In Re Darryl D.

GARRITY, Judge. This case arises from the adoption by the Circuit Court for Baltimore City (Mitchell, J.), sitting as a juvenile court, of a master’s recommendation that a delinquency petition be dismissed “due to lack of timely prosecution.” The ⁴³⁶ dismissal was the sanction imposed by the master when the prosecutor, who was engaged in the trial of another matter in an adjoining courtroom, failed to go forward with the case at the time set by the master. Because we believe the court erroneously sanctioned the master’s recommendation of dismissal, we shall reverse the judgment. Facts Following two juvenile petitions charging him with assault, carrying a concealed deadly weapon and carrying a deadly weapon openly with intent to injure, Darryl D. appeared for his adjudication before Juvenile Master Katharyn E. Koshel on the morning of January 11, 1985.

According to the master’s Proposed Findings of Fact, Conclusions of Law, and Recommendations, filed with the circuit court pursuant to Maryland Rule 911, “all State and defense witnesses, as well as respondent’s counsel, were ready for trial at 9:30 a.m.” Apparently, the assistant state’s attorney, in the words of the master, “popped his head in” the courtroom and told the arresting officer, “he’d be right back and disappeared without any courtesy to any of these ... 11 people in this courtroom, this Master included.” After “other scheduled matters were resolved,” the master conducted a search for the assistant state’s attorney. Upon finding him engaged in another trial, the master left a message for the prosecutor “to contact my court immediately upon concluding the matter.” At 11:15 a.m., the master returned to the court in which she had originally found the assistant state’s attorney. She found him still there on another matter, and left a message that she “was dismissing Darryl D.’s case if it did not start by 11:30 a.m.” The master thereupon returned to her courtroom and announced her plan. Finally alerted to the scheduling conflict, the State’s Attorney’s Office sent another assistant to Master Koshel’s courtroom to prosecute the matters.

Upon her arrival, the ⁴³⁷ attorney briefly interviewed the witnesses, announced that the State was prepared to proceed, and at 11:45 a.m. called the two petitions for trial. Over objection, the master dismissed the petitions for “lack of timely prosecution.” Master Koshel pointed out to the prosecutor that Darryl D. was being represented by “private counsel” and that “this has about ruined his morning. He has another matter in the afternoon. It’s past quarter to twelve and I’m not going to hear this case which obviously would not conclude before 12:30 at this time.

So I am dismissing it for lack of timely prosecution____” 1 The State filed exceptions to the master’s recommendation. Upon review of the record, the court denied the exceptions and adopted the recommendation of the master to dismiss the petitions. Discussion of Law The State argues that neither the master nor the court had authority to dismiss the juvenile petitions alleging delinquency. The State principally relies on State v. Hunter, 10 Md. App. 300 , 270 A.2d 343 (1970).

In Hunter , at a pretrial meeting in the judge’s chambers, the prosecutor explained that he was not prepared to go to trial on indictments charging Hunter with storehouse breaking and larceny because three of the police witnesses had yet to appear. The prosecutor claimed that each had received a summons. The judge returned to the bench to issue bench warrants but, upon making further inquiry, learned that no summons had been issued. As our predecessors on this court noted, it was unclear whether the prosecutor chose not to go forward or whether the trial judge called the case.

In any ⁴³⁸ event, the trial judge dismissed the indictments for lack of prosecution. This court held that a trial judge does not “possess power under the present state of law in Maryland, either inherently or by statute or rule of court, to summarily dismiss a valid indictment prior to trial over the State’s Attorney’s objection upon the ground that there has been a ‘lack of prosecution’ not amounting to the denial of the constitutional right to a speedy trial.” 10 Md.App. 304 , 270 A.2d 343 . 2 As the State correctly points out, neither Hunter, nor the case sub judice was dismissed on speedy trial grounds. Cf., State v. Lawless, 13 Md.App. 220 , 283 A.2d 160 (1971). Nor is this case one falling within the Maryland statute and rule requiring the prompt prosecution of criminal matters and the line of cases flowing from them.

See Md.Code Art. 27, § 591; Md.Rule 746; see also, e.g., Pennington v. State, 299 Md. 23 , 472 A.2d 447 (1984); Carey v. State, 299 Md. 17 , 472 A.2d 444 (1984); State v. Frazier, 298 Md. 422 , 470 A.2d 1269 (1984); Goins v. State, 293 Md. 97 , 442 A.2d 550 (1982). There is a