State v. Price
Annotate this Case
Download PDF
State of Maryland v. Wilbert Pelzie Price No. 107, September Term, 2003 Headnote: Motion to dismiss a re-indictment, following a nolle pros, is properly granted when the purpose of the nolle pros was to circumvent the requirement of Maryland Code (2002) § 6-103 of the Criminal Procedure Article and Maryland Rule 4-271 that trials proceed except when there has been a finding, by the admin istrative judge or designe e, of good cause to co ntinue the trial date. IN THE COURT OF APPEALS OF MARYLAND No. 107 September Term, 2003 ______________________________________________ STATE OF MARYLAND v. WILBERT PELZIE PRICE ______________________________________________ Bell, C.J. Raker Wilner Cathell Harrell Greene Eldridg e, John C. (Retired, specially assigned), JJ. Opinion by Bell, C.J. Filed: February 14, 2005 This Court has been asked to decide whether Maryland Code (2002) § 6-103 of the Criminal Proc edure Article and Maryland Ru le 4-271 wer e vio lated whe n, robbery and assault charges, for which Wilbert Pelzie Price, the respondent, was under indictment, having been nolle prossed,1 the State re-indicted the respondent for the same charges, but did not dispose of those charg es within 1 80 days of th e initial indictme nt. The statute 2 and the Rule,3 1 Maryland Rule 4-347, Nolle prosequi provides: (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 defend ant need not be prese nt in court when the nolle prosequi is entered, but in that event the clerk shall send notice to the d efendan t, if the defen dant s wh ereabouts a re know n, and to the defendant s attorney of record. (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 te arrest or detention of the defendant becau se of th at charg e. 2 Maryland Code (2002 ) § 6-103 of the Criminal Procedure Article, titled Trial Date, provides: (a) Setting the d ate. The da te for trial of a c riminal ma tter in a circuit court: (1) Shall be set within 30 days after the earlier of: (i) The appearanc e of counsel; or (ii) The first appearance of the defendant before the circuit court, as provided in the Maryland Rules; and (2) May not be later than 180 days after the earlier of those events. (b) Chang ing the date. on motion of a party or on the court s initiative and for good cause shown, a county administrative judge or a designee of that judge may grant a change of the circuit court trial date. (c) Court rules. The Court of Appeals may adopt additional rules of practice and procedu re for the im plementa tion of this sec tion in circuit together, require that a criminal defendant be brought to trial within 180 days after the earlier of either the appea rance of d efendan t s counsel o r the first appe arance of the defen dant. Concluding that the nolle p ros of the in itial indictmen t was inten ded to circu mvent that portion of the rule, which leaves to the administrative judge to decide whether a case, once courts. The pred ecessor to § 6-103, M aryland Cod e (1957, 19 96 Rep lacement V olume) A rticle 27, § 59 1, was identica l. 3 Maryland Rules, §4-271(a) provides: (a) Trial Date in Circuit Co urt. (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be no later than 180 days after the earlier of those events. When a case has been transferred from the District Court because of a demand for jury trial, and an appearance of counsel entered in the District Court was automatically entered in this circuit court pursuant to rule 4 214(a), the date of the appearance of counsel for purposes of this rule is the date the case was d ockete d in the c ircuit co urt. On motion of a party, or allow the court s initiative, and for good cause shown, the county administrative judge or that judge s designee may grant a change of a Circuit Court trial date. If a circuit court trial date changed, any subsequent changes of the trial date may be ma de only by the co unty administrative judge or that judge designee for good cause shown. (2) Upon a finding by the Chief Judge of the Court of Appeals that the number of demand for jury trial filed in the District Court for a county is having a critical impact on the efficient operation of the circuit court for the county, the Chief Ju dge, by Ad ministrative O rder may exe mpt from this section cases transferred to that circuit court from the District Court b ecause of a de mand for jury tria l. 2 set within 18 0 days, should be continu ed for go od cause shown , and notin g that, as to that indictmen t, more than 180 days had then elapsed since the prescribed appearances, the trial court ruled that § 6-103 and Rule 4-271 had been violated and, therefore, dismissed the reindicted charges. The Court of Special Appeals, agreeing with the trial court s