Folk v. State

DEBORAH S. EYLER, Judge. David Folk, the appellant, was convicted in a court trial in the Circuit Court for Baltimore County of two counts of first ⁵⁹³ degree assault and one count each of driving while intoxicated, driving under the influence, negligent driving, and reckless driving. The court sentenced the appellant that day, resulting in judgments of conviction. Two days after the judgments were entered, the appellant noted an appeal.

Six days later, he filed a motion for new trial, under Md. Rule 4-331(a), and a request for hearing. The State opposed the motion. At a hearing scheduled on the motion for new trial, the circuit court declined to decide the motion, ruling instead that the appellant’s having noted an appeal deprived it of jurisdiction. Thereafter, the appellant filed an amended notice of appeal.

The sole issue presented is whether the circuit court erred in ruling that it lacked jurisdiction to decide his motion for new trial. FACTS AND BACKGROUND The appellant was charged with several offenses stemming from a “road rage” incident that occurred on July 13, 2000. Specifically, the appellant was alleged to have used his car, in a high speed chase, to pursue a motorcycle on which two people were riding, and then strike it. A breath analysis performed by the police after the incident showed the appellant was intoxicated.

The appellant’s trial took place on May 21, 2001. The State called a police officer and the two victims. The appellant did not testify. As noted above, the appellant was found guilty and sentenced that day.

On May 23, 2001, he filed a notice of appeal to this Court. On May 29, 2001, the appellant filed a motion for new trial, under Rule 4-331(a). That rule provides that in a criminal case, “[o]n motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial.” The appellant requested a hearing on his motion. In his motion for new trial, the appellant asserted that the court’s verdict had been “erroneous” because 1) his car only ⁵⁹⁴ struck the motorcycle once, as a police officer testified, not two or three times, as the victims testified; 2) the victims’ testimony about the path of travel of the motorcycle had not been revealed to the police and created a misimpression about the path in which the appellant had driven his car; 3) the appellant’s intoxication negated the specific intent necessary for a conviction of first degree assault; 4) the State introduced photographs that had not been revealed in discovery and on a representation that, according to defense counsel, was false, and lured him into not objecting; 5) the State engaged in prosecutorial misconduct; and 6) through defense counsel’s “ineptness,” he failed to introduce an “Alcohol/Drug Influence Report” from the Baltimore County Police Department, which was “necessary for the Court’s perusal” in considering stipulation about the appellant’s level of intoxication.

The State filed an opposition to the motion for new trial. Then, on August 9, 2001, by new counsel, the appellant filed a “Supplemental Motion for New Trial.” In that paper he added to the points made in his initial motion that his prior defense counsel had performed in a “constitutionally deficient” manner by not interviewing two passengers who were riding in the appellant’s car during the incident, and not issuing a subpoena for and calling to testify one of those passengers, who was “the only sober defense witness” to the occurrence and whose testimony would have rebutted the version of events testified to by the victims and would have been exculpatory of the appellant. A hearing on the appellant’s motion for new trial was scheduled for August 30, 2001. The parties and counsel were notified and appeared before the court that day.

The court ruled, however, that it was without jurisdiction to hear and decide the appellant’s motion, due to the pendency of his appeal in this Court. ■ On September 26, 2001, the appellant filed an amended notice of áppeal. ⁵⁹⁵ DISCUSSION The appellant contends that the trial court erred in ruling that it lacked jurisdiction to decide his motion for new trial. The State agrees that, given the procedural posture of this case, the court erred in ruling that it was without jurisdiction to decide the motion. The parties each state that this Court should remand the case for a hearing and ruling on the motion for new trial; they disagree about the scope of the remand, however. As explained above, under Rule 4-331(a), upon motion by the defendant in a criminal case, filed within ten days after a verdict, the circuit court may order a new trial “in the interest of justice.” The effect of the filing of such a motion on the deadline for filing a notice of appeal is governed by Rule 8-202(b).

That rule states that when a timely ten-day motion has been filed, under Rule 4-331(a), “the notice of appeal shall be filed within 30 days after the later of (1) entry of the judgment or (2) entry of a notice withdrawing the motion or an order denying the motion.” In this case, as we have observed, the judgments of conviction were entered on the day the verdict was rendered, because sentencing happened immediately, see Johnson v. State, 142 Md.App. 172, 201-02 , 788 A.2d 678 (2002), and the appellant’s ten-day motion, while timely, was filed after he already had filed a notice of appeal from the judgments. Clearly, if the appellant had not noted an appeal, and instead merely had filed his ten-day motion for new trial, the trial court would have had jurisdiction to rule on the motion; and if the court had denied the motion, the deadline for noting an appeal would have been 30 days after the entry of the court’s order. The trial court ruled, however, that because the appellant filed a notice of appeal before he filed his timely ten-day motion, it lost jurisdiction over the case. The question we must answer is whether the court was legally correct in that ruling.

We conclude that it was not. Two Court of Appeals cases have a bearing on this question. In Pulley v. State, 287 Md. 406 , 412 A.2d 1244 (1980), the ⁵⁹⁶ Court addressed the concept of “fundamental jurisdiction,” holding that a trial court did not lose jurisdiction over a case during the pendency of an interlocutory appeal. There, the defendant was tried four times on murder and weapons charges.

