State v. Manck

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State of M aryland v. M anck, et al., Misc. No. 1, Sept. Term 2004. Extraordinary Writs. Writs of Pro hibition and Man damus; Statutory Construction ; State s Right to Appeal in Criminal Cases Court may not issue an extraordinary writ in aid of appella te jurisdic tion wh ere no in depen dent ap pellate ju risdiction would otherw ise exist. State may not receive an extraordinary writ issued on its behalf where it would not have the right to appeal the issue under statute. IN THE COURT OF APPEALS OF MARYLAND Misc. N o. 1 September Term 2004 ________________________________ STATE OF MARYLAND V. THE HONORA BLE JOSEPH P. MAN CK, et al. ________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Wilner, Cathell and Harrell, JJ. Dissent Filed: March 15, 2005 This case prese nts us with the task of determ ining the sco pe of this C ourt s autho rity to issue prerogatory writs or other extraordinary relief when requested by the State, when the trial court has stric ken the N otice of Inten tion to Seek the Penalty of Death. Based upon our jurisprudence and that of the federal system with respect to its identical po wers to issue writs of mandamus or prohibition, we conclude that the State s Petition for Writ of Prohibition, Mandamus, or Other Appropriate Extraordinary Relief cannot be granted under the circumstances of this case. I. Background On June 7, 2002, a grand jury in Anne Arundel Co unty indicted Michael D arryl Henry for first degree murder under Section 407 of Article 27 of the Maryland Code1 for his actions in the death of a fellow inmate at the Maryland House of Correction Annex in Anne Arundel County. On February 3, 2003, the State filed a Notice of Intention to Seek the Penalty of Death (hereinafter Notice ) pursuant to Md. Code (2002), § 2-202 (a)(1) of the Criminal Law Article.2 In the Notice, the State set forth two aggravating factors enumerated in Md. 1 Article 27, Section 407 of the Maryland Code provides: All murder w hich shall be p erpe trate d by m eans of poison, or lying in wait, or by any kind of willful, deliberate and premeditated killing shall be murder in the first degree. Section 407 was recodified without substantive change as Md. Code (2002), § 2-201 (a) of the Criminal Law Article. 2 Md. Code (2002), § 2-202 (a)(1) provides: (a) Requirement for imposition. A defendant found guilty of murder in the first degree may be sentenced to death only if: (contin ued...) Code (2 002), § 2-3 03 (g)(1)(ii) an d (vii) of the C riminal Law Article, wh ich provide s: (ii) the defendant committed the murder while confined in a correctio nal f acility; *** (vii) the defen dant emp loyed or enga ged anoth er to commit the murder and the murder was committed under an agreement or contract for remuneration or promise of remuneration. On May 1, 2003, Henry filed a motion to strike the State s Notice and argued that based on the United States Sup reme Co urt s opinion s in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428, 153 L.E d.2d 556 (2002), the S tate constitution ally could not se ek to impo se the death penalty unless all of the elements of a crime required for the defendant to be eligible for death are considered by the grand jury and contained in the indictment. Henry contended that he would not be eligible for the death penalty because the indictment failed to allege that he was a first degree principal. On June 25, 2004, Judge Joseph P. Manck denied Henry s motion. At approxim ately the same tim e, Judge P amela J. N orth of the C ircuit Court for Anne Arundel County hea rd similar argu ments in anoth er capita l procee ding. In that ca se, State 2 (...continued) (1) at least 30 da ys before trial, the State gave written notice to the defendant of: (i) the State s intention to seek a sentence of death; and (ii) each aggravating circumstance on w hich the S tate inten ds to rely. 2 v. Kenneth Ernest Abend, K-02-00506, the State, on May 4, 2002, had filed a Notice of Intention to Seek the Penalty of Death enumerating two aggravating circumstances contained in Section 2-303 (g)(1) of the Criminal Law Article.3 As in the case against Henry, the indictm ent faile d to alleg e Abe nd s sta tus as a f irst degr ee princ ipal. Abend filed a motion to strike the State s Notice arguing that the indictment was insufficient to support the Notice because it d id not allege th at he was a principal in the first degree. On Sep tember 2, 2 004, Judg e North g ranted A bend s m otion and p ermitted the S tate to either withdraw its notice and pursue life imprisonment or to re-indict Abend and allege that he was a first d egree princ ipal, if the State w anted to co ntinue to seek the d eath penalty. The State chose to re-indict Abend and did so on September 3, 2004. On September 28, 2004, Judge M anck reconsidered h is earlier denial of Henry s motion and, relying in part on Judge North s analysis in the Abend case, granted Hen ry s motion to strike the State s Notice of Intention to Seek the Penalty of Death. Judge Manck granted a postponement to permit the State time to obtain a new indictment and file a new notice within the required 30-day period prior to trial. On September 29, 2004, rather than obtain a new indictment, the State filed a Petition for Writ of Prohibition, Mandamus, or Other Appropriate Extraordinary Relief with this Court requesting that we direct Judge Man ck to va cate his o rder strik ing the n otice. 3 The aggravating circumstances alleged against Abend were: (1) the commission of more than one o ffense of murder in the first degree arising out of the same incident, and (2) the commission of murder while committing a sexual offense. 3 On October 4, 2004, we ordered both the State and Henry to file briefs or memoranda addressing the following issues: 1. Does this Court have the authority to grant a writ of prohibition, mandamus or to grant other appropriate extraordinary relief under the circumstances presented herein? 2. Does a judge have any discretion to strike a notice of intention to seek death pen alty that is timely filed and conforms to Md. Code, Criminal Law, §§ 2-202 (a) and 2-301? On November 9, 2004, the State and Henry presented oral argument. The following day this Court issued a stay of all proceedings in the Circu it Court . . . pend ing a decisio n by this Court. II. The Pow er to Issue Prero gatory or E xtraordinar y Writs A. When Such W rits May Be Issued In In re Petition for Writ of Prohibition, 312 Md. 280, 539 A.2d 664 (1988), our seminal opinion on prerogatory writs authored by Judge William Adkins, w e considere d this Court s authority to issue prerogatory or extraordinary writs such as writs of mandamus or prohibition. Although there is no express language authorizing the issuance of such writs by this Court as an aspect of our original jurisdiction in the Maryland Constitution, we identified the power to do so as arising out of the Court s appellate jurisdiction. We explained: The Maryland Constitution is silent as to any mandamus or prohibition power in this Cou rt. The only general statutory provision dealing with mandamus jurisdiction is [Md. Code (1973, 2002 Repl. Vol.); § 3-8B-01 of the Courts and Judicial Proceedings Article]; it relates only to the circuit courts. Nor is there any express grant of su perintendin g powe r to this Cou rt. 4 Whether we hav e, as the high est court in this State, an inherent superintending or supervisory power over the courts belo w us in the judicial h ierar chy, and wh ether any such power is implicit in Article IV, § 18 of the Maryland Constitution, are questions we reserve for another day. We need not and do not address them today because we hold that under the circumstances of this case we have the power to issue a writ of mandamus or a writ of prohibition in aid of our appellate jurisdiction. In re Petition for Writ of Prohibition, 312 Md. at 292-93, 539 A.2d at 669-70 (citations omitted). M oreover, w e stated that: it is manif estly nece ssary, to the ends o f justice , that there should be a power in special cases to suspend proceedings on the ma tter appe aled fro m . . . . Id. at 298, 539 A.2d at 672. We recognized that the availability of the writs in aid of our appellate jurisdiction has long been established, even if we almost never exercised the power to issue them, id. at 297, 539 A.2d at 672, and then considered what circumstances would properly wa rrant issuing a writ in aid of [our] appellate jurisdiction. Id. In response to this inquiry, we stated: [I]t appears that mandamus or prohibition may issue in aid of appellate jurisdiction ev en though no appella te proceed ing is pending in the appellate court, at least where there is some potentiality of eventual appellate review by appeal or by certiorari. . . . If the w rit is nec essary to e nable . . . [the Cou rt] to exercise ap pellate jurisdictio n it is in aid of that jurisdiction. Id. at 302-03, 539 A.2d at 675. Thus, we recognized that by making possible