Carbaugh v. State

Thompson, J., delivered the opinion of the Court. Charles Ellsworth Carbaugh, Jr., the appellant, was convicted of driving with a revoked license. He was tried in the Circuit Court for Allegany County, before Judge J. ⁷⁰⁷ Frederick Sharer, sitting without a jury, despite a prayer for jury trial in the District Court. The facts can be summarized as follows.

Trooper R. J. Sivic of the Maryland State Police testified that at approximately 9:50 a.m. on August 25,1980 he was patrolling the "Martin’s Mountain” area of Route 40 in conjunction with an airborne speed surveillance. Trooper Sivic was alerted to the presence of a silver 1975 Chevrolet heading toward him at a high rate of speed. As the vehicle approached, Sivic signalled for it to pull over. Instead of stopping at the point indicated the vehicle made a quick right hand turn into a private driveway about 40-50 feet from the officer.

Sivic testified that by the time he reached the automobile all 5 persons had exited from the right side. He then approached the appellant, Carbaugh, whom he believed to be the driver of the vehicle and requested that he display his license. Carbaugh responded that he was not the driver. After all the other passengers maintained that another of the group, Michael Yonkers, had been driving, Sivic decided that he had been mistaken and issued a traffic citation to Yonkers.

The evidence indicates that Yonkers paid the fine exacted by the ticket at a later date. Trooper Lester V. Lewis, also participating that day in the speed surveillance procedures, observed Sivic’s actions while he, Lewis was ticketing another motorist. As Sivic finished writing the citation for Yonkers, Trooper Lewis approached him and stated that he had ticketed the wrong person because appellant had been driving the car. Over his emphatic protestations, appellant was subsequently cited for speeding and driving with a revoked license.

The appellant contends that his prosecution was collaterally estopped because Yonkers settled the issue as to who was the driver of the car by paying the fine mandated by the speeding citation. Under Md. Rule 736 the issue will be treated as waived. Md. Rule 736 requires that certain motions or objections be made within specified time limits in order to avoid the forfeiture of the right to raise these motions. The Rule provides in part: ⁷⁰⁸ "Rule 736.

Motions Before Trial. a. Mandatory Motions. A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise: 1.

A defect in the institution of the prosecution; * * * b. Time for Filing Mandatory Motions. A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.” This Court has commented in general terms on the importance as well as the propriety of this Rule. See, Kohr v. State, 40 Md. App. 92, 96-98 , 388 A.2d 1242 , cert. denied, 283 Md. 735 (1978): "The Maryland Constitution, Article IV, Section 18A, vests in the Court of Appeals the power to promulgate rules of practice and procedure in the administration of the appellate courts and the other courts of the state and these rules 'shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.’ ...

The rules, when adopted within their authorized scope, are legislative in nature.... It is clear that the Court of Appeals in adopting new Rule 736 decided, as a matter of judicial policy and administration, to make the Maryland rule parallel to Rule 12 of the Federal Rules of Criminal Proce ⁷⁰⁹ dure.... The defendant is still afforded an opportunity to litigate the issue and the requirements of Rule 736 do not amount to an unconstitutional burden on the accused.” (footnote omitted). An attack on the institution of a suit based on double jeopardy 1 grounds was among those preliminary motions contemplated by Rule 736 a 1.

This is evidenced