analysis, affirmed. State v. Price, 152 Md. App. 640, 644-45, 833 A. 2d 614, 617 (2003). We granted the State s pe tition for writ o f certiorari. State v. Price, 379 Md. 98, 839 A. 2d 741 (2 004). We ag ree with the Circ uit Cou rt and th e interm ediate a ppellate court. I. On May 9, 2002, the respondent was indicted, charged with robbery, first degree assault, and second de gree assault. He appea red withou t counsel in the Circuit Court for Montgom ery County on May 17, 2002 and his counsel entered his appearan ce fi ve days later, on May 22, 2002. The trial date was set for July 23, 2002. At a status conference, conducted on June 21, 2002, noting the assigned prosecutor s unavailability on the trial date due to a conflict with the trial of another case, the State requested a continuance of the trial date. Pointing to his incarceration, the respondent objected. Nevertheless, after confirming that both counsel were ava ilable on that date, the trial court continued the case to August 12, 2002. Prior to the new trial date,4 by motion filed August 5, 2002, the State sough t to 4 When continuing the trial date to August 12, the court scheduled a motions hearing fo r Augus t 1, 2002. It w as at this hearin g, or shortly therea fter, that the Sta te learned from one of its detectives that the DNA analysis it had requested of the 3 continue the trial date once again. When it did so, the State was subject to a court order, entered in response to the respondent s motion to compel discovery, pursuant to which the State was required, within ten (10) days, to file a written answer to the respondent s then pending discovery motion and provide the resp onden t with ce rtain enu merate d mate rial. The order also stated: in th e event the State fails to abide by this Order, the State shall be prohibited from pro ducing an y witness, or ev idence at trial o r hearing w hich relates in any way to the State s non-disclosure. At a hearing on the motion to continue, held August 12, 2002, the State argued that the continuance was necessary because it had not received a deoxyribonucleic acid (DNA) analysis of evidence submitted to the crime lab on May 10, 2002. In support of that argum ent, the State inform ed the cou rt that it is the crime lab s practice not to begin DNA analyses until it receives a subpoena with a trial date and that, although neither it nor the police officer had advised the crime lab of the trial date or knew that they should, the analysis would not have been ready in time for the August 12th trial date in any event, explaining: We had a status date on June 21st where this trial date was scheduled. Even if I knew on June 21st to notify them of that trial date, we still couldn t have had the trial date today because it would take them four to six weeks to do the testing and we have to giv e 45 days no tice, so that w ould have been a m iddle of Sep tembe r trial date anyway. [5] Montgomery County Crime Lab had not been done. As the respondent reminds us, the August 12th trial date w as a con tinued o ne. The original trial date was July 23rd and it was set at the respo ndent s initial ap pearance in the Circuit Court. Thus, the respondent submits, assuming the crime lab also had been notified of the trial date and a six weeks turn around time, the DNA results would have 5 4 Noting that the [Hicks] [6] date in this case doesn t even run until the end of Nov ember. T his case was just [ indicted ] the end of M ay, it s a very serious matter, it pointed out that under the 180 days he has until the middle to end of November to have [a speedy trial], and we have a lot of time between the 2nd week in August and the end of November to set that. Characterizing the State s reason for requesting a continuance as not even a poor excuse, it s a pitiful excuse, and refusing to keep the respondent sitting in jail, the administrative judge denied the motion for continu ance. Believing that the DNA evidence was n eeded as part o f its case , the State decline d to go t o trial w ithout it. Conseq uently, it nolle prossed the charges against the respondent, stating, however, we ll get a new charging docum ent toda y to charg e. The respondent was re-indicted for the identical charges. That did n ot occur, howev er, until September 19, 2002, some five weeks after the initial indictment was nolle prossed. The new indictment was met with a motion to dismiss for violation of the Hicks Rule.7 The hearing on that motion was held on November 27, 2002. In support of its motion, the respondent relied on his consistent demand, from the first been available on June 28 th . Factoring in a forty-five day notice requirement results, he further submits, in their being available for use on the second trial date, August 12 th . 