the review of a potentially unreviewable question [writs such as mandamus and] prohibition aided the appellate process. Id. at 299, 5 39 A.2 d at 673 . These w rits are used to prevent d isorder, 5 from a failure of justice, where the law has established no specific remed y, and where in justice and good government there ought to be one. Id. at 307, 539 A.2d at 677, citing Runkel v. Winemiller, 4 H. & M cH. 42 9, 449 ( Gen. C t. Oct. T erm 17 99). The power to issue prerogatory writs is necessarily incident to this Court, to preserv e the usefulnes s of its appellate jurisdiction. If it were otherwise, cases might arise in which the appeal would be but as a shadow, pending which the substance might be lost. In re Petition for Writ of Prohibition, 312 Md. at 298, 539 A.2d at 672, quoting Thomp son v. M Kim, 6 H. & J. 302, 333 (1823). In Philip Morris, Inc. v. Angeletti, 358 Md. 689, 752 A.2d 200 (2000), we determined that mandamu s relief should be granted, ba sed upon a petition fo r interlocutory relief, where a trial judge improperly certified a class action in com plex civ il litigation about to bacco . Id. at 699-700, 752 A.2d at 205-06. Several large tobacco man ufacturers and distributors petitioned this Court to v acate the circ uit court s certification of two plaintiff classes, current and former users of tobacco products, that claimed to be injured by tobacco use or nicotine addiction and argued that the circuit court grossly abused its discretion in certifying the classes, in violation of the Maryland Constitution and this Court s rules of civil procedure. Id. at 699-700, 7 04, 752 A .2d at 205-0 6, 208. W e noted, ho wever, tha t class certification normally was only appealable after a final judgm ent in the underl ying case . Id. at 714, 752 A.2d at 213-1 4. See Md. Rule 8-131 (d) (stating [o]n appeal from a final judgment, an interlocutory order previously entered in the action is open to review by the Court unless an 6 appeal has previo usly been take n from tha t order and d ecided on the merits by the Court ). Petitioners, therefore, would have had to endure a costly and lengthy trial and the trial court s entry of a final judgment before seeking appellate review of the class certification action. Philip Morris, Inc., 358 Md. at 714, 752 A.2d at 213-14. We concluded that although the traditional routes of appeal were available, because the parties would have suffered as a result of proceeding to trial based on the assertedly erroneous certification decision and the potential waste of judicial resources was substantial, this Court s exercise of its appellate jurisdiction at an interlocutory point in the proceedings was warranted. Id. We also found that, had there been no such intervention, the expense and delay of the trial would have prejudiced the parties ability to utilize effec tively the appellate process. Id. Thus, Judge R aker, speaking for this Court, stated, Both the public interest and our responsibility in exercising the supreme judicial authority of this State thus compel[led] the exercise of this Co urt s discretion in [that] extraordinary case. Id. at 718, 752 A.2d at 215. Ac cordingly, we issued the w rit. B. The State s Right to Appeal in Criminal Cases The origins in Maryland of the right to appeal in criminal cases are shadowy. Judge Eldridge, examining the State s right to appeal in criminal ca ses in his disse nt in Cardine ll v. State, 335 M d. 381, 6 44 A.2 d 11 (1 994), overruled by State v. Green, 367 Md. 61, 785 A.2d 1275 (20 01), discov ered only one reported pre-Revolutionary War case, Jenifer v. Lord Proprietary, 1 H. & M cH. 535 (Provincia l Court 17 74), which touched u pon the righ t to 7 appeal in criminal cases generally. In that case, Daniel Jenifer, the former Sheriff of Charles Cou nty, was convicted of receiving unlawful fees as Sheriff and was fined the value of the fees plus 5,0 00 pou nds of tobacc o. Id. at 535-36. He filed an appeal in the Prov incial Cou rt, and argument was heard during the Court s April T erm, 17 70. Id. at 536-37. Attorney General Jenings contended that there was no right to appeal in criminal cases under English statutes, common law, or the Act of 1713;4 and as such, Jenifer s appeal should have been dismissed. Id. at 536-38. Although the Court continued the case until its September Term, 1774, it ultimately dismissed the appea l, appare ntly holdin g that no appea l would lie. Id. at 538. After the Revolution, Ch. 87 of the Acts of 1 785, Sectio n 6 granted the full power and right to appe al to any party or p arties aggriev ed by any judgm ent or determ ination of any county court in any civil suit or action, or any prosecution fo r the recovery of any penalty, [or] fine . . . . 1785 Md. Laws, Chap. 87, § 6. The first reported criminal case after the Act of 1785 appears to be Peter v. Th e State, 4 H. &. McH . 3 (Genera l Court 17 97), in which the General Co urt permitted an appeal by the d efendan t, on writ of error, who argued that the indictment on its face violated a statute. Id. Without opinion, the Court reversed the 4 Ch. 4 of the Acts of 1713 related to appeals and writs of error from judgments of the Provincial Court and county courts. Section 5 of the statute provided: [t]hat all appeals made in manner aforesaid shall be admitted and allowed by the superior courts to whom such appeal shall be made , as afor esaid, in nature o f a writ o f error . . . 1713 Md. Laws, Chap. 4, § 5. 8 judgment of the County Court, evidently finding that the writ of error would lie and that the defendant s position was m eritoriou s. Id. at 3-4. Five years later, in Cummings v. The State, 1 H. & J. 34 0 (G ener al Co urt 1802), the avai labil ity of a writ of erro r was argu ed again before the Gene ral Cou rt, but the writ w as quas hed on a proce dural g round . Id. at 341, 344. This Court s first discussion of this issue in a reported opinion was in Queen v. The State, 5 H. & J. 232 (June Term 1821), in which we held that an appeal or writ of error was authorized in a criminal case to review a question of law apparent on the record even though a bill of exceptions was not author ized. Id. at 233-34. In its rationale, this Court stated that [t]he act of 1785 does not give a bill of exceptions in criminal cas es there enumerated, but that, if error appeared on the record, then the Legislature gave the party complaining an election to carry up the case either by writ of error or a ppeal . . . . Id. at 234. In the December 1821 Term, this Court in The State v . Buchan an, et al., 5 H. & J. 317 (1821), also determined that the State could pursue a writ of error where the county court quashed the indictm ent. Id. at 329-30. The extensive right of appeal contained in the Act of 1785 was maintained in later statutes. Code (1860), Art. 5, Section 3, permitted any party to appeal to the Court of Appea ls in any prosecution for the recovery of any penalty [or] fine, and Section 4 provided that writs of error may be sued out in civil or criminal cases . . . . Code (1860 ), Art. 5, § 3. Ch. 316 of the Acts of 1872 added a new section to Article 5 of the Code, which provided as follows: 9 Sec. 2. In all trials upon any indictment or presentment in any court of this State having criminal jurisdiction, it shall be lawful for any party accuse d, or for the S tate s Attorney, on behalf of the State of Maryland, to except to any ruling or determination of the court, an d to tender to the court a b ill of exceptions, which shall be signed and sea led by the court . . .; and the party tendering such bill of exceptions, may appeal from such ruling or deter minatio n to the C ourt of Appe als . . . . [5] 1872 Md. La ws, Cha p. 316, § 2. T his extensiv e general rig ht of appe al in criminal cases granted by statute to both the defendant and the Sta te continue d until 1957. See, e.g., Code (1888), Art. 5 §§ 77 and 78; Code (1924), Art. 5 §§ 86 and 87; Code (1939), Art. 5 §§ 86-88; Code (1951), A rt. 5, §§ 86-89. Nevertheless, although the State appeared to possess broad appellate rights under the statutes, the gene ral tendenc y of decisions by this Court w as to preclud e a right t o appe al by the S tate. See, e.g., State v. Adams, 196 Md. 341, 350-51, 76 A.2d 575, 578-79 (1950) (dismissing the State s appeal becau se of a lack of exp licit statutory authority); State v. Lingner, 183 Md. 158, 165, 36 A.2d 674, 677 (1944) (holding that the State had no rig ht to appea l a verdict bas ed on the d enial of its demurrer to the defendant s motion); State v. Jones, 182 M d. 368, 3 69-70 , 34 A.2 d 775, 7 76 (1943) (holding that the State could not appeal from a motion to quash because it was a pretrial motion, and therefore, the trial court s ruling did not appear in the record transmitted to the Court o f Appe als); State 5 Although the statute would appear to have permitted the State to appeal from an acquittal in criminal cases, the common law of Maryland has always precluded the State from doing so. See State v. Adams, 196 Md. 341, 350-51, 76 A.2d 575, 578-79 (1950) (detailing the history of the State s inability to appeal from acquittals under the common law and holding that absent a statute to the contrary, the common law forbade the State from appealing from jud gments in favor of the defendant). 