STATE of Maryland v. Antoine D. FRAZIER (94) Thomas Edward Weems & Lamont Patton (95) Garry Shaw a/k/a Gary L. Shaw (96) Mark Richardson (124).
Nos. 94, 95, 96 & 124 Sept. Term, 1982.
Court of Appeals of Maryland.
Feb. 7, 1984.
470 A.2d 1269 | 298 Md. 422
Gary W. Christopher, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellees.
Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.
ELDRIDGE, Judge.
These four criminal cases, involving five defendants, were dismissed prior to trial in the Criminal Court of Baltimore1 on the ground that they were not tried within 180 days as required by
I.
Before setting out the facts of each case, it would be useful to review the requirements of
A.
This Court also stated in the Hicks opinion that
Finally, the Court held in Hicks (285 Md. at 336-338) that the overruling of Young v. State and the new
Three years after Hicks, in Goins v. State, supra, this Court reiterated that dismissal was the appropriate sanction if a circuit court criminal case was not tried within the 180-day time period, and if there was no order by the administrative judge, based on good cause, postponing the trial beyond the 180-day deadline, and if the defendant did not seek or expressly consent to a trial date in violation of
In the Goins opinion we reaffirmed that the State has the duty of bringing the defendant to trial, that the defendant has no duty to bring himself to trial, and that, therefore, the defendant has no obligation to seek a postponement under
B.
As a result of the Hicks decision, it was necessary that procedures be adopted in various subdivisions to assure that criminal cases be tried in conformity with
Within a few weeks after the filing of every criminal case in the Circuit Court for Baltimore City, a mandatory arraignment is routinely held.6 At the arraignment there is present someone from the criminal division of the Central
“At the criminal arraignment, felony cases are scheduled into nine criminal courts, ten per court per week. Misdemeanor cases appealed from the District Court or removed from that Court prior to trial on a request for jury trial are scheduled before one criminal court at the rate of 60 per week. All of these cases are scheduled as potential jury trials since under Maryland law the defendant is permitted to change his election as to mode of trial at any time within 48 hours prior to trial. Two criminal courts are undocketed and stand ready to handle overflow from the criminal docketed courts. At a conference held daily before me as the administrative judge the current state of the docket is assessed and requests for postponements and priority status for the cases awaiting trial are considered. Because of the deliberate overscheduling of criminal cases we are able to insure the minimum of down time on the part of any criminal court judge. When a
judge completes his assigned cases for the day he is immediately assigned a case from the ‘move’ or ‘ready’ list of cases which are awaiting trial. An attempt is made through the daily scheduling conferences to maintain the ‘move’ or ‘ready’ list at between 10 and 20 cases. To insure prompt movement of the cases on ‘move’ or ‘ready’ status to an available court, an assignment office monitor personally surveys the status of proceedings in each of the 11 felony trial courts twice a day and reports that status at 11 a.m. and 3 p.m. to the administrative judge. Should a court become available at any time prior to 4 p.m. a case from the ‘move’ or ‘ready’ list is moved to that court.”
The majority of cases assigned a trial date are ultimately disposed of by guilty plea, nol pros, or stet. For this reason, as pointed out above by Judge Karwacki, there must be a deliberate overscheduling of criminal trials. Otherwise initial trial dates would have to be set far into the future, judges would be available for great periods of time without cases to try, and few if any cases would be tried within 180 days. Nevertheless, there is no way to determine precisely for a particular period how many cases will be disposed of by guilty plea, nol pros or stet, and thus how much overscheduling should be done for that period. As Assignment Commissioner George B. Riggin, Jr., has explained (Riggin, Circuit Court for Baltimore City—Criminal Court Overview, 4 (Distributed by the Circuit Court for Baltimore City, July 13, 1983)):
“Scheduling dockets into the future is more of an ‘art’ than a ‘science‘. It involves the prediction of complex trial events which have no guaranteed certainty and can change from moment to moment. Despite the confusion, certain known factors allow future dockets to be assembled with some degree of rationale. For example, although we may not know specifically which cases will plead out, we nevertheless know that 80-85% will never go to trial. This concept dictates the technique called ‘overscheduling‘.
The general guidelines which are used in loading the future dockets can be described .... These guidelines are periodically adjusted as the caseload dictates or due to some specific knowledge about a protracted case ....”
Because criminal case scheduling is not a precise science, because trials may take longer than anticipated, and because in a particular time period fewer cases than predicted may be disposed of by guilty plea, nol pros or stet, there will be occasions in any busy jurisdiction when the scheduled judge is not available to conduct a trial on the assigned date. In Baltimore City most such cases will be placed by the administrative judge on the so-called “move list,” to be tried by one of the two “move courts” or by the first other available judge.9 A case on the move list will typically be tried by a different judge on the scheduled trial date or within a few days thereafter. But, in order for the “move list” mechanism to work, and in order to try such cases within a few days of the scheduled trial date, the move list can accommodate only a limited number of cases. If, in the judgment of the administrative judge, a criminal trial cannot be reached in the scheduled court on the assigned trial date and cannot be accommodated on the move list, the administrative judge ordinarily will conclude that “good cause” for a postponement exists and that a new trial date must be assigned.
Administrative Judge Karwacki, or in his absence another judge designated by him as acting administrative judge, is available at noon each day to hear motions for trial postponements in criminal cases or to consider criminal cases which, for whatever reason, apparently cannot be tried that day. After hearing argument (and evidence if any is offered), the administrative judge determines whether or not good cause exists for a postponement. If the administrative
The Circuit Court for Baltimore City has developed a form of order, sometimes referred to as the “standard postponement form,” to reflect what occurs at the postponement hearing. The information to be recorded on this form includes the essential data concerning the criminal case, the charges, the type of trial requested and the trial date, whether there had been prior trial postponements, which side requested the postponement, whether opposing counsel agrees, and whether the administrative judge approves the postponement request. The form has a space for entry of the reasons for postponing the case, the signature of the administrative judge and the new trial date. If, after hearing from the parties, the administrative judge concludes that good cause exists for a postponement, the necessary data is at that time recorded on the form and the administrative judge signs the form.
At every one of these postponement hearings, the court clerk is someone from the Central Assignment Office, and it is that clerk‘s responsibility to insure that the form is correctly filled out. Nevertheless, the prosecuting attorney often fills in the data for the clerk.
When the administrative judge orders a trial postponement, he is occasionally aware of a definite time period in the near future when, because of some unexpected development, there will be a judge who is available for the trial of criminal cases but to whom no cases have been assigned. In this event, a new trial date may be assigned at the postponement hearing and entered on the order. Ordinarily, however, a new trial date will not be assigned at the postponement hearing and, therefore, will not be entered on the order. Instead the clerk at the postponement hearing, after insuring that the other data is recorded and the administrative judge has signed the order, is responsible for delivering
Upon receipt of the signed postponement order, the Central Assignment Office selects a new trial date. The Office picks the first available date under the normal guidelines for the assignment of trials, although the testimony in the instant cases suggested that, if such date is beyond the 180-day period, it may sometimes be possible to assign an earlier date. The Assignment Commissioner takes the position that it is the primary responsibility of the State‘s Attorney‘s Office to determine if the new trial date in a previously postponed case is within the 180-day time period, and, if it is not, to notify the Assignment Office so that an earlier date can be selected if possible. Nevertheless the personnel in the Assignment Office, as a check upon the State‘s Attorney‘s Office, also normally calculate the 180-day deadline and try to select a new trial date prior to that deadline.
