STATE of Maryland v. Leonard Lee SIMMS
No. 19, Sept. Term, 2017
Court of Appeals of Maryland.
December 18, 2017
175 A.3d 681
about his history, Overall has demonstrated a lack of candor throughout the application process. We have held that repeated misrepresentations in the application for admission to the Bar reflects poorly on the applicant‘s moral character. See, e.g., Application of Cramer, 427 Md. at 624, 50 A.3d 1066 (denying admission to an applicant who displayed a lack of candor and truthfulness by failing to disclose material facts on his application).
CONCLUSION
The decisions of the Committee, Board, and this Court are based on substantial evidence that Overall lacks the moral fitness to practice law. Maryland has afforded Overall ample opportunity to demonstrate his fitness. His repeated omissions, mischaracterizations, and continued failure to recognize the import of the same leads us to conclude that Overall should not be a lawyer in Maryland. Upon consideration of the entire record before the Committee and the Board, we hold that Overall has failed to satisfy his burden of demonstrating that he has the good moral character necessary for the practice of law and admission to the Bar of Maryland. We shall not order his admission.
IT IS SO ORDERED.
Argued by Karinna M. Rossi, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Baltimore, MD) on brief, for Petitioner.
Argued by Rachel Simmonsen, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD) on brief, for Respondent.
ARGUED BEFORE: Barbera, C.J.; Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.
This case confronts the question of when the State may exercise its discretion to enter a nolle prosequi1 to a charge(s) against a criminal defendant. After conviction and sentencing in the Circuit Court for Anne Arundel County for conspiracy to violate the Controlled Dangerous Substance laws, Leonard Simms (“Mr. Simms“) appealed to the Court of Special Appeals. Before the Court of Special Appeals heard oral arguments, the State, in the trial court, nol prossed the charge underlying Mr. Simms’ conviction and sentence. Subsequently, the State moved to dismiss the case pending before the Court of Special Appeals as moot. The Court of Special Appeals determined that the case was not moot and held that the State lacked the authority to nol pros a charge underlying a conviction and sentence. Ultimately, the Court of Special Appeals reversed the judgment of the Circuit Court based on insufficient evidence. We review the issue of whether the State had the authority to enter a nol pros of a charge that resulted in a conviction and sentence. We affirm the Court of Special Appeals, holding that because the State‘s authority to nol pros applies only to charges, the State may not use its nol pros authority to alter a final judgment, i.e. conviction and sentence.
I.
The facts, taken from the parties’ agreed-upon statement of fact, have no
The State charged Mr. Simms on February 10, 2015, and a grand jury returned a seven-count indictment on March 13, 2015.2 Mr. Simms filed a Motion to Suppress drugs, which the Circuit Court denied on May 27, 2015. Thereafter, Mr. Simms pled not guilty on November 5, 2015 in the Circuit Court for Anne Arundel County, waived his right to a trial, and proceeded on a previously agreed-upon statement of facts. Before reading the statement of facts into the record, the State orally amended the seventh count of the indictment to possession with intent to distribute methylenedioxymethamphetamine (“MDMA“). At the conclusion of the proceeding, the trial judge found Mr. Simms guilty of the amended count seven on the basis that Mr. Simms had ethylone on his person at the time of arrest. At sentencing, the State nol prossed the remaining six charges. Subsequently, Mr. Simms noted a timely appeal.
While the conviction and sentence of Mr. Simms was pending on appeal, but before the deadline for briefing by the State in the Court of Special Appeals, the State entered a nol pros in the Circuit Court of count seven, the charge on which Mr. Simms was convicted. Subsequently, the State moved to dismiss the case pending in the Court of Special Appeals on the basis that the case was moot due to its abandonment of count seven. In a reported opinion, the Court of Special Appeals reversed the judgment of the trial court. Simms v. State, 232 Md.App. 62, 71, 155 A.3d 937, 942-43 (2017). First, the Court of Special Appeals determined that the case was not moot because the State lacked authority to enter a nol pros of a charge after the defendant had been convicted of and sentenced for that offense. Id. at 71, 155 A.3d at 942. Then, the Court of Special Appeals reversed the trial court, holding that evidence of ethylone was insufficient to support a conviction and sentence for conspiracy to distribute MDMA. Id. at 71, 155 A.3d at 943.
