Gilmer v. State

Annotate this Case

Download PDF

Anthony Gilmer v. State of Maryland, No. 14, September Term, 2005. CRIMINAL PROCEDURE STATUTORY INTERPRETATION NOLLE PROSEQUI: Petitioner sought review of a judgment of the C ourt of Special Ap peals affirming the C ircuit Court s refusal to give him credit for time served for charges unrelated to those for which he was being sentenced, that the State, without a plea bargain, had nolle prossed prior to sentencing. The Court of Appea ls held that, under the circumstances of the case sub judice, a nolle prosequi entered outside of a plea agreement constitutes a dismissal for the purpose of receiving credit for time served under Section 6-218 (b)(2) o f the C riminal P rocedu re Artic le. IN THE COURT OF APPEALS OF MARYLAND No. 14 September Term, 2005 ANTHONY GILMER v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Harrell, J., dissen ts Filed: December 7, 2005 Petitioner, Anthony Gilme r, pursuant to Maryland Code (2001), Section 6-218(b)(2) of the Criminal Procedure Article,1 seeks review of a judgment of the Court of Special Appea ls affirming the Circuit Court s refusal to give him credit for time served for charges unrelated to those for which he was being sentenced, that the State, without a plea bargain, had nolle prossed2 prior to sentencing. The specific question presented by Gilmer is: Is a nolle prosequi the equivalent of a dismissal for purposes of Criminal Procedure Article Section 6-218 (b)(2) which requires a trial court to give credit at sentencing for pre-trial custody on an unrelated offense that results in a dismissal or acquittal where a warrant or commitment for the convicted offense was filed during th at cu stod y? Gilmer v. State, 387 Md. 122 , 874 A.2d 917 (2005). We hold that, under the circumstances of this case, a nolle prosequi is the equivalent of a dismissal for the purpose of Section 6218(b)(2) of the Criminal Procedure Article. I. Background On Septemb er 1, 2002, A nthony Gilm er was in pretrial detention at the Baltimore City 1 Maryland Code (2002), Section 6-218(b)(2) of the Criminal Procedure Article, states: If a defendant is in custody because of a charge that results in a dismissal or acquittal, the time that w ould have been cred ited if a sentence had been imposed shall be credited against any sentence that is based on a charge for which a warrant or com mitm ent w as filed d uring tha t custody. 2 We have defined the term nolle prosequi as an official declaration by the State, announcing that it will not pursue the charges in a particular charging document. In re Anthony W., 388 Md. 257, 258 n.3, 879 A .2d 717 , 720 n. 3 (2005 ). A nolle prosequi is often shortened and referred to as a nolle prosse or nol pros. See State v. Price, 385 Md. 261, 272, 868 A.2d 25 2, 258 (20 05); see also Black s Law Dictionary 1074 (8th ed. 1999) (explaining that a nolle prosequi is often shortened to nolle pros; nol -pros; nol pro. ) Detention Center on a charge of attempted murder and had been at the Center since July 2, 2001, a period of 426 days. On September 1, 2002, Gilmer had an altercation with a fellow detainee, Jonath an Blu e, over whose turn it was to use the telephone during passive recreation time in the day room, a place where detainees are permitted to engage in activities such as playing cards, watching television, and using the telephone. Gilmer and Blue were separated but then permitted to return to the day room, where Gilmer and Blue continued to argue, and Gilmer, thereafter, repeatedly stabbed Blue with a silver lock blade knife. Gilmer was cha rged with attempted f irst degree murder in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 411A (b) of Article 27,3 first-degree a ssault in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 12A-1 of Article 27,4 openly wearing and 3 Maryland Code (1 957, 199 6 Rep. V ol.), Section 4 11A(b) o f Article 27 , stated in relevant pa rt: (b) Murder in the first d egree. A person who attem pts to commit murder in the first degree is guilty of a felony and on conviction is subject to imprisonment for not more than life. Section 411A has bee n recodified withou t substantive changes as M aryland Code (2002 ), Section 2-205 of the Criminal Law Article. 4 Ma ryland Code (1957, 1996 Rep. Vol., 2001 Supp.), Section 12A-1 of Article 27, stated: (a) Serious physical injury; use of a firearm. (1) A person may not intentionally cause or attempt to cause serious physical injury to another. (2) A pe rson may n ot comm it an assault with a firearm, including: -2- carrying a dangero us and de adly weapo n with the in tent of cau sing injury in an unlawful manner in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 36 of Article 2 7, 5 reckless endangerment in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 12A- (i) A handgun, antique firearm, rifle, shotgun, short-barreled shotgun, or short-barreled rifle, as those terms are defined in § 36F of this article; (ii) An assault pistol, as defined in § 36H-1 of this article; (iii) A pistol, revolver, or antique pistol or revolver, as those terms are defined in § 441 of this article; and (iv) A machine gun, as defined in § 372 of this article. (b) Penalty. A perso n who v iolates this section is guilty of the felony of assault in the first degree and on conviction is subject to imprisonment for not more than 25 years. Section 12A-1 has be en recodified witho ut substantive change a s Maryland Cod e (2002), Section 3-202 of the C riminal L aw A rticle. 5 Maryland Code (1957, 1996 Repl. Vol.), Section 36 of Article 27, in relevant part stated: (a) In general. (1) Every person who shall wear or carry any dirk knife, bowie knife, switchblade knife, star knife, sandclub, metal knuckles, razor, nunchaku, or any other dangerous or deadly weapon of any kind, whatsoever (penknives without switchblade and handguns, excepted) concealed upon or about his person, and every person who shall wear or carry any such weapon, chemical mace, pepper mace, or tear gas d evice ope nly with the intent or purpose of injuring any person in any unlawful manner, shall be guilty of a misdemeanor, and upon conviction, shall be fined not more than $1,000 or be imprisoned in jail, or sentenced to the Maryland Department of Correction for not more than three years. Section 36 has been recodified without substantive change as Maryland Code (2002), Section 4-101(c) of the Criminal Law Article. -3- 2 of Article 27,6 second-degree assault in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 12A of Article 27,7 and attempted second-degree murder in violation of Maryland Code (1957, 1996 Repl. Vol.), Section 411A (a) of Article 27.8 6 Maryland Code (1957, 1996 R epl. Vol., 2001 Supp.), Se ction 12A -2 of Artic le 27, in relevant part stated: (a) Creation of substantial risk of death or serious physical injury; penalties. (1 ) Any perso n who re cklessly engag es in conduct that creates a substantial risk of death or serious physical injury to another person is guilty of the misdemeanor of reckless endangerment and on conviction is subject to a fine of not more than $5,000 or imprisonment for not more than 5 years or both. Section 12A-2(a)(1) has been recodified without substantive change as Md. C ode (2002), Section 3-204(a) of the Criminal Law Article. 7 Maryland Code (1957, 1996 Repl. Vol.), Section 12A of Article 27, stated: (a) General prohibition. A perso n may not co mmit an a ssault. (b) Violation; penalties. A person w ho violates th is section is guilty of the misdemeanor of assault in the second degree and on conviction is subject to a fine of not more than $2,500 or imprisonment for not more than 10 years or both. Section 12A ha s been reco dified with out substantive change as M aryland Code (2002 ), Section 3-203 of the C riminal L aw A rticle. 8 Maryland Code (1957, 1996 Re pl. Vol.), Sec tion 411A (a) of Article 27, stated in relevant pa rt: (a) Murder in the second degree. A perso n who a ttempts to commit murder in the second degree is guilty of a felony and on conviction is subject to imprisonmen t for not more than 30 years. -4- On June 13, 2003, a jury found Gilmer guilty of first and second-degree assault. At sentencing the Circuit Court judge merged the second degree assault into the first degree assault and sen tenced Gilme r to fiftee n years inc arceratio n. The judge, how ever, refuse d to credit the 426 days of confinement that Gilmer had already served on the attempted murder charges that had been nolle prossed by the State prior to sentencing. Gilmer filed an unsuccessful motion for a new trial prior to noting an appeal to the Court of Special Appeals. Before the Court of Special Appeals, Gilmer contended that the Circuit Court erred in refusing to give him credit for the time he had served in detention for the attempted murder charge, pursuant to Section 6-2 18(b)(2) of the Criminal Procedure Article and that it also erred in refusing to ask a voir dire question that he had proposed.9 Gilmer v . State, 161 Md.App. 21, 24, 866 A.2d 91 8, 920 (20 05). The C ourt of Sp ecial App eals affirmed the denial of the time served credit decision of the trial court and held that a nolle prosequi is not a dismissal under the plain meaning of Section 6-218(b)(2), and therefore, Section 6218(b)(3)10 was applicable, and that, pursuant to Section 6-218(b)(3), which allows the c ourt to exercise its discretion in determining whether to grant credit, the judge did n ot abuse h is Section 411A(a) has been recodified without substantive change as M aryland Code (2002 ), Section 2-206 of the Criminal Law Article. 9 The voir dire question issue is not before us as Gilmer did not raise it in his Petition for Writ of Certiorari. 10 Maryland Code, Section 6-218(b)(3) of the Criminal Procedure Article, states: In a case other than a case describ ed in parag raph (2) of this subsection, the sente ncin g court m ay app ly credit against a sentence for time spent in custody for another charge or crime. -5- discretion. Id. at 31, 86 6 A.2d at 924. T o hold o therwi se, it note d, could potentially result in double c redit rece ived by Gilmer for time served were he later prosecuted for the attemp ted mu rder ch arges. Id. at 29, 86 6 A2d . at 923. II. Standard of Review The construction of Sections 6-218(b)(2) and (b)(3) of the Criminal Procedu re Article implicate a de novo review . Cain v. State, 386 Md. 320, 327, 872 A.2d 681, 685 (2005). Our goal, when in terpreting statu tes, is to "identify an d effectu ate the legislative intent underlying the statute(s) at issue. Id.; Serio v. Ba ltimore C ounty, 384 Md. 373, 863 A.2d 952, 962 (2004), quoting Drew v. First Guaranty Mortgage Corp., 379 Md. 318, 327, 842 A.2d 1 , 6 (2003), in turn quoting Derry v. State, 358 M d. 325, 335 , 748 A.2d 478, 483 (2000)); Pete v. State, 384 Md. 47, 57-58 , 862 A.2d 419, 425 (2004); Graves v . State, 364 Md. 329, 346, 772 A.2d 1 225, 1235 (2001). The best s ource of le gislative intent is th e statute s plain language, and when the language is clear and unambiguous, our inquiry ordinarily ends there. Cain, 386 Md. at 327, 872 A.2d at 685; Serio, 384 Md. at 373, 863 A.2d at 96 2; Pete, 384 Md. at 57-58, 86 2 A.2d a t 425; Drew, 379 Md. at 327, 842 A.2d at 6; Beyer v. M organ Sta te Univers ity, 369 Md. 335, 349, 800 A.2d 707, 715 (200 2); Whack v. State, 338 Md. 665, 672, 659 A.2d 1347, 13 50 (1995). When there is more than one reasonable interpretation of a statute, however, the statute is ambiguous. Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 1114 (2005); Melton v . State, 379 Md. 471, 476-77, 842 A.2d 743, 746 (2004 ). When the statutory langua ge is ambig uous, we resolve that a mbiguity in light of the legislative intent, considering the le gisla tive h istor y, case law , and sta tutory pur pose. See Moore, 388 -6- Md. at 453, 79 A.2d at 1114; Deville v. Sta te, 383 Md. 217, 223, 858 A.2d 484, 487 (2004 ); Melton, 379 M d. at 476 -77, 84 2 A.2d at 746. We consider not only the ordinary meaning of the words, but also how that language relates to the overall meaning, setting, and purpose of the act. Moore, 388 M d. at 453, 79 A.2d at 1114; Deville, 383 Md. at 223, 858 A.2d at 487. The statute s provisions must be read in a commonsensical perspective to avoid a farfetched interpretation. Cain, 386 Md. at 328, 872 A.2d at 685, Serio, 384 Md. at 373, 863 A.2d at 962; Graves, 364 M d. at 346, 77 2 A.2d a t 1235; Frost v. State , 336 Md. 125, 137, 647 A.2d 10 6, 112 (19 94); Dickerso n v. State, 324 Md. 163 , 171, 596 A.2d 6 48, 652 (1991). We construe the statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superf luous, m eaning less, or n ugator y. Moore, 388 Md. at 453, 79 A.2d at 1115; Comptroller v. Phillips, 384 Md. 58 3, 865 A.2d 59 0 (2005). III. Discussion Gilmer contends that Section 6-218(b)(2) is ambiguous because it does not define the term dismissal. He contends that, based on the two purposes set forth by the Legislature in enacting Section 6-218 of the Criminal Procedure Article, namely to avoid banked time 11 and to elimin ate de ad time , 12 it is only proper that the word dismissal in Section 2618(b)(2) of the Criminal Procedure Article be interpreted to include disposition of a case 11 Banked time is a reserve of time established when a defendant spends tim e in custody that is not yet but may be credited ag ainst a valid sentence. Fleeger v . State, 301 Md. 155, 163 , 482 A.2d 490 , 494 (1984). 12 Dead time is time spent in custody that will no t be cred ited to an y valid sen tence. Fleeger, 301 Md. at 165, 482 A.2d at 495. -7- by nolle prosequi, even in the absence of a plea bargain relating to the charge, so that the trial judge was required to give him credit for the time he served in pre-trial detention for attempted murder. Additionally, he argues, M aryland Rule 4-247 m akes clear th at a nolle prosequi is a dismissal, and, the fact that a charge or charges can still be prosecuted after being nolle prosse d is not disp ositive b ecause a dismis sal also m ay permit prosec ution. By enacting Section 2-618(b)(2), Gilmer asserts that Maryland created a liberty interest13 for him to obtain cred it for his time s erved and that denying h im credit for time served is denying a right pro tected b y the Fou rteenth A mend ment. The State, conv ersely, contends that the Circuit Court properly exercised its discretion under Section 6-218(b)(3) in refusing to award Gilmer credit for his time serv ed on the n olle prossed attempted murder c harge because the p lain meaning of S ection 6-218(b)(2) refers only to an acquittal or dismissal, whereas Section 6-218(b)(3) refers to any case other than a case described in paragraph (2). The State argues that only a nolle prosequi entered as part of a plea ag reement is the equivalent of a dismissal because the nolle prosequi then has the effect of precluding future prosecution and that to allow any nolle prose qui to cons titute a dismissal co uld create a w indfall of d ouble cred it for the def endant if he or she were ever convicted of the initial offense which was originally nolle prossed. The State asserts that Section 6-218(b)(2) is clear; it does not list nolle prosequ i, and thus, to interpret the word dismiss al to inclu de nolle p rose qui w ould thereby re nder Sec tion 6-21 8(b) (3) a nullity. 13 A liberty interest is an interest that is protected by the Due Process Clause of the Fourteen th Amendme nt whic h cann ot be arb itrarily den ied with out due proces s. U.S. v. Ramos, 401 F.3d 111, 11 5 (2d Cir. 2005). -8- A. Section 6-218 (b)(2) & (3) The precursor of Sections 6-218 (a) and (b) was Section 638C(a) of Article 27, which was enacted by the General Assembly in 1974, and provided: Any person w ho is conv icted and se ntenced sh all receive cre dit against the term of a definite or life sentence or credit against the minimum and maximum terms of an indictment sentence for all time spent in the custody of an y state, county or city jail, correctional institution, hosp ital, mental ho spital or other agency as a result of the charge for which sentence is imposed or as a result of the conduct on which the charge is based, and the term of a definite or life sentence or the minimum and maximum terms of an inde terminate sentence sh all be dimin ished the reby. In any case where a person has been in custody due to a charge that culminate d in a dism issal or acqu ittal, the amount of time that would have been credited against a sentence for the charge, had one been imposed, shall be credited against any sentence that is based upon a charge for which a warrant or commitment was lodged during the pendency of such custody. In all other cases, the sentenc ing court sh all have the discretion to a pply credit against a se ntence for time spent in custody for another charge or offense. 1974 Md. Laws, Chap. 735, § 1 (emphasis added). The preamble for the Bill established that its purpose w as for pro viding that u nder certain circumstan ces person s shall receive credit agains t their sen tences f or any tim e spent in custo dy. 197 4 Md . Laws , Chap . 735, § 1 . In 1981 legislation was enacted to clarify that the concept of giving credit against sentence for time spent in custody does not apply to a parolee who commits a subsequent offense and is incarc erated prior to the date on which he is sentenced for the subsequent offen se. 1981 Md. Laws, Chap. 721. The language added to the end of Section 638C (a) read: -9- This section does not apply to a parolee who is returned to the custody of the Division of Correction as a result of a subsequent offense and is incarcerated prior to the date on which he is sentenced for the subsequent offense. 1981 M d. Law s, Chap . 