10 v. Rosen, 181 Md. 167, 169, 28 A.2d 829, 829 (1942) (holding that the State may not file a bill of exceptions6 where the defendant does not do so as well); State v. Shields, 49 Md. 301, 302 (1878) (sam e). The 1957 recodification of the Maryland Code restricted the State s right to appeal in criminal cases and for the first time codified the common law prohibition against State appeals from acquittals in criminal cases. Chapter 399 of the Acts of 1957, Section 14 provided: The State may appeal to the Court of Appeals from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment, information, presentment or inquisition in a criminal a ction, but the S tate shall have no right of appeal in any criminal action where the defendant has been tried and acquitted. Md. Code (1957), Art. 5 § 14. The language of this section remained unchanged, except for the change from the Court of Appeals to the Court of Special Appeals by Chapter 12 of the Ac ts of 19 66, Sec tion 1, u ntil the re codific ation in 1 973. The 1973 recodification of Article 5, Section 14 as Md. Code (1973), § 12-302 (c) of the Courts and Judicial Proceedings Article retained the majority of the langua ge in Article 5, Section 14, but excised the clause prohibiting the State s access to ap pellate review whe re 6 Black s Law Dictionary defines bill of exceptions as: 1. A formal w ritten statement signed by the trial judge and presented to the appe llate court of a party s objections or exceptions taken during trial and the grounds on w hich they are founded. Black s Law Dictionary, bill of exceptions (8th E d. 2004). 11 the defen dant w as tried a nd con victed. 1973 Md. Laws, Chap. 2, 1st Sp. Sess., § 1. Section 12-302 (c) of the Courts and Judicial Proceedings Article provided: In a criminal case, the State may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictmen t, information , presentme nt, or inquisition in a criminal case. Md. Code (1973), § 12-302 (c) of the Courts and Judicial Proceedings A rticle. The Revisor s Note explained that the language concerning the State s inability to appeal from an acquittal was deleted bec ause the S tate may only app eal in the limited situations set forth in [Section 12-302 (c) of the Courts and Judicial Proceedings Article] in any event. 1973 Md. Laws, Chap . 2, 1st Sp . Sess., § 1 , Reviso r s Not e. In 1976, the General Assembly augmented the State s right to appeal in criminal cases to permit a n appe al from the failu re to imp ose a m andato ry sentenc e. Chapter 49 of the Ac ts of 1976, Section 17 revised the language of Section 12-302 (c) to state: In a criminal case, the State ma y appeal [only]: (1) from a final judgment granting a motio n to dismiss or quashing or dismissing a ny indictmen t, information, presentment, or inquisition [in a criminal case]; and (2) from a final judgment if the State alleges that the trial judge failed to impose the sentence specifi cally man dated b y the Cod e. 1976 Md. Laws, C hap. 49, § 1 . The Ge neral Asse mbly again exten ded the ab ility of the State 7 This enactment also provided the State w ith a limited ab ility to appeal from criminal cases in district court by amending M d. Cod e (1973 , 1976 S upp.), § 12-401 of the Courts and Judicial Proceedings Article. 12 to appeal in criminal cases in 1982 when it enacted Section 12-302 (c)(3)(i) of the Courts and Judicial Pro ceedings A rticle, which p rovided tha t: In a case involving a crime of violence as defined in § 643B [8] of Article 27, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property allege d to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. 1982 Md. Law s, Chap. 493. Seve n years later, the General Asse mbly broadened the S tate s right to appeal to include cases under §§ 286 and 286A of Article 27 9 under Section 12-302 (c)(3)(i) of the Courts and Judicial Proceedings Article. 1989 Md. Laws, Chap. 5, § 1.10 Fina lly, in Chapter 141 of th e Acts of 2003, Se ction 1, the G eneral As sembly enacted another expansion of the State s right to appeal in criminal cases by revising Section 12-302 (c)(2) to permit the S tate to appea l where it alleges that the trial judge imposed or modified a sentence in violation of the Maryland Rules. 2003 Md. Law s, Chap. 141, § 1. Thus, Section 12-302 (c) of the Courts and Judicial Proceedings Article currently provides: (c) Criminal Case. In a criminal case, the State may appeal as provided in this subsection. (1) The State may appeal from a final judgment granting a motion to dismiss or quashing or 8 Md. Code (1 957, 199 2 Repl. Vol.), Art. 27 § 643B provided for mandatory sentences for crimes of violence. 9 Md. Code (1 957, 199 2 Repl. Vol.), Art. 27 §§ 286 and 286A provided for criminal penalties for the possession of controlled substances. 10 In 2002, Chapter 213 of the Acts of 2002, Section 6 changed the references to former Article 2 7 to be r eferen ces to th e Crim inal La w Art icle. 13 dismissing any indictment, information, presentment, or inquisition. (2) The State may appeal from a fin al judgme nt if the State alleges that the trial judge: (i) Failed to impose the sentence specifically mandated by the Code, or (ii) Imposed or modified a sentence in violation of the Maryland Rules. (3)(i) In a case involving a crime of violence as defined in § 14-101 of the Criminal Law Article, and in cases under §§ 5-602 through 5-609 and §§ 5-612 through 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. Md. Code (1 973, 200 2 Repl. Vol., 2004 Cum. Supp.), § 12-302 (c) of the Courts and Judicial Proceedings Article. During this period in which the statutory bases for the State s right to appeal in criminal cases was in flux, this C ourt was called upon to address its com mon law roo ts. In 1994, in Cardine ll v. State, 335 Md. 381, 64 4 A.2d 11 (19 94), overruled by State v. Green, 367 Md. 61, 785 A.2d 1275 (2001), the State appealed from the trial court s grant of the defendant s untimely m otion for revision of senten ce under M aryland Rule 4-345(b). 11 11 Md. Rule 4-345(b) (1994) provided: (b) Modification or Reduction Time for. The Court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition (1) in the District Court, if an (contin ued...) 14 Cardine ll, 335 Md. at 383, 644 A.2d at 12. This Court determined that the State possessed a common law right to appeal in criminal cases and that the language of Section 12-302(c) of the Courts and Judic ial Proceed ings Article d id not reflect a clear intent by the Legislature to abrogate the common law. Id. at 394, 644 A.2d at 17.12 The Court examined the legislative history of the section, and its predecessors, and concluded that there was no evidence that the Ge neral Asse mbly intende d to strip the State of the right to appeal. Id. at 396, 644 A.2d at 18. The Court examined the Reviso r s Note to Section 12-302 of the Courts and Judicial Proceedings Article and interpreted its statement that the State may on ly appeal in the limited situations set forth in the section in any event to mean that the section was not intended to be an absolute limitation on the State s right to appeal. Id. at 395, 644 11 (...continued) appeal has not been perfected, and (2) in a circuit court, whether or not an appeal has b een filed. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregu larity, or as provided in s ection (e) of this Rule. The court may not increase a sentence after the sentence has been imposed, except that it may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding. The lang uage of M d. Ru le 4-345 (b) is iden tical toda y. 12 This opinion was filed nine years before the current language of Section 12-302 (c)(2) of the Courts and Judicial Proceedings Article was added statutorily granting the State the right to appeal from a trial court s im proper im position or m odification o f a sentenc e in violation of the Maryland Rules. Today, the State may appeal from such a determination by a trial c ourt by statute. Md . Code (20 02, 2004 Cum. S upp.), § 12- 302 (c)(2) o f the Cou rts and Ju dicial Pr oceed ings A rticle. 