6 State v. Hicks, 285 M d. 310, 4 03 A. 2 d 356, on motion for reconsideration, 285 Md. 334, 403 A. 2d 368 (19 79). 7 The respondent filed, initially, on September 23, 2002, a motion to dismiss for lack of speedy trial. He filed, thereafter, on November 20, 2002, Defendant s Second Motion to Dismiss - Violation of the Hicks Rule. 5 request for continuance by the State, for strict compliance with the Hicks Rule and the order to compel discovery. Specifically, he pointed out that his first appearance under the initial indictment occurred on May 17, 2002 and, consequently, at the time of the hearing, more than 180 days had ex pired. With respect to the order to compel discovery, the respondent noted that the State had not met the ten day deadline to provide discovery before its nolle pros of the indictment terminated the case. That order prohibited, moreover, he adds, the State from producing any w itnes s or e vide nce a t trial or he aring wh ich relate s in any wa y to the nondisclosure. The trial date being beyond the Hicks date, the respondent concluded that the State entered a nolle pros to get a round Jud ge Deb elius order [ to compel discovery] and also to get around the Hicks date. The State disputed that analysis, emphasizing instead when in the 180 day period the nolle pros was entered, on the eighty-third day, with ninety-seven days remaining to reset the case. It also submitted: The sole purpose of requesting the continuance was to get the [DNA] testing done, and it couldn t have been more clear as to why we were asking for the continuance. And whether or not the jud ge grants that or not that s not really the issue, the issue was the nolle pros to get around the 180, and the answer i[s] clearly no , becau se there was o ver thre e mon ths to res chedu le the trial date. Accepting the State s argument that it acted not to circumve nt the prohib ition that a case be tried within 180 days, because there were a number of days left, the court nevertheless granted the respondent s motion to dismiss the indictme nt. It did so bec ause it concluded that, in addition to the 180 d ay requireme nt, Rule 4-271, consistent w ith the statute 6 it implements, contains a second component, prohibition of the continuance of a trial date except for good cause found by the administrative judge or that judge s designee. Thus, pointing out that the supervision of the dockets is given to the administrative judge, who, by determining, in that capacity, or b y designee, whether good cause exists to continue the trial date, decide[s] whether cases can and can t be tried within the 180 days, and noting that the State does not have the right to appeal that good cause determination, the court was satisfied that it was the decision of the administrative judge of that county that the State had not established a good cause that was being sought to be circumvented.8 Emphasizing that n inety- seve n of the 1 80 day Hicks period remained when th e State nolle prossed the charges against the respondent due to the unavailability of DNA test results, the Circuit Court expressly found that, in this case what really is occurring is the State acted not to circumvent the prohibition that a case be tried within 180 days ... that wasn t what the State was intending, that the results of DNA testing were essential to its case and to complying with both the respondent s discovery request and the court s order with respect thereto, and that the nolle pros is a legitimate prosecutorial option available to the State, the State submits tha t the Circuit Court and the Court o f Special A ppeals erred in dismissing the 8 In reaching its decision, the court considered State v. Brown, 341 Md. 609, 672 A. 2d 602 (1996), proffered by the State in support of its position, and Ross v. S tate, 117 Md. App. 357, 700 A. 2d 282 (1997), proffered by the respondent for his position, but conclude d that neithe r one of the m, really, ... is directly applicab le to the facts o f this case. W hat the c ourt fo und pa rticularly re levant f rom the cases, Ross more so than Brown, is that they talk about ... the whole reason for this rule and necessity to enforce this rule. 7 re-indictment of the respondent. It argues that dismissal is, in fact, inconsistent with the settled pronoun cements of this Court, pronouncements which, it says, have stated clearly that where a case has been nolle prossed for unavailability of DNA evidence, the 180 day period runs from the date of the appearances of counsel and defendant pursuant to the subsequent indictmen t, rather than the one that was nolle prossed. It is the State s position, in other words, that the statute and rule [a pply] only whe n the circum stances are s uch that, in the absence of the nol