Gilmer v. State

887A.2d549 Anthony GILMER Maryland. STATE of 14, Sept. Term, No. Appeals Court of Maryland.

Dec. 2005. Brennan, Amy E. Asst. Forster, Public Defender (Nancy S. Defender, brief), Baltimore, Public on for Petitioner. Jeremy (J. M. McCoy, Atty. Curran, Asst. General Joseph Jr., General, brief), Atty. Baltimore, on for Respondent. BELL, C.J., RAKER, before

Argued WILNER, CATHELL, HARRELL, GREENE, BATTAGLIA and JJ.

BATTAGLIA, Judge.

Petitioner, Gilmer, Anthony pursuant to Maryland Code (2001), 6-218(b)(2) Article,1 Section of the Criminal Procedure 6-218(b)(2) Maryland Code Section of the Criminal Procedure Article, states: Appeals of Special of a the Court judgment seeks review to him credit for give refusal affirming the Circuit Court’s he to those for charges for unrelated which was time served State, sentenced, a had plea bargain, that the being without sentencing. specific question to prossed2 prior Gilmer is: presented by for equivalent a “dismissal”

Is 6-218(b)(2) Article of Criminal Procedure purposes to give sentencing a trial court credit at requires in a on an unrelated offense that results pre-trial custody a or commitment acquittal” “dismissal or where warrant filed during custody? the convicted offense was (2005). We hold 874 A.2d 917 Gilmer case, that, under the circumstances this for the 6- of a “dismissal” equivalent 218(b)(2) Procedure Article. of the Criminal Background

I. pretrial September Anthony Gilmer was On a City charge the Baltimore Detention Center on detention at July had been at the Center since attempted murder and 1, 2002, had of 426 On Gilmer period days. September Blue, detainee, Jonathan over an altercation with a fellow recre- telephone during “passive turn it was use whose room,” in the where detainees are “day place ation” time cards, playing in activities such as watch- permitted engage television, telephone. and Blue ing using Gilmer were in a If a defendant is because of results acquittal, have been credited if a dismissal or that would against any imposed had been shall credited sentence

sentence be warrant or was that is based on which a commitment during custody. filed prosequi "an 2. We have defined the term nolle as official declaration State, announcing charges particular pursue that will not in a W., 251, 3, Anthony charging n. 388 Md. 258 879 document.” In re 717, (2005). A is A.2d 720 n. 3 often shortened and Price, prosse pros. or nol See referred to as a nolle State v. 272, (2005); Dictionary A.2d 258 see also Black’s Law (8th 1999) (explaining that a "often shortened ed. pros; nol-pros; pro.") to nolle nol separated but permitted then room, to return day to the where Gilmer and Blue continued to argue, Gilmer, there- after, repeatedly stabbed Blue awith silver lock blade knife.

Gilmer charged -with attempted degree first murder violation of Maryland (1957, Code 1996 Repl.Vol.), Section (b) 27,3 411A of Article first-degree assault in violation of (1957, Maryland Code 1996 Repl.Vol.), Section 12A-1 of Arti 27,4 cle openly wearing carrying a dangerous and deadly weapon with the intent of causing injury an unlawful manner in violation of Maryland (1957, Code 1996 Repl.Vol.), 27,5 Section 36 of Article reckless endangerment violation of (1957, Maryland Code 1996 Repl.Vol.), Section 12A-2 of Article (1957, Maryland Vol.), 411A(b) 3. Rep. Code of Article part: stated in relevant (b) degree. Murder person in the attempts who to commit first —A degree murder in guilty felony the first and on conviction is subject imprisonment to for not more than life. Section 411A has been changes recodified without Mary- substantive as (2002), land Code Section 2-205 of the Criminal Law Article. (1957, Maryland Vol., 4. Rep. Code Supp.), Section 12A-1 of Article stated: (a) physical injury; Serious use person may A fireann. — intentionally attempt cause or physical to cause injury serious another. (2) person may firearm, A not commit an assault with a including: (i) firearm, rifle, handgun, A antique shotgun, short-barreled shot- rifle, gun, or short-barreled as those terms § are defined in 36F of article; this (ii) pistol, article; An assault § as defined in 36H-1 of this (iii) revolver, pistol, revolver, A antique pistol or or as those terms article; § are defined in 441 of this (iv) A gun, machine § as defined in 372 of this article. (b) Penalty. person guilty who violates this felony section is —A degree of assault in the first and on subject imprison- conviction is ment years. for not more than 25 Section 12A-1 has been recodified without change Mary- substantive as land Code Section 3-202 of the Criminal Law Article. (1957, Maryland Repl.Vol.), Code Section 36 of Article part relevant stated: (a) general. (1) Every person who carry any shall wear or dirk —

knife, knife, knife, knife, sandclub, bowie switchblade star metal knuckles, razor, nunchaku, any dangerous deadly weapon other kind, (penknives whatsoever without switchblade and hand-

