King v. State

Orth, J., delivered the opinion of the Court. This is an appeal from an order of the Criminal Court of Baltimore denying the appellant’s motion to dismiss three indictments, nos. 6100, 6101 and 6102 (1967), charging him with offenses against the person and property of Mrs. Verda Welcome. See Allen v. State, 1 Md. App. 249 . The grounds for the ⁴¹⁶ motion were that the State was precluded from prosecuting him by an order of the Circuit Court for Anne Arundel County of 8 February 1968, that he was denied a speedy trial and that he was denied due process of law.

The only witness at the hearing on the motion was an Assistant State’s Attorney for Baltimore City called by the appellant. From his testimony, which was not disputed, it appeared that the appellant had been convicted of the offenses charged in the challenged indictments in the Circuit Court for Anne Arundel County in April 1964 under indictments nos. 8144 and 8145 and sentenced to 25 years. Under the decision in Schowgurow v. State, 240 Md. 121 , the convictions were set aside by order dated 4 March 1966 of the Circuit Court for Anne Arundel County and, as was customary in such orders, the State was given a reasonable time to refer the charges to a properly constituted grand jury. The indictments here challenged were returned on 19 December 1967 by the grand jury for the City of Baltimore.

The witness did not explain the delay in re-indicting the appellant. On 8 February 1968 the appellant applied for a writ of habeas corpus to the Circuit Court for Anne Arundel County and, after a hearing, that court passed an order releasing and discharging the appellant from custody of the Maryland House of Correction because there was “no authority or commitments” to hold him in the Maryland House of Correction “to the knowledge of the court.” However, on 11 June 1964 the appellant had been found guilty in the Criminal Court of Baltimore of arson and sentenced to 5 years. The judgment was affirmed on appeal. King v. State, 238 Md. 622 .

The appellant was committed to the Maryland Penitentiary to serve a term of 5 years from 8 May 1964. This was not brought to the attention of the court hearing the habeas corpus matter and “The Maryland House of Correction apparently had no record of this commitment at the time of the hearing on 8 February 1968.” On this evidence we think it obvious that the order of 8 February 1968 of the Circuit Court for Anne Arundel County provided no basis for the dismissal of the indictments returned against the appellant on 19 December 1967. We have held that as a general rule it is only after prosecu ⁴¹⁷ tion has been initiated that the issue of a speedy trial can be raised by an accused; until the grand jury acts there is no case to be tried. Stevenson v. State, 4 Md. App. 1, 11 .

The time between the presentment of the appellant on the charges here and the motion to dismiss the indictments, which is the subject of this appeal, was less than two and a half months. The appearance of counsel for the appellant was not entered until the day the motion to dismiss was filed. The interval between the presentment and the motion to dismiss is not a delay of constitutional proportions, nor did the appellant make demand for trial. As the appellant appealed from the denial of the motion, that he has not been tried as yet on the challenged indictments is in no event chargeable to the State.

See Montgomery v. State, 4 Md. App. 473. We hold that the appellant has not been denied a speedy trial. As to the delay in indictment, there is no time limit, other than that fixed by the statute of limitations, upon action by the grand jury. O’Connor v. State, 234 Md. 459, 462 , cited in Price v. State, 235 Md. 295, 300 .

But we have said that a defendant does not stand defenseless against unreasonable, oppressive and capricious delay on the part of the State in obtