 406-407.
(1869).
Thanos v.
334-335
Cf.
today
The Court
same manner.
the merits
this case
should deal -with
tome
and BELL have authorized
Judges RODOWSKY
expressed herein.
they
concur with the views
state
No. Appeals Maryland. July