II.
The relevant facts in each of the four cases before us are as follows.
No. 94, State v. Frazier
On June 9, 1981, the State filed in the Criminal Court of Baltimore a criminal information against Antoine Frazier, charging him with robbery and related offenses. The appearance of Frazier‘s attorney was entered on June 30, 1981, and Frazier‘s arraignment was on the same date, with him pleading “not guilty” and praying a jury trial. Therefore, the 180-day period for trying the case would expire on December 27, 1981.
Frazier‘s trial was initially scheduled for September 3, 1981. On that date, both the prosecuting attorney and the defense attorney were ready to begin the trial, with their witnesses available, but the case could not be reached. The attorneys then appeared before the designated administrative judge (Grady, C.J.), and the Assistant State‘s Attorney
Again on December 14, 1981, the case could not be reached, and a hearing was held on that date before the administrative judge (Karwacki, J.). Administrative Judge Karwacki found good cause to postpone the trial “due to an excess buildup of cases awaiting trial with no courtroom available” and with “29 cases already pending on the list to be moved to the first available court.” The new trial date selected was March 23, 1982, which was 266 days after arraignment.
When the case was called on March 23, 1982, the defendant Frazier orally moved to dismiss for failure to comply with
No. 95, State v. Weems and Patton
On July 7, 1981, in the Criminal Court of Baltimore, Thomas Edward Weems and Lamont Patton were indicted together on charges of armed robbery occurring on June 6, 1981, and related offenses. Weems and Patton were arraigned and the appearance of their counsel was entered on July 28, 1981. Consequently, the 180-day limit under
The case could not be reached on the October 14, 1981, trial date, and the attorneys were instructed to go before the administrative judge. There were apparently two reasons for the inability to try the case on October 14th. First, the trial judge to whom the case was assigned could not reach it because he was trying a case which had been continued from a previous day. Second, the assigned public
“My client, for the record, has indicated to me that he doesn‘t think I am prepared, in that this case was paneled [assigned] to me October first. I have seen him twice at the jail; however, he thinks I need more time and he needs more time.”
Judge Karwacki found that there was good cause to postpone the case, and he refused to place the case on the move list because there were already twenty cases on that list. Knowing that there would be an available judge during the first week of November 1981, Judge Karwacki gave the attorneys the option of either choosing a date certain during that week or having the case postponed to the next available date thereafter as selected by the Assignment Office. The prosecuting attorney and both defense attorneys selected November 5, 1981, as the trial date, and the case was postponed to November 5th, to be tried in Part 4 of the Criminal Court of Baltimore on that date. The clerk from the Assignment Office attending the administrative judge‘s hearing placed two “x‘s” on a sheet of paper titled November 5th to indicate that two cases were set for that date, but she did not record the names or numbers of the cases. Also there was a failure to follow the normal procedure of filling out the standard postponement form and submitting it to the Assignment Office.
Patton‘s attorney and the prosecuting attorney arrived at Part 4 of the Criminal Court of Baltimore on November 5th to try the case. They discovered that the case was not on the docket, that the defendants had not been brought from jail, that the court files had not been delivered, that no witnesses were present, and that Weems‘s attorney was absent. An inquiry at the Assignment Office disclosed that the Office had no knowledge that the case was supposed to be tried on November 5th. Because of a failure after the October 14th hearing to notify the Assignment Office of the November 5th trial date, the computer did not generate the necessary paperwork to place the case on the November 5th
In light of this, there was no court available on November 5th to try the case, and necessary persons were absent. Consequently, the prosecuting attorney and Patton‘s attorney appeared before Administrative Judge Karwacki on November 5th, and Judge Karwacki signed an order postponing the case. This time the postponement form was properly transmitted to the Assignment Office, and a new trial date of January 28, 1982, was assigned.13 The date was four days beyond the 180-day limit prescribed by
On January 20, 1982, the defendant Weems filed a written motion to dismiss, asserting two grounds: 1. a violation of
Thereafter on the same day, January 29th, the case was called for trial before Judge Hammerman. Following the defendants’ reiteration of their not guilty pleas and their desire for a jury trial, and defense counsel‘s review of the various pre-trial motions which had been filed, defense counsel requested the court to reconsider the motion to dismiss based upon an asserted violation of
The witness who was a supervisor in the Assignment Office testified that, after the postponement form was received on November 5, 1981, she assigned the January 28, 1982, trial date which was the “earliest available date to set the case in.” She further testified that even if the postponement form had been correctly marked to show that the defendants had requested speedy trials and that neither defense attorney had consented to the postponement, she would not have been able to select an earlier trial date “because the dockets were overloaded” and “I just looked for the earliest available date and that is what I gave.” After the supervisor selected the January 28th trial date, she left the postponement form on the desk of the Postponement Clerk for the latter “to check it out and put it in the computer.” She explained that the Postponement Clerk normally “check[s] the first appearance of the attorney and the arraignment date [to determine] if the trial [date] was
As previously indicated, the Assignment Commissioner testified generally concerning the assignment of cases in the Criminal Court of Baltimore. With regard to the January 28th trial date in the Weems and Patton case, the Assignment Commissioner‘s testimony suggested that if the personnel in his office had been aware that this date was four days beyond the 180-day deadline, an earlier trial date might have been secured. Although reiterating his view that it was the ultimate responsibility of the State‘s Attorney‘s office to monitor the trial date in light of
At the conclusion of the hearing, the trial judge granted each defendant‘s motion to dismiss, ruling that there had been a violation of
No. 96, State v. Shaw
An information was filed in the Criminal Court of Baltimore on August 26, 1981, charging Gary Shaw with armed robbery and related offenses. Shaw was released on bail, and has remained on bail ever since. The appearance of Shaw‘s attorney was entered on September 18, 1981, and Shaw was arraigned on that date, pleading “not guilty” and electing a jury trial. The trial was scheduled for December 18, 1981, 91 days after arraignment.
On the December 18th trial date, the prosecution moved for a postponement. At the hearing on the motion before the designated administrative judge, the prosecuting attorney argued as follows:
“If your honor please, the State is asking for a very, very short postponement in this matter, the reason being, I found out just this morning that a co-defendant‘s case is scheduled for January 6 in Criminal Court Part VII. I would move to consolidate. There is no Hicks problem. We are well within the 180 days.”