The State petitioned this Court for certiorari, which we granted to answer the following questions:
- As a matter of first impression, does the State have the authority to enter a nolle prosequi on a charge after a conviction?
- If the State does have the authority to do so, was Simms‘[] appeal moot because the State entered a nolle prosequi in the circuit court as to the entire case, without objection?
State v. Simms, 453 Md. 357, 162 A.3d 838 (2017). Because we hold that the State does not have authority to nol pros charges after the trial court has entered a
II.
This Court has never addressed directly the issue presented to us in this case. The State urges this Court to conclude that the State‘s Attorney has the authority to enter a nol pros, even after a final judgment based on its wide discretion to enter a nol pros. The State contends that this broad authority is derived from the Maryland Declaration of Rights. See
The legislature and the judiciary have both regarded the act of entering a nolle prosequi as an act inherently tied to charges against a criminal defendant. See
(a) Disposition by nolle prosequi. The State‘s Attorney may terminate a prosecution on a charge and dismiss the charge by entering a nolle prosequi on the record in open court. The defendant need not be present in court when the nolle prosequi is entered, but if neither the defendant nor the defendant‘s attorney is present, the clerk shall send notice to the defendant, if the defendant‘s whereabouts are known, and to the defendant‘s attorney of record. Notice shall not be sent if either the defendant or the defendant‘s attorney was present in court when the nolle prosequi was entered. If notice is required, the clerk may send one notice that lists all of the charges that were dismissed.
(b) Effect of nolle prosequi. When a nolle prosequi has been entered on a charge, any conditions of pretrial release on that charge are terminated, and any bail bond posted for the defendant on that charge shall be released. The clerk shall take the action necessary to recall or revoke any outstanding warrant or detainer that could lead to the arrest or detention of the defendant because of that charge.
We recognize that the language of
When considering the effect of its entry for a defendant, a nol pros “has the effect of a nonsuit.” Calvert‘s Lessee v. Eden, 2 H. & McH. 279, 317 (1789). The
Friend v. State is the first instance in which we dealt with the possible implications of a nol pros for the State as to whether it may continue prosecuting a defendant after the entry of a nol pros. 175 Md. 352, 2 A.2d 430 (1938). In Friend, because the nol pros was ineffective, the defendant was placed in double jeopardy. Id. at 355, 2 A.2d at 432 (“The trial and conviction of the appellant, therefore, was valid in law and a second trial for this same offense would be in violation of the common law and of our constitutional prohibition with respect to placing a person in double jeopardy as to the same crime.“). This Court in Boone v. State refined the previous explanation of the consequences of nol prossing by explaining that a nol pros functions as an acquittal if jeopardy has attached. 3 Md.App. 11, 25-26, 237 A.2d 787, 797 (1968) (“The effect of the entry of a nolle prosequi is not inconsistent with this common law meaning. If entered without the consent of the defendant after trial has begun, jeopardy attaches because it operates as an acquittal.“) (italics in original). In Blondes v. State, the Court then elaborated that “[o]n the other hand, where a nolle prosequi is entered before jeopardy attaches, the State is only precluded from prosecuting the defendant further under that indictment, but the defendant may be proceeded against for the same offense by another indictment or information.” 273 Md. 435, 443-44, 330 A.2d 169, 173 (1975) (citing Barrett v. State, 155 Md. 636, 142 A. 96 (1928)); see Gilmer, 389 Md. at 671-72, 887 A.2d at 557-58 (explicating the temporal significance of the attachment of jeopardy to the consequences of the entry of a nol pros for a defendant). In Bynum v. State, we clarified “that the double jeopardy prohibition, though barring subsequent prosecution for offenses charged in counts dismissed by a nolle prosequi entered without the consent of the accused after jeopardy has attached, has no application in the context of the same prosecution which continues on other counts.” 277 Md. 703, 709, 357 A.2d 339, 342 (1976).
