565 A.2d 348 | Md. Ct. Spec. App. | 1989
Walter Ingram, appellant, appeals from the judgment of the Circuit Court for Baltimore City denying his motion to dismiss on both statutory and constitutional speedy trial grounds. Although he presents nine questions for our review
Before addressing the merits, it is necessary, as a threshold matter, that we consider the State’s motion to dismiss. In so doing, we set forth sufficient facts to give it context.
Appellant was indicted in 1985 for conspiracy to distribute narcotics. Although he was tried in 1987 — the jury verdict convicting him was rendered, and the sentence of twenty years imprisonment was imposed by the court, on October 14, 1987 a decision on appellant’s pretrial motion to dismiss on speedy trial grounds was not rendered until November 29, 1988.
We will deny the State’s motion. As we have seen, the trial court was authorized by Md.Rule 4-252(f) to proceed as it did. No time limitation within which the trial court must issue a ruling is provided by that rule. That being the case, when the trial court does render a ruling, whenever that may happen to be, its order is subject to review. That, in this case, a considerable amount of time elapsed from the commencement of the hearing on the motion to dismiss to its conclusion, particularly when the delay was occasioned by the trial court’s exercise of discretion to grant continuances, does not render an appeal of the trial court’s ultimate ruling “not allowed by these rules or other law”. See Brodak v. Brodak, 294 Md. 10, 20-21, 447 A.2d 847 (1982); Montgomery County v. McDonald, 68 Md.App. 307, 314-15, 511 A.2d 560 (1986); Robinson v. Montgomery County, 66 Md.App. 234, 241-42, 503 A.2d 275 (1986); Zorich v. Zorich, 63 Md.App. 710, 714-16, 493 A.2d 1096 (1985). Indeed, the State does not provide us with any rationale for reaching such a conclusion.
Nor does the State’s argument that the trial court was without jurisdiction to entertain the motion on November 18, 1988 have merit. Aside from the fact that the hearing was held long after appellate jurisdiction over the case had been relinquished — our mandate issued June 30, 1988 — we entertain some doubt as to whether the intervening appeal ever terminated the trial court’s jurisdiction to hear and resolve the pending motion to dismiss. As the State has already acknowledged, the appeal proceeded on issues unrelated to those raised in the motion to dismiss. That being so, the court was not deprived of “fundamental” jurisdiction to hear and decide the matter. See Stewart v.
The State’s argument that appellant failed to proceed with due diligence is in the nature of a waiver argument; a trial court’s jurisdiction certainly does not depend upon the parties’ diligence or lack thereof although it may affect the relief the court may provide. To the extent that it implicates waiver principles, since, as we have already pointed out, the State failed to raise the issue below, we refuse to address it. See Md.Rule 8-131(a).
Maryland Code Ann. art. 27, § 591
Appellant’s § 591/Rule 4-271 argument is that Judge Gordy did not possess administrative authority either to find “good cause” or to postpone his case. Consequently, since he was not tried within 180 days
At all times relevant to this appeal, Judge Joseph H.H. Kaplan was the administrative judge of the Circuit Court for Baltimore City and Judge Edward Angeletti was his designee for criminal matters. Judge Angeletti testified that Judge Gordy was his designee, having been orally designated by him as administrative judge for all purposes related to the handling of the case in which appellant was a co-defendant.
The record clearly reflects that Judge Kaplan never designated Judge Gordy as acting administrative judge for any purpose or that he was aware of, or approved, Judge Angeletti’s designation. It is this absence of involvement in the designation on the part of Judge Kaplan upon which appellant’s argument depends. Specifically, he asserts that a designee of the administrative judge may not designate yet another judge to perform the administrative duties assigned to him. We agree.
Section 591 and Rule 4-271 are explicit in the requirement that a change in trial date be effected by “the county administrative judge or that judge’s designee”.