pros, dismissal with prejudice was a certainty because the State was absolutely incapable o f trying the case within the 1 80 day period . The State relies on State v. Brown, 341 Md. 609, 672 A. 2d 602 (1 996); State v. Glenn, 299 Md. 464, 474 A. 2d 509 (1984); Curley v. State , 299 M d. 449, 4 74 A. 2 d 502 ( 1984) . The State is correct, when a circuit court criminal case is nol prossed, and the state later has the sam e charges r efiled, the 18 0-day period f or trial prescribe d by §[6-10 3] and R ule [4-271] ordinarily begins to run with the arraignment or first appearance of defense counsel under the second prosecution. Curley, 299 Md. at 462, 474 A. 2d at 508. There was an exception to the general rule recognized in Curley, however, wh ere the prosecution s purpose in filing the nol pros, or the necessary effect of the nol pros, was to circumvent the requireme nts of §[6-103] and Rule [4-271]. Glenn, 299 Md. at 467, 474 A . 2d at 51 1. Curley and Glenn both involve and, although they reach different results, elucidate the necessary effect component of the exception. In Curley, the State nolle prossed the charges against the defendant on the final day 8 for trial, 299 Md. at 453, 474 A. 2d at 504, and when there had not been a trial date s et. Notwithstanding the State s rep resentation to the defen dant as to the reason f or the nolle pros, that it was entered, based on the combined factors of the apparent inadmissibility of the blood alcohol content test as performed in the case and upon the request made of the State by the family of the victim, id. at 453 , 474 A. 2d at 504, and the trial court s apparent accepta nce of that e xplana tion, id. at 453, 474 A. 2d at 504, this Court reversed the trial court s denial of the defendant s motion to dismiss the indictment, containing the identical charges, brought three months subsequently. While recognizing the appropriateness of the exception to the general rule applied by the trial court, the C ourt declare d that excep tion to be too lim ited, explain ing: Where the [S]tate s action necessarily circu mvents the statute and rule prescribing a deadline for trial, this should be sufficient to continue the time period runnin g with t he initial p rosecu tion. Id. at 461, 474 A. 2d at 508 (emphasis added). The Court concluded: When the nol pros was entered on March 23, 1981, which was the final day for trial, it was too late for compliance with § 591 and Rule 746. At the time a trial date had not even been assigned. The case could not have been tried on March 23 rd , as the defendant, his coun sel, and witnes ses we re not p resent. There was no reason for them to have been present, as March 23rd was not the assigned trial date. As of the close of business on March 23 rd , the case w ould have had to hav e been dism issed for vio lation of § 591 and Ru le 746. In reali ty, the prosecution had already lost the case under § 591 and Rule 746 when the nol pros was filed. Regardless of the prosecuting attorney s motives, the necessary effect of the nol pros was an attempt to evade the dismissal resulting from th e failure to try the ca se with in 180 d ays. Id. at 462-63, 474 A. 2d at 508-509. 9 By contrast, in State v. Glenn, supra, it was clear to the Court that the nolle pros in that case did not have the necessary effect of circumventing the 180 day Rule . In that case, the Court first considered whether the record evidenced any intention on the part of th e State to circumvent the 180 day Rule and rejected that proposition. It observed, in that regard, that the State nolle prossed the charges against Glenn, as [t]he record clea rly establish[ed], w ith no basis for a c ontrary inferen ce ... because of a legitima te belief that the charging d ocumen ts were defective and because the defendant s attorney would not agree to amendment of the charging document. 299 Md. at 467, 479 A. 2d at 511. Addressing the effect of that action, the Court opined: Unlike the situation in Curley, the necessary effect of the nol pros in these cases was not to circumvent § 591 and Ru le 746. November 17, 1981, which was the assigne d trial date and the date of the nol pros, was only 123 days after the arraignment and firs t appea rance o f coun sel. If the cases had not been nol prossed, trial could have proceeded on November 17th . If the cases had not been nol prossed, and if for some reason trial had not proceeded when the cases were called on November 17th , there remained fifty-seven days before the expiration of the 180-day deadline. In Curley, if the cases had not been nol prossed on the 180th day, it necessarily would have been dismissed for a violation of § 591 and Rule 746. This is not the situation in the present cases. The effect of the nol pros in the present cases was not necessarily to evade the require ments o r sanctio n of § 5 91 and Rule 7 46. Id. at 467, 474 A. 2d at 511. State v. Brown, supra, is to similar effect. The charges in that case were nolle prossed forty-three days before the assigned trial date because, as in the case sub judice, the requested DNA tests had not been completed, and charges were re-instituted via indictment filed three months later. Brown, 341 Md. at 612, 672 A. 2d at 604. 