661 ,6 of Code second-degree Maryland assault violation 27 27,7 (1957, Article and attempt 12A of Repl.Vol.), 1996 Section (1957, Maryland in violation of Code murder second-degree ed (a) of Article 27.8 Section 411A Repl.Vol), of first and jury guilty found Gilmer On June judge sentencing assault. At the Circuit Court second-degree assault into the first assault degree the second merged degree years to fifteen incarceration. and sentenced Gilmer however, days credit of confinement refused to the 426 judge, upon every guns, excepted) person, about his concealed or mace, carry weapon, any chemical person who shall wear or such mace, openly gas with the intent or of pepper or tear device manner, guilty any person unlawful shall be injuring misdemeanor, conviction, more upon shall be fined not than $1,000 Maryland imprisoned jail, or sentenced to the or be Department, years. for not more than three of Correction Maryland change been without substantive as Section 36 has recodified 4~101(c) (2002), Law Article. Code Section Criminal (1957, Repl.Vol., Supp.), Maryland Section 12A-2 of 6. Code part Article in relevant stated: (a) physical injury; risk of death or serious Creation of substantial Any engages recklessly who in conduct that penalties. person — physical injury of to a substantial risk death or serious creates guilty endanger- person is of the misdemeanor reckless another $5,000 subject to a fine of not more than or ment and oil conviction is years imprisonment for not more than 5 or both. 12A-2(a)(l) change recodified without as Section has been substantive (2002), 3-204(a) of the Criminal Law Article. Md.Code (1957, Maryland Repl.Vol.), Article 7. Code Section 12A of stated: (a) person may prohibition. not commit an assault. General —A Violation; (b) person guilty penalties. is who violates this section —A degree in the second and on conviction of misdemeanor assault $2,500 imprisonment for subject to a fine of not more than years more than both. change Mary- been substantive as Section 12A has recodified without (2002), land Section 3-203 the Criminal Law Article. Code (1957, (a) Maryland Repl.Vol.), of Article Code 411A part: stated in relevant (a) degree. person attempts who to in the second commit Murder —A felony degree guilty on conviction is murder in the second years. subject imprisonment for not more than 30 411A(a) change Section Maryland has been recodified without substantive as Law Code Section 2-206 of the Criminal Article. already Gilmer had served on the attempted murder charges that had been nolle prossed by the prior sentencing. Gilmer filed an unsuccessful motion for a new trial to prior noting an appeal to the Court of Special Appeals.

Before the Court of Special Appeals, Gilmer contended that the Circuit Court erred in refusing give him credit for the time he had served in detention for the attempted murder 218(b)(2) charge, pursuant to Section of the Criminal Proce- 6— dure Article and that it also erred in refusing to ask a voir dire question that he had proposed.9 State, Gilmer v. 161 21, 24, 918, (2005). Md.App. 866 A.2d 920 The Court of Special Appeals affirmed the denial of the time served credit decision of the trial court and held that a nolle prosequi is not a dismissal under the plain meaning 6-218(b)(2), of Section therefore, 6-218(b)(3)10 and was applicable, that, pursuant 6-218(b)(3), to Section which allows the court exercise its discretion in determining credit, whether to grant the judge did not 31, abuse his discretion. Id. at 866 A.2d at otherwise, 924. noted, To hold could potentially result in double credit received Gilmer for time served were he later prosecuted for the attempted 29, murder charges. Id. at 866 A.2d. at 923.

II. Standard of Review 6-218(b)(2) (b)(3) construction of Sections the Criminal Procedure Article implicate a de novo review. State, 320, 327, (2005). Cain v. 386 Md. 681, 872 A.2d 685 Our goal, when statutes, interpreting is to “identify and effectuate the legislative statute(s) intent underlying Id.; at issue.” Serio v. County, 373, Baltimore 952, 384 Md. 863 A.2d 962 (2004), quoting Drew v. First Guaranty Mortgage Corp., 379 question 9. The voir dire issue is not before us as Gilmer did not raise it in his Petition for Writ of Certiorari. Code, 6-218(b)(3) Maryland of the Criminal Procedure Arti- cle, states: In a case other than a case described in paragraph of this subsection, sentencing may apply court credit a sentence spent for time for another or crime.

663 Derry v. 1, 318, 327, in turn quoting A.2d 6 Md. 842 v. 478, (2000); State, Pete 335, 325, A.2d 748 483 358 Md. 419, (2004); State, Graves v. 57-58, 47, 862 A.2d 425 384 Md. (2001). 1225, State, 329, 346, 1235 The best Md. 772 A.2d 364 plain language, intent the statute’s legislative is source our inquiry and unambiguous, is clear language when Cain, 327, 685; A.2d Md. at 872 at 386 ordinarily ends there. 962; Pete, 57-58, Serio, at 373, at 384 Md. 384 Md. at 863 A.2d Drew, v. 327, 6; Beyer 842 A.2d at 425; at 379 Md. at 862 A.2d 335, 349, 707, University, 800 A.2d Morgan State, 665, 672, (2002); A.2d Whack v. 338 Md.