Rule 1200(d), County Administrative Judge, in pertinent part provides:
1. Designation.
In the first seven judicial circuits, the Circuit Administrative Judge of a judicial circuit may, from time to time, and with the approval of the Chief Judge of the Court of Appeals, by order appoint a judge of the Circuit Court for any county within his judicial circuit to be County Administrative Judge of the Circuit Court for such county. A County Administrative Judge may be replaced by the Circuit Administrative Judge of his circuit with the approval of the Chief Judge of the Court of Appeals or by the Chief Judge of the Court of Appeals on his own motion. In the Eighth Judicial Circuit the Circuit Admin*557 istrative Judge shall have all the powers and duties of a County Administrative Judge.
3. Power to Delegate.
(i) A County Administrative Judge, with the approval of his Circuit Administrative Judge, may delegate to any judge or to any committee of judges of his court, or to any officer or employee of such court, such of the responsibilities, duties and functions imposed upon him as he, in his discretion, shall deem necessary or desirable.
(ii) In the implementation of Code, article 27, § 591 and Rule 4-271(a), a County Administrative Judge may (A) with the approval of the Chief Judge of the Court of Appeals, authorize one or more judges to postpone criminal cases on appeal from the District Court or transferred from the District Court because of a demand for jury trial, and (B) authorize not more than one judge at a time to postpone all other criminal cases.
Subsection 1 of the rule makes clear that the administrative judge of the Circuit Court for Baltimore City has the powers and duties of “a County Administrative Judge.” Therefore, the reference in subsection 3 to “County Administrative Judge” includes the “Circuit Administrative Judge” of the Eighth Circuit, rather than a judge designated by him. Thus, in Baltimore City, the administrative judge “may delegate” his responsibilities, duties and functions; because the Eighth Circuit is not a multi-county circuit, the Rule does not refer to the designee of the County Administrative Judge. In this respect, then, Baltimore City is different from multi-county circuits.
Interpreting the statute and the rule as permitting the County Administrative Judge’s designee, in turn, to designate another judge to perform the administrative duties delegated to him leads to, and, indeed, invites, an anomalous result. If the administrative judge’s designee may further designate, so, too, may that judge’s designee and so forth. It is therefore conceivable that, at any given time, each judge in a circuit could be authorized to grant changes in trial dates. That result was specifically made the subject of a caution in Farinholt, 299 Md. at 37-38 n. 2, 472 A.2d 452: “... any procedure adopted by a circuit court consisting of several trial judges, by which all trial judges are purportedly authorized to grant postponements for purposes of § 591 and Rule [4-271(a) ], would not comply with § 591 and Rule [4-271(a) ]”. (Emphasis in original) It would also run afoul of the purpose of the statute and rule, which, as we have indicated, are designed to ensure that the judge in the best position to do so changes the trial date.
The State argues that even if the trial date were changed in violation of the statute and rule, dismissal is not the appropriate sanction. The Court of Appeals has made very clear that “the provisions of article 27, § 591 and [Rule 4-271(a)] are of mandatory application, binding upon the prosecution and defense alike; they are not mere guides or benchmarks to be observed, if convenient”. State v. Hicks, 285 Md. at 318, 403 A.2d 356; Reed v. State, 78 Md.App. at 533, 554 A.2d 420. Moreover, the Md.Rules “are not guides
JUDGMENT REVERSED.
COSTS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE.
. They are:
1. Did the trial court err in denying Ingram’s motion to dismiss the charges against him on the ground that he was denied his statutory right to a speedy trial?
2. Did the trial court err in denying Ingram’s motion to dismiss the charges against him on the ground that he was denied his constitutional right to a speedy trial?
*550 3. Did the trial court err in waiting 13 months after Ingram's conviction before ruling on the motion to dismiss?
4. Did the trial court err in refusing to recuse itself?
5. Did the trial court err in refusing to strike its previously made finding of fact?
6. Did the trial court err in refusing to issue a subpoena duces tecum for Judge Joseph H.H. Kaplan and Judge Edward Angeletti?
7. Did the trial court err in refusing to allow counsel to question Judge Angeletti about the conversation he had with Judge Gordy after receiving the first subpoena?