721. In Fleeger v. Sta te, 301 Md. 155, 482 A.2d 490 (1984), we recognized that one purpose for Section 638C (a) was to avoid banked time, a reserve of time established when a defenda nt spends tim e in custody that is no t yet but may be cre dited again st a valid senten ce. Id. at 163, 482 A.2d at 494. Another purpose for enacting Section 638C(a) was to eliminate dead time, time spent in custo dy that will not b e credited to a ny valid senten ce. Id. at 165, 482 A.2d at 495. We explained that Section 638C addressed the problem of dead time by authorizing mandatory credit for any time spent in custody while awaiting trial on an offense for which the defenda nt is ultimately convicted. The statute also seeks to eliminate dead time that results when a defendant is in custody on one crime but is ultimately convicted of another. By enacting § 63 8C(a), the General Assembly sought to ensure that a defendant receive as much credit as possible for time spent in custody as is consistent with constitutional and practical considerations. An obvious corollary is that the Ge neral Asse mbly sough t to minimize the amount of dead time. Simply stated, we believe that no legitimate legislative policy is advanced by maximizing dead time or by withho lding credit that is due a defendant under the crediting statute. Id. at 165, 482 A.2d at 495 (emphasis ad ded). In 2001, Section 638C (a) was recodified as Sections 6-218(a) and (b) of the Criminal Procedure Article, 2001 Md. Laws, Chap. 10, § 2, which now provide: -10- (a) This section does not apply to a parolee who is returned to the custody of the Division of Correction because of a subsequent crime and is confined before being sentenced for the subsequent crime. (b)(1) A defendant who is convicted and sentenced shall receive credit against and a reduction of the term of a definite or life sentence, or the minimum and maximum terms of an indetermin ate sentence, f or all time spe nt in the custody of a state correctional facility, local correctional faci lity, hospital, facility for persons with mental disorders, or other unit because of: (i) the charge for which the sentence is imposed; or (ii) the conduct on which the charge is based. (2) If a defendant is in custody because of a charge that results in a dismissal or acquittal, the time that would have been credited if a sentence had been imposed shall be credited against any sentence that is based on a charge for which a warrant or com mitm ent w as filed d uring tha t custody. (3) In a case other th an a case d escribed in paragraph (2) of this subsection, the sentencing co urt may apply cre dit against a sentence for time spent in custody for another charge or crime. The issue before us is whether, like the Court of Special A ppeals, we adopt a pla in meaning analysis of Se ction 6-218 (b)(2) and d etermine tha t the mandatory credit for time served does not apply because the term nolle prosequi is absent, or, whether we construe Section 6-218(b)(2) as ambiguous. The dec ision whe ther to utilize a p lain mean ing analysis or an analysis b ased upo n the amb iguity of a statute is made first by looking to see whether the Legislature has provided a definition for the term in ques tion. Deville, 383 Md. at 229, 858 A.2d at 491 ( the legislative history of [the statute] fails to provide an actual definition. ); Melton, 379 M d. at 489, 84 2 A.2d a t 753 (holding that the statute was ambiguous because it provides no definition of the term vio lation, and p rovides no specific direction as to the prope r unit of prosecution. ). If there is no definition, we then ask whether -11- there is more than one reaso nable interp retation of the s tatutory language. If there is, the statutory language is ambiguous . Moore, 388 M d. at 453, 79 A.2d at 11 14 ( W hen there is more than one reasonable interpretation of the statute, the statute is am biguous. ); Deville, 383 Md. at 223, 858 A.2d at 487 ( A statute is ambiguous when there are tw o or more reasonab le alternative interpretations of the statute . ); Melton , 379 Md. at 476-77, 842 A.2d at 746 ( We have said that ambiguity exists within a statute wh en there are two or more reas onable alternative interpretations of the statute. ) (quoting Price v. State , 378 Md. 378, 387, 835 A.2d 1221, 12 26 (2003)). In this case, Section 6-218(b)(2) provides no definition f or the ter m dism issal. Moreover, the term dismissal has different meanings, depending on whether the dismissal is entered w ith or withou t prejudice as explicated b y the Court of Special A ppeals in Parks v. State, 41 M d.App . 381, 39 7 A.2d 215 (1 979), aff d, 287 Md. 11, 41 0 A.2d 597 (1 980): The words with p rejudice , when used in that context, have, of course, a well-established meaning in the law. They signify that the dismissal is final, that the controversy is concluded and cannot be reopened by a new or subsequent action. A dismissal with prejudice has been held to be as conclusive of the rights of the parties as if the action had been prosecuted to a final adjudication on the me rits adverse to the comp lainant. Parks, 41 Md .App. at 38 6, 397 A .2d at 215 (citations omitted). Later in the opinion, reflecting upon a change in the law under consideration from a dismissal with prejudice to a dismissal without prejudice, the court noted: [T]he General Assembly has made clear its intent that such a dismissal for failure to com ply with the requirements of the Act should serve only to terminate that particular actio n and no t to -12- preclude another. That is what is meant by the phrase without prejud ice. Id. at 388, 3 97 A.2 d at 217 (citation s omitte d). The term dismissal in Section 6-218(b)(2), therefore, absent qualifying language of with or without prejudice, reasonably can be interpreted in either of two ways: one in which the unrelated offense may not be re-prosecuted, or the other in which the unrelated offense subseque ntly may be prosecuted. As a result, S ection 2-618(b)(2) is ambiguous insofar as what c onstitute s dism issal. B. Nolle Prosequi Section 1-101 (k) of the Criminal Procedure Article provides: "Nolle prosequi" means a formal entry on the record b y the State that declares the State's intention not to prosecute a charge. Rule 4-247 of the Maryland Rules entitled Nolle Prosequi governs the disposition of charges by nolle prosequi and its effect, and provides: (a) Dispositio n by N olle Prose qui. 