In Ward v. State, we summarized the development of our nol pros jurisprudence. This Court explained that entry of a nol pros after jeopardy had attached does not uniquely invoke double jeopardy principles, but that the principles of double jeopardy did not change when applied in circumstances involving the entry of a nol pros. 290 Md. 76, 97, 427 A.2d 1008, 1020 (1981) (“[T]he Court in Bynum was merely stating the general rule that the entry of an uncontested nolle prosequi, after jeopardy attaches, ordinarily precludes a subsequent
In answering a narrower question regarding double jeopardy implications from the entry of a nol pros, we have held that the entry of a nol pros on a lesser offense within an indictment does not preclude further prosecution on the greater offense. State v. Woodson, 338 Md. 322, 335-36, 658 A.2d 272, 279 (1995) (“Because an entry of a nolle prosequi on a lesser included offense after jeopardy has attached is only an acquittal on that count for double jeopardy purposes the contin-uation of the trial on the greater offense is permissible.“). Under the common law, the standard for determining whether the entry of the nol pros was unfair and thereby impermissible when applied to a lesser included offense is not just “that the evidence would be sufficient for the jury to convict on that offense; rather, the evidence must also be such that the jury could rationally convict only on the lesser included offense.” Burrell v. State, 340 Md. 426, 434, 667 A.2d 161, 164-65 (1995) (italics in original); see State v. Smith, 223 Md.App. 16, 31, 115 A.3d 210, 219 (2015) (describing the standard as whether “the evidence [is] sufficient for the jury to convict on that offense and the evidence [is] such that the jury could rationally convict only on the lesser included offense“).
Generally, entering a nolle prosequi is a part of the “broad discretion vested in the State‘s Attorney.” Food Fair Stores, Inc. v. Joy, 283 Md. 205, 214, 389 A.2d 874, 879 (1978). Despite our recognition that the State has wide discretion in its choice to enter a nol pros, we have prohibited the State‘s entry of a nol pros in circumstances where a defendant‘s right to a speedy trial or a defendant‘s right to a fair trial has been undermined. First, as we stated in Curley v. State:
We hold, therefore, that when a circuit court criminal case is nol prossed, and the State later has the same charges refiled, the 180-day period for trial prescribed by
§ 591 andRule 746 ordinarily begins to run with the arraignment or first appearance of defense counsel under the second prosecution. If, however, it is shown that the nol pros had the purpose or the effect of circumventing the requirements of§ 591 andRule 746 , the 180-day period will commence to run with the arraignment or first appearance of counsel under the first prosecution.
299 Md. 449, 462, 474 A.2d 502, 508 (1984). Our reasoning was applied by the Court of Special Appeals in Ross v. State, where “the State entered the nol pros to circumvent the 180-day limit” and, as a result, the intermediate appellate court vacated the Circuit Court‘s judgment and dismissed the charges. 117 Md.App. 357, 370-71, 700 A.2d 282, 289 (1997).
The Court of Special Appeals again affirmed this exception to the State‘s authority to enter a nol pros in Mora v. State despite holding that it did not apply. 123 Md.App. 699, 722, 720 A.2d 934, 945 (1998).
The second exception we have recognized with respect to the State‘s authority to enter a nol pros is when the entry of a nol pros undermines a fair trial. Hook v. State, 315 Md. 25, 37, 553 A.2d 233, 239 (1989) (“We believe that under the concept of fundamental fairness with respect to a trial in a criminal cause, the broad authority vested in a prosecutor to enter a nolle prosequi may be fettered in the proper circumstances. A case-by-case evaluation is necessary.“). “Fundamental fairness essential to the very concept of justice” requires that the entry of a nol pros conforms to “the rudimentary demands of fair procedure”
Although we have outlined Maryland‘s common law with regard to a nolle prosequi, including the general rule of entering, the consequences of entering, and the exceptions for entering, we have yet to define clearly the boundaries of the State‘s discretion to enter a nolle prosequi, and thus are presented with that question now. This case is not about exceptions to the State‘s authority, such as whether the State would have authority but for a violation of a defendant‘s rights, but rather this case concerns whether the State‘s nol pros authority continues after a defendant has received a final judgment. When confronted with this question, the Wyoming Supreme Court stated:
“The rule at the common law seems to have been ... that prior to trial the prosecutor has the absolute uncontrolled power to enter a nolle prosequi; that after the empaneling of the jury until the return of a verdict the power is subject to the control of the court since it may not be used at that time to the prejudice of the defendant; and that following the return of the verdict the uncontrolled power of the prosecutor to enter a nolle revives and continues until such time as judgment is entered and sentence imposed.”