(1995). one interpreta When there is more than reasonable Moore v. however, statute, ambiguous. tion of a the statute State, (2005); Melton 388 Md. (2004). 471, 476-77, A.2d When we statutory language ambiguous, ambigui resolve intent, legislative light legislative considering ty Moore, law, Md. See history, statutory purpose. case 388 State, 1114; 223, Deville v. 453, 217, Md. at 879 at 383 A.2d (2004); Melton, 476-77, 484, A.2d 379 Md. at 842 A.2d 858 487 meaning not only ordinary at 746. “We consider words, that language but also relates to overall how Moore, of the act.” 388 Md. at meaning, setting, 1114; Deville, 453, 223, 858 at 879 A.2d at 383 at A.2d The must be in “a provisions statute’s read commonsen Cain, sical to avoid farfetched perspective interpretation.” Serio, 685, 373, 328, at A.2d at Md. at 386 Md. 962; Graves, 1235; Frost at A.2d at 364 Md. at 772 A.2d State, 125, 137, (1994); v. Dickerson 336 Md. 647 A.2d State, (1991). v. 163, 171, 324 Md. We word, clause, construe the statute as a so no whole that sentence, or surplusage, superfluous, is rendered phrase Moore, meaningless, nugatory. 388 Md. at 879 A.2d at 1115; Comptroller Phillips, 865 A.2d 590 (2005).

III. Discussion 218(b)(2)is ambigu Gilmer contends that Section 6— ous because it does define term “dismissal.” He that, contends based on the purposes two set forth by the Legislature in enacting Section 6-218 of the Criminal Proce- Article, dure to namely avoid “banked time” and to eliminate time,”12 “dead only that proper the word “dismissal” in 218(b)(2) of the Criminal Procedure Article be inter- 6— preted to disposition include of a case nolle prosequi, even in the absence plea of a bargain relating to the charge, so that the trial judge required him give credit for the time he served in pre-trial detention for attempted murder. Addition- he ally, argues, Maryland Rule 4-247 makes clear a nolle dismissal, and, prosequi is a the fact that a charge or charges can still prosecuted be after being prossed is not disposi- tive because a dismissal may also permit prosecution. By 218(b)(2), enacting Section Gilmer that Maryland asserts 6— created interest13 liberty for him to obtain credit for his time served and that him denying credit for time served is denying right protected by the Fourteenth Amendment. The conversely, contends that the Circuit Court properly 218(b)(3) exercised its discretion under Section 6— refusing to award Gilmer credit for his time served on the nolle prossed attempted murder charge because the plain 6-218(b)(2) meaning of Section only refers to an acquittal dismissal, 218(b)(3) whereas Section refers to case 6— (2).” “other than a case described in paragraph argues prosequi entered as part plea agreement is the equivalent of a dismissal because the nolle prosequi then has effect of precluding future prosecution and that to allow any nolle constitute a dismissal 11. "Banked time" is a "reserve of time established when a defendant spends custody yet time in that may against is not but be credited a 155, 163, 490, valid Fleeger sentence.” 301 Md. (1984). spent custody "Dead time” "time 12. is in that will not be credited to 165, any Fleeger, valid sentence.” 301 Md. at 482 A.2d at 495. "liberty 13. A protected by interest” is an interest that is the Due Process Clause of Fourteenth Amendment which arbitrarily cannot be Ramos, process. denied (2d without due U.S. v. 401 F.3d Cir.2005). if he credit for the defendant of double create a windfall could the initial offense which was convicted of ever or she were 6- The asserts that Section prossed. originally thus, to 218(b)(2) clear; prosequi, list nolle not is does would “dismissal” to include the word interpret 6-218(b)(3) nullity. a render Section thereby 6-218(b)(2) &

A. Section (b) 6-218(a) and of was Sections precursor The 638C(a) enacted General Article which was of provided: Assembly shall receive and sentenced is convicted

Any person who or or life sentence the term of a definite against credit terms of an and maximum the minimum against credit custody any in the of spent for all time sentence indictment institution, hospital, state, city jail, correctional county for charge a result of agency or other as hospital mental on a result of the conduct is or as imposed sentence which based, or life the term a definite charge which maximum terms of an inde- the minimum and sentence or any thereby. shall be diminished terminate sentence charge custody due to a has been in person case where the amount acquittal, in a distnissal or culminated credited, a sentence against have been time that woidd for against shall be credited imposed, had one been change, based, upon charge any sentence for lodged during pendency was warrant or commitment cases, shall sentencing court In all other custody. such a sentence apply against discretion to credit have the for another spent custody time offense. added). Laws, § 1 (emphasis Chap. “for Bill established that its was for the