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 presen t in court when the no lle prosequi is entered, but in that event the clerk shall send notice to the defenda nt, if the defendant s whereabouts are known, and to the defendant s attorney of record. (b) Effect of N olle Prose qui. When a nolle prosequi has been entered on a charge, any conditions of pretrial release on that charge are terminated, and any bail posted for the defendant on that charge sh all 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. -13- We had the opportunity to review the history of nolle prosequi in Ward v. S tate, 290 Md. 76, 82-4, 427 A .2d 1008, 1012-1 4 (1981), in which Judge John C. Eldridge wrote for the Court: Appare ntly the first reported case discussing the entry of a nolle prosequi in a criminal prosecution was Stretton and Taylors Case, 1 Leo n. 119, 74 Eng. Rep. 111 (K.B. 1588), where the Attorney General entered a non vult prosequi for purpose of preventing a private prosecution. Since that time, the nolle prosequi has been a means whereby the government exercises control over pending criminal cases. Thus . . . a Nolle prosequi in criminal practice (for it pertains also to civil), is a declaration of record from the legal representative for the government, that he will no further prosecute the particular indictment or some designated part thereof. It is an abandonment of the prosec ution, or a discontinuance of a prosecution by the author ized atto rney for the state . *** It has been settled since a t least the opin ion of Ch ief Justice H old in Goddard v. Smith, 6 Mo d. 262, 2 Salk 456 (1704), that w hile a nolle prosequi discharges the defendant on the charging document or count which was nolle prossed, and while it is a bar to any further prosecution under that charging document or count, a nolle prosequi is not an acquittal or pardon of the underlying offense and does not preclude a prosecution for the same offense under a different charging document or different count. More than one hundred years ago, this C ourt stated in State v. Morgan, 33 Md. 44, 46 (1 870): It is well settled by the authorities that a nolle prosequi ordinarily does not operate as a pardon; but that the accused remains subject to be proceeded against by another indictment for the same o ffense . Later, in Barrett v. State, supra, 155 Md. 636 , 142 A. 96 (193 0), the Court reiterated that when an indictment was nolle prossed or abandoned, the cas e was te rminate d . . . and there can be no further prosecution under that indictment, but that the discontinuance by the prosecuting attorney was not the equivalent of con fessing a plea o f not gu ilty. -14- (citations omitted) (alterations added). Obviously the type of nolle prosequi which does not bar future prosecution under another charging document has the same effect as a dismissal withou t prejud ice. We also have explored circumstances within which entry of a nolle prosequi precludes future prosec ution. U nder circumstan ces whe re condition s have be en attached to the nolle prosequi requiring actions by the defendant, and those conditions have been me t, the nolle prosequi has the same effect as a dismissal with prejudice. The underlying facts in State v. Morgan, 33 Md. 44, 46 (1870), involved the entry of a nolle pros equi by the Governo r on behalf of the defendant in exchange for paymen t of costs accrued. 33 Md. at 45. We held that after the Govern or s terms w ere met, and the costs were paid , the defend ant was expressly saved from all further prosecution for or on account of the same offense and the discharge by nolle prose qui was a final end and dete rmination of the suit. Id. at 416. In State v. Brockman, 277 Md. 687, 700, 357 A.2d 376, 384 (1976), we held that the State was precluded from withdrawing its plea agreement where the defendant had already substantially performed the terms of the agreement and that the defen dant could elect to have the charge s nolle prossed without any reprosecution. We reinforced our Brockman holding in Fleeger, where we noted that, provided the defendant complied with the terms of the plea agreement, the State could not re institute the orig inal, noll e pross ed cha rges. Fleeger, 301 Md. at 162, 482 A.2d at 494. We held in Fleeger that a nolle prosequi constitutes a dismissal under Section 638C (a) when it is entered into p ursuant to a plea agree ment, so tha t the defendant was entitled to credit served for time served under the nolle prossed charge s. Id. at 162, 482 A.2d -15- at 494. We have also found that a nolle prosequi can function as an acquittal if jeopardy has attached. In Blondes v. State, 273 M d. 435, 330 A.2d 16 9 (1975), th e State entere d a nolle prosequi on all charg es under th e indictmen t after it had asked for a ruling o n admissib ility of the chief documentary evidence against the defendant and o ffered other docu mentary evidence agains t the def endan t and tes timony o f a witn ess in a n on-jury ca se. Id. at 446, 330 A.2d at 175. In finding that jeopardy had attached at the time that the nolle prosequi was entered, Judge Eldridge, again writing for the Court, explained: One aspect of the double jeopardy proh ibition whic h is firmly settled in this state as a common law principle, is that the entry of a nolle prosequi, without the defendant s consent, and after jeopardy has attached, operates as an acquittal and precludes further prosec ution fo r the sam e offe nse . . . On the other hand, wh ere 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 indictm ent or in forma tion. Id. at 443-44 , 330 A.2d at 173 (citation s omitted); see also Hooper v. State, 293 Md. 162, 169 n.3, 443 A.2d 86, 90 n.3 (1982) ( [I]f 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. ); Ward, 290 Md. at 91, 427 A.2d at 1017 ( [A] nolle prosequi, without the defendant s consent and after jeopardy attaches, amounts to an acquittal of the underlying offense. ); Friend v. S tate, 175 M d. 352, 3 56, 2 A.2d 430 (1938) ( The nolle prosequi entered without the consen t