Carey v. State

Weant, J., delivered the opinion of the Court. James Barron Carey, appellant, was convicted in the Circuit Court for Montgomery County of sexual offenses in the first degree, kidnapping, and assault with intent to maim. Appellant elected a court trial and was tried before the Honorable John J. Mitchell. He received concurrent periods of incarceration of twenty years for the sexual offenses, ten years for kidnapping, and ten years for assault with intent to maim.

I. In endless cases, including this one, criminal defendants have requested courts at all levels to dismiss the charges because of a Md. Rule 746 violation — failure to commence trial within 180 days after appearance or waiver of counsel. The Court of Appeals ruled in State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979), that the sanction for violation of the 180-day trial requirement is mandatory dismissal. Since Hicks, supra, criminal defendants have demanded that the State jump with precision through the procedural hoops of Rule 746, citing that the Maryland Rules are precise rubrics to be read and followed. In State v. Ricketts, 290 Md. 287, 292 , 429 A.2d 1025 (1981), the Court of Appeals reiterated its support for this interpretation of the Rules saying, they "are not guides to the practice of law but precise rubrics established to promote the orderly and efficient administration of justice and [they] are to be read and followed.” The slightest mis-step, totally unrelated to any substantive or constitutional issue, has been raised as a shield to prosecution.

But the shield may also be a sword. And so it is in this case. Appellant’s motion to dismiss was ⁴⁵⁰ rightly denied because of his failure to "read and follow” the precise rubrics of Rule 736. Rule 736 defines and governs what motions must be filed before criminal trials.

A motion to dismiss for a Rule 746 violation must be "filed at any time before trial” (Rule 736 c) and "shall be in writing unless the court otherwise directs” (Rule 736 d) (emphasis added). Pennington v. State, 53 Md. App. 538 , 454 A.2d 879, 881 (1983). Rule 736 e requires that any response by the State "shall be filed within 15 days and be accompanied by a statement of points and citation of authorities.” In Pennington, supra, at 881-82 , Judge Lowe, speaking for this Court, said: Sections c, d and e of that rule (Rule 736) clearly anticipate something more than a last minute spinning hipshot .... While the State must justify any violation of Rule 746, we hardly think that it must come to court on the trial date fully prepared for a hearing on a motion to dismiss, of which nothing has been suggested let alone filed pursuant to Md. Rule 736.

Implicit in Rule 736’s procedural requirements of writing, grounds, relief, points and authorities and 15 days to respond is the opportunity for the State to prepare its justification for whatever is alleged and prayed by the appellant’s motion. In the case sub judice, appellant’s attorney entered his appearance on 2 November 1981. Trial commenced 202 days later, clearly beyond the 180-day requirement mandated by Rule 746, on 25 May 1982. The first mention of the Rule 746 violation came after all other pretrial motions had been addressed.

Appellant’s "motion” to dismiss was nothing more than an oral spinning hipshot: The only other preliminary I had aside from a rule on witnesses was going to be a — I was going to move to dismiss at this time for the record on the basis of — all charges — on the basis of Hicks violation. [Emphasis added.] ⁴⁵¹ Inasmuch as the trial court had not otherwise directed, Rule 736 d required that this half-hearted request be filed in writing. Whether it was a tactical decision or mere oversight, the last minute manner in which the State was apprised of this motion denied the State an opportunity to respond as contemplated by Rule 736. This surprise to the State was compounded by the fact that 181 days after the appearance of counsel, appellant had filed a written motion to suppress certain statements he had made to the police. Rule 736 b.

Because appellant was obviously