preamble shall re- persons that under certain circumstances providing spent their sentences against credit ceive Laws, § Chap. custody.” clarify concept that “the enacted legislation In 1981 spent for time credit sentence giving offense subsequent commits a parolee to a who apply does and is incarcerated to the on prior date which he is sentenced Laws, for the subsequent offense.” 1981 Md. Chap. 721. The (a) to language added the end of Section 638C read: This section apply does not to a parolee who is returned to of the Division of custody Correction as a result of a offense and is subsequent prior incarcerated to the date on which he is sentenced for the subsequent offense. Laws, Md. Chap. In Fleeger v. 482 A.2d 490 we (a) recognized that one for purpose Section 638C was to avoid time,” “banked a “reserve of time established when a defen- spends dant time in custody yet is not but may be credited a valid sentence.” Id. at 482 A.2d at 494. 638C(a) enacting Another was to eliminate time, “time spent “dead” not custody will be credited to any valid sentence.” Id. at 482 A.2d at 495. ex-We plained that Section 638C problem addressed the of “dead” time

by authorizing mandatory credit for any spent custody while trial on an awaiting offense for ultimately defendant is convicted. The statute also seeks to eliminate dead time that results when defendant is in custody on one crime but is ultimately convicted of another. 638C(a), § By enacting Assembly General sought ensure that a defendant receive as much possible credit as time spent custody as is consistent with constitutional practical considerations. An obvious is that corollary the General Assembly sought minimize the amount of stated, Simply dead time. we believe that no legitimate legislative policy is by maximizing advanced dead time or by withholding credit that is due a defendant under the credit- ing statute. added).

Id. at 482 A.2d at 495 (emphasis (a) 6-218(a) Section 638C was recodified as Sections (b) Article, of the Criminal Procedure Laws, 10, 2,§ Chap. which now provide: is returned (a) parolee to a who apply This section does because of Correction to the Division sentenced for being and is before crime confined subsequent crime. subsequent (b)(1) sentenced shall A is convicted and defendant who a of the term of a reduction against receive credit sentence, minimum and maximum or life or the definite sentence, spent time in the of for all terms an indeterminate local correctional facility, of state correctional custody a disorders, mental facility with facility, hospital, persons for unit because of: or other

(i) or imposed; for which the sentence is charge (ii) charge on which the is based. conduct (2) that custody charge If a defendant is because in a the time would have acquittal, results dismissal imposed if a had been shall be been credited sentence is on a for against any sentence that based credited during a or commitment was filed warrant custody. (2) of paragraph In a case other than a case described subsection, may court credit sentencing apply

this for a another spent sentence charge or crime. whether, like the of issue before us is Court adopt analysis of

Special Appeals, plain meaning we 6-218(b)(2) mandatory and determine that the credit for time is apply prosequi” does not because the term “nolle served 6-218(b)(2) or, absent, as ambig whether we construe Section a plain meaning analysis The decision whether to utilize uous. made analysis upon ambiguity or an based of statute is has Legislature provided to see whether the looking first Deville, 383 Md. at question. definition the term (“the at fails to legislative history 858 A.2d [the statute] Melton, definition.”); an Md. at actual provide (holding ambiguous A.2d at 753 that the statute was because ‘violation,’ provides no no definition the term “provides unit If prosecution.”). direction as specific proper definition, there is no we then ask whether there is than more one reasonable interpretation the statutory language. If is, there the statutory Moore, language ambiguous. (“When Md. at 879 A.2d at 1114 there is more than one interpretation statute, reasonable of the the statute ambigu- ous.”); Deville, (“A 383 Md. at 858 A.2d at 487 statute is ambiguous when there are two or more reasonable alternative interpretations statute.”); Melton, 476-77, 379 Md. at (“We 842 A.2d at 746 have said that ambiguity exists within a statute when there are ‘two or more reasonable alternative ”) interpretations of the statute.’ (quoting Price v. 378, 387, (2003)). case, 6-218(b)(2) In this provides no definition for the term Moreover, “dismissal.” the term “dismissal” has different meanings, depending on whether the dismissal is entered prejudice with without explicated as by the Court Special of Appeals Parks v. 41 Md.App. aff'd, (1980): 410 A.2d 597

The words prejudice,’ context, ‘with when have, used course, a well-established meaning in the They law. signify final, that the dismissal is that the controversy is concluded and cannot reopened be aby new or subsequent action. A dismissal ‘with prejudice’ has been held to be as conclusive of the rights of the parties as if the action had been prosecuted to a adjudication final on the merits ad- verse to complainant.

Parks, (citations at Md.App. omitted). 397 A.2d at 215 Later in opinion, reflecting upon change in the law under consideration from a dismissal prejudice with to a dismissal without prejudice, the court noted: General Assembly

[T]he has made clear its intent that such a dismissal for failure to comply with the requirements of the Act should serve terminate that particular action and not to preclude another. That is by what is meant phrase ‘without prejudice.’ (citations omitted).