of the accu sed . . . placed th is defenda nt in doub le jeopardy. ); cf. Bynum -16- v. State, 277 Md. 703, 709, 357 A.2d 339, 342 (1976) (holding that, although double jeopardy prohibited subsequent prosecution for offenses charged in counts dismiss ed by a nolle prosequi entered without the consent of the accused after jeopardy has attached, it had no application in the context of the same prosecution w hich continues on o ther counts). C. Nolle Prosequi as Dismissal The State contends that, based on our interpretation of the word dismissal in Director of Finance of Prince G eorge s C o. v. Cole, 296 Md. 607, 465 A.2d 450 (1983), a no lle prosequi does not constitute a dismissal. In Cole, we addressed the meaning of the word dismissal in a forfeiture statute, Maryland Code (1957, 1996 Rep.Vol.), Article 27, Section 264(e)(4), 14 which provides: This Section does not prohibit the trial judge after an acquittal or dismissal from ord ering imm ediate return of all property seized. We recognized in Cole that Section 264 was originally enacted in 1951 as Article 27, Section 307A, 1951 Md. Laws, Chap. 299 and was significantly amended in 1974 at which time the word dismissal was substituted for the phrase other final determination of such proceedings in favor of the person or persons so arrested, 1974 Md. Laws, Chap. 666, thereby referring to a dismissal with prejudice. We noted in Cole that through its amendment the Legislature explicitly eliminated other arguably favorable dispositions such as a nolle prosequi. Cole, 296 Md. at 624, 465 A.2d at 460. There is no co mparable legislative history in the case sub judice limiting the term dismissal to only one of a final determination. 14 Section 264 (e)(4) was recodified in 2001 to Section 1 3-109 of the C riminal Procedure Article. 2001 Md. Laws, Chap. 10, § 2. -17- The State also underscore s the reasoning underlying the Co urt of Special App eals s holding that the General Assembly was aware of the existence of disposition of a case by nolle prosequi in 1974 when Section 638C(a) was enacted and, therefore, it would have included nolle prosequi in the statute had it so intended . This argum ent neglects the fact that the Legislature, had it wanted only dismissals w ith prejudice to trigger the mandatory provisions of Section 638C(a ), could have done so by using the term dismissal with prejudice in 1974 when it was enacted. We know that the Legislature knew of the term dismissal with prejudice at that time because it used the term in its 1965 enactment of the Interstate Detainer Act, specifically in Article 27, Section 616A(c), which read: If action is not commenced on the matter for which request for disposition was ma de, within th e time limitation set forth in subsection (a) and above, the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in such case the court shall enter an order dism issing the un tried indictme nt with prejudice. 1965 Md . Laws, Chap. 62 8 (emphasis adde d). Furthermore, when S ection 616 A(c) of th e Interstate D etainer Ac t was reco dified in 1976 as Article 27, Section 616S(e), it read: If the untried indic tment, information, warrant, or complaint, for which request for disposition is made, is not brought to trial within the time limitation set forth in subsection (b) of this section, the court no longer has jurisdiction, and the untried indictmen t, inform ation, w arrant, or complaint has no further force or effect. In that case, the court upon request of the prisoner or his counsel shall enter an order dismissing the untried indictmen t without prejudice. -18- Md. Code (1957, 1996 R ep. Vol.), A rt. 27, § 616S (e) (emph asis added ). 15 Therefore, in 2001, when Section 6-2 18(b)(2) w as recodifie d, the Gen eral Assem bly clearly knew the distinction between with and without prejudice and could have drawn that distinction in the statutory langua ge at issu e in this c ase. When faced w ith circumstanc es where the Legisla ture was f amiliar with certain language and did not entertain it, we look to the purpose of the statu te. See State v. Thompson, 332 M d. 1, 19, 629 A.2d 73 1, 740-41 (1993) (ho lding that, based on the statute s purpose and its legislative history, the legislature would have included specific language regarding drug reha bilitation if it had m eant to include it.). As we stated earlier, the purpose for enacting Section 6-218 was to ensure that a defend ant receive as much credit as pos sible for time spent in custody. Fleeger, 301 Md. at 165, 482 A.2 d at 495. V iewed in this light, 15 Section 616S(e) was recodified in 1999 as Section 8-503 of the Correctional Services Article and now reads: (e) Dismissal. If the untried indic tment, inform ation, warra nt, or complain t for which request fo r final dispos ition is made is not brought to trial within the time limitation established under § 8-502 of this subtitle: (1) the untried indictme nt, informa tion, warran t, or complaint has no further force or effect; and (2) the court, on request of the inmate or the inmate s counsel, shall enter an order dismissing the untried indic tment, inform ation, warra nt, or comp laint without prejudice. Md. Code (1999), §8-503 (e) of the Correctional Services Article. -19- the term dismissal, as used in Section 6-218 (b)(2), must be interpreted to include dismissal with or w ithout prejud ice, including disposition b y nolle proseq ui. The State relies on Roberts v . State, 56 Md.App. 562, 468 A.2d 410 (1983), cert. denied, 299 M d. 426, 474 A.2d 21 9 (1984), f or its argument that a nolle prosequi, not entered into pursuant to a plea agreement, lacks the finality of a dismissal or acquittal. In Roberts, the defendant challenged denial of credit for time he had served on handgun charges that had been stetted during sen tencing fo r larceny conv ictions, credit which he argued was owed pursuant to Sectio n 638C (a). Id. at 565, 468 A.2d at 412.16 The Co urt of Spe cial Appe als explained in Roberts that: The purpose of the language in question in § 638C (a) is to give