Billis v. State, 800 P.2d 401, 418 (Wyo. 1990) (citing to United States v. Brokaw, 60 F.Supp. 100, 102 (S.D. Ill. 1945) (emphasis in original omitted)). Our past rulings have conformed to these principles, and the Court of Special Appeals has relied on this passage from Brokaw as well in Cross v. State, describing Brokaw as “strongly persuasive.” 36 Md.App. 502, 507, 374 A.2d 620, 624 n.1 (1977).3
In Hooper, we tacitly affirmed the State‘s entry of the nol pros prior to trial. 293 Md. at 163-64, 443 A.2d at 87. The State properly entered nol prosses at the end of the State‘s case in both Ward and Hook. Ward, 290 Md. at 79, 427 A.2d at 1010; Hook v. State, 315 Md. 25, 35, 553 A.2d 233, 238 (1989). We have condoned the State‘s entry of a nol pros prior to sentencing. Gilmer, 389 Md. at 677, 887 A.2d at 562 (holding that the trial court erred when it did not credit the defendant for time served and the charges were nol prossed). Although we have permitted the State to enter a nol pros prior to trial, during trial, and prior to sentencing, we have never before resolved whether the State may enter a nol pros after a final judgment has been reached.
Providing context for the nolle prosequi procedure, Ward traced both the historical usage of a nolle prosequi as well
With that history in mind, we consider when, if at all, the State‘s authority to enter a nol pros on a charge ends. “Cases—particularly criminal cases—have a beginning, and they must, at some point, have an end.... A conviction does not occur in a criminal case until sentence is imposed on a verdict of guilty. That is when judgment is entered.” Chmurny v. State, 392 Md. 159, 167, 896 A.2d 354, 358 (2006) (internal citations omitted). Likewise, “[a] verdict of guilty alone constitutes neither a conviction nor a sentence....” Id. at 168, 896 A.2d at 358. A conviction “is the final judgment and sentence rendered by a court pursuant to a verdict or plea of guilty.... [A] person is not ‘convicted’ of an offense until the court enters a judgment upon the verdict of guilty.” Myers v. State, 303 Md. 639, 645, 496 A.2d 312, 315 (1985). A conviction and imposition of a sentence is, therefore, a final judgment entered on the charges brought against a defendant.
The import of finality in a criminal defendant‘s case was discussed by the Court of Special Appeals in Buckner v. State, 11 Md.App. 55, 59-60, 272 A.2d 828, 831-32 (1971). In that case, the intermediate appellate court detailed the history of a criminal defendant‘s statutory right to appeal and explained that a criminal defendant may only appeal from a final disposition of the case, after sentencing has occurred. Id. at 58-60, 272 A.2d at 831-32. That appeal is a statutory right granted to a defendant upon conviction and sentencing. See
Although the facts of the case before us now differ from the facts in Ward, that case nevertheless provides a helpful context for examining the principle of finality after a charge has been nol prossed. The State had charged Ward with five counts, including a charge of accessory to murder and another charge of murder. 290 Md. at 78-79, 427 A.2d at 1010. Prior to the rendering
We then affirmed the Circuit Court, holding that a nol pros applies only to a particular charge and not the underlying act, which may give rise to a different or additional charges. Id. at 85, 427 A.2d at 1013 (“[T]here is nothing inherent in the nature of a nolle prosequi which causes its entry to operate as an acquittal of the underlying offense.“). In the new trial, the State did not proceed against Ward on the charge of murder, the charge on which the State had entered a nol pros, but rather the State prosecuted Ward as an accessory to murder. Id. at 94-95, 427 A.2d at 1018. Double jeopardy principles precluded a second trial on murder or manslaughter, but not the accessory charge. Id. at 95, 427 A.2d at 1018.
The circumstances in Ward did not provide us the opportunity to examine whether the State may enter a nol pros after a final judgment. Ward dealt with the issue of whether double jeopardy attached to a particular charge or the entire underlying offense, whereas the issue squarely before us now is whether the State may enter a nol pros after conviction and sentencing while a defendant‘s appeal is pending. Notably, the State in Ward nol prossed the charges prior to Ward‘s conviction and sentencing, when the case was still pending at the trial stage. Id. at 79, 427 A.2d at 1010. Here, unlike in Ward, the State nol prossed the underlying charge after Mr. Simms had been convicted and sentenced, and while the case was pending on appeal.