Id. at 397 A.2d at The term “dismissal” in 6-218(b)(2), therefore, Section ab- sent qualifying language with without prejudice, reason- one in which ways: in either of two interpreted can be ably other or the re-prosecuted, be may offense the unrelated bemay prosecut- subsequently offense the unrelated in which 218(b)(2) insofar as ambiguous result, As a ed. 6— “dismissal.” constitutes what Prosequi Nolle

B. l-101(k) provides: Article Procedure of the Criminal record by on the entry a formal means prosequi” “Nolle not to prosecute intention the State’s that declares charge. Prosequi” “Nolle Rules entitled Maryland

Rule 4-247 of and its charges by prosequi disposition governs effect, provides: Prosequi. Attorney

(a) Disposition State’s Nolle and dismiss the charge on a prosecution may terminate in open record on the entering prosequi a nolle charge by in court when present need not be The defendant court. clerk entered, in that event the but defendant, if the defendant’s where- notice to the shall send known, attorney of record. to the defendant’s are abouts has (b) Prosequi. When Effect of Nolle release pretrial conditions charge, any on a been entered terminated, for the any posted bail charge on that are The clerk shall shall be released. defendant on or revoke outstand- to recall necessary take the action lead to the arrest detainer that could warrant or ing charge. of that the defendant because detention of of nolle history to review opportunity had the We 76, 82-84, State, in Ward v. prosequi for the (1981), Eldridge Judge John C. wrote 1012-14 Court: discussing entry case reported the first

Apparently was Stretton prosecution in a criminal prosequi nolle (K.B.1588), Case, Eng. Rep. 1 Leon. Taylors ’ ‘non vult Attorney prosequi entered a General where Since private prosecution. preventing time, the nolle prosequi has been a means whereby the government exercises control over pending criminal cases. (for Thus ... a ‘Nolle prosequi criminal practice civil), also to pertains is a declaration of record from the legal representative for the government, that he will no prosecute particular further indictment or some desig- part nated thereof.’ It is ‘an abandonment of the prosecu- tion,’ or a ‘discontinuance a prosecution by the authorized for the state. attorney’

* * * It has been settled since at least the opinion of Chief Justice Smith, Hold in Goddard v. 6 Mod. Salk that while a nolle prosequi discharges the defendant on the document charging or count which was nolle prossed, while it is a bar to further prosecution under that count, document or charging nolle an prosequi is not pardon acquittal underlying offense and does not preclude a prosecution for the same offense under a differ- ent charging document or different count. More than one years ago, hundred this Court stated in State v. Morgan, (1870): 44,Md.

‘It by is well settled the authorities that a nolle ordinarily operate does not as a pardon; but that subject accused remains to be proceeded against by an- other indictment for the same offense.’ Later, in Barrett v. supra, 155 Md. 142 A. 96 [1928], the Court reiterated that an when indictment was abandoned, prossed ‘the case ... was terminated and there can be no further prosecution under that indict- ment,’ but that the discontinuance prosecuting attor- ney not the equivalent ‘confessing plea of not guilty.’

(citations omitted) (alterations added). Obviously type which does not bar future prosecution under another charging document has the same effect as a dismissal prejudice. without entry explored also have circumstances within

We Under circum prosecution. future prosequi precludes to the nolle have been attached stances where conditions defendant, and those condi actions the prosequi requiring met, nolle the effect as prosequi have the has same tions been facts State v. prejudice. underlying a dismissal with (1870), 44, entry of a nolle Morgan, 33 Md. involved the behalf of the defendant by the Governor on prosequi Md. at 45. We of costs accrued. 33 exchange payment for met, the and costs held that after the terms were Governor’s all saved from fur paid, “expressly were the defendant was for or on account the same offense” and prosecution ther “end determi nolle a final discharge by prosequi the was Brockman, 46. of the suit. Id. at In State v. Md. nation” 700, 376, (1976), A.2d we held that the State was withdrawing its the plea agreement from where precluded the terms of already substantially performed had defendant the elect have the and that defendant could agreement We rein charges prossed reprosecution. nolle without that, noted holding Fleeger, our Brockman where we forced complied plea the defendant with the terms provided nolle original, the State could not reinstitute agreement, at 301 Md. at 482 A.2d 494. charges. Fleeger, prossed a held in that a nolle constitutes dismiss Fleeger prosequi We (a) into to a pursuant under when is entered al Section 638C it so the defendant entitled to credit agreement, was plea charges. under the nolle Id. prossed served for served at at 494. as have also found that can function an prosequi

We if has In Blondes v. acquittal jeopardy attached. entered 330 A.2d 169 all after had charges on under indictment ruling chief admissibility documentary

asked on other against documentary evidence the defendant offered in a testimony evidence the defendant a witness finding Id. 330 A.2d at non-jury case. at had attached at time that the nolle jeopardy entered, Judge again Court, Eldridge, writing ex- plained: of the aspect

One double jeopardy prohibition which in as a firmly settled this state common law that principle, is the nolle con- entry prosequi, without the defendant’s sent, attached, after has as an jeopardy operates acquit- prosecution tal and precludes further for the same offense hand, On the other where nolle is entered before prosequi attaches, jeopardy the State is from precluded prose- indictment, the defendant further under cuting but defendant bemay proceeded against the same offense by another indictment or information. 443-44, (citations