credit for time spent in custody w hen there is no other w ay to credit that time. If an accused is acquitted of a charge for which he had been incarcerated, or if such charge is dismissed, he can never be credited with the time spen t in custody aga inst his sentence for that offense because there will be no senten ce. But if, while he is incarcerated under one cha rge, anothe r charge is lodged against him, in the event of an acquittal under the first 16 A stet is defined in Maryland Rule 4-248 which, in relevant part, provides: (a) Disposition by Stet: On motion of the State s Attorney, the court may indefinitely postpone trial of charge by marking the charge stet on the docket. The defendant need not be present when a charge is stetted but in that event the clerk shall send notice of the stet to the defendant, if the defendant s whereab outs are known, and to the defendant s attorney of record. A charge may not be stetted over the objection of the defenda nt. A stetted charge may be rescheduled for trial at the request of either party within one year and thereafter only by order of court for good cause shown. -20- charge, time spent in custody thereunder can be credited against any sentence imposed on the second. The situation for which the statute was designed to provide relief does not exist when the first charge is merely stetted because that charge may be eventually tried and may result in conviction and sentence. In such case, the acc used will then be credited with the time spent in cus tody as a result of that charge . If appellant s reading of the statute were correct, should the handgun charge ever be tried and result in a conviction and sentence, he would be entitled to receive cred it for time in custody thereon against the sentence that was re-imposed for violation of probation. We do not believe the Gene ral Assem bly intended su ch a result. Id. at 566-67, 468 A.2d at 412 (footnote omitted). This Court has stated many times before, howev er, that: In Maryland, unlike some other jurisdictions, we have consistently drawn a sharp distinction between a nolle prosequi and a stet. Although a stet permits an accused to be proceeded against at a later date und er the same charging d ocumen t, a nolle prosequi does not. The nol pros of a charging document or of a count is a final disposition of the charging d ocumen t or count; there can be no further pro secution un der the nol prossed charging document or count; the matter is terminated at that time; and the accused may be proceeded against for the same offense only under a new or different charging document or count. State v. Moulden, 292 Md. 666, 673, 441 A.2d 699, 702-03 (1982) (citations omitted). Whereas a stet is a mere suspensio n of the ch arges wh ich can be freely brought again by the prosecution within one year, a nolle prosequi leaves the prosecution just as though no such count had ever been inserted in the indictment, id., and removes the accused from under the imputation of guilt. Barrett, 155 Md. at 638, 142 A. at 97. Accordingly, the analysis of the Court of Special Appeals in Roberts is not applicable in the case sub judice because it is clear -21- that a nolle pro sequi, unlike a stet, can act w ith the finality of a d ismissal or ac quittal. The State also asserts that if a nolle prosequi is included in the purview of dismissal for purposes of Section 6-218(b)(2), Gilmer could be awarded a potential windfall of double credit for time served on the nolle prossed charges were he prosecuted and convicted on them and again cred ited for the tim e served. D ouble cred it, howeve r, is not in issue because receiving credit for time served for the a ttempted murder c an only occur once under the statute. More importantly, denying a defendant credit for time served on nolle prossed charges is not consistent with the legislative purpose for enacting Section 6-218, to ensure that a defendant receive as much credit as possible for time spent in custody. Fleeger, 301 Md. at 165, 482 A.2d at 495. The risk of double c redit can be ea sily av oide d administrativel y, whereas the elimination of dead time is an essential attribute of Section 6-218(b)(2). The State s argument about double credit is not persuasive.17 Conclusion Acc ordingly, we hold that a nolle prosequi entered outside of a plea agreement constitutes a dismissal for the purpose of receiving credit for time served under Section 6-218 (b)(2), and the C ircuit Court e rred in denying Gilmer cre dit for the time served fo r the nolle 17 The State also co ntents that if Section 6-218 (b)(2 ) s use of the word d ismissal is interpreted to include disposition of a case by nolle prosequi, Section 6-218 (b)(3) would be rendered nugatory. Th is is an inaccu rate proposition, as Section 6-218 (b)(3), which applies to a case other than a case described in paragraph (2) of this subs ection, ma y be applicable to cases stetted. -22- prossed charge.18 JUDGMENT OF TH E COU RT OF S PECIA L APPEALS VACATED AS TO THE SENTENCE IMPOSED ON THE CONVICTION FOR FIRSTDEGREE ASSAULT, AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH INSTRUCTIONS TO VACATE THE SENTENCE IMPOSED BY THE CIRCUIT COURT FOR BALTIMORE CITY ON THE FIRST-DEGREE ASSAULT CONVICTION AND REMAND THE CASE TO THAT COURT FOR RESENTENCING PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE M AYOR AND CITY COUNCIL OF BALTIMORE. 