10 The State did not seek a postponement of the trial before entering the nolle pros and the defendant, conceding the necessity of the test results and that a postponement most probably would have been granted, had one been requested, a rgued on ly the nolle pros s effect on the requirem ents of the s tatute and the rule, and the Court confined its decision to that issue.9 Denying the defend ant s motion to dismiss for violation of § 591 and Rule 4-271, after reviewing Curley and Glenn, the Court concluded: a nol pros will have the necessary effect of an attempt to evade the requireme nts of § 591 and Rule 4-271 only when the alternative to the nol pros would have bee n a dismissa l with prejudice for noncompliance with § 591 and Rule 4-271. 341 Md. at 619, 672 A. 2d at 607, citing State v. Phillips, 299 Md. 46 8, 474 A.2d 51 2 (1984); State v. Henson, 335 M d. 326, 335 -336, 643 A.2d 43 2, 437 (19 94). App lying that rule, it explained: 9 To be su re, the defen dant sugg ested that the S tate should h ave soug ht a postponement rather than nolle pros the charges and, in fact, faulted the State for not having done so. The Court rejected the finding of fault concluding: [T]he decision whether to enter a nol pros or to seek a postponement because of the delay in the DNA testing is for the prosecuting attorney and not for an app ellate co urt. Hook v . State, 315 Md. 25, 35, 553 A.2d 233, 238 (198 9) ( The e ntry of a nolle p rosequi is ge nerally within th e sole discretion of the prosecuting attorney, free from judicial control, quoting Ward v . State, 290 Md . 76, 8 3, 42 7 A.2d 1008, 101 2 (19 81)) . The State's Attorney's office may have dec ided that if the DNA test results were favorable to the defendant, the charges would not be refiled, and thus the nol pros on October 5, 1993, would have ended the matter. Whatever the reason, however, the decision to enter a nol pros or to seek a postponement was w ithin the prosec uting att orney's dis cretion. Id. at 620-621, 672 A. 2d at 608. 11 It is obvious that the nol pros in the case at bar d id not have the necess ary effect of an attempt to circumvent the requirements of § 591 and Rule 4-271. If the case had not been nol prossed on October 5, 1993, there would have been 43 days before the expiration of the 180 -day period. In th is respect, the ca se is very much like the Glenn case . During this 4 3-da y period, th e Sta te's A ttorn ey's office may have b een able to e xpedite the DNA testing and o btain the resu lts so that trial of th e cas e cou ld ha ve begun before the d eadl ine. A ltern ative ly, the State's Attorney's office may have obtained from the administrative judge, in accordan ce with § 5 91 and R ule 4-271, a good cause postponement of the trial to a date beyond the 180-day period. There was clearly a basis for such postpo neme nt. Id. at 620, 6 72 A. 2 d at 607 -608. The necessary effect of the nolle pros is only one of the inquiries that informs the decision whether, in a specific situation, the general rule that the 180 day period runs from the date of the arraig nment un der the new indictmen t, should be applied, rather than the exception recognized in our cases. That exception, as articulated in Curley and reiterated in later cases, see Glenn, 299 M d. at 466, 47 4 A. 2d a t 511; Brown, 341 Md. at 614, 672 A. 2d at 604-605; Henson, 335 M d. at 335 n.4, 643 A. 2d at 436 n. 4, has two components: the nolle pros purpose and the nolle pr os eff ect. See Baker v. S tate, 130 Md. App. 281, 289, 745 A. 2d 1142, 1146 (2000), in which the intermediate appellate court, stating the analytical framework for re-indicted cases, recognized, as well as articulated, that the Curley exception was a two pronged one. This Court has not had the occasion to address, directly or extensively, the former component. The Court of Specia l Appe als has, h owev er. See State v. Akopian, 155 Md. App. 123, 841 A.2d 89 3 (2004); Ross v. S tate, 117 Md. A pp. 357, 700 A .2d 282 (1997). In Akopian, faced with the prospect of proceeding to trial without its witness, a police 12 officer on assignm ent in conn ection with the Washington/Virginia snipers, when the administrative judge denied its request fo r a continuan ce and the defenda nt waived his jury trial prayer and discovery