15 A.2d at 18. The Court reasoned that recodification of statutes is presumed to be for the purpose of clarity rather tha n to chang e their mean ing. Id. at 407, 644 A.2d at 24. Moreove r, the Court stated that the deletion of only from the Section in 1976 further indicated the legislature s intention to codify the State s right to appeal in certain cases, but not to preclude its appeal in th e situations not enu merate d. Id. Therefore, the Cardine ll court determined that the State possessed a continuing common law right to appeal an action that was outside the jurisdiction of the lower court. Id. at 398, 644 A.2d at 19. In 2001, w e had the o pportunity to revisit the issue of the scope of th e State s ability to appeal in criminal cases in State v. Green, 367 Md. 61, 785 A.2d 1275 (2001). In that case, the State appealed from the granting of a criminal defendant s untimely filed motion to revise his statutorily mandated sentence, essentially the same issue raised in Cardine ll. Id. at 65-66, 785 A.2d at 1277. Relying upon recent cases construing the appeals statutes, Chief Judge Bell, writing for this Court, stated that questi ons of appealability have today become entirely governed by statutes. Green, 367 Md. at 77, 785 A.2d at 1284, citing Prince George s County v. Beretta U.S.A. Corp., 358 Md. 166, 173, 747 A.2d 647, 651 (2000) (dismissing an appeal from the trial court s judgment reviewing a decision of the Prince George s Human Relations Commission because neither the specific statutory language at issue nor any other p rovision of law expr essly authorized it); Gisriel v. Ocean City Board Elections, 345 Md. 477, 489, 693 A .2d 757 , 763 (1 997), cert. denied, 522 U.S. 1053, 188 S. Ct. 702, 139 L.Ed.2d 645 (1998) (explaining that the enactment of Section 12- 16 301 abrogated prior law, and holding that an appeal was not authorized under th e general grant of the right to appeal contained in Section 12-301 because a more specific provision applied). Moreover, we again expressed our concern that the invocation of common law principles in an area specifically addressed by the General Assembly might violate the constitutional separation of powers principle. Green, 367 Md. at 77, 785 A.2d at 1284. Furthermore, we stat ed [a ]lthoug h the ap peals sta tutes . . . contain no specific words of abrogation . . . the appeals statutes repealed and replaced the prior statutory scheme. Id. at 78, 785 A .2d at 12 84. In a ddition , the struc ture of t he app eals statu tes, i.e., conferring a broad general grant of appeal subject to enumerated limitations, further suggests that they are meant to represen t the entire sub ject matter of the law of appeals. Id. Therefore, we overruled Cardine ll and recognized that the State s right to appeal in criminal cases was based e ntirely on s tatute. Id. at 84, 785 A.2d at 1288. C. May the Writ Issue Where the State Would Otherwise be Unable to Seek Appellate Review? Restrictions on the State s ability to app eal, presently contained in Md. Code (1973, 2002 Repl. Vol.), § 12-301 (c) of the Courts and Judicial Proceedings Article, have been strictly construed against the State. See Derry v. S tate, 358 Md. 325, 337-38, 748 A.2d 478, 485 (2000) (dismissing the State s appeal from an order suppressing evidence for violation of the Maryland Wiretapping and Electronic Surveillance Act because it did not satisfy the terms of the statute); State v. Anderson, 320 Md. 17, 26, 575 A.2d 1227, 1231 (1990) 17 (dismissing the State s appeal under Section 12-302 (a) based upon a judgment of the circu it court exercising its a ppellate jurisd iction over th e District Co urt); State v. Pike, 287 Md. 120, 123-24, 410 A.2d 1079, 1081 (1980) (dismissing the State s appeal from an order barring further prosecution of the defendant on double jeopardy grounds because it did not fall into a categ ory defin ed in Se ction 12 -302 (c )). As set out supra, Section 12-302 (c) of the C ourts and Ju dicial Proce edings A rticle provides that the State has a limited right to appeal in criminal cases. Unless the issue presented may properly be categorized as one of the actions enumerated in the statute, the State has no power to seek appellate review. The trial court s decision to strike the State s Notice of Intention to Seek the Penalty of Death cannot be characterized as falling under any of the provisions of S ection 12-302 (c). It does not g rant a motio n to dismiss or quash or dismiss the indictment against Henry, nor has Judge Manck failed to impose a mandatory sentence or imposed or modified a sentence in violation of the Rules. C learly, Judge M anck s de cision is not appea lable under Section 12-302 (c)(3)(i) because it does not e xclude ev idence or re quire the retu rn of prop erty in violation of the Federal or State Constitutions or the Maryland Declaration of Rights. Therefore, the State has no right to appeal from Ju dge Manc k s decision to grant He nry s motion to strike the State s Notice.13 13 If there is to be any change in the law g overning the State s ab ility to seek appella te review in criminal cases, the General Assembly should make that change. F or this Cou rt to (contin ued...) 18 In the present case, the State, acknowledging that it has no right to appeal the grant of the motion to strike, has asked for this Court, nevertheless, to grant relief through the process of issuin g a prer ogator y writ. A review of this Court s opinions reveals that th e State has never secured mandamus relief in a criminal cas e where it d id not have the statutory right to appea l. See, e.g., State v. Tobias, Order, Sept. Term 1992 (per curiam) (denying the State s petition for extraordinary writ in a criminal case). One implicit rationale may be, as the Supreme Court has stated repeatedly, [m]andamus, of course, may never be employed as a substitute for appeal in derogation of the policies behind limiting the State s access to appellate review . Will v. United States, 389 U.S . 90, 97, 88 S . Ct. 269, 274, 19 L.Ed.2d 305, 311 (1967), citing Fong Foo v. United States, 369 U.S. 141, 82 S. Ct. 671, 677 L.Ed.2d 629 (1962); Parr v. United States, 351 U.S. 513, 520-21, 76 S. Ct. 912, 917, 100 L.Ed.2d 1377, 1385 (1956); Bank of C olumbia v. Sweeny, 1 Pet. 567, 569, 7 L.Ed. 265, 266 (1828); see also In re Petition for Writ of Prohibition, 312 Md. at 302, 539 A.2d at 674-75, quoting Cohens v. Virginia, 6 Wh eat. 264 , 397, 5 L.Ed. 257, 289 (1821) ( a writ of prohibition or any other similar writ [is] in the n ature of ap pellate process. ). In Will v. United States, 389 U.S. 90, 88 S. Ct. 269, 19 L.Ed.2d 305 (1967), the S upreme C ourt consid ered the pro priety of a writ of mandamus issued by the Court of Appeals for the Seventh Circuit to compel a United States District Judge to vacate a portion of a pretrial order requiring th e Gove rnment to 13 (...continued) expand the State s right to appe al in criminal c ases beyond the statutory limits would v iolate the separation of powers doctrine. 19 furnish certain information about witnesses . Id. at 91-92, 88 S. Ct. 271-72, 19 L.Ed.2d at 308. The Court acknowledged that Congress had limited the Sta te s right to app eal in criminal cases and that mandamus should never be used as a substitute for appeal in violation of statutory lim its. Id. at 97, 88 S. Ct. at 274, 19 L.Ed.2d at 311-12. The Court further noted that there have been specific instances where mandamus has been issued on behalf of the Government where it has been totally deprived o f the right to in itiate a prosecution or w here the trial court exce eded its auth ority and denie d the Go vernmen t the proper re sults of a va lid conviction, but that a writ has never successfully been applied to interlocutory procedural orders in criminal cases that do not have the effect of a dismis sal. Id. at 97-98, 88 S. Ct. at 275, 19 L.Ed.2d at 311-12. Therefore, considering the strong policies disfavoring appeals by the Government in criminal cases and the Court s refusal to use mandamus as a means of circumventing the limits on the Government s right to appeal in criminal cases, the United States Supreme Court held that the Court of Appeals for the Seventh Circuit was not justified in its invocatio n of the ext raor dina ry writ in [that] case. Id. at 98, 88 S. Ct. at 275, 19 L.Ed.2 d at 312 . Con com itant ly, because of the strictures placed on our jurisdiction throughout the Maryland Code, we cannot us e the writ in aid of appella te jurisdiction to confer ap pellate jurisdiction on the Court. To u se the writ to create jurisdiction beyond the boundaries set forth in statutes would essentially vest four members of this Court with the power to define what can be ap pealed by the S tate merely by identifying the judicial act under consideration 20 as extraord inary. We cannot confer upon ourselves appellate jurisdiction under the guise of being in aid of appellate jurisdiction. Therefore, we hold that because the State cannot appeal Judge Manck s grant of Henry s motion to strike the State s Notice in the first instance, we may not issue a prerogatory writ to permit appellate review beyond the limitation s set for th by statut e. In so declaring, we recognize that any language to the contrary contained in dicta in In re Petition for Writ of Prohibition, 312 Md. 280, 539 A.2d 664 (1988), is hereby disapproved. In In re Petition for Writ of Prohibition, this Court stated, If the use of a writ is necessary to enable . . . [the Court] to exercise appellate jurisdiction it is in aid of that jurisdicti on. Id. at 304, 539 A.2d at 675-76. After a careful examina tion of the law of both our sister states and the federal courts, we find that Maryland was singular in its