Id. omitted); at 330 A.2d at 173 see also State, 162, 3, 86, Hooper v. 293 Md. 169 n. A.2d n. 3 443 90 (1982) (“[I]f trial, jeopardy had attached at the the nol on pros appeal ordinarily operate will as an of the acquittal underlying Ward, because of charges jeopardy principles.”); double 290 (“[A] 91, Md. at 427 A.2d at 1017 prosequi, nolle without the attaches, defendant’s consent and after jeopardy ‘amounts to offense.”); an acquittal’ underlying State, Friend v. 175 352, 356, (1938) (“The Md. 2 A.2d 430 prosequi nolle entered without consent of the accused ... placed this defendant in 709, jeopardy.”); Bynum 703, double v. 277 Md. cf. 339, that, 342 (holding although double jeopar- dy prohibited subsequent in prosecution charged offenses counts dismissed entered without attached, consent of the accused after jeopardy has it had no application in the of the prosecution context same which counts). continues on other Prosequi

C. Nolle as Dismissal that, The State contends based on our interpretation word in “dismissal” Director Finance Prince George’s Co. Cole, 296 Md. 465 A.2d 450 does Cole, not constitute dismissal. we addressed the meaning statute, of the word “dismissal” in a forfeiture Maryland Code 264(e)(4),14 (1957, Section Article Rep.Vol.), provides: judge after an trial prohibit

This Section does ordering return of all or dismissal from immediate acquittal seized. property enacted originally recognized Cole

We 307A, Laws, Chap. as Article Md. in 1951 at time the significantly amended 1974 which word and was final phrase for the “other deter- substituted “dismissal” was or persons of the person mination favor proceedings such arrested,” Laws, to a Chap. thereby referring so its through with noted Cole that prejudice. dismissal We “other Legislature explicitly argu- eliminated amendment Cole, aas dispositions” prosequi. favorable such ably comparable at A.2d is no at There judice limiting in the sub term history case legislative one final determination. only “dismissal” the reasoning underlying also underscores the Assembly Special Appeals’s holding the General Court disposition of a case the existence of was aware 638C(a) and, in enacted 1974 when Section was therefore, it in the statute have included would neglects it This the fact that the argument had so intended. prejudice Legislature, had wanted dismissals with 638C(a), could trigger mandatory provisions Section in by using prejudice” have done so term “dismissal with Legislature 1974 when it was enacted. We know that of the time because prejudice knew term dismissal with at that in its it used term 1965 enactment of the Interstate 616A(c), Act, specifically Detainer in Article Section which read:

If on the request action is not commenced matter for which made, limitation set disposition was forth within (a) above, longer in subsection the court no shall have thereof, and the untried shall have jurisdiction indictment 264(e)(4) in 2001 13-109 14. was recodified to Section Laws, 10, § Chap. Article. Criminal Procedure effect; no further force or such case the court shall enter an order dismissing untried indictment with prej- udice. Laws, added).

1965 Md. Chap. 628 (emphasis Furthermore, 616A(c) when Section of the Interstate De- tainer Act was recodified 1976 as Article 616S(e), it read:

If the indictment, information, untried warrant, or com- plaint, for request made, for disposition is is not brought to trial within the time limitation set forth in (b) section, subsection of this the court no longer has jurisdiction, indictment, and the information, untried war- rant, or complaint has no further force or effect. In that case, upon the court request of the prisoner or his counsel shall enter an order dismissing the untried indictment with- out prejudice. (1957, Vol.), 616S(e)

Md.Code 1996 Rep. § (emphasis Art. added).15 Therefore, 6-218(b)(2) when Section recodified, the Assembly General clearly knew distinction between with and prejudice without and could have drawn that distinction in the statutory language at issue this case.

When faced with circumstances where the Legislature was familiar certain language with it, did not entertain we look to the purpose of the statute. See State v. Thompson, 1,19, that, 740-41 (holding based on the statute’s and its legislative history, the legisla ture would have included specific language regarding drug 616S(e) 15. Section was recodified in 1999 as Section 8-503 of the Correctional Services Article and now reads: (e) indictment, information, warrant, Dismissal.-—If the untried or complaint request for which disposition for final is made is not brought to trial within the time § limitation established under 8-502 of this subtitle: (1) indictment, information, warrant, the untried complaint or has effect; no further force or court, request the counsel, on of the inmate or the inmate's indictment, shall dismissing information, enter an order the untried warrant, complaint or prejudice. without (1999), 8-503(e) § Md.Code of the Correctional Services Article. it.). As stated had to include we if it meant rehabilitation 6-218 to ensure earlier, enacting for the Section purpose for time possible much credit as “receive as that defendant at 482 A.2d at 495. in custody.” Fleeger, spent “dismissal,” in as used in the term light, this Viewed 6-218(b)(2), with or be to include dismissal interpreted must including disposition by prosequi. prejudice, without Md.App. The relies on Roberts (1984), denied, 474 A.2d cert. A.2d not entered into argument prosequi, for its that the of a dismissal agreement, finality to a lacks plea pursuant Roberts, challenged denial of the defendant acquittal. had charges for he on handgun credit time had served convictions, during sentencing larceny credit stetted been 638C(a). to Id. pursuant he was owed argued at of Special Appeals 412.16 The at Court in explained Roberts that: (a) § the in in to language 638C is question time in there is no other spent custody credit for when