motion,10 the State nolle prossed the charges ag ainst the def endant. It re-indicted the defendant within two days and, thereafter, consistently sought to have the case set in for trial within the 180 day period measured from initial appearance/arraignment in the first indictm ent. 11 Despite the defendant s persistent appearance without counsel and the administrative judge s reluctance to set a trial date when the defendant was unrepresented,12 the State succeeded in having the trial date set within 180 days of the initial appearance, only to have the case not go forwa rd on th at date d ue to inc lemen t weath er. Although impressed by the State s efforts to meet the Hicks deadline an d sympathetic to the 10 As to the latter, the Court of Special Appeals observed: The State was willing to commence the trial on October 22, by litigating pending motions and, ther eaft er, pa rticip ating in jury sele ction . Appelle e's unexpec ted waive r of his right to trial by jury, and election of a benc h trial, effectively pulled the rug out from under the State. Faced with the unavailability of necessary police witnesses, and rather than go forward and not be able to prove its case, the State chose to nolle prosequi and re-indic t. State v. Akopian, 155 M d. App . 123, 14 3, 841 A . 2d 893 , 904 (2 004). 11 The Court of Special Appeals enumerated, in detail, the numerous attempts the State made to expedite the trial date to avoid a Hicks problem, and, by contrast, the factual basis for its conclusion that the State was vigorous in its effort to advance the trial date t o fit with in the or iginal 18 0 day cale ndar. 12 As reported by the intermediate appellate, appellee continued to appear without counsel and continually refused the services of the public defender, despite the efforts of the administrative judge to counsel him on the importance of being represented. Having exhausted its efforts to have appellee obtain counsel, the court finally set the case for trial. 13 State s position, the trial court granted the defendant s motion to dismiss. It reasoned: But the position I have taken with respect to these motions and this rule is that there are two parts to that rule ... discussed in Hicks. One is that trial has ... to be tried ... within 180 days. The othe r part to the rule ... is that it may not be continued unless for good cause shown by the administrative judge. And the cases that have dealt with this issue on appeal have discussed the importance of allowing the administrative judge to manage this doc ket so th at all case s can be handle d in an e fficien t mann er. So ... it is not just the 180-day clause within the rule, but ... that the case cannot be continued unless for good cause shown and found by the administrative judge. In this case, clearly the S tate entered th e nol-pros to avoid the order of the administrative judge which is that the case not be continued, no good cause h aving b een sho wn. I will say that the State, through the extraordinary efforts of [the State's Attorney], has managed in my view to satisfy the 180-day prong of that rule [13] by managing to get the case set back in on the re-indictment by December 11th, which makes this case different from any case that is cite d on ap peal. That notwithstanding, I think when you read those cases, they stand for the proposition that ... notwithstanding that you were able to get it set back in, that still the net effect of this was that you overruled the determination of the administrative judge that there was no good cause for continuing the prosec ution o f this m atter. Akopian, 155 Md. App. at 137, 841 A. 2d at 901. The Court of Special Appeals reversed. Having concluded that the State's action, in and of itself, did not have the necessary effect of circum venting the 180-day rule, there being more than fifty days rem aining in the original Hicks period when the nolle pros was entered, the inter media te appe llate cou rt turned to the pu rpose f or enter ing the n olle pro s. As 13 By this statement, we believe the court was holding that the necessary effect of the nolle pros was not to circumvent the statute and the rule. 14 to that prong , it discerned n o facts from the record indicating that the State's use of a nolle prosequi had either the necessary effect or the purpose of circumventing the 180-day rule and it so held. To the intermed iate appellate c ourt: It [was] abundantly clear from the record that the State made extraordinary effort to obtain a trial d ate well w ithin the outsid e limit of the original 180-day calendar. In every instance the State's effort was thwarted by appellee's appearance without counsel and, what we conclude to be, his refusal to be represented. It is true that the savvy defendant c an manip ulate the system to obtain delays, and the facts before us lead to the inescapable conclusion that appellee 's goal was to delay trial to the point of a Hicks violation, despite the State's best efforts to avoid that result. The State should not suffer the detrime nt of his manip ulation. Akopian, 155 Md. A pp. at 143, 841 A . 