discussion of the possibility of permitting a writ of prohibition to issue in aid of appellate jurisdiction in circumstan ces of a crim inal case w here appe llate review c ould not be exercis ed. See, e.g., In re: Bellsou th Corp., 334 F.3d 941, 951-52 (11th Cir. 2003) (stating that [m ]andamu s is not to be used as a subterfu ge to obtain appellate review that is otherwise foreclosed by law. ); Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002) (holding that extraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unne cessary trial ); Brown & Williamso n Tobac co Corp . v. District Co urt of the Muscogee Nation, 5 Okla. Trib. 447, 449 (Muscogee 1998) (stating that mandamus cannot be used to expand the statutory scop e of interlocutory appeals); United States v. 21 McVeigh, 106 F.3d 325, 333 (10th Cir. 1997) (holding that mandamus should never be employed to extend the Gov ernment s right to appeal an d thereby crea te appellate jurisdiction); United Sta tes v. Marg iotta, 662 F.2d 131, 134 n.8 (2d Cir. 1981) (holding that because mandamus cannot be used to circumvent the limitations of the Gov ernment s statutory right to appe al in criminal cases, the court may not issue it to accomplish such a purpose); State v. Stirba, 972 P.2d 918, 920 (Uta h 1998) (s tating that the S tate is limited in appellate rights by statute and mandam us cannot be used to circumvent that restriction); Tyson v. State, 593 N.E .2d 175, 17 9-80 (Ind. 1 992) (stating that an extrao rdinary writ w ill not issue in aid of appellate jurisdiction where there is no implication of the court s appellate jurisdiction); State v. Lew is, 422 S.E.2d 807, 816-17 (W .Va. 1992); Ex Parte Nice, 407 So.2d 874, 877 (Ala. 1981) (noting that mandam us should not be a substitute for appeal and can only issue in aid of appellate jurisdiction if the petitioner has the right to appeal). Any reliance by the State, then, on this language is misplaced. III. Conclusion Because we find th at a preroga tory writ may not p roperly issue in aid of ou r appellate jurisdiction in the present case, we dismiss the State s petition for extraordinary relief.14 14 Our holding does not pre clude our issuing a prerog atory writ in a criminal case in the proper circumstances. Certainly circumstances may arise in a criminal context in which the issuance of a writ may be in aid of our appellate jurisdiction. See Doering v. Fader, 316 Md. 351, 361-62, 558 A.2d 733, 738 (1989) (recognizing our ability to issue the writ if the defendant were the p etitioner); see also McKaney v. Foreman, 100 P.3d 18, 23 (Ariz. 2004) (granting a defendant s petition for a special action, a statutorily defined action, in a capital (contin ued...) 22 PETITION FOR W RIT OF PROHIBITION, M A N D A M U S O R O T H E R EXTRAORDINARY RELIEF DISMISSED. COSTS TO BE PAID BY PETITIONER. 14 (...continued) prosecution). 23 Circuit Co urt for Anne A rundel Co unty Case # 02-K-02-00112 6 IN IN THE COURT OF APPEALS OF MARYLAND Misc. N o. 1 September Term, 2004 STATE OF MARYLAND v. THE HONORA BLE JOSEPH P. MAN CK, et al. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Harrell, J. which Wilner and Cathell, JJ., Join. Filed: March 15, 2005 I dissent. At the outset, I must give the devil (the Majority opinion) its small due. There is little with which I quarrel regarding the procedural narrative in Part I of the Majo rity opinion. I note, however, that the record does not support the Majority s assertion that Judge North s grant of the Motion to Strike in Abend s case (and the reasoning therefor) w as only part (Maj. slip op. at 3) of the basis for Judge Manck s reconsideration of his denial of Henry s Motion to Strike an d ultimate grant of that mo tion. It appears rather that Judge Manck s conversion was incited solely by Judge North s ruling in the Abend case. The misguided, but dextrou s, explanatio n for the M ajority opinion s u ltimate conclusion begins in its Part II, A with the om ission from the recitation of what the C ourt said in In re Writ of Prohibition of the following passages allowing for the availability of the prerogative writs where a low er court s action is taken in a cons idered and unauthorized manner designed to frustrate a proper and accepted avenue of appellate review: A lower court which thus exceeds its power . . . must be bridled by a court of la st resort. Were it otherwise, mandates of the General Assembly could be defied with impunity and the only protection of the public wo uld be the tortuous process of judicial removal which would not have the effect of correcting the specific error. There fore, if there were no right of appeal in this case, we would have no hesitancy in saying that we would act by issuance of the writ of prohibition. 312 M d. 280, 296 , 539 A.2d 664, 671 -72 (1988 ) (citations om itted) (emph asis added ); The writ of mandamus is an aid to the appellate process, because by it, the appellate court directs an inferior tribunal to take some action so its jud icial decision m ay be review ed on app eal. Id. at 300, 539 A.2d at 673 (citations omitted); and If the use of a writ is n ecessary to ena ble . . . [the Co urt] to exercise appellate jurisdiction it is in aid of that jurisdiction. Id. at 304, 539 A.2d at 675-76. The assumed ly strategic omissio n of the ab ove is exp lained mu ch later in the Majority opinion when the Majority dispatches all such notions, damned as dicta, by sweeping them aside as disapproved. (Maj. slip op. at 20). It is only through this disavowal of those portions of Judge Adkins opinion for the Court in In re Writ of Prohibition, which from the other side of its mouth the Majority otherwise praises as the seminal opinion (M aj. slip op. at 4) on the top ic, that the M ajority is able to justify its constraint on the Court s proper exercise of the discretion clearly vested in it. 1 I. The Court in In re Writ of Prohibition noted the role of the prerogative writs as a method for preserving the ability to secure judicial review of an issue or decision that may not be revie wable ordina rily. Id. at 299, 539 A.2d at 673. In furtherance of that goal, the Court determined that mandamus or prohibition may be used as an aid to appellate jurisdiction, even though there is no appeal pending in an appellate court, and even though no immediate appeal is possible. Id. at 301, 539 A.2d at 674. My review of the case law 1 It is ironic, at the least, that the four member majority in the present case expresses its alarm that a bare majority of the Court may impose its inferentially wrong-headed view of the law on our State (See Maj. slip op. at 20 To use the writ to create jurisdiction beyond the bound aries set forth in statutes would essentially vest four me mbers of this Cou rt with the power to define what can be appealed by the State merely by identifying the judicial act under consideration a s extraordinary. ) (emphasis deleted). 2 indicates that the writs also may be invoked as a failsafe mechanism in situations where a party has been deprived improperly of its ability effectively to utilize the appellate process. Thus, even where a party possesses no ultimate right to appeal, we nonetheless acknowledged that extraordinary relief may be appropriate. In In re Writ of Prohibition, the State filed a petition for a writ of proh ibition after a trial judge, convinced that the jury s verdict was against the weight of the evidence in a criminal trial, granted the def endant s request for a new trial. 312 Md. at 283-84, 539 A.2d at 665-66. The State argued that extraordinary writ relief was necessary at that juncture not only because the judge exceeded his authority but because, if the defendant was retried and acquitted, the State would have no right of appeal to have reviewed the decision to grant a new trial in the first place. Id. at 285, 539 A.2d at 666. After determinin g that the C ourt posses sed autho rity to issue a writ in aid of its appellate jurisdiction, the Court concluded that in situations where a party may never be able to obtain direct appellate review, the writ aided the appellate process by making possible the review o f a potentially un reviewab le question. Id. at 299, 539 A.2d at 673. The Court reviewed several decisions from other jurisdictions in which the extraordinary writs were exclusively w ithin the app ellate jurisdiction of courts of last resort, and concluded that [i]f the use of a writ is necess ary to ena ble . . . [the Court] to exercise appellate jurisdiction it is in a id of that jurisdiction. Id. at 304, 539 A.2d at 675 (citations omitted). In the case b efore it, the Court found that, because the trial court s actions threatened to eliminate completely the State s ability to ob tain appellate review of the trial 3 judge s decision to grant a new trial, extraordinary relief was an available mechanism to be utilized to restrain a lower court that acted in excess of its autho rity. Id. at 304-05, 539 A.2d at 675-76. The Court, however, was not persuaded that the circumstances of the case