give acquitted If an accused is way credit time. incarcerated, he if such charge charge for which had been dismissed, spent he can be the time never credited with custody his for that offense because there against sentence if, is incarcerated be no sentence. But while he under will him, against another in the charge lodged one charge, acquittal charge, spent of an under first event the be sentence thereunder can credited imposed on second. which, Maryland part, A stet is defined Rule 4-248 relevant provides: (a) Disposition by Attorney, On the court Stet: motion of State's

may indefinitely by marking charge postpone charge trial of present on docket. The need not be when a "stet” defendant notice is stetted but in that event the clerk shall send defendant, known, stet to the if the whereabouts are defendant’s charge may attorney A not be defendant's of record. stetted charge may objection re- over the defendant. A stetted be year requesl party for trial at within one scheduled of either good shown. thereafter order of court cause for designed

The situation which the statute was to provide the merely relief does exist when first charge stetted because that be charge may eventually may tried result case, and sentence. In such the conviction accused will then credited a spent custody be with the as result charge. of that If appellant’s reading of the statute were correct, should be tried and handgun ever result sentence, in a he conviction would be entitled to receive time in credit for thereon the sentence re-imposed of do not probation. violation We a Assembly believe General intended such result. (footnote omitted). 566-67, Id. at 468 A.2d at 412 This Court before, however, many has stated times that: jurisdictions, unlike other Maryland, some we have con- drawn a a nolle sistently sharp prosequi distinction between stet Although permits and a stet. a an accused to be proceeded against at a later date under same charging document, a nolle does not. The nol pros a charging document or of a count is ‘a final disposition’ count; document or ‘there can be no charging further under’ prosecution prossed the nol document charging or count; time; the matter is ‘terminated’ at that and the may be proceeded against accused for the same offense under a new different document or charging count. Moulden, 666, 673, State v. 702-03 (1982) (citations omitted). a Whereas stet is mere suspen- sion of charges freely again which can be brought by the prosecution within one year, prosequi “leaves the just no prosecution as such count had though ever been id., indictment,” inserted in the the accused from removes Barrett, “under imputation 155 Md. at guilt.” A. analysis at 97. Accordingly, the of Special Court Appeals applicable in Roberts is not judice the case sub stet, it is clear that because can prosequi, unlike act with the finality acquittal. dismissal also if a asserts that included purview purposes 6-218(b)(2), dismissal for of Section credit be awarded a windfall of double potential Gilmer could he charges prose- on the nolle were prossed time served time on for the again convicted them and credited cuted and credit, however, receiv- is not issue because Double served. can attempted only murder for time served for ing credit denying importantly, More occur once under statute. prossed charges credit for on time served defendant for enacting legislative purpose with consistent credit as 6-218, receive as much to ensure “a defendant at Fleeger, 301 Md. spent custody.” for time possible easily be at 495. The risk of double credit can of “dead administratively, elimination avoided whereas 218(b)(2). The of Section is an essential attribute time” 6— is not persuasive.17 about double credit argument State’s

Conclusion outside hold entered Accordingly, we a dismissal for the agreement constitutes plea 218(b)(2),and for time under Section receiving credit served 6— erred Gilmer credit for the denying Court Circuit nolle prossed charge.18 for the served THE OF APPEALS OF COURT SPECIAL JUDGMENT THE AS TO THE IMPOSED ON VACATED SENTENCE ASSAULT, AND FOR FIRST-DEGREE CONVICTION AP- REMANDED THE COURT OF SPECIAL TO CASE THE TO VACATE SEN- PEALS WITH INSTRUCTIONS BAL- BY THE CIRCUIT FOR TENCE IMPOSED COURT CITY ON THE FIRST-DEGREE ASSAULT TIMORE 218(b)(2)'s 17. of the word The State also contents that if Section use 6— disposition interpreted to include of a case "dismissal” 6-218(b)(3) nugatory. rendered This is an prosequi, Section would be 6-218(b)(3), applies "a case proposition, as inaccurate subsection,” may paragraph case be other than a described in this applicable 1ocases stetted. we find that a nolle constitutes a dismissal Because 6-218(b)(2), necessary reach purposes of Section it is not for us to 6-218(b)(2) "liberty argument interest” that Section created a Gilmer's protected by the Fourteenth Amendment. CONVICTION AND REMAND THE CASE THAT TO COURT FOR RESENTENCING PROCEEDINGS CONSIS- TENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE AND MAYOR CITY COUNCIL BALTI- OF MORE. HARRELL,

