Irvin v. State

Singley, J., delivered the opinion of the Court. This case raises the question whether the State, in a criminal case, may enter a nolle prosequi as to the remaining counts of one indictment, appeal from an order dismissing two other indictments, and while the appeal is pending, reindict the defendant on virtually the same charges, and proceed to trial. Louis William Irvin was originally charged under three indictments with false pretense, bribery, extortion, misconduct in office, obstruction of justice and conspiracy to commit the substantive offenses charged. The Circuit Court for Baltimore County dismissed two of the indictments in their entirety (obstruction of justice, misconduct in office and conspiracy to obstruct justice) and two counts of the third indictment (extortion and misconduct in office), but left standing the other two counts of that indictment (false pretense and bribery).

When the case came on for trial, the State entered a nolle prosequi as to the counts charging false pretense and bribery, and entered an appeal from the dismissal of the first two indictments. Thereafter, while the appeal was pending, Irvin was reindicted under a new 12 count indictment which, in restating the charges in the three prior indictments, undertook to correct the infirmities which had resulted in the order of dismissal. The case came on for trial, and Irvin was convicted under three of the counts of the new indictment (one for false pretense and two counts for conspiracy to commit the substantive offenses charged) and ¹⁷⁰ was acquitted of the charges contained in the other nine counts. 1 Irvin appealed his conviction to the Court of Special Appeals, contending, inter alia, that the court lacked jurisdiction to try him on the charges contained in the new indictment. 2 That court affirmed the judgments entered below in Irvin v. State, 23 Md. App. 457 , 328 A. 2d 329 (1974), and we granted certiorari on a narrow point, which by our order was “. .. limited solely to the issue whether, after the State entered an appeal from the dismissal of certain counts in the original indictments and then reindicted the Appellant on the same charges, the State could proceed to trial on the latter indictment while the appeal on the first was still pending. . . .” Irvin relies on our holding in Bullock v. Director, 231 Md. 629, 633 , 190 A. 2d 789, 792 (1963) (footnotes omitted): “An appeal to this Court from a nisi prius court does not necessarily stay all further proceedings in the trial court, nor does it strip said court of all power over the proceeding in which the appeal has been taken. The trial court may act with reference to matters not relating to the subject matter of, or affecting, the proceeding; make such orders and decrees as may be necessary for the protection and preservation of the subject matter of the appeal; and it may do anything that may be necessary for the presentation of the case in this Court, or in furtherance of the appeal.

But, when an appeal is taken, it does affect the operation or execution of the order, judgment or decree from which the appeal is taken, and any matters embraced therein. After the appeal has been perfected, this Court is vested with the exclusive power and jurisdiction over the subject matter of the proceedings, and the ¹⁷¹ authority and control of the lower court with reference thereto are suspended.” Irvin would have us say that once the appeal was taken by the State, the trial court was without jurisdiction to try him under the new indictment. He analogizes his situation to that presented in Tiller v. Elfenbein, 205 Md. 14 , 106 A. 2d 42 (1954), where, in a civil case, a motion for reargument of a motion for a partial new trial was filed after an appeal had been entered. Before the hearing on the motion, the defendant dismissed his appeal.

Thereafter, the granting of the motion was challenged by the plaintiff on the ground that the trial court had lost jurisdiction in the matter once the appeal was entered. Judge Henderson, for the Court, held that the filing of a motion for a new trial put the defendant to an election: he could dismiss the appeal and proceed on his motion, or he could pursue his appeal and abandon his motion. Because the defendant had elected to dismiss his appeal, the trial court could rule on the motion. More closely in point is Jones v. State, 214 Md. 525 , 136 A. 2d 252 (1957) where this Court affirmed the trial court’s refusal to consider a motion for a new trial based on newly discovered evidence because an appeal had been entered by the defendant.

The rule of Tiller, supra, was held to be equally applicable to criminal cases, and the result reached was mandated by the pendency