Fleeger v. State

COLE, Judge. The issue presented in this case is whether the appellant is entitled to have his pre-escape custody credited against his sentence for the offense of escape. The facts are not in dispute. On July 6, 1981, Robert Thomas Fleeger was placed in custody in the Cecil County Jail on a charge of theft.

He remained in jail awaiting trial because of his inability to post bail. On December 25, 1981, Fleeger escaped from jail and appropriated an automobile that was left unattended with its motor running. Fleeger abandoned the automobile after driving it for approximately ten miles. A warrant for his arrest charging him with escape was issued the same day.

Police captured Fleeger • on December 26, 1981, and returned him to the Cecil County Jail pending further proceedings. On January 13, 1982, the Deputy State’s Attorney for Cecil County filed a criminal information charging Fleeger with escape under Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 139, and unauthorized use of a vehicle under § 349 of Art. 27. In accordance with a plea agreement, the State nol prossed the original charge of theft in exchange for Fleeger’s guilty plea to escape and unauthorized use of a vehicle. The Circuit Court for Cecil County accepted this plea agreement on January 18, 1982, and sentenced Fleeger ¹⁵⁹ on March 5, 1982, to six years’ imprisonment for escape and three years’ imprisonment for unauthorized use of a vehicle, the sentences to run concurrently.

Although the trial court granted Fleeger credit against this sentence for his post-escape, pre-sentence custody (December 26, 1981, to March 5, 1982), it refused to give him credit for his pre-escape custody (July 6, 1981 to December 25, 1981). The Court of Special Appeals affirmed Fleeger’s conviction and sentence in an unreported per curiam opinion filed on December 29, 1982. The intermediate appellate court rejected Fleeger’s contention that the trial court should have given him credit for both his pre- and post-escape custody by virtue of the statute governing the awarding of credit against a sentence for time spent in custody, § 638C of Art. 27. That court held that § 638C does not require mandatory credit for pre-escape custody.

In basing its holding on § 139 of Art. 27, which provides that an escape sentence must be consecutive to the sentence under which the inmate was originally confined, the Court of Special Appeals reasoned that § 638C is “inapplicable to a sentence imposed for an escape.” We granted certiorari in this case to resolve the question presented. I Section 638C of Art. 27, originally enacted in 1974, is a comprehensive provision governing the awarding of credit against a sentence for time spent in custody. This statute contains four subsections that address various contexts in which a defendant may receive credit against a valid conviction for time spent in custody. Subsection (a), the portion relevant in this appeal, embodies two mandatory provisions and one discretionary provision.

Subsection (a) provides in full: (a) Credit for time spent in custody before conviction or acquittal.- — Any person who is convicted and sentenced shall receive credit against the term of a definite or life sentence or credit against the minimum and maximum terms of an indeterminate sentence for all time ¹⁶⁰ spent in the custody of any state, county or city jail, correctional institution, hospital, mental hospital 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 indeterminate sentence shall be diminished thereby. In any case where a person has been in custody due to a charge that culminated in a dismissal or acquittal, 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 sentencing court shall have the discretion to apply credit against a sentence for time spent in custody for another charge or offense. 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.

Art. 27, § 638C(a). The first sentence of subsection (a) deals with those situations where a defendant is in custody before trial and is subsequently convicted on the charge for which he was held. Under this provision, time spent in custody prior to the imposition of sentence must be credited against the sentence imposed. The second sentence governs those situations where a defendant is held in custody on a charge, and during the pendency of that custody a warrant or commitment is lodged against him.

If the original charge is dismissed or the defendant is acquitted, but the defendant is subsequently convicted upon the charge for which the warrant or commitment was lodged against him, this passage mandates that the defendant receive credit for the time spent in custody on the first charge. The discretionary provision under subsection (a), set forth in the third sentence, states that “[i]n all other cases” the trial “judge shall have the discretion to apply ¹⁶¹ credit against a sentence for time spent in custody for another charge or offense.” Clearly, the first sentence of subsection (a) is not dispositive of whether Fleeger is entitled to credit for his pre-escape custody. This provision merely directs that Fleeger receive credit for his post-escape, pre-sentence custody, i.e., from December 26, 1981 (date Fleeger was placed in custody for escape) to March 5, 1982 (date of sentencing). The third sentence of subsection (a) is likewise not dispositive of this issue because it is limited to discretionary credit, not mandatory credit.