The defense attorney “vehemently” objected to the postponement, stating that he was prepared for trial “today,” that he “had no knowledge there was a co-defendant in this case,” that he was opposed to a consolidation and that he wanted “a severance between all co-defendants we didn‘t even know about.” The designated administrative judge
On January 6, 1982, there was no court available for a jury trial of the case as desired by the defendant Shaw. The co-defendant pleaded guilty, and the attorneys in the Shaw case appeared before Administrative Judge Karwacki. At the January 6th hearing before Judge Karwacki, the State represented that it was prepared for trial and asked that the case be placed on the move list. Defense counsel, pointing out that the case had previously been postponed over the objection of the defense, opposed any further postponement. Judge Karwacki, however, refused to put the case on the move list and sua sponte postponed it, stating that “[t]here are just not enough courts for all our business.” The postponement form signed by Judge Karwacki stated that the postponement was necessary because of the “excess buildup of cases awaiting trial with no courtroom available” and because “[t]here are currently 26 cases already pending on the list to be moved to the first available court.”
The 180-day period from the date of arraignment ended on March 17, 1982. Nevertheless, the new trial date selected by the Assignment Office was April 15, 1982, 209 days after arraignment.
On the morning of trial, the defendant filed a written motion to dismiss, claiming a violation of
No. 124, State v. Richardson
Mark Richardson was charged in the Criminal Court of Baltimore on September 18, 1981, with storehouse breaking and being a rogue and vagabond. On October 9, 1981, the appearance of Richardson‘s attorney was entered and Richardson was arraigned, at which time he pled not guilty and elected a jury trial. The 180-day deadline under
On the morning of January 7, 1982, the court, the prosecuting attorney and the defense attorney were ready to try the case when it was discovered that the Division of Correction had sent the wrong Mark Richardson to the Baltimore City Courthouse. Inquiry at the Division of Correction disclosed that there were three Mark Richardsons in the Division‘s custody, that correction officials had “been working on it all morning and they can‘t tell which Mark Richardson is which.” The prosecuting attorney then appeared before Administrative Judge Karwacki and informed him of
The case could not be reached on May 3rd because of the unavailability of a judge and it was placed on the “move list.” A judge was available on the next day, May 4th, and the case was called for trial.
At the beginning of the trial proceedings, the defense attorney made an oral motion to dismiss based upon an asserted violation of
The trial judge rejected the State‘s argument that defense counsel had consented to the January 7th postponement or consented to a trial beyond the 180-day deadline. The judge held that under the Hicks and Goins opinions, such consent by the defendant or his counsel must be “express” in order to preclude the sanction of dismissal for a violation of
III.
In appealing the dismissals, the State makes the same two arguments in all four cases. First, the State contends that the authority to determine “good cause” within the meaning of
The defendants, on the other hand, argue that a judge hearing the motion to dismiss is entitled to make an independent assessment concerning good cause. The defendants’ attorneys18 go on to state in Frazier and Shaw that “[t]he sole issue in [these two] case[s] is whether an overcrowded court docket may constitute good cause for postponing a case,” and they assert that “postponement of [each defendant‘s] case due to an overcrowded docket was as a matter of law not based upon ‘good cause.‘” In Shaw, they make the alternate argument that even if the crowded docket constituted good cause for the January 6, 1982, postponement, “the extent of the postponement was not justified by whatever cause existed on January 6.”
With respect to Weems and Patton the defendants contend that, because of the failure of state personnel (both the prosecuting attorney and persons in the court system) to prepare and process the paperwork so that the case could be tried on the November 5, 1981, trial date, there was an
As recognized in both the State‘s and the defendants’ arguments in these cases, the requirement in
IV.
The threshold question in these cases concerns the authority of a judge, hearing a motion to dismiss based upon an
As a general principle, one judge of a trial court ruling on a matter is not bound by the prior ruling in the same case by another judge of the court; the second judge, in his discretion, may ordinarily consider the matter de novo. See Waugh v. State, 275 Md. 22, 35, 338 A.2d 268 (1975); Foreman v. State, 182 Md. 415, 418, 35 A.2d 171 (1943); Insurance Company v. Thrall, 181 Md. 19, 22-23, 27 A.2d 353 (1942); Robinson, et al. v. Commissioners of Harford County, 12 Md. 132, 141-142 (1858); Placido v. Citizens Bank & Tr. Co., 38 Md. App. 33, 45-46, 379 A.2d 773 (1977); Driver v. Parke-Davis & Co., 29 Md. App. 354, 361-364, 348 A.2d 38 (1975); cert. denied, 277 Md. 736-737 (1976), and cases there reviewed. This general principle, however, is inapplicable if a statute or rule reflects a different intent in a particular situation. See Insurance Company v. Thrall, supra, 181 Md. at 23; Layman v. State, 14 Md. App. 215, 230, 286 A.2d 559 (1972). Section 591 and Rule 746 reflect a different intent.
Section 591, although amended occasionally in other respects, has consistently, since its initial enactment in 1971, required that the postponement of the trial date in a circuit court criminal case be done by or approved by “the administrative judge of the court.” Rule 746 implements this provision by specifying that, “for good cause shown,” only “the county administrative judge or a judge designated by him may grant a change of trial date.” When a trial is postponed beyond the 180-day period, the failure of the administrative judge or his designee to grant or approve such postponement is a violation of
the Court of Special Appeals in Guarnera v. State, 20 Md. App. 562, 573, 318 A.2d 243, cert. denied, 272 Md. 742 (1974), quoted by us with approval in Hicks, 285 Md. at 317, 403 A.2d 356, “the Legislature . . . has denied all judges but the administrative head of the court authority to exercise . . . [the postponement] power.” Judge Powers explained, 20 Md. App. at 572-573:
“First, we must understand whose exercise of discretion is being reviewed. Not the discretion of [the trial judge] for Code, Art. 27, § 591 took away his power to postpone the trial date of a criminal case. The rule we stated in Jennings v. State, 8 Md. App. 321, 259 A.2d 547 (1969) when we said that ‘The granting or denial of a continuance is within the sound discretion of the trial court’ was modified by § 591, which vested the exclusive power to postpone the trial date of a criminal case in the administrative judge of the court.”
In Hughes v. State, 288 Md. 216, 229, 421 A.2d 69 (1980), Judge Smith for this Court pointed out that, under
Consequently, with regard to the postponement of a criminal trial for good cause, it is the administrative judge‘s exercise of judgment with which those later reviewing the matter are concerned. Another nisi prius judge, ruling on a motion to dismiss for an alleged violation of
Although
“It has long been a well settled rule in this State that the granting or refusing of a continuance is within the sound discretion of the trial court and will not be set aside on appeal unless the exercise of that discretion has been arbitrary.”