were so drastic as to justify extraordinary relief, and ultimately declined to issue a writ. Id. at 328-29, 539 A.2d at 688. I have n o quarr el with P art II, B of the Majority opinion. It arrives at the correct destination. Section 12-302 (c) of Md. Code, Courts and Judicial Proceedings Article, severely limits the State s right to seek appellate review in criminal cases. One of those permitted instances is when an indictment is dismissed or quashed. Md. Code, Cts. & Jud. Proc., § 12-302 (c) (1). The tria l judge here , in concert with Henry s counsel, skated around this appellate right and cons ciously set out to f rustrate the Sta te s right to app eal and this Court s ability to declare the law on a novel issue in an area of grave public and legal importance. II. In this case, Judge Manck found that the indictment in Henry s case, on its face, was legally insufficien t to support a prosecution for and sentence of death. Instead of dismissing the indictment, however, Judge Manck, as requested by Henry, struck the Notice, leaving the indictment to be pu rsued a s a non -capital p rosecu tion or, in ferentia lly, forcing the State to seek a new or amend ed indictm ent alleging f irst degree pr incipalship if it wished to maintain a capital prosecution. The distinction between striking the Notice on one hand and dismissal 4 of the indictme nt on the oth er is of param ount impo rtance to my analysis of the issues in the present case. As Judge North alluded to in her opin ion striking the notice in Abend s case, the State may not appeal an order striking a notice.2 Maryland law allows the State to appeal in crimina l cases o nly in extre mely limite d circum stances , a point well made by the Majo rity opinion. These circumstances include when a trial judge improperly excludes evidence or requires return of se ized prope rty in certain prosecutions; when a trial judge fails to impose a statutorily mand ated senten ce; and, w hen there is a final judg ment gran ting a motio n to dismiss or quashing or dismissing any indictment, information, presen tment, o r inquisi tion. Md. Code (1 973, 200 2 Repl. V ol.), § 12-302 (c) of the C ourts and Ju dicial Proceedings Article. The striking of a notice does not come within any of these statutory authorizations. It is not a final judgment, and does not have the effect of dismissing a prosecution, but rather limits the availability of punishment in the event of conviction. Had Judge Manck dismissed Henry s indictment, however, such an order would have been appealable immediately by the State. In the event that Judge Manck erred in striking the Notice, this Court is empowered 2 This is unlike the f ederal system w here the strikin g of a notic e of intent to seek th e death penalty may be appealed immed iately by the G overnm ent. See U.S. v. AcostaMartinez, 252 F.3d 13, 16-17 (1s t Cir. 2001) (f inding that [b]y striking a statu torily authorized penalty, the district co urt effective ly dismissed a sig nificant po rtion of the c ounts against the defendants the type of order appealable under the Criminal Appeals Act, 18 U.S.C. § 3731 (2004)). Partly because of this dissimilarity with our State system, I am unpersuaded that the federal cases sprinkled around the Majority opinion (slip op. at 19-21) have much guidance to offer in deciding the fundamental Maryland State law issues present in this ca se. 5 to issue a writ of mand amus vacating an otherwise unapp ealable order and reinstating the Notice in Henry s ca se. When a lower co urt remov es what should be an otherwise appealable action from the possibility of direct appellate review by improperly classifying or labeling the action tak en in a wa y that is not appe alable, this Co urt reserves th e right to intervene to remedy the situation. Such a procedure, I believe, is within the very heart of what is mean t by in aid of our appella te jurisdic tion. 3 In order to determine whether mandamus relief is appropriate in this case, one must determine whether the trial judge had the authority and discretion to strike a notice of intention to seek the death pena lty were he (or she) to conclud e that the indic tment is lega lly insufficien t, on its face, to support a sentence of death. I turn first to the statutory scheme of § 2-202(a)(1) in order to determine the circumstances under which a judge properly may strike a notice. When the State inten ds to pursu e capital punishment in a first degree murder prosecution, it must provide notice to the defendant of that reservation or election. Md. Code (2002), § 2-202(a)(1). 4 The notice need fulfill only two statutory requirements. First, it must 3 The Majority opinion s avoidance of superintending the trial judge s action in the present case is all the more baffling when one considers how, only a few months ago, the Court discovered , apparently for th e first time, and asserted its inh erent super visory authority over the administration of justice in Maryland courts. See Arch er v. State, 383 Md. 329, 360, 859 A.2d 210, 229 (2004). 4 Section 2-202(a)(1) provides: § 2-202. [ Murde r in the First D egree] S entence o f death (contin ued...) 6 be timely. The statute mandates that written notice be given to the defendant at least 30 days before trial. Id. Second, the notice must list each [statutory] aggravating circumstance on which the State inten ds to rely. 5 Id. § 2-202(a)(1)(ii). The universe of available aggravating circumstances is outlined in § 2-303. The capital punishment statutory scheme provides no direct authority for a trial judge to strike a notice for any reason other than failure to fulfill the statutory requirements of § 2-202(a)(1). The notice requirement of § 2-202(a)(1) was adopted as part of Maryland s reinstatement of the availability of capital punishmen t in the State after the prior statutory scheme w as deeme d uncon stitutional in Furma n v. Geor gia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1 972). Although the Supreme Court had not ruled explicitly in Furman 4 (...continued) (a) Requirement for imposition. A defendant found g uilty of murde r in the first degree may be sentenced to death only if: (1) at least 30 days before trial, the State gave written notice to the defendant of: (i) the State s intention to seek a sentence of death; and (ii) each a ggra vatin g circum stance on which th e Sta te int ends to re ly. 5 If a defendant in a first degree m urde r pro secu tion is found guilty, and the notice was timely filed, a separate sentencing proceeding is held to determine whether the defendant should be put to death . Md. Code (2002), § 2-303(b). In this sentencing phase, a jury (or judge, if the defendant waives the right to sentencing by a jury) first considers whether any of the aggravating factors listed in the notic e exists b eyond a r easona ble dou bt. Id. § 2303(g)(1). If the court o r jury finds any agg ravating fa ctor to exist be yond a reaso nable doubt, the sentencing authority then determines whether any mitigating circumstances exist based on a preponderance of the e videnc e. Id. § 2-303(h)(2). Only if the court or a unanimous jury ultimately concludes that the aggravating factors outweigh the mitigating circumstances, by a preponderance of the evidence, may the death penalty then be imposed. Id. § 2-303(i). 7 that a notice provision was required,6 the Chief Legislative O fficer to then Govern or Blair Lee III stated that the administratio n felt that D ue Proce ss requirem ents necess itate such a provisio n. Letter from Thomas J. Peddicord, Jr. to the Maryland General Assembly 25 (14 December 1977) (on file at Mar yland State law library); see also Calh oun v. State , 297 Md. 563, 605, 468 A.2d 45, 64-65 (1983) (finding that the notice requirement is for the defendant s benefit and that the Su preme Cou rt does not require such notice to protect the constitutiona lity of the death penalty statute ). Several other states have similar notice requirements.7 See, e.g., S.C. Code Ann. § 16-3-26 (Law. Co-op. 2004) (stating that 6 The Supreme Court subsequently held that the due process clause of the Fourtee nth Amendment is violated w hen a def endant is se ntenced to death without adequate notice that the senten cing au thority wa s conte mplatin g impo sition of the dea th pena lty. Lankford v. Idaho, 500 U.S. 110, 127-28, 111 S. Ct. 1723, 1732-33, 114 L. Ed. 2d 173 (1991) (finding that the judge s imposition of a death sentence, after the State indicated it would not seek the death penalty, denied the court o f the benefit of the adversary process by depriving the defendant the ability to com ment upo n wheth er the death penalty was a ppropriate in a given case). 