Thus, the issue of whether Fleeger is entitled to mandatory credit under § 638C narrows to the second sentence of subsection (a). The second sentence of subsection (a) indicates that a defendant must satisfy two conditions prior to receiving mandatory credit under this provision: (1) the first charge must culminate in a dismissal or acquittal, and (2) the sentence for which credit is sought must be based upon a charge for which a warrant or commitment was lodged during the pendency of the custody on the original charge. In analyzing these two conditions, the first issue is whether a nolle prosequi on the original theft charge constitutes a dismissal within the meaning of the credit statute. We defined nolle prosequi in State v. Moulden, 292 Md. 666 , 441 A.2d 699 (1982), in the following terms: The nol pros of a charging document or of a count is a “final disposition” of the charging document or count; “there can be no further prosecution under” 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.

Id. at 673 , 441 A.2d 699 (quoting Barrett v. State, 155 Md. 636, 637-38 , 142 A. 96 (1928)). The State argues that a prosecutorial nolle prosequi is not a dismissal because a court has the sole authority to enter a dismissal. The State further argues that a dismissal, unlike a nolle prosequi, is ¹⁶² a judicial recognition that either no charge should have been brought or that it was factually unfounded. We are unpersuaded by this logic.

In the case sub judice the State entered a nolle prosequi on the original theft charge in exchange for guilty pleas as to the escape and unauthorized use charges. Provided Fleeger complies with the terms of the plea agreement, the State cannot reinstitute the original theft charge. Under these circumstances, we view the nolle prosequi as effectively tantamount to a dismissal. See State v. Brockman, 277 Md. 687 , 357 A.2d 376 (1976) (State precluded from withdrawing plea bargain where withdrawal is unfair or inequitable to the defendant; consequently, State cannot prosecute defendant on charges nol prossed in accordance with plea agreement); Magrogan v. State, 56 Md.App. 289, 292-93 , 467 A.2d 784 (1983) (nolle prosequi entered on housebreaking indictment as part of a plea agreement is effectively tantamount to dismissal because the State cannot reinstitute the charges as long as the defendant complies with the terms of the agreement); cf. Roberts v. State, 56 Md.App. 562 , 468 A.2d 410 (1983) (because a stet is not a dismissal or acquittal, defendant was not entitled to have time spent in custody on stetted handgun charge credited against his sentence for probation violation under § 6380(a)), cert. denied, 299 Md. 426 , 474 A.2d 219 (1984).

The second condition under § 6380(a) provides that time spent in custody awaiting trial on the charge that culminates in a dismissal or acquittal must be credited to any subsequent sentence based upon a charge for which a “warrant or commitment was lodged during the pendency of such custody.” This provision makes clear that mandatory credit is contingent on a warrant or commitment being lodged against a defendant while he is in custody on another offense. The dispositive term in this sentence is the verb “lodge.” To “lodge” a warrant or commitment means “to lay or deposit before a proper authority or person,” Webster’s Third New International Dictionary 1329 (1981), or to “file or leave [documents] with the appropriate official.” ¹⁶³ 2 Jowitt’s Dictionary of English Law 1115 (2d ed. 1977). Logically, a warrant or commitment can be lodged against an escapee only after he is recaptured and returned to his original place of custody. The lodging of a warrant or commitment acts as a detainer because it puts the custodian on notice that other charges have been placed against the escapee.

Significantly, the crediting statute does not use the word “issue” in lieu of “lodge.” These terms, as the General Assembly recognized are not synonymous. Indeed, “issue” means “[t]o send out [or] to send out officially,” Black’s Law Dictionary 745 (5th ed. 1979), or “the act of officially putting forth or getting out ... or proclaiming or promulgating.” Webster’s Third New International Dictionary 1201 (1981). Here, Fleeger escaped from the Cecil County Jail on December 25, 1981. Later that day a warrant was issued for his escape.

After his return to custody on December 26, the authorities lodged a commitment against him on the following day, December 27. Because the commitment was lodged during the pendency of Fleeger’s original custody, we conclude that Fleeger falls within the precise wording of the mandatory provision under the credit statute. The State seeks to avoid the effect of this conclusion by arguing that granting credit to Fleeger for his pre-escape custody under § 638C(a) is inconsistent with the purpose of that statute. The State correctly notes that one purpose of the credit statute is to avoid “banked