Earlier, this Court dismissed an appeal from several criminal convictions where the only claim of error was that the trial judge had erroneously ruled on a request for a postponement, saying (Harris v. State, 141 Md. 526, 530, 119 A. 154 (1922):
“But the established rule in this State, supported by an unbroken line of decisions, is that an application for a continuance of a case is addressed to the sound discretion of the trial court, and unless that discretion is exercised arbitrarily, the action of the court on such an application is not subject to review or appeal. 2 Poe, Pl. & Pr. sec. 178; Cumberland Coal & Iron Co. v. McKaig, 27 Md. 258; Dean v. Turner, 31 Md. 52; Miller v. Miller, 41 Md. 623; Universal Life Ins. Co. v. Bachus, 51 Md. 28;
Several cases have indicated that a ruling on a postponement request will be overturned only if there was both an abuse of discretion and a showing of actual prejudice because of the ruling. Peddersen v. State, 223 Md. 329, 337-338, 164 A.2d 539 (1960); Stansbury v. State, 218 Md. 255, 262, 146 A.2d 17 (1958); Jackson v. State, 214 Md. 454, 459, 135 A.2d 638 (1957), cert. denied, 356 U.S. 940 (1958); Plank v. Summers, 205 Md. 598, 605, 109 A.2d 914 (1954). Plank v. Summers also suggests that only in “exceptional situations” will a ruling on a postponement motion be overturned. Ibid. And in Hunter v. State, 193 Md. 596, 600, 69 A.2d 505 (1949), Chief Judge Marbury for the Court set forth the standard of review as follows:
“There is no question that the granting or refusal of a motion for a continuance or for fixing the date for a trial rests within the sound discretion of the trial court, and will not be disturbed except for arbitrary action or clear abuse of judicial discretion.” (Emphasis added.)
Finally, the party challenging the discretionary ruling on a motion for a postponement has the burden of demonstrating a clear abuse of discretion. Hughes v. State, supra, 288 Md. at 229; Jackson v. State, supra, 214 Md. at 459.
As previously mentioned, neither
There is another reason why the judgment of the administrative judge, concerning the need for a postponement and the rescheduling of a criminal case, should be accorded the greatest weight. As the above-cited cases illustrate, long before the enactment of
Consequently, the administrative judge is ordinarily in a much better position than another judge of the trial court, or an appellate court, to make the judgment as to whether good cause for the postponement of a criminal case exists. Moreover, with regard to the extent of a postponement, even though the administrative judge may not personally select or approve the new trial date in a postponed case, such selection is made by personnel operating under his supervision and reporting to him. When he postpones a case, he is generally aware of the state of the docket in the future, the number of cases set for trial, and the normal time it will likely take before the case can be tried.
This is not to say that a trial judge has no role when there is a motion to dismiss based upon an asserted violation of
V.
Turning to the critical postponement orders in the cases at bar, we are unable to conclude that there was a clear abuse of discretion or an error of law.
As previously indicated, the defendants’ principal contention is that, “as a matter of law,” there is an absence of good cause when postponements are due to “an overcrowded docket.” This argument relates to the orders of December 14, 1981, and January 6, 1982, in the Frazier and Shaw cases, as well as the length of the delays from the critical postponement orders to the new trial dates in all four cases.25
In some jurisdictions having statutes or rules similar to
“When the State contends ‘court congestion’ is the reason for delay, the trial court must distinguish between chronic court congestion and specific circumstances arising out of unique, non-recurring events which create a particular scheduling problem. Compare State v. Leonard, 240 N.W.2d 690, 692-93 (Iowa 1976) (complexity of case and general docket congestion not good cause for continuance), and State v. Hines, 225 N.W.2d 156, 158-59 (Iowa 1975) (failure to staff courtroom with sufficient jurors not good cause for continuance), with State v. Jennings, 195 N.W.2d 351, 355-56 (Iowa 1972) (illness and vacation of several judges and early rescheduling of trial of defendant out on bond constituted good cause). Cf. State v. Hathaway, 257 N.W.2d 735, 736-37 (Iowa 1977) (good cause for late filing of trial information established because all judges out of town on required filing day).”
See Garrison v. State, 270 Ark. 426, 605 S.W.2d 467, 468-469 (App. 1980); People v. Johnson, 26 Cal. 3d 557, 570-572, 162 Cal. Rptr. 431, 606 P.2d 738 (1980); Carr v. District Court In
The basis for the distinction may relate to the purpose of the speedy trial rules or statutes. In states where the purpose is not only to protect the defendant‘s constitutional right to a speedy trial but, like
tion, some courts have found court congestion to constitute good cause for delay where either the courts or the legislature have acted to remedy the congestion. See, e.g., People v. Schinzel, supra, 296 N.W.2d at 86-87; State v. Alvarez, supra, 189 Neb. at 289-290. Cf. People v. Johnson, supra, 26 Cal. 3d at 570 (delay due to improper court administration is not good cause); State v. Herrera, 63 Haw. 405, 629 P.2d 626 (1981) (court detailed means by which trial court had sought to absorb excess criminal cases); Castle v. State, 237 Ind. 83, 143 N.E.2d 570, 572 (1957) (trial court failed in its duty to “ensure efficient administration of justice“); State v. Mack, supra, 576 P.2d at 47 (inefficient procedures, inter alia, preclude finding of good cause). See also State v. Rogers, 402 So. 2d 50 (Fla. App. 1981) (riots constitute circumstances warranting delay); State v. Lord, 63 Haw. 270, 625 P.2d 1038 (1981) (an unusually large number of indictments constitutes a circumstance justifying postponement).
The defendants’ argument, that overcrowded dockets cannot as a matter of law constitute good cause for the postponement of a criminal case, is illogical. When overcrowded dockets are due in part to shortages of judges, prosecuting attorneys, public defenders, supporting personnel, or facilities, it must be remembered that public resources are not unlimited and there are many competing demands upon public funds. Moreover, even if there were no deficiencies in the number of judges, prosecutors, public defenders, etc., overcrowded docket situations are sometimes inescapable. As earlier explained, the nature of any reasonable scheduling system and the inherent lack of certainty concerning the number of cases which will be fully tried or the length of trials, will on occasions lead to overcrowded dockets.
“Insofar as the record is concerned, neither court appears to have attempted to modify the current procedure or to adopt a more efficient one. . . . Self-created hardship is not an excuse for violating mandatory rules.”
From 1971 until 1980, when
All of these proposals were rejected by the General Assembly except for the one changing “extraordinary cause” to “good cause.” Ch. 378 of the Acts of 1980. Consequently, while the Legislature chose to retain the scope and mandatory nature of
The testimony before the House Judiciary Committee by a sponsor of one of the proposals to change “extraordinary cause” to “good cause” is instructive. Delegate Pica, after reviewing the Hicks decision, testified as follows (testimony before the House Judiciary Committee, February 12, 1980,
“What we are really doing here is attempting to amend the law in order to offer the courts some leeway in the disposition of an extremely heavy case load. According to some estimates, the number of criminal cases in Baltimore City alone has increased 50% in the last few years. The strain on the courts and the strain on the prosecution is rising sharply.
“Sec. 591 of Art. 27 illustrates the legislative intent that a defendant be brought to trial within six months of his arraignment. Rule 746 further narrowed that period to 120 days. Subsequent to the Hicks case, and fearful of its effects, the Maryland Court of Appeals enacted an emergency amendment to Rule 746 changing the 120 day period to 180 days.” (Emphasis added.)
The witness then discussed the “extraordinary cause” requirement of
“It is the culprit because it confines the judgment of the court to postponing only those cases where extraordinary cause is shown to change the trial date. The growth of the number of cases being brought into criminal court has dramatically increased, resulting in crowded and backlogged court dockets. The Hicks decision suggests that a defendant‘s confinement out of state may be extraordinary cause but that crowded court dockets may not. Hicks’ holding has created fear among prosecutors and judges alike.