In Hooper, we attempted to clarify the appropriate method for entering a nol pros. 293 Md. at 167-68, 443 A.2d at 89. We explained that “[a] nolle prosequi is simply the prosecution‘s abandonment of a charging document, count, or part of a count” that has the effect of “finally terminat[ing]” prosecution of a “particular charging document.” Id. A nol pros “need not be couched in any particular language or take any specific form; it is the substance of the prosecution‘s action which controls.” Id. at 168, 443 A.2d at 89. We recounted in Hooper the various ways in which courts had recognized the entry of a nol pros, emphasizing that the “prosecutor‘s action in light of the circumstances ... determine[s] whether the action amounts to a nol pros“:
Consequently, an “election” not to prosecute a particular count has been deemed to be a nolle prosequi. The State‘s motion to amend an indictment by deleting certain matter from two counts on the ground of duplicity was
treated as a nolle prosequi of the offenses charged in the deleted material. A motion by the prosecuting attorney to “dismiss” an indictment has been held to be a nolle prosequi, with the further holding that the dismissal could not be set aside by a subsequent order reinstating the indictment. A paper filed by the prosecuting attorney called a “disclaimer” was deemed to be a nolle prosequi [], with the court pointing to “the substance of what was undertaken.” The Supreme Court of Indiana [] held that a motion by the prosecuting attorney to “strike the case from the docket” amounted to a nolle prosequi and that, therefore, the trial court erred in later granting the State‘s motion to reinstate the action.
Id. at 168-69, 443 A.2d at 89-90 (internal citations omitted). We then observed that for double jeopardy purposes, while the case was pending an interlocutory appeal, “if jeopardy had attached at the trial, the nol pros on appeal will ordinarily operate as an acquittal of the underlying charges because of double jeopardy principles.” Id. at 169, 443 A.2d at 90 n.3. Hooper simply turned on whether the State could withdraw the entry of a nol pros and, thus, did not address nol prossing in relation to cases on appeal.4
Hooper came before us on appeal by the State after the trial court dismissed the indictments against the two defendants as duplicitous, before any trial on the merits. 293 Md. at 164, 443 A.2d at 87. The State, during oral argument, moved to dismiss the case by way of nol prossing the appeal. Id. at 165, 443 A.2d at 88. In doing so, the State explained that it had filed new charges while the appeal was pending, and, that the State would drop the charges raised on appeal as moot once the trial on the new charges began. Id. at 164, 443 A.2d at 87-88. We did not, therefore, address the issue of duplicity. Several weeks later, the State filed a motion to withdraw its motion to dismiss on the basis that the trial on the new charges had been delayed for the immediate future and sought to reinstate the appeal, so that a trial on the old charges could begin. Id. at 167, 443 A.2d at 89. Consistent with our decision in Moulden, we held that the act of nol prossing was a final termination of a charge, and we did not reinstate the indictments the State had previously nol prossed. Hooper, 293 Md. at 171, 443 A.2d at 91.
Hooper did not present us with the question we face now. Hooper focused on whether the State had authority to withdraw its entry of a nol pros, and we held that the State did not have such authority. Here, we deal with the authority of the State, not to withdraw a previously entered nol pros, but to enter a nol pros after the entry of a final judgment in a criminal case. Although the State urges that Hooper is dispositive with respect to the State‘s authority to enter a nol pros on appeal, the difference in when the State entered the nol pros makes Hooper inapposite in deciding the case before us. Moreover, the Assistant Attorney General entered a nol pros in Hooper during oral argument in this Court by way of moving to dismiss the case because the State had filed a new information against the defendants, charging them with the same crimes. Prior to the entry of the nol pros,
Hooper cited to Friend for support of its discussion regarding the appropriate procedural technique for nol prossing an appeal. In Hooper we stated that “it would seem that a nol pros of a case pending on appeal should normally be done in the appellate court in which the appeal is pending at the time.” 293 Md. 162, 169, 443 A.2d 86, 90 n.3 (1982). This observation, buried in a footnote, referred to nol prossing a pending interlocutory appeal, not nol prossing at the appellate stage on a charge underling a final judgment after conviction and sentencing. The appeal arose out of dismissal of the indictments before any prosecution of the charges had begun. Furthermore, our commentary in the footnote was unnecessary to resolve Hooper and, therefore, was merely dicta.