Dissenting Opinion by Judge. I dissent. The Majority errs opinion when it declares 6-218(b)(2) ambiguous the use of in § “dismissal” based on consideration of that word isolation. Though pays lip service to considering the need to “construe the statute as (Maj. 553), whole” at op. A.2d at the Majority opinion (b)(2) thereafter confines its analysis and fails to give meaningful consideration to place “dismissal” occupies within the complete structure of the Legislature’s in scheme (b)(2) the larger statutory sub-section of which is but a part. Council, v. Mayor City 1, 11-12, See Johnson & 387 Md. (“the (2005) A.2d commonsensical approach to inter- preting statutes includes a review the general statutory scheme in which the statute in question found,” is citing to 125, 137-38, Frost v. 336 Md. (1994)); 647 A.2d Mutual, Forbes v. Harleysville 697-99, (1991) 947-48 (stating that we do not read statutory “in or language insolation out of context construe in [but it] light of the Legislature’s general in purpose and the context of whole.”). the statute as a When considered in the clear hierarchy 6-218(b), established within the totality §of (b)(2) claimed ambiguity disappears. 6-218(b) of the Criminal Procedure provides Article

in relevant part:

§ 6-218. Credit against sentence for time ^{[*] [*] [*] [*] [*]}

(b) (1) A defendant who is convicted and sentenced shall

receive credit against and a reduction of the term of sentence, definite or life or the minimum and maxi- mum terms of an sentence, indeterminate for all time hospital, facility, of a correctional custody in the spent disorders, or other mental persons for with facility of: unit because

(i) imposed; is or the sentence charge The for which (ii) charge based. The conduct on Which (2) charge that because custody If defendant that acquittal, the time would results in a dismissal shall imposed if had been accredited a sentence have been a charge that is based on sentence against any be credited that during filed or commitment was for which a warrant custody. a,

(3) paragraph than a case described in case other subsection, sentencing may apply court this for spent credit a sentence against charge or crime. another added).

(Emphasis Legislature me from this language It is clear to grant are credit obliged intended that trial judges disposed by time served where the relevant only. In all other cases literal dismissal or acquittal disposi given particular name descriptive whatever the tion, acquittal, other than discretion was by dismissal grant whether to such credit. granted judges Legislature an intent of the ambiguity situation in disposition, a trial court labels a might arise would be where description with a acquittal, other than dismissal or recognized novelty gibberish previously by a not constitutes Then, then, statute, rule, law. and would the or common in here the engaged functional equivalency type analysis 410, Glass, 401, merited. v. 386 Md. 872 Majority be See State (2005) (a “must undertaken court’s be analysis A.2d 734 perspective, a rather a from commonsensical than ] technical interpre to statute strained always seeking giving avoid (citations omitted). tation.”) case, in my in was correct this Special Appeals Court of

view, when it said:

680 is in plain §

Our decision accord 6- language with 218(b). (b)(2) terms Subsection uses the and dismissal acquittal, not nolle are bound to these prosequi. give We terms ordinarily their meaning. Gillespie understood See State, (2002). 219, 222, Certainly, 804 A.2d 426 Assembly General could given have mandated that credit be for time on in charges served that result a nolle prosequi. That the legislature chose not to do so when it enacted thirty years Laws, credit provision ago, Maryland see 1,§ Ch. 735 has taken no since then mandate steps to credit for incarceration on that are charges prossed not (as ordinary opposed part plea bargain), course to reflects the will to limit the that legislative applicability of Any subsection. effort on our overread the statute part would be to impermissibly venture into territory under the control exclusive of the General Assembly. See (2003) State, 378, 388, Price v. 378 Md. 835 A.2d 1221 (“ cannot assume read into authority ‘[w]e the Act what ”) (citation the Legislature apparently deliberately left out’ omitted). sum, Roberts, State, like the stet discussed [v. (1983)

Md.App. A.2d 410 nolle prosequi entered ] before trial not bargain tied to a plea comes within 218(b)(2), (b)(3), § purview, not of but subsection be- 6— cause it other is “a case than a described in case paragraph instance, (b)(3) of this In that subsection.” subsection gives the court discretion to credit “apply sentence time spent for another or crime.”

Here, sentencing court exercised its discretion not to appellant award credit for he the time was incarcerated on the nol prossed charged. Appellant suggests no abuse of discretion in regard, this find none. we We shall disturb sentencing decision. 21, (2005).

Gilmer v. Md.App. 866 A.2d does, To reason view, as this Court’s is to Majority my 6-218(b)(3) § render surplusage. County v. Montgomery See Buckman, 516, 524, (1994) (we read word, the statute so that “no phrase, clause or sentence is 6-218(b)(3) is meaningless.”). surplusage rendered provision default a catchall as operate intended to To or acquittal. literal dismissal than a other disposition elaboration, entered construe, through forced functional equivalent as the agreement a plea outside of (b)(3) (b)(2) its intended deprive is to under “dismissal” significance. of the Court judgments I affirm

Accordingly, would City. for Baltimore Court Circuit Appeals Special A.2d 564 Erik STODDARD Maryland. STATE Term, Sept. 2004. No. 70 Maryland. Appeals of Court of Dec.

Case Details

Case Name: Gilmer v. State

Court Name: Court of Appeals of Maryland

Date Published: Dec 7, 2005

Citation: 887 A.2d 549

Docket Number: 14, September Term, 2005

Court Abbreviation: Md.