“Though the Court of Appeals, in a timely decision to prevent that possibility, enacted an emergency measure to amend the time limit to a 180 day period, I believe it is now time for the Legislature to focus on providing the courts with the tools it needs to operate efficiently and constitutionally in a judicial environment wholly dependent upon the level of the case load.
*
“The third, and perhaps best alternative, H.B. 615, allows a court to do what they do best—to consider all the circumstances and grant delay of the trial based upon the facts of the case, and without harm or prejudice to the defendant. The bill accomplishes this result by removing the extraordinary cause requirements for a postponement and replacing it with the requirement of showing ‘good cause’ for a change in trial date.
“H.B. 615 maintains the original scope of Rule 746 in requiring that defendant be brought to trial within 180 days, a guideline that should be met unless good cause for not doing so is exhibited by one of the parties. The good cause requirement unbinds the hands of the Judiciary in having to choose between the dismissal of a case because it did not fall within the 180 day period, and the more rational choice of allowing the case to go forth upon a showing that good cause existed for its not being set within that period.
”With our prosecutors’ pressure to deal daily with hundreds of new cases, and our courts burdened by a jamfilled docket, the necessity of granting to the courts the language they need to operate effectively in light of the Hicks decision becomes imperative.” (Emphasis added.)
The House Judiciary Committee went on to report favorably upon the proposal to change “extraordinary cause” to “good cause,” and the General Assembly enacted that proposal. This change, particularly in light of the testimony before the Committee, clearly indicated a legislative intent that crowded court dockets may constitute sufficient cause for trying a case beyond the 180-day deadline.
We therefore reject the defendants’ argument that, as a matter of law, an overcrowded docket situation cannot justify either a change of trial date or the length of the delay until the new trial date. When the administrative
No such abuse of discretion was shown in the present cases. There is nothing in these records indicating that the administrative judge was not warranted in postponing the Frazier case on December 14, 1981, and the Shaw case on January 6, 1982, because of the unavailability of a court and the number of cases on the move list. Moreover, there was no showing in any of the four cases that the lengths of the delays following the critical postponements represented a clear abuse of discretion by the administrative judge and/or the assignment personnel acting under his supervision. As far as the records show, the first available new dates for trials were assigned. There may arise cases in which the inordinate length of time until the new trial date will itself be prima facie evidence of undue delay, shifting the burden to the State to show justification. In our view, however, none of the cases at bar fall into this category.
B.
The changes of the November 5, 1981, trial date in the Weems and Patton case and the January 7, 1982, trial date in the Richardson case, were not because of overcrowded dockets. Nevertheless, we do not believe that Judge Karwacki clearly abused his discretion in ordering either postponement.
The Weems and Patton case obviously could not be tried on the November 5, 1981, trial date because of the absence of the defendants, the witnesses and one of the defense counsel. See Hicks, 285 Md. at 319, 403 A.2d 356. That this inability was due to the courtroom clerk‘s mistake on October 14, 1981, in not assuring that the postponement form was filled out and transmitted to the Assignment Office, did not preclude Judge Karwacki from finding good
The January 7, 1982, postponement in the Richardson case was similar. The absence of the defendant on the January 7th trial date necessitated a postponement. That this absence was caused by the Division of Correction‘s failure to identify in time which of three Mark Richardsons was the defendant, does not compel the conclusion that the postponement was unsupported by good cause. What happened also appears to have been an isolated instance rather than a recurring problem leading to chronic trial delays.
C.
The 180-day deadline set forth in
The motions to dismiss in all four cases, insofar as they were grounded upon
COLE, J., concurs in the result.
DAVIDSON, Judge, dissenting:
I
Introduction
The majority here determines that the five defendants in the four criminal cases decided in this appeal did not demonstrate that there was either an “abuse of discretion or a lack of good cause as a matter of law” when their respective cases were postponed and rescheduled for trial on dates beyond the 180-day period prescribed by Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 591,1 and
II
State v. Frazier and State v. Shaw
The majority in Frazier and Shaw determines that “[w]hen the administrative judge or his designee postpones a case beyond the 180-day deadline because of court unavailability, there is a violation of
In my view, court unavailability can, under certain circumstances, constitute good cause for postponement of a criminal case beyond the 180-day period prescribed by
“The following periods should be excluded in computing the time for trial:
“(b) the period of delay resulting from congestion of the trial docket when the congestion is attributable to exceptional circumstances....”
The Commentary to ABA, Speedy Trial Standard 12-2.3(b) at 28-29 provides in pertinent part:
“Although it is appropriate to allow added time under certain exceptional circumstances, such as those that result in the unavailability of the prosecutor or the judge at the time the trial is scheduled, delay arising out of the chronic congestion of the trial docket should not be excused.... Under the Supreme Court balancing test, docket congestion may be considered.
“Although it is fair to expect the state to provide the machinery needed to dispose of the usual business of the courts promptly, it does not appear feasible to impose the same requirements when certain unique, nonrecurring events have produced an inordinate number of cases for court disposition. Thus, when a large-scale riot or other mass public disorder has occurred, some leeway for additional time is required to ensure that the many resulting cases will receive adequate attention from the prosecutor‘s office, defense counsel (possibly a single defender office), and the judiciary.” (Footnotes omitted).
Thus, although the term “exceptional circumstances” has not been expressly defined, the Commentary describes “exceptional circumstances” as congestion arising from unique, nonrecurring events that create a particular scheduling problem or produce an inordinate number of cases for court disposition. Events such as the illness or death of a prosecu-
Courts in some jurisdictions having statutes or rules similar to
“In the case at bar the people have not made an affirmative showing of unavoidable delays which might justify this inaction. A mere recitation of the factor of a crowded docket, without more, cannot warrant visiting on the incarcerated defendant a longer imprisonment than might otherwise be in store. If congestion and delay result from inadequate court staffing or funding, the inevitable results of those delays must fall upon the people, who have the power to remedy court congestion.”
The rationale underlying the view that “chronic court congestion” does not ordinarily constitute good cause was expressed in the Commentary to ABA, Speedy Trial Standard 12-2.3(b) at 29 as follows:
“... (1) the defendant can be prejudiced by delay, whatever the source; (2) such delays are contrary to the public interest in the prompt disposition of criminal cases; (3) if congestion excuses long delays, there is insufficient inducement for the state to remedy congestion; and (4) the calendar problems that arise out of trying to make maximum use of existing facilities do not ordinarily require time beyond that otherwise allowed. But, while delay because of failure to provide sufficient resources to dispose of the usual number of cases within the speedy trial time limits is not excused, the standard does recognize congestion as justifying added delay when ‘attributable to exceptional circumstances.‘” (Emphasis added.)
Thus, it has been recognized that if “chronic court congestion” ordinarily constitutes good cause for delay, the purposes of statutory prompt trial requirements will be undermined. It is for this reason that I am persuaded that “chronic court congestion” ordinarily should not be regarded as good cause for postponement.