7 Although some notice statutes, including that of this State , require the notice to be filed by a fixed time before a trial, several states use the date of arraignment or the filing of the indictm ent as th e trigger ing date . See, e.g., N.Y. Crim. Proc. Law § 250.40 (McKinney 2004) (stating that [i] n any prosecution in which the people seek a sentence of death, the people shall, within one hundred twenty days of the defendant s arraignment upon an indictment charging the defendant with murder in the first degree, serve upon the defendant and file with the court in which the indictment is pending a written notice of intention to seek the dea th pena lty ). Although a 1993 re port com miss ione d by M aryland Gov ernor W illiam Don ald Schaefer discussed an array of possible changes to the notice requirement to increase the length of time of notice to a defendant, the report ultima tely recommended retention of the requirement that a notice be received by the de fendant n o later than 3 0 days befo re trial. Governor s Commission on the Death Penalty, The Report of the Governor s Commission on the Death Pena lty 222-24 (1993). The Co mmission rejected calls b y the State pub lic (contin ued...) 8 [w]henever the solicitor seeks the death penalty he shall notify the defense attorney of his intention to seek such penalty at least thirty days prior to the trial of the case ); but see People v. District Co urt, Gilpin C ounty, 825 P.2d 1000, 1002 (Colo. 1992) (finding that due process requirements of notice may be satisfied even though [ t]here is no C olorado sta tute requiring the prosecutor to giv e notice of intent to seek the d eath penalty ). The notic e fulfills two main purposes. First, by providing notice by the State to the defenda nt, should he or she be convicted as charged, that it intends to s eek the de ath penalty serves the purpose of allow [ing] the defend ant the opp ortunity to marsh al his defen ses in aid of showing why imposition of the death penalty would be inappropriate in his [or her] case. Grandison v . State, 341 Md. 175, 222, 670 A.2d 398, 420 (1995). The State s election or reservation may affect profoundly plea negotiations, and almost certainly will influence the capital defendant s trial strategy. This notice, however, is not a part of the charging docume nt an d does no t in an y way supercede o r replace the c harging d ocumen t. Collins v. State, 318 Md. 269, 297 , 568 A.2d 1, 14-15 (1 990). If a de fendant is s erved w ith a notice, it simply communicates that the State intends (but not irrevocably so) to seek the deat h penalty. 7 (...continued) defender s office and other defe nse a ttorn eys either to ame nd the statute to require the filing of the notice within 30 days of a defendant s indictment, or to increase the timeliness of notice to 90 days before trial. Id. at 223-24. The Commission was concerned that an earlier deadline might foster overcharging by prosecutors who would be forc ed to make prem ature decisio ns abo ut whe ther the d eath pe nalty wo uld be a pprop riate in a p articular case. Id. 9 Second, the notice acts as a gate way or thresh old requirement that reserves the S tate s ability to pursue the dea th pena lty at the sen tencing phase o f the pro ceedin g. Although the filing of a notice foreshadows the potential of an ultimate death sentence, it also acts as a protection to the defe ndant by alerting him or her to the specif ic aggravating factors on which the State intends to rely and by triggering the heightened procedural safeguards that accom pany a ca pital pro secutio n. See, e.g., Md. Code (1973, 2002 Repl. Vol.), § 8-301 of the Courts and Judicial Proceedings Article (increasing the number of peremptory challenges of jurors in a capital prosecution o nce the notice is filed). A review o f relevant M aryland case law indicates that w e have lim ited the circumstances in which a trial judge may strike a notice. In Richards on v. State, 332 Md. 94, 630 A.2d 238 (1993), for example, we concluded that even where there is evidence of a defendant s ineligibility for the death penalty, it is not appropriate for a trial court to strike a notice unle ss it fails to meet th e two s tatutory req uireme nts of § 2-202 (a). Id. at 99-100, 630 A.2d at 240-41. In Richardson, the defendant argued that, because evidence of his mental retardation was so overwhelming, the State was foreclosed from mounting a capital prosecutio n and, there fore, the no tice filed in his case should be stricken . Id. Because the issue of a defendan t s mental retardation is to be determine d, if required, only after the guilt/innocence phase of the trial has concluded,8 the Court reasoned that the defendant s 8 Md. Rule 4-34 3 provide s that if a def endant in a capital prose cution is found guilty, the fact-finder will be asked to determ ine, by a preponderance o f the evidence, wh ether [a]t (contin ued...) 10 motion to strike wa s more ak in to a motion for sum mary judgment on the issue of his mental retardation, a mechanism unavailable in a criminal prosecution. Id. The Co urt held that the trial court prop erly denied the d efendan t s motion to s trike the notice , resolving th at any decision on the def endant s m ental retardatio n would be premature until the jury determined the issue of gu ilt or inno cence . Id. The Court left undisturbed the Court of Special Appeals s earlier holding that even if a defendant is not eligible for the death penalty, that ineligibility does not grant a trial judge the auth ority to strik e the no tice. Richards on v. State, 89 Md. App. 259, 266-67, 598 A.2d 1, 4-5 (1991) Under the statutory scheme for capital cases, a defendant who is ineligible for the death penalty nonetheless may receive the State s notice, but that notice ultimately will be ineffectual because the defendant s ineligibility demonstrated at the sentencing phase eventually will prevent him or her from being sentenced to death. Indeed, the Court of Special Appeals in Richardson determined that [n]o statute or rule provides authority for a court to strike a notice of intent to seek the death penalty once a sentencing body has determined that a capital defendant w as indeed ineligible for the death p enalty. Id., 598 A.2d at 4. Likewise, although the absence of a notice bars the pursuit of a sentence o f death during the penalty phase, its presen ce does n ot mean th at such a pu nishmen t will result 8 (...continued) the time the murder was committed, the defendant was mentally retarded. See Richardson v. State, 89 Md. Ap p. 259, 263-65, 598 A.2d 1, 3-4 (1991) (stating that the determination of whether a defendant is mentally retarded is a question of fact that must be made during the sentencing proceed ing (citations omitted)). 11 automatica lly or even b e pursued by the State. It is instea d merely a pro cedural (but important) device that serves primarily to inform the defendant of his or her exposure to the State s poss ible pursuit of capital pun ishment. This, however, does not mean that there are not situations where a notice may be struck properly by a trial jud ge. If the no tice is untimely, or fails to list at least one aggravating factor pursuant to § 2-303, the trial judge may strike the notice upon proper motion or objection. See, e.g., Holmberg v. De Leon, 938 P.2d 1110 (Ariz. 1997) (instructing the trial court to strike a notice w hen it was untimely filed); see also Senate Judicial Proceedings Committee, Bill Analysis, S.B. 340 (Md. 1995) (discussing the need for clarification of the timeliness requirements in response to two circuit court decisions striking notices as untimely). Beyond these circumstances, however, which go to the internal or procedural validity of the notice itself, the striking of a notice of intention to se ek the dea th penalty is n ot autho rized by th e statuto ry frame work of § 2- 202(a) (1). Once the State serves a notice on a defendant, the matter become s, for all purposes, a capital prosecution. It is at this point that the defendant may move to dismiss the indictment for the reason that the indictment is legally defective or insufficient on its face to support a sentence of death. If the judge d etermines th at the indictm ent is legally defective or insufficient to support a prosecution seeking the death sentence, the judge may dismiss the indictmen t, but he or sh e possesse s no autho rity to strike the notice solely for reasons that assertedly make the indictment defective. If the indictme nt is believed to be insuff icient to 12 support a prosecution for death-e ligible first deg ree murde r, it is the indictme nt that should be dismissed, ra ther than the notice. Dire ct appellate review then may be sought from such a dismissal. In the present c ase, Judge Manck exceede d his authority when he struck the Notice based on reasoning that in no way implicated the statutory requirements of § 2-202(a)(1). 