2d at 904-905 (foo tnote omitted). One of the cases to which the Akopian court referred, and whose holding it analyzed, was Ross, supra. In that case, on the scheduled trial date , the State nolle prossed drug charges against the d efendan t immediately after its request for continuance, made because the drugs had not bee n analyzed, had been d enied by the county administrative judge . In denying the motion, that judge expressly refused to find good cause to continue the case and commented, I don't think this case can be put back in. Our docket is too crowded. 117 Md. App. at 361, 7 00 A. 2d at 284. The defendant was re-indicted eight days later and subseque ntly tried within the 180 day period applicable to that indictment, but more than the 180 da ys applica ble to the nolle pr ossed in dictme nt. Id. Reversing the denial of the defendant s motion to dismiss for violation of the Hicks Rule and statute, the Court of Special Appeals held that th e State entere d the nol pro s to 15 circumvent the 180-day limit. Id. at 370, 700 A. 2d at 289. In support of that holding, the court emphasized the requirement of the statute and the rule that a defend ant be broug ht to trial not later than 180 days of arraignment or first of appearance of co unsel, that those requireme nts are mandatory, dismissal being the sanction for violation, and the role of the county administrative judge in overseeing compliance with those requirements.14 Id. at 36364, 700 A. 2d a t 285-86. As to the latter, more specifically, the court found significant that the county administrative judge s discretion to determine whether good cause exists to extend the trial date carries a heavy presumption of validi ty and is rarely subject to reversal upon 14 We described that role, and its importance, as follows: The major safeguard contemplated by the statute and rule, for assuring that criminal trials are not needle ssly postponed beyond the 1 80-day period , is the requirement that the administrative judge or his designee, rather than any judge, order the postponement. This is a logical safeguard, as it is the administrativ e judge w ho has an overall view of the cou rt's business, w ho is responsible for the administration of the court, who assigns trial judges, who supervise[s] the assignment of actions for trial, who supervises the court personnel involved in the assignment of cases, and who receives reports f rom su ch pers onnel. 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 ca ses set for trial, and the normal time it w ill likely take before the case can be tried. State v. Frazier, 298 Md. 422 , 453-54, 470 A .2d 1269, 1285-1 286 (1984). 16 review . Id. at 364-65, 700 A. 2d at 286, quoting Dalton v. S tate, 87 Md. App. 673, 682, 591 A.2d 531, cert. denied, 325 Md. 16, 599 A.2d 89 (1991) and State v. Frazier, 298 Md. 422, 451, 47 0 A.2d 1269, 1 284 (1 984) (f ootnot e omitte d). The Court of Special Appeals rejected the State s argument, which, relying on Brown, 341 Md. 609, 672 A.2d 602, and Glenn, 299 Md. 464 , 474 A. 2d 509 , stressed that there were eighty-eight days left to run in the 180 day time period whe n the nolle pros was entered, concluding that the nolle pros did not have the necessary effect of circumventing the 180 day period: In Brown, howev er, there was no ruling from the administrative judge. Moreover, both parties had agreed that, if requested, a postponement for good cause would have been granted, and that there was a possibility that the case could have been brought to trial within the remaining forty-three days of the 180-day time perio d. We also note that there was no decision from the administrative judge in Curley and Glenn. In the present case, how ever, a postponement was requested and denied and, as found by the administrative judge, the case could not be set in before the tolling of the 180-day limit. We again stress that in light of the adm inistrative judg e's supervision of the doc ket, we are unable to ignore his statement that the case could not be heard before expiration of the 180-day time period . In addition, immediately following the judg e's ruling, the State entered a nol pros in the case. We can discern no clearer attempt to circumvent the time period dictated by Art. 27, § 591 and Rule 4 -271. Ross, 155 Md. App. at 370, 700 A. 2d at 289. We agree with the court s result and its analysis. Just as the test for determining the