This conclusion is also supported by the historical development of Maryland‘s statutory prompt trial requirements.4 The requirement that criminal cases be tried promptly is deeply rooted in our English law heritage. See Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967). This requirement first appeared in the Magna Charta of 1215 and is presently embodied in the Sixth Amendment to the United States Constitution and the constitutions of almost all of the 50 states. See, e.g.,
“Congestion in the trial courts of this country, particularly in urban centers, is currently one of the major problems of judicial administration. Notwithstanding the usual rule that criminal cases have priority over civil cases, this congestion has created serious difficulties for the administration of criminal justice. The continued pressures upon existing resources have been such that it is extremely difficult to dispose of all criminal cases with promptness and with due regard for fair procedures.
“Several approaches to this problem are possible and desirable. The most obvious, but perhaps the most difficult, is that of finding means for reducing the amount of criminal conduct, such as by attacking poverty and other crime stimuli. Another is to overcome society‘s reluctance to provide the necessary resources—more prosecutors, judges, courtrooms, and court personnel for prompt processing of all cases reaching the courts. Still other approaches involve the structuring of improvements in criminal procedure, particularly by advancing the efficiency of the process while at the same time ensuring its fairness and effectiveness.” ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial at 1 (Approved Draft 1968) (emphasis added).
Recognizing that “chronic court congestion” inevitably causes delay in the trial of criminal cases, Maryland, like many other states, adopted the approach of enacting statutes and promulgating court rules requiring that criminal trials be held within a prescribed period of time. See Note, The Right to a Speedy Criminal Trial, 57 Colum.L.Rev. 846, 847 (1957). By ch. 212 of the Acts of 1971, the General Assembly declared a “legislative policy designed to obtain prompt disposition of criminal charges....” State v. Hicks, 285 Md. 310, 316, 403 A.2d 356, 359, on motion for reconsideration, 285 Md. 334, 403 A.2d 368 (1979). That act required that all criminal cases be tried within six months unless the trial was postponed for “extraordinary cause.” These re-
In 1977, this Court promulgated
Subsequently, considerable concern arose as to the practicability of the principles articulated in Hicks. In 1979, this Court amended
As the majority recognizes, the legislative history of the 1980 amendment “clearly intended to expand those circumstances furnishing the requisite cause for postponing a trial date beyond 180 days.” Indeed, Delegate John A. Pica, Jr., a sponsor of one of the proposals to change “extraordinary cause” to “good cause” said:
“What we are really doing here is attempting to amend the law in order to offer the courts some leeway in the disposition of an extremely heavy case load.
The growth of the number of cases being brought into criminal court has dramatically increased, resulting in crowded and backlogged court dockets. The Hicks decision suggests that a defendant‘s confinement out of state may be extraordinary cause but that crowded court dockets may not.
The third, and perhaps best alternative, H.B. 615, allows a court to do what they do best—to consider all the circumstances and grant delay of the trial based upon the facts of the case, and without harm or prejudice to the defendant. The bill accomplishes this result by removing the extraordinary cause requirements for a postponement and replacing it with the requirement of showing ‘good cause’ for a change in trial date.” Testimony on H.B. 351, 614 and 615 before the House Judiciary Committee, 12 February 1980.
Although Delegate Pica indicated concern that under Hicks “crowded court dockets may not” be regarded as “extraordinary cause,” he did not, however, suggest that “chronic court congestion,” in and of itself, should constitute “good cause.”
Finally, the legislative history of the 1980 amendment also reveals that the General Assembly consistently rejected the notion of restricting the application of the dismissal sanction or eliminating it entirely. Thus, the General Assembly evidenced its intent that the prophylactic sanction of dismissal be retained.
The basic approach adopted by the General Assembly is clear. All criminal cases were to be tried within the statutorily prescribed time period unless postponed for good cause. The administrative judge was authorized to determine on a case-by-case basis whether court unavailability constituted good cause—whether it resulted from “chronic” or “nonchronic court congestion.” The sanction of dismissal was to be retained as an incentive for trial courts to continue to implement efficient and fair procedures that would eliminate delay caused by “chronic court congestion.” Manifestly, the 1980 amendment to the statutory prompt trial requirements did not alter the General Assembly‘s purpose of eliminating delay caused by “chronic court congestion.”
In 1980, this Court amended
My review of the historical development and legislative history of Maryland‘s statutory prompt trial requirements compels me to conclude that “chronic court congestion,” in and of itself, ordinarily does not constitute good cause for postponement. This conclusion is also supported by the existing interrelationship between the Sixth Amendment prompt trial requirement and the statutory prompt trial requirements. I agree with the majority that ”
“It is clear, therefore, that statutory prompt trial requirements are intended to, and do in fact, broaden the scope and applicability of the Sixth Amendment requirement and increase its effectiveness in reducing delay by mandating that trials be held more promptly than is required by the Sixth Amendment. Those statutory requirements implement, effectuate, and ‘put teeth’ into the Sixth Amendment. Given this interrelationship, it would be, in my view, incongruous to interpret a statutory requirement as being narrower in scope and applicability and, therefore, less effective than the Sixth Amendment requirement.” Hicks, 285 Md. at 327, 403 A.2d at 365 (Davidson, J., dissenting).
I adhere to the view that the statutory prompt trial requirements were intended to implement the Sixth Amendment prompt trial requirement and to increase its effectiveness in reducing delay.5 If this objective is to be effectuated, the
This Court has repeatedly recognized that under the Sixth Amendment prompt trial requirement the responsibility for delay caused by “chronic court congestion” manifested by overcrowded dockets, unavailability of courts, and scheduling problems rests upon the courts and, therefore, that unintentional delay caused by “chronic court congestion” is inexcusable and must be weighed against the State. Wilson v. State, 281 Md. 640, 652, 382 A.2d 1053, 1063, cert. denied, 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978); Jones v. State, 279 Md. 1, 12, 367 A.2d 1, 8-9 (1976), cert. denied, 431 U.S. 915, 97 S.Ct. 2177, 53 L.Ed.2d 225 (1977); Smith v. State, 276 Md. 521, 529, 531, 350 A.2d 628, 633, 634-35 (1976); Epps v. State, 276 Md. 96, 114-15, 345 A.2d 62, 74 (1975). Thus, in Epps v. State, 276 Md. at 114-15, 345 A.2d at 74 (1975), we stated:
“[A] delay in affording a criminal defendant a ‘speedy trial’ because of over-crowded court dockets and scheduling problems, the responsibility for which rests upon both the courts and the prosecutors, cannot be classified as wholly ‘neutral’ and must be included within the period of
delay in determining whether there has been a denial of this constitutional right.”
Consequently, this Court has recognized that under the Sixth Amendment prompt trial requirement, the State has a duty to provide a prompt trial even though “chronic court congestion” exists and its failure to do so is inexcusable.
Under the statutory prompt trial requirements, the State has a duty to provide a prompt trial unless there is good cause for postponement. If “chronic court congestion” is regarded as good cause then, under the statutory prompt trial requirements, the State has a duty to provide a prompt trial unless “chronic court congestion” exists. Such an interpretation leads to the conclusion that under the statutory prompt trial requirements the State has no duty to provide a prompt trial when “chronic court congestion” exists. Thus, its failure to provide a prompt trial is excused. Indeed, that failure not only is excused, but is itself a justification for delay. Thus, the State‘s failure to comply with a standard of the Sixth Amendment requirement is transformed into a justification for delay. This transformation narrows the scope and applicability of the statutory prompt trial requirements and makes them less effective in reducing delay than the Sixth Amendment requirement. Such a result is incongruous. For this reason, too, I am persuaded that “chronic court congestion” ordinarily does not constitute good cause for postponement.