9 The belief that the indictment was legally deficient should have resulted in the dismissal of the indictment, rather than striking of the Notice . Judges North and Manck conspicu ously were aware that the State had no ability to appeal their orders striking the two notices. Acquiescing in this procedural stratagem advanced by skillful defense counsel, as now sanctioned by the Majority, effectively insulates a judge s order from judicial review on direct or interlocutory appeal. Because I would determine that Judge Manck erred by striking the Notice in Henry s case, which Notice oth erwise co mplied w ith § 2-202 (a)(1), I wou ld issue, even in light of the extraordinary nature of that relief, a writ of mandamus as sought by the State here. 9 The question answered by Judge Manck (an d Judge No rth), whether Apprendi-Ring requires inclusion in the charging document of an alleg ation of first d egree princ ipalship, is a novel one and a matter of first impression in Maryland. I perceive that this question engages a complex analysis. This is pre cise ly the sort of issue appellate courts decide ultim ately. Applying the Majority s reasoning, however, the ultimate responsibility for answering this important question in each capital case initiated by the State will be left to the respective trial judges, with virtually no meaningful opportunity for direct appellate review and resolution of those answers. Differing interpretations of the relevant law are m ore than possible. I can imagine no better recipe for legal confusion and uneven application of the law. 13 III. In In re Writ of Prohibition, the Court emphasized both the intended scarcity and exceptional character of the prerogative writs: The common law extraordinary writs of mandamus and prohibition are just that extraordinary; even when the power to issue them exists, whether to take that a ction is dis creti onary. The principles go verning the exercise of that discretion are much the same, whether the court tha t is asked to issue the w rit is invoking superinten ding pow er or acting in aid of its app ellate jurisdiction. The power [to issue a prerogative writ] is one which ought to be exercised with great caution . . . . Ord inarily, a writ will no t lie to control the exercise of discretion. Such a w rit ordinarily will not issue when another remedy is available, . . . and is not a su bstitute for ap peal or w rit of error. Generally speaking, more than mere error must be shown. 312 Md. at 30 5-06, 539 A.2d at 676 (citations omitted). We have ta ken pa ins to pre serve th e extrao rdinary ch aracter o f the w rits. See Doering v. Fader, 316 Md. 351, 361-62, 558 A.2d 733, 738 (1989) (finding the circumstances of the case appropriate to issue a writ, but nonetheless declining to do so in light of the extraordinary nature of the writs). The issuance, and perhaps even the consideration, of such a writ represents a potential breakdown in the normal appellate process. Thus, we strive to restrain ourselves from issuing these writs in deferenc e to our faith that the trial cou rts ordinarily will fulfill their duties in accordance w ith judicial precedent and statutory auth ority, and, when they do not, that we may consider the exercise of those duties on ap peal. The hallmark of our judiciary, ho wever, is process, and when that process, particularly in a 14 capital c ase, is fru strated, w e may be comp elled to a ct. We held that a writ is appropriate when we believe the interests of justice require us to [issue a writ] in order to restrain a lower court from acting in excess of its jurisdiction, otherwise grossly exceeding its authority, or failing to act whe n it ought to act. In re Writ of Prohibition, 312 Md. at 307, 539 A.2d at 677. The purpose therefore of the writ is to prevent disorder, from a failure of justice, whe re the law has e stablishe d no spec ific r eme dy, and where in justice and good government there ought to be one. Id. Moreover, we opined in Phillip M orris that: in deciding whether the present circumstances warrant our exercise of the extraordinary writ of mandamus in aid of our a ppellate jurisd iction, and in paying heed to Maryland s legal prece dent in this area, we must consider the interests of justice and public policy, the protection of the integrity of the judicial system, the general preferability of the final judgment rule, and the adequacy of other available relief. 358 Md. at 713-14, 752 A.2d at 213. The most important consideration in this case is not that the trial judge erred, but that he did so in a capital case in a manner that was calculated to frustrate direct appellate review of the action. Such a maneuver, in my opinion, merits the grant of extraordinary relief. The necessary effect of the trial court s decision in the present case insulates that action from timely scrutiny by an appellate court. Judge Manck was aware that striking the Notice placed the State in the position of either having to procure another indictment that complied with his (and Judge North s) novel conclusion, or foregoing altogether the possibility of seeking the death p enalty. Creation of the horns of such a dilemma is anathema 15 to our notion of judicial process, and counter to the interests of the proper administration of justice, as well as th e discretion vested in the Office of the State s Attorney by the Legislature.10 Although the trial courts at times operate as laboratories and proving grounds for novel legal theories by experimenting with, anticipating, and evolving the existing law, the ultimate responsibility for advancement of the com mon law depends on the app ellate courts in their role as the State arbiters of ho w the law is to be interpre ted. Whe n trial courts undertake to declare a novel legal doctrine or principle by caging it consciously in a way designed to elude direct and timely appellate review, we have the obligation to invoke the powe rs of the prerog ative w rits to cor rect the s ituation . Although Judge North s action in Abend s case is not before us, th is record bears witness to the fact that Judge M anck s actio n in Henry s case was not an isolated event. The contagion of the original error in striking a notice on improper grounds is evident. Curing the infection and forec losing its furth er spread in an area of the law of such signif icance is of grave importance. I am emboldened to employ the extraord inary writs in this case because it involves the 10 This Court has held that Maryland s statutory cap ital punishm ent schem e is constitutional even though it lacks strict standards to guide when a prosecutor may initiate a capita l prosec ution. Calhou n v. State, 297 Md. 563 , 602-06, 468 A .2d 45, 63-65 (198 3). In Calhoun, we foun d that [a]b sent any specif ic evidence of indiscreti on b y prosecutors resulting in an irrational, inconsisten t, or discrimina tory application o f the death penalty statute, [a claim of constitutional infirmity of the statute on those grounds] cannot sta nd. Id. at 605, 468 A.2d at 64. 16 orderly pursuit of Maryland s capital punishm ent statutory scheme. In Doering, although we would decline ord inarily to issue a writ in a case wh ere a judge improper ly recuses him self or herself, the fact that the case involved the p otential impo sition of the d eath pena lty justified the issua nce of a writ. 3 16 M d. at 360 -61, 55 8 A.2d at 738. We stated in Doering: Under ordinary circum stances, w e would decline to g rant imme diate appella te attention to a decision relating to recusal through the use of a writ of mandamus or prohibition. This, however, is not an ordinary case. Before us is a unique set of facts, involving a decision that directly affects the proper conduct of a sentencing proceeding in a capital case. The pen alty of death is qualitatively differe nt from a senten ce of im prisonm ent, how ever lon g, Woodson v. North Carolina, 428 U .S. 280, 3 05, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976), and a capital sentencing proceeding is qu alitatively different from a n ordin ary senten cing pr oceed ing. See also H arris v. State, 299 M d. 511, 5 17-18 , 474 A .2d 890 , [893] (1984 ). * * * We are here aff orded the opportun ity to promptly and simply return [a capital] pro ceeding to a proper trac k, and that, in o ur judgm ent, warran ts the gran t of an e xtraord inary writ . Id. When the State elects to pursue the death penalty, we have a heightened role to see that trial judges ap ply the law ev en-hand edly and with the utmost re gard for all p arties rights to the process to which they are due. This role involves, at th e very least, our o bligation to ensure that when trial judges inter pret the relev ant statutes an d authorities, a nd espec ially embrace novel theories and questions not yet interpreted or decided by this Court, we preserve effective and timely channels of appellate review that have been granted by the Legislature. Md. Code (1973, 2002 Repl. Vol.), § 12-302(c) of the Courts and Judicial Procee dings A rticle. 17 For the foregoing reasons, I would issue a writ of mandamus to Judge Manck of the Circuit Court of Anne Arundel County compelling him to vacate his 28 September 2004 order granting Michael Darryl Henry s Motion to Strike the Notice of Intention to Seek the Penalty of Death in Case No. 02-K-02-001126 and to reinstate said Notice. Judges Wilner and Cathell have authorized me to state th at they join in this D issent. 18