A careful reading of Friend reveals, however, that the case provides no support for the broad interpretation of footnote three found in Hooper that the State urges us to adopt. In Friend, a justice of the peace had issued a warrant charging the defendant with receiving stolen goods, and during a trial before the justice of the peace, the defendant was convicted and sentenced. 175 Md. at 353, 2 A.2d at 431. The defendant appealed his conviction to the Circuit Court, and while the appeal was pending, the State procured an indictment charging the defendant with the same crime with which the defen-dant had already been convicted. Id. The State sought the second indictment presumably because it believed that the justice of the peace lacked jurisdiction in the first proceeding. See id. at 355, 2 A.2d at 432. The State attempted to nol pros the charges underlying the defendant‘s first conviction of receiving stolen goods then proceeded to try the defendant on the new indictment in the Circuit Court, which resulted in a second conviction for the same crime. Id. at 353-54, 2 A.2d at 431. The defendant raised the issue of double jeopardy on appeal, and we reversed the second conviction. Id. at 356, 2 A.2d at 432. We determined that the nol pros was improper, ineffective, and therefore placed the defendant in double jeopardy. Id. at 356, 2 A.2d at 432.
The State suggests that Friend stood for a tacit acceptance of entering a nol pros of charges on appeal, and because Hooper discussed Friend in support of entering a nol pros of charges on appeal, the footnoted language in Hooper should be read broadly to permit the State‘s authority to nol pros, in effect, any appeal. We did not, as the State suggests, tacitly accept in Friend that the State has the authority to nol pros a charge underlying a conviction and sentence on appeal. 175 Md. at 356, 2 A.2d at 432 (stating that “[t]he nolle prosequi ... was improper and ineffective“). Although Hooper did permit the State to nol pros charges pending on appeal, that holding was limited to the specific circumstance of the State‘s interlocutory
Although both parties in the case before us attempt to distinguish Friend from the present case, Friend provides valuable guidance for answering the question raised here. We explained in Friend that “[w]hen the indictment was found[,] the case stood on the appeal docket for trial, by order of the defendant, and the State had no authority to dismiss this appeal. That was the right of the accused[.]” Id. at 355, 2 A.2d at 432. Later, we reiterated that “[t]he State having no authority to dismiss the defendant‘s appeal, the entering of a nolle prosequi could not be construed as a dismissal of it. The nolle prosequi, if it could be legally entered, would effect a final disposition of the entire prosecution originating before the justice of the peace[.]” Id. at 355-56, 2 A.2d at 432. Lastly, we stated, “The nolle prosequi ... under the circumstances of this case was improper and ineffective, and left undisposed of the case pending on his appeal, and his trial and conviction in the Circuit Court ... placed this defendant in double jeopardy[.]” Id. at 356, 2 A.2d at 432.
Because the State did not have the authority to enter a nol pros on appeal, the defendant had been convicted twice of the same charge, and our inquiry in Friend ended there. Ward, 290 Md. at 91, 427 A.2d at 1016 (”Friend was based entirely on the application of double jeopardy principles.“). We proceeded on the assumption that, because the State lacked the authority to nol pros the appeal, the original conviction and sentence for receiving stolen goods remained, pending the appeal, while the defendant had received a second conviction and sentence for receiving stolen goods, a clear violation of double jeopardy principles. Friend, 175 Md. at 356, 2 A.2d at 432. The Court determined that the defendant had been placed in double jeopardy only because the nol pros, which had been entered during the appeal of the original judgment, was an “improper” and “ineffective” use of the State‘s authority. Id.
Despite different procedural contexts, Friend shares several critical facts with the case before us. The justice of the peace convicted the defendant in Friend, and as a statutory right, the defendant pursued an appeal of his conviction.5 As the defendant awaited review of his appeal, the State attempted to nol pros the appeal, which we held the State had no authority to do. Id. Here, the trial judge convicted and sentenced Mr. Simms, and Mr. Simms appealed, pursuant to his statutory right. While Mr. Simms awaited appellate review of his case,
the State sought to abandon the prosecution of the appeal by filing a motion to dismiss.