18 Because we find that a nolle prosequi constitutes a dismissal for purposes of Section 6-218 (b)(2), it is not necessary for us to reach Gilmer s argument that Section 6-218 (b)(2) created a lib erty interest protec ted by the Fou rteenth Am endmen t. -23- IN THE COURT OF APPEALS OF MARYLAND No. 14 September Term, 2005 ANTHONY GILMER v. STATE OF MARYLAND -24- Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Harrell, J. Filed: December 7, 2005 -25- I dissent. The Majority opinion errs when it declares ambiguous the use of dismissal in § 6-218 (b)(2) based only on consideration of that w ord in isolatio n. Though it pays lip service to considering the need to construe the statute as a whole (Maj. slip op. at 7), the Majority opinion thereafter confines its analysis to (b)(2) and fails to give meaningful consideration to the place dismissal occupies within the complete structure of the Legisla ture s sc heme in the lar ger statu tory sub-s ection o f whic h (b)(2) is but a p art. See Johnson v. Mayor & City Council, 387 Md. 1, 11-12, 874 A.2d 439, 446 (2005) ( the commonsensical approach to interpreting statutes includes a review of the general statutory scheme in which the statute in question is found, citing to Frost v. State , 336 Md. 125, 13738, 647 A.2d 10 6, 112 (19 94)); Forbes v. Harleysville Mutual, 322 Md. 689, 697-99, 589 A.2d 944, 947-48 (1991) (stating that we do not read statutory language in insolation or out of context [b ut construe it] in light of the L egislature s g eneral purp ose and in the context of the statute as a w hole. ). Wh en consid ered in the clear hierarchy established within the totality of § 6-218 (b), the claimed ambiguity in (b)(2) disappears. Section 6-2 18 (b) of th e Crimina l Procedu re Article pro vides in relev ant part: § 6-218. Credit against sentence for time * * * * * (b) (1) A defendant who is convicted and sentenced shall receive credit against and a reduction of the term of a definite or life sentence, or the minimum and maximum terms of an indetermin ate sentence, for all time spent in the custody of a correc tional facility, hosp ital, facility -2- for persons with me ntal disorders, or other unit because of: (i) The charge for which the sentence is imposed; or (ii) The conduct o n which the charge is based. (2) If a defendant is in custody beca use of a charge that results in a dismissal o r acquittal, the time that would have been accredited if a sentence had been imposed shall be credited against any sentence that is based on a charge for which a warrant or comm itment wa s filed during that custody. (3) In a case other than a case described in paragraph (2) of this subsection, the sentencing court may apply credit against a sentence for time spent in custod y for ano ther cha rge or c rime. (Emphasis add ed). It is clear to me from this language that the Legislature intended that trial judges are obliged to grant credit a gainst time served where the relevant charge was disposed of by literal dismissal or acquittal only. In all other cases and by whatever the descriptive name given for the particular disp osition, other than by dism issal or acqu ittal, discretion w as granted to judges whether to grant such credit. The only situation in which an ambiguity in the intent of the Legislature migh t arise would be where a trial court labels a disposition, other than dismissal or acquittal, with a des cription that co nstitutes a nov elty or gibberish not previou sly recognized by statute, rule, or common law. Then, and only then, would the functional equivalency type of analysis eng aged in here by th e Maj ority be m erited. See State v. Glass, 386 Md. 401, 410, 872 A.2d 729, 734 (2005) (a court s analysis must be undertaken from -3- a commonsensical rather than a technical[ ] perspective , always seekin g to avoid giving the statute a strained interpretation. ) (citations omitted). The Court of Special Appeals was correct in this case, in my view, when it said: Our decision is in accord with the plain language of § 6218 (b). Subsection (b)(2) uses the terms dismissal and acquittal, not nolle prosequi. We are bound to give these terms their ordinarily understood meaning. See Gillesp ie v. State, 370 Md. 219, 222 (200 2). Certainly, the G eneral As sembly could have mandated that credit be given for time served on charges that result in a nolle prosequi. That the legislature chose no t to do so when it enacted the credit provisio n thirty years ago, see 1974 Maryland Laws, Ch. 735 § 1, and has taken no steps since then to manda te credit for incarceration on charges that are nol prossed in the ordinary course (as opposed to part of a plea bargain), reflects the leg islative will to limit the applicability of that subsection . Any effort on our part to ov erread the sta tute would be to venture impermissibly into territory that is under the exclusive control of the Gene ral Ass embly. See Price v. State, 378 Md. 378, 388 (2003) ( [w]e cannot assum e authority to read into the Act what the Legislature apparently de liberately left out ) (citation omitted). In sum, like the stet discussed in Robe rts, [v. State, 56 Md. App. 562 (19 84)] a nolle prosequi entered before trial and not tied to a plea bargain comes within the purview, not of § 6218 (b)(2), but of subsection (b)(3), because it is a case other than a case described in paragraph (2) o f this subsection. In that instance, subsection (b)(3) gives the court disc retion to apply credit against a sentence for time spent in custody for anothe r charg e or crim e. Here, the sentenc ing court ex ercised its discretion no t to award appellant cre dit for the time he was incarcerated on the nol prossed charged. Appellant suggests no abuse of discretion in this regard, an d we find none. W e shall not distu rb that sentencing decision. Gilmer v . State, 161 Md. A pp. 21, 31, 866 A .2d 918, 924 (200 5). -4- To reason as this Court s Majority does, in my view, is to render § 6-218 (b)(3) surplusage. See Montgomery County v. Buckman, 333 M d. 516, 5 24, 636 A.2d 448, 452 (1999) (we read the statute so that no word, phrase, clause or sentence is rendered surplusage or mea ningles s. ). Section 6-2 18 (b)(3) is intended to operate as a catchall def ault provision for any disposition other than a literal dismissal or acquittal. To construe, through forced elaboration, a nolle prosequi entered outside of a plea agreement as the functional equivalent of a dismissal under (b)(2) is to deprive (b)(3) of its intended significance. Acc ordingly, I would affirm the judgments of the Court of Special Appeals and the Circ uit C ourt for B altim ore C ity. -5-

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.