The majority, without defining the term “chronic court congestion,” finds that in Baltimore City “the proportion of criminal cases which must be postponed by the administrative judge beyond the 180-day deadline ... is less than two percent” and, therefore, that “[t]he Circuit Court for Baltimore City is not ‘chronically congested.‘” It concludes that under these circumstances the unavailability of a court, in and of itself, constitutes good cause for postponement beyond the statutorily prescribed time period.
There is, however, nothing in the legislative history to indicate that the General Assembly intended that all crimi-
In determining that the court unavailability, resulting from “chronic court congestion” in Frazier and Shaw, in and of itself, constitutes good cause for delay, the majority has, in my view, undermined the purpose of both the General Assembly and this Court—to eliminate the delay caused by “chronic court congestion.” It has obviated the necessity for the administrative judge to exercise his discretion in determining whether court congestion constitutes good cause for delay. It has impeded the right of society and the accused
Although I agree with the majority‘s principle that court unavailability can, under certain circumstances, constitute good cause for postponement, I do not agree with the majority‘s application of that principle here because it is both illogical and destructive of the purpose of the statutory prompt trial requirements. In my view, under the present circumstances, the unavailability of a court resulting from “chronic court congestion” did not constitute good cause for a postponement in either Frazier or Shaw. Consequently, there was an abuse of discretion in granting these postponements. Accordingly, I would affirm the trial courts’ judgments dismissing these cases.7
III
State v. Weems and Patton and State v. Richardson
In Weems and Patton, the majority determines that “the courtroom clerk‘s mistake on October 14, 1981, in not assuring that the postponement form was filled out and transmitted to the Assignment Office,” constitutes good cause for
This Court has frequently described negligence as a lack of ordinary care under all circumstances. It consists of a failure to do what a reasonably prudent person would have done under similar circumstances. Eastern Shore Public Service Co. v. Corbett, 227 Md. 411, 426, 177 A.2d 701, 709 (1962); Vickers v. Starcher, 175 Md. 522, 531, 2 A.2d 678, 682 (1938); Geiselman v. Schmidt, 106 Md. 580, 584, 68 A. 202, 204 (1907). Moreover, in applying the Sixth Amendment prompt trial requirement, this Court has reiterated that it is the duty of the State to bring the accused to trial, Wilson, 281 Md. at 642, 382 A.2d at 1055; Jones, 279 Md. at 7, 367 A.2d at 6; see also Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 2190, 33 L.Ed.2d 101 (1972), and that “dereliction on the part of the State‘s Attorney‘s office or the assignment office,” Smith, 276 Md. at 530, 350 A.2d at 634, as well as the State‘s failure to locate a defendant, particularly one incarcerated in Maryland, constitutes a breach of that duty, Brady v. State, 291 Md. 261, 267, 434 A.2d 574, 577 (1981).
According to the majority, the record in State v. Weems and Patton shows, with respect to the 5 November 1981 trial date, that:
“[T]he Assignment Commissioner indicated that the Assignment Office clerk attending the administrative judge‘s hearing on October 14, 1981, should have seen to it that the necessary data was placed on the form and delivered to the Assignment Office.”
According to the majority, however, the Assignment Office clerk at the 14 October 1981 postponement hearing failed “to follow the normal procedure of filling out the standard postponement form and submitting it to the Assignment
Additionally, the record in Weems and Patton shows, as the majority recognizes, that the supervisor in the Assignment Office who initially scheduled the case for trial beyond the statutorily prescribed time period testified that she chose the earliest available date but did not ascertain whether that date was within the prescribed period. She stated that she relied upon the postponement clerk who normally checks to determine whether the trial date is within 180 days. The postponement clerk, however, testified that she did not follow her normal procedure of checking to determine whether the trial date was within the statutorily prescribed time period. Rather, she assumed that the supervisor who had selected the trial date “would have already screened it.” The Assignment Commissioner acknowledged that there had been a “slip up” in his office‘s checking of the matter. He indicated that if the personnel in his office had been aware that the trial date had been set beyond the statutorily prescribed time period, an earlier trial date might have been secured. Nevertheless, he said that it was the ultimate responsibility of the State‘s Attorney‘s Office to monitor the trial dates and to notify the Assignment Office of a problem. For unexplained reasons, the State‘s Attorney‘s Office did not notify the Assignment Office of any problem. Manifestly, the failure of both the Assignment Office and the State‘s Attorney‘s Office to follow established procedures evidences a lack of ordinary care. Thus, this conduct constitutes negligence and is a breach of the State‘s duty to bring the defendants to trial.
The record in Richardson shows that before a trial set for 7 January 1982, the defendant, Mark Richardson, was in the custody of the State Division of Correction serving a sentence on an unrelated conviction. On the morning of trial, the Division of Correction failed to locate the defendant, then in its custody, and therefore failed to bring him to the
The administrative judge directed that all three persons named Mark Richardson be brought to the courthouse for a “line up” at which time the defendant could be identified. Additionally, the administrative judge found that the State‘s failure to locate the defendant constituted good cause for delay. The Assignment Office set a trial date beyond the statutorily prescribed time period.
The record shows that there was no reason offered to explain why the Division of Correction was unable to determine which of the three persons in its custody named Mark Richardson was the defendant. Nor was there any reason offered to explain why the Division failed to pursue the obvious alternative, pursued by the administrative judge, of bringing all three persons named Mark Richardson to the courthouse on the morning of trial. Moreover, there was no reason offered to explain why the case had been scheduled for trial beyond the statutorily prescribed time period. Indeed, there was no evidence to show that a date within the statutorily prescribed time period was not available.
In my view, in the modern age of numbering systems, data processing, computers, photographs, and fingerprints, it is inexcusable neglect on the part of the Division of Correction not to know at all times the name, identity, and whereabouts of a person entrusted to its custody. That inexcusable neglect, coupled with the Division‘s failure to pursue the alternative of bringing all three persons named Mark Richardson to the courthouse on the day of trial, exacerbated by the unexplained failure to schedule the trial within the statutorily prescribed time period, constitutes negligence and is a breach of the State‘s duty to bring a defendant to trial.