The State suggests that we should limit the reach of Friend and, in support, points us to one phrase in the following statement in Friend:
The nolle prosequi, entered without the consent of the accused, under the circumstances of this case was improper and ineffective, and left undisposed of the case pending on his appeal, and his trial and conviction in the Circuit Court for Caroline County for the same offense, under the circumstances above related, placed this defendant in double jeopardy, contrary to the common law and our constitutional provisions.
175 Md. at 356, 2 A.2d at 432. The State argues that “consent of the accused” is the dispositive phrase in the above passage from Friend. In effect, the State urges the Court to adopt an interpretation of the passage that would grant the State the authority to nol pros an appeal when the defendant consents, or waives objection, to the entry of the nol pros. The State cites to no authority to support its proposition that a defendant waives the right to appeal by failing to object to the entry of a nol pros. Nevertheless, this interpretation of Friend fails because it is not grounded in the history of our nol pros jurisprudence.
In order to understand the specific phrase in Friend, we look to cases decided before Friend. We explore the source for the language “without the consent of the accused” because Friend did not include a citation. Ward and Blondes contextualized the line “without the consent of the accused” to cases involving double jeopardy, the issue before the Court in Friend. See Ward, 290 Md. at 85-86, 427 A.2d at 1013-14; Blondes, 273 Md. at 443, 330 A.2d at 173. Both cases cite to United States v. Shoemaker, which held that “[i]t is a rule in criminal proceedings that nothing shall be done, within in [sic] discretion of the court, to the prejudice of the defendant. And, hence, in some instances, where his interests may, possibly, be injuriously affected by an order, his consent is necessary.” 27 F. Cas. 1067, 1079, 2 McClean 114 (Cir. Ct. D. Ill. 1840).
Additionally, Ward cited to Commonwealth v. Tuck, 37 Mass. 356, 364-65 (1838), which held that the State may enter a nolle prosequi without the consent of the defendant before a jury has been impaneled or after a verdict, but after a jury has been impaneled, it may enter a nolle prosequi only with the consent of the defendant. See id. at 366 (“This practice of entering a nolle prosequi after verdict, has prevailed without objection for many years.... [The court] will take care that it shall not operate to the prejudice of the defendant‘s rights.“) (italics in original). This language is in reference to aspects of the common law about the timing of the entry of a nol pros and portends possible double jeopardy issues with the entry of a nol pros. Id. at 365-66. Although the concerns of Mr. Simms as to being placed in jeopardy are significant, the issue of double jeopardy is not before us as the State has not tried to prosecute Mr. Simms a second time on the charge that was nol prossed.
As we have done previously,6 we review case law from the Supreme Judicial Court of Massachusetts in developing our own nolle prosequi jurisprudence. Despite factual differences between the present case and Commonwealth v. Dascalakis, 246 Mass. 12, 140 N.E. 470 (1923) (abrogated on different grounds by Commonwealth v. Bly, 444 Mass. 640, 830 N.E.2d 1048 (2005)), the latter case, Dascalakis, espoused legal principles defining a limit on the prosecutorial discretion to enter a nol pros after a final judgment. “The very nature of the term [nolle prosequi] shows that it cannot spring into existence until a criminal proceeding has been commenced by some process in court, either complaint or indictment. It cannot remain in
existence after a criminal prosecution has come to an end.” Id. at 473. The court held
Massachusetts is not outside the norm in limiting the scope of the State‘s authority to enter a nol pros after a final judgment as other courts have held similarly. See Billis, 800 P.2d at 418 (“[T]he uncontrolled power of the prosecutor to enter a nolle revives and continues until such time as judgment is entered and sentence imposed.“); State ex rel. Norwood v. Drumm, 691 S.W.2d 238, 240 (Mo. 1985) (“[V]ery few of the cases from other jurisdictions, and none of the Missouri decisions, involve entry of a nolle prosequi after verdict.... The Court declines to accept respondent‘s invitation to adopt a rule [permitting entry of a nol pros after conviction] ... because ... compelling considerations justify conditioning exercise of the authority of the prosecuting attorney to nolle prosequi after verdict.“); State v. Charles, 183 S.C. 188, 190 S.E. 466, 468 (1937) (“[A] nolle prosequi may be entered, namely, before the jury is impaneled, while the case is before the jury, and after the verdict.“); In re Cain, 209 F. 40, 42 (1913) (“‘It is well established, therefore, that the prosecuting officer may enter a nolle prosequi before final judgment, notwithstanding the mandate of an Appellate Court[.]‘“) (in-ternal citation omitted). Additionally, other courts have cited to Dascalakis in forming their own nolle prosequi jurisprudence. See Norwood, 691 S.W.2d at 240 (limiting the scope of the State‘s authority to enter a nol pros); District of Columbia v. Weams, 208 A.2d 617, 618 (D.C. 1965) (explaining judicially-imposed restraints on the State‘s authority to enter a nol pros).