8. Did the trial court err in restricting Ingram’s ability to cross-examine Judge Angeletti by directing that the letter of July 2, 1987, be marked as an exhibit for identification and then shown to Judge Angeletti?
9. Did the trial court err in refusing to allow the defendant to call Andrea Smith as a witness, after it became apparent that she was present during Judge Angeletti's reported conversation with Judge Gordy on October 30, 1985?
. Different counsel represented appellant at trial and on the motion to dismiss. The first hearing on the motion to dismiss was held on October 14, 1987, the date on which the jury returned its verdict and appellant was sentenced. It began after the defense had rested and prior to the jury retiring to consider its verdict. The hearing was not completed, however, because counsel requested and was granted additional time to prepare appellant’s case. Although the next hearing was scheduled for November 30, 1987, that hearing was never held and, indeed, the next hearing was held on October 24, 1988. According to the trial judge, "This case has been scheduled at least a half
. The speedy trial issues raised in the motion to dismiss were not raised on appeal, undoubtedly because, at the time he prosecuted his appeal, no judgment had been rendered on the motion and, consequently, the issue was not ripe for appeal.
. Md.Rule 4 — 252(f) provides:
(f) Determination. — Wíoúom filed pursuant to this Rule shall be determined before trial and, to the extent practicable, before the day of trial, except that the court may defer until after trial its determination of a motion to dismiss for failure to obtain a speedy trial. If factual issues are involved in determining the motion, the court shall state its findings on the record.
. Md.Rule 8-602 provides:
(a) Grounds. — On motion or on its own initiative, the court may dismiss an appeal for any of the following reasons:
(1) the appeal is not allowed by these rules or ether law;
. Maryland Code Ann. art. 27, § 591 provides:
Trial date.
(a) The date for trial of a criminal matter in a circuit court:
(1) Shall be set within 30 days after the earlier of
(1) The appearance of counsel; or
(ii) The first appearance of the defendant before the circuit court, as provided in the Maryland Rules; and
(2) May not be later than 180 days after the earlier of those events.
(b) On motion of a party or on the court’s initiative and for good cause shown, a county administrative judge or a designee of that judge may grant a change of the circuit court trial date.
(c) The Court of Appeals may adopt additional rules of practice and procedure for the implementation of this section in circuit courts.
. Maryland Rule 4-271(a) provides:
(a) Trial date in circuit court. — The date for trial in circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events____ On motion of a party, or on the court’s initiative, and for good cause shown, the county administrative judge or that judge’s designee may grant a change of a circuit court trial date.
. The parties disagree as to when the Í80 day period began to run. Appellant maintains that it was when William H. Murphy, Jr. entered his appearance, albeit for the limited purpose of a bail hearing, on behalf of appellant. The State, focusing on the limitation placed upon the entry of appearance by Mr. Murphy, maintains that the time began to run when appellant was rearraigned and appeared personally. Although an interesting question — 'there is nothing in the Rules which permits an attorney to enter an appearance for a limited purpose — we need not address the issue since, in any event, the order postponing the case beyond 180 days, be it from the State’s perspective or that of appellant, was entered by Judge Gordy, as to whom appellant’s argument necessarily relates.
. The case was treated as a protracted case since there were 13 co-defendants of which appellant was only one.
. Appellant questions whether any designation was made by Judge Angeletti prior to the letter of July 2, 1987 and he points to several facts which seem to be inconsistent with there having been a designation on October 30, 1985. It is not necessary that we address the point.
. The statute phrases it "A county administrative judge or a designee of that judge".
. It is easy to understand the distinction. In multi-county circuits, it would be an administrative nightmare if the Circuit Administrative Judge had to make all of the postponements or designations throughout the circuit. Aside from the fact that the Circuit Administrative Judge may not be in the best position to postpone cases in the counties in which he or she did not regularly sit, it would be an impossible task for that judge to anticipate when his designee would be unavailable. It makes sense, therefore, that a Circuit Administra