The first trial ended in a mistrial; the second trial ended in a hung jury, which produced a mistrial; the third trial ended in a conviction that was reversed on appeal, with the case remanded for a new trial; and the fourth trial ended in a conviction. Immediately before his fourth trial, the defendant moved to dismiss the indictment on the ground of double jeopardy. The trial court denied the motion as untimely. The defendant then noted an immediate appeal of the interlocutory order to this Court.

The trial court directed that the trial on the merits proceed nevertheless. Ultimately, the Court of Appeals was asked to decide the effect, if any, of the defendant’s appeal of the interlocutory order denying his motion to dismiss on the trial court’s jurisdiction to proceed with the trial of the case. The defendant argued that the trial court lost jurisdiction over the case when he noted his appeal. The Court of Appeals disagreed, holding that the trial court retained “fundamental jurisdiction” over the case even though the defendant had noted an appeal.

It explained that “fundamental jurisdiction” is “the power to act with regard to a subject matter which ‘is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.’ ” Pulley v. State, supra, 287 Md. at 416 , 412 A.2d 1244 (quoting Cooper v. Reynolds, 77 U.S. (10 Wall) 308, 316, 19 L.Ed. 931 (1870)). Any action taken by a court that lacks “fundamental jurisdiction” is “a nullity, for to act without such jurisdiction is not to act at all.” Pulley v. State, supra, 287 Md. at 416 , 412 A.2d 1244 . The noting of an appeal does not cause the trial court to lose its fundamental jurisdiction over a case. The court retains the power and authority to act, notwithstanding the appeal, and any actions it takes are not null or void.

The court’s right to exercise its power may be “interrupted,” however, “by (i) statute or Maryland Rule, (ii) the posting of authorized appeal bond, or bail following a ⁵⁹⁷ conviction and sentence, or (iii) a stay granted by an appellate court, or the trial court itself, in those cases where a permitted appeal is taken from an interlocutory or final judgment.” Id. at 417, 412 A.2d 1244 . More recently, in Jackson, v. State, 358 Md. 612 , 751 A.2d 473 (2000), the Court addressed the impact of the timely filing of a motion for new trial on the ground of newly discovered evidence, under Rule 4-331(c), on an appeal from a judgment of conviction. In that case, the notice of appeal was filed in this Court within 30 days of the entry of judgment, as required by Rule 8-202(a). About four months later, but -within the time permitted by Rule 4-331 (c), the defendant filed her motion for new trial.

While the appeal still was pending in this Court, the trial court denied the motion for new trial, without a hearing. The Court of Appeals granted certiorari on other issues, and asked the parties to address an additional question: Whether the circuit court had jurisdiction to decide the motion for new trial during the pendency of the appeal in this Court. The Court of Appeals held that the circuit court had jurisdiction to rale on the motion for new trial, but that in such a situation, it was constrained not to exercise its jurisdiction, “in a manner ... affect[ing] either the subject matter of the appeal or the appellate proceeding itself — that, in effect, [would] preclude[ ] or hamper[ ] the appellate court from acting on the matter before it.” Jackson v. State, supra, 358 Md. at 620 , 751 A.2d 473 . The Court concluded that because the circuit court actually had exercised its jurisdiction to deny the motion for new trial, “there was no adverse impact at any time on the jurisdiction of the Court of Special Appeals or on its ability to resolve the issue then before it; denial of the motion eliminated any possible conflict with the appeal.” Id. at 621, 751 A.2d 473 .

Rejecting as “unsound the assertion that, if the [circuit] court was not authorized to grant the motion, it was equally unauthorized to deny it[,]” the Court observed that it did not need to consider whether a circuit court’s decision granting a motion for new trial in such a circumstance would be subject to reversal, on abuse of discre ⁵⁹⁸ tion grounds, as an interference with the subject matter of a pending appeal or the ability of the appellate court to resolve the issue before it. Id. at 626 , 751 A.2d 473 (emphasis in the original). The holdings in Pulley and Jackson make plain that the filing of a notice of appeal, whether within 30 days of the entry of an interlocutory order or within 30 days after the entry of a judgment of conviction in a criminal case, does not cause the trial court to lose its “fundamental jurisdiction” over the case. Therefore, during the pendency of the appeal, the trial court retains its inherent power to make rulings, including rulings on motions for new trial, although it may not exercise that power so as to interfere with the appeal or the issues to be decided in the appeal.

Accordingly, in the case at bar, the appellant’s filing of a notice of appeal did not foreclose him from filing a timely motion for new trial, under Rule 4-331(a), and did not deprive the circuit court of its fundamental jurisdiction to decide that motion. The circuit court was legally incorrect in concluding that it did not have the power and authority to rule on the appellant’s motion for 'new trial. The State maintains that the situation in this case is precisely the same as existed in Jackson : that is, in both cases, the trial courts retained their fundamental jurisdiction to rule on the new trial motions but were limited in how they could exercise their jurisdiction, so as not to interfere with this Court’s (or the Court of Appeals’s)