applicable 180 day per iod whe n there has b een a nolle p ros of one indictment and a reindictment containing the same charges is tw o pronged, the statute and the rule, as the Court of Special Appeals and the Circuit Court recognized, have two aspects. Section 6-103 and 17 Rule 4-271 se t forth [both ] a definite time requirement for the trial of criminal cases and an explicit procedure for postponing a case beyond the 180 -day limit. Goldring and Lyles v. State, 358 Md. 490, 493, 750 A. 2d 1, 2 (2000), quoting Dorsey v. State, 349 Md. 688, 701, 709 A. 2d 1244, 1249 (1998) (some citations omitted). They codify and implement the chief legislative objective that there should be a prompt disposition of criminal charges in the circuit courts. Dorsey, 349 Md. 688, 700, 709 A.2d 1244, 1249 (1998), quoting State v. Hicks, 285 Md. at 334, 403 A.2d at 369. Their intended objectives, implemented via the mechanism established by the statute and the rule, are to afford reasonably prompt trials, and eliminate excessive scheduling delays and unjustifiable postponem ents. Hicks, 285 Md. at 316, 403 A.2d at 359; Dorsey, 349 Md. at 701, 709 A. 2d at 12 50; Farinholt v. S tate, 299 Md. 32, 41, 472 A. 2d 452, 456 (1984). Thus, the mech anism of the Hicks Rule serves as a means of protectin g society s interes t in the efficient administration of justice. The actual or apparent benefits of § [6-103] and Rule 4-271 confer up on crimina l defenda nts are pure ly incidental. See Calhoun v. State, 299 Md. 1, 11-1 2, 472 A.2d 43 6 (1984); Curley v. State , 299 Md. 449, 460, 474 A.2d 50 2 (1984); Frazier, 298 Md. at 456, 470 A.2d at 1286-8 7; Marks v. State, 84 Md. App. 269, 277, 578 A.2d 828, 832 (1990). Dorsey, 349 Md. at 701, 709 A.2d at 1250. In the case sub judice, the State sought and was refused a continuance, the administrative judge expressly finding no good cause for one. The effect of that ruling was to mandate that trial proceed, as scheduled. The consequence o f the State not going fo rward 18 or not producing evidence was dismissal of the case or an acquittal. When the State nolle prossed the case, it was, as the State concedes, to avo id those resu lts. Thus, the S tate is correct, the nolle pros did not have the necessary effect of circumventing the 180 day requirement of the statute and the rule; rather, it was for the purpose of circumventing, and, indeed, that intention w as achieve d, the require ment of th e statute and the rule that trials proceed except when there has been a finding of good cause by the administrative judge.15 Acc ordingly, we agree with the Court of Special Appeals that the purpose for entering the nol pros in the c ase unde r considera tion was to circumve nt the autho rity and decision of the 15 The Cou rt of Special A ppeals, in a foo tnote, op ined , with out c itatio n of auth ority, that: The State is not precluded from prosecuting appellant after reindicting him, in the case at hand, simply because it attempted to circumvent the ruling o f the trial judge th at good cause d id not ex ist to gran t a contin uance . Had the State exercised due diligence to reschedule the trial date within the ninety-seven days remaining in the original 180-day period or had appellant prevented the case from going to trial before the expiration of that deadline, the necessary effect of the nol pros would not have been to circumvent the requirements of § 591 and Maryland Rule 4-271. State v.Price, 152 M d. App . 640, 65 5 n.3, 83 3 A. 2d 614, 62 3 n. 3 (2 003). See State v. Akopian, 155 Md. A pp 123, 841 A . 2d 893 (2004). It is not necessary that we address this issue and we do not, except to note what we said in Curley v. State , 299 Md. 449, 462, 474 A.2d 502, 508 (1984), offered after observing that no cas e has been brought to our attention in which a court has clu ng to the view that the running of the speedy trial period begins with the second indictment when confronted with facts indicating that the necessary effect of the earlier nol pros was to defeat the time limitation imposed by the statute or rule, [a]doption of such a view might o pen the door to wides pread e vasion of § 59 1 and R ule 746 . 19 administrative judge. State v. Price, 152 Md. A pp. 640, 654, 833 A . 2d 614, 623 (200 3). This case is stronger than Ross. In addition to the administrative judge finding no good cause for continu ance and thus requirin g the State to proceed to trial, the State was under, and in violation of, a discovery order requiring it to respond and imposing sanctions for noncompliance. The nolle pros also avoided the effect of that order a nd, so, its necessary effect was to circum vent that order. JUDGMENT A FFIRMED, WITH COSTS. 20
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
