Gardner v. State

Gilbert, J., delivered the opinion of the Court. Once again we are required to reverse a conviction wherein the facts clearly indicate the guilt of the accused. We must reverse because of the State’s failure to comply with the provisions of Md. Ann. Code art. 27, § 616S (a), the Intrastate Detainer Act. That section provides that an accused who is serving another sentence . . in any correctional institution under the jurisdiction of the Department [Division of Correction] or whenever any county or city jail receives a detainer against any prisoner serving a sentence in the county or city jail any such prisoner shall be brought to trial within 120 days after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State’s Attorney ... of the county in which the indictment, information, or complaint is pending and to the appropriate court; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

The request of the prisoner shall be filed within 30 days of the prisoner’s notification of any untried indictment, ³¹⁶ information, or complaint and shall be accompanied by a statement from the warden or superintendent having custody, setting forth the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.” (Emphasis supplied). Subsection (c) of § 616S mandates that if the case is not prosecuted within the 120 day period, the trial court has no jurisdiction over the matter, the untried charging document is not viable, and the case must be dismissed with prejudice. In the instant case the record discloses that appellant was indicted, inter alia, for robbery with a dangerous and deadly weapon.

The indictment was handed down by the Grand Jury for Prince George’s County on May 1, 1974. The appellant, Sherman Elroy Gardner, III, was at that time confined for an unrelated offense at the Maryland Correctional Training Center in Hagerstown, Maryland, where he was serving a three year sentence dating from January 15, 1974. The appellant, upon notice of the detainer lodged as a result of the indictment, executed a “Request for an Immediate and Speedy Trial” on May 15, 1974 and it, together with the other information required by Md. Ann. Code art. 27, § 616S (a), was forwarded to the Circuit Court for Prince George’s County. While nearly all other paper writings in the record bear a stamped date indicating when the papers were received for filing, neither the appellant’s request for immediate and speedy trial nor the Division of Correction’s “Certificate of Inmate Status” denotes any such stamping or date of receipt.

We observe that the Division of Correction’s “Certificate of Inmate Status” was completed by the Division on May 24, 1974, and that it, together with the appellent’s request for immediate and speedy trial, was filed in the record sometime thereafter, but prior to June 14, ³¹⁷ 1974, when appellant’s then counsel moved to dismiss the indictment against appellant, seemingly on the basis of our decision in Matter of Trader, 20 Md. App. 1 , 315 A. 2d 528 (1974), reversed 272 Md. 364 , 325 A. 2d 398 (1974). No contention has been made in this Court by the State that appellant did not fully comply with the requisite terms of Md. Ann. Code art. 27, § 616S. We, therefore, shall presume that there was full compliance. The threshold question arises as to when the statutory period of 120 days began to run.

Because no other date, as we have said, is otherwise indicated in the record, for purposes of this opinion we shall commence the accounting from the date the Certificate of Inmate Status was executed by the Division of Correction, i.e., May 24, 1974. Under that accounting the appellant, absent a continuance for good cause, § 616S (a), was required to have been tried no later than September 21, 1974, but no trial took place on or before that statutorily prescribed date. The trial was not, in fact, commenced until December 17, 1974, or approximately 90 days after the 120 day period had expired. The State argues that because the appellant, on June 14, 1974, filed a motion to dismiss the indictment on the ground of the unconstitutionality of the Juvenile Waiver Law, formerly Md. Ann. Code, Courts and Judicial Proceedings Art. § 3-808 (4), 1 and the trial court apparently deferred ruling on that motion, 2 pending the decision of the Court of Appeals which had granted certiorari on