Consistent with the legal principles in Friend and Dascalakis, we hold that the State does not have the authority to enter a nol pros after a final judgment has been entered against a defendant in a criminal case. The mere fact that the State has entered a nol pros to underlying charges of a conviction does not alter the existence of a final judgment, i.e. a conviction and sentence entered against the defendant. The State had no authority to use its power to nol pros to alter a final judgment entered in favor of or against a criminal defendant. Final judgment is the boundary of the State‘s discretion to enter a nolle prosequi.
Despite the State‘s characterization of expediting justice for the defendant by having him released as a result of the entry of the nol pros as opposed to waiting for the appellate process to finish, the State‘s efforts tended to circumvent the right of Mr. Simms to appeal his conviction and sentence. Upon receiving final judgment, Mr. Simms chose to exercise his statutorily-granted right to appeal his conviction and sentence. The State does not contest that the appeal had been perfected and the matter was pending argument in
Once a case reaches final judgment in a proceeding, and a party appeals that judgment, the issue “comes within the exclusive jurisdiction of the appellate court.” Irvin v. State, 276 Md. 168, 172-73, 344 A.2d 418, 421 (1975). Jurisdiction to judge the appeal shifts from the Circuit Court to the appellate court. Raimondi v. State, 8 Md.App. 468, 475, 261 A.2d 40, 43-44 (1970) (“[T]he perfecting of an appeal brings the subject matter thereof within the exclusive jurisdiction of the appellate court and suspends the authority of the lower court over it during the pendency of the appeal[.]“). Because Mr. Simms appealed his conviction and sentence, the trial court had no jurisdiction to alter the conviction or sentence by relying on the State‘s nol pros authority. But see
The State has presented no justification for its assertion that it has the authority to enter a nolle prosequi of a charge underlying a conviction and sentence. It contends that because
Additionally, the State argues that Mr. Simms failed to object to the entry of the nol pros and that his lack of objection was, in effect, an agreement with the abandonment of the prosecution. First, the trial court lacked jurisdiction to enter the nol
We reject the State‘s suggestion that its power to nol pros may divest a criminal defendant of his or her right to appeal a final judgment. In this case, Mr. Simms’ interest in the outcome of his appeal, specifically a determination of whether the trial court properly ruled on his suppression motion and whether there was sufficient evidence to convict him, were not controlled by the prosecuting attorneys. That the State has not yet re-charged Mr. Simms, or does not intend to charge Mr. Simms with a different crime, does not alter Mr. Simms’ right to appeal.
The State maintains that it should not be saddled with prosecuting meritless appeals. This contention again is unpersuasive. The State has several options on appeal, such as conceding error or by filing no arguments with the appellate court. The State ignores the fact that it was saddled with prosecuting a meritless appeal in this case because of a self-inflicted error in the trial court. The most important step for preventing the State from having to prosecute the appeal in this case would have been to have charged Mr. Simms with a crime supported by the evidence against him. In limiting the State‘s authority to enter a nol pros to the period prior to a final judgment, we do not mandate that the State, knowing there is insufficient evidence to support a conviction against a criminal defendant, must proceed in arguing in favor of that conviction on appeal.
III.
In conclusion, we hold that, after a defendant has received a final judgment in the form of a conviction and sentencing, the State may not enter a nolle prosequi to alter the final judgment. Upon conviction and sentencing based upon an underlying charge, the underlying charge is no longer pending and the State‘s authority to enter a nol pros has ended. Final judgment terminates the case in the trial court. Mr. Simms was convicted and sentenced. Therefore, the State lacked the authority to nol pros in order to alter the final judgment or to eliminate the appellate process initiated by Mr. Simms.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT TO BE PAID BY PETITIONER.