In my view, the concept that negligence and a breach of duty cannot constitute “good cause” is too elementary to require explication. E.g., Sanders v. Heise, 117 Ariz. 524, 526, 573 P.2d 924, 926 (Ariz.App.1978) (failure of prosecutor‘s office to be properly apprised of its trial schedule and availability of witnesses); Johnson v. State, 243 Ark. 812, 813, 422 S.W.2d 417, 418 (1968) (failure of prosecutor‘s office to secure presence of defendant incarcerated outside of state); Batey v. Superior Court, 71 Cal.App.3d 952, 957, 139 Cal.Rptr. 689, 693 (1977) (failure of prosecutor‘s office to replace unavailable prosecutor with available prosecutor); Jaramillo v. District Court In & For the County of Rio Grande, 174 Colo. 561, 569, 484 P.2d 1219, 1222 (1971) (failure of prosecuting attorney to proceed because of efforts to obtain defendant‘s testimony in other criminal cases); State v. Glaindez, 346 A.2d 156, 157 (Del.1975) (failure of prosecutor‘s office to be apprised of unavailability of witness); State ex rel. Smith v. Rudd, 347 So.2d 813, 815 (Fla.App. 1977) (failure of prosecuting attorney to provide correct scheduling information); People v. McRoberts, 48 Ill.App.3d 292, 295, 6 Ill.Dec. 274, 275-76, 362 N.E.2d 1096, 1097-98 (1977) (failure of prosecuting attorney to proceed because of mistaken belief that plea bargain was imminent); 725, 727” court=“Ill. App. Ct.” date=“1976“>People v. Powell, 43 Ill.App.3d 934, 936, 2 Ill.Dec. 558, 560, 357 N.E.2d 725, 727 (1976) (failure of prosecutor‘s office to locate defendant incarcerated within state); Holt v. State, 262 Ind. 334, 336, 316 N.E.2d 362, 363 (1974) (failure of prosecuting attorney to explain or give reason for delay); State v. Gorham, 206 N.W.2d 908, 915 (Iowa 1973) (failure of prosecuting attorney to explain or give reason for delay); State v. Cranmer, 306 So.2d 698, 701 (La.1975) (failure of prosecuting attorney to explain or give reason for delay); Commonwealth v. Alexander, 371 Mass. 726, 731, 359 N.E.2d 306, 309 (1977) (failure of prosecuting attorney to explain or give reason for delay); People v. Haynes, 5 Mich.App. 641, 648, 147 N.W.2d 714, 718 (1967) (failure of Department of Corrections to inform prosecutor‘s office of defendant‘s ability to stand trial); State v. Stevens, 189 Neb. 487, 488, 203 N.W.2d 499, 500 (1973) (failure of prosecuting attorney to proceed because of mistaken belief that statutory prompt trial requirements applicable only to prosecutions on indictments and informations and not applicable to prosecutions on complaints); People v. Fuggazzato, 96 A.D.2d 538, 540, 464 N.Y.S.2d 847, 850 (2d Dept.1983) (failure of prosecutor‘s office to transmit required warrant); Commonwealth v. Collins, 266 Pa.Super. 340, 346, 404 A.2d 1320, 1323 (1979) (failure of prosecutor‘s office to locate defendant); Commonwealth v. Woodson, 248 Pa.Super. 545, 547, 375 A.2d 375, 376 (1977) (failure of prosecutor‘s office to secure presence of defendant incarcerated within county); Commonwealth v. Cunningham, 247 Pa.Super. 302, 308, 372 A.2d 473, 476 (1977) (failure of sheriff‘s office to advise prosecutor‘s office that defendant then incarcerated within state had been located); Lyles v. State, 653 S.W.2d 775, 779 (Tex.Cr.App.1983) (failure of prosecutor‘s office to secure presence of defendant because of mistake by sheriff‘s office in processing bail bond); State v. Lindbo, 94 Wash.2d 112, 115, 614 P.2d 1277, 1279 (1980) (failure of prosecuting attorney to explain or give reason for delay). In light of the statutory prompt trial requirement that mandates that all criminal cases be tried within 180 days, except for good cause, the fact that the
In my view, under the present circumstances, the negligence of the State did not constitute good cause for either the postponement or the length of the delay in Weems and Patton and in Richardson. Consequently, there was an abuse of discretion in these cases. Accordingly, I would affirm the trial courts’ judgments granting the motions to dismiss.
IV
Conclusion
In my view, the majority establishes the following four principles today:
- All criminal cases are to be tried within 180 days except for two percent of the cases.
- “Chronic court congestion” is “nonchronic court congestion.”
- “Chronic court congestion” that causes delay is “good cause” for delay.
- Negligence and a breach of duty on the part of the State is “good cause” for delay.
Even in the year 1984, I cannot in good conscience subscribe to such principles.
Notes
“(a) Within two weeks after the arraignment of a person accused of a criminal offense, or within two weeks after the filing of an appearance of counsel or the appointment of counsel for an accused in any criminal matter, whichever shall occur first, a judge or other designated official of the circuit court in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than 180 days from the date of the arraignment of the person accused or the appearance or the appointment of counsel for the accused whichever occurs first. The date established for the trial of the matter shall not be postponed except for good cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending.” (Emphasis added.)
Ҥ 591. Setting date for trial; postponement.
(a) Within two weeks after the arraignment of a person accused of a criminal offense, or within two weeks after the filing of an appearance of counsel or the appointment of counsel for an accused in any criminal matter, whichever shall occur first, a judge or other designated official of the circuit court in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than 180 days from the date of the arraignment of the person accused or the appearance or the appointment of counsel for the accused whichever occurs first. The date established for the trial of the matter shall not be postponed except for good cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending.
(b) The judges of the Court of Appeals of Maryland are authorized to establish additional rules of practice and procedure for the implementation of this section in the various circuit courts throughout the State of Maryland.”
“Rule 746. Trial Date.
a. General Provision.
Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723, a trial date shall be set which shall not be later than 180 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723.
b. Change of Trial Date.
Upon motion of a party made in writing or in open court and for good cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.”
Before 1980, both
“a. General Provision.
“Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723, a trial date shall be set which shall be not later than 180 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723.
“b. Change of Trial Date.
“Upon motion of a party made in writing or in open court and for good cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.”
In addition, the legislative history of the
“I know my Court has been available on a number of occasions over the crucial period when this case was supposed to be tried....”
There was no reason offered to explain why, under these circumstances, the case had been scheduled for trial beyond the statutorily prescribed time period. Thus, there was nothing to justify the length of the delay.
“A defendant in a criminal case can achieve definite advantages through delay. Once trial starts, stale cases are more easily challenged by defense attorneys on cross examination. Juries are often disenchanted with offenses that have occurred in the remote past. If prosecution witnesses become unavailable over long periods of time or prosecutorial ardor should wane, the guilty benefit at society‘s expense.
“Aside from affecting the probabilities of obtaining a conviction, the speedy trial right has significant impacts upon the quality of judicial action and the possibilities of future criminal conduct. The tendency to postpone trials adds to court congestion and the backlog of cases. To dispose of such backlog, plea bargaining is frequently utilized. In the interest of expediting matters accused persons receive lighter sentences than those they actually may have deserved. A second impact of delay is to weaken the deterrent effect that the criminal justice system should have on would-be criminals.
“Finally, the speedy trial right is intricately related to the needs of a well ordered society in several other respects. Guilty persons released on bail for too long tend to commit other crimes or flee the jurisdiction of the courts altogether. Defendants who are not bailed must spend ‘dead’ time in local jails exposed to conditions destructive of human character. For those who are eventually found innocent, their potential to be contributing members of society through any kind of employment is lost during pre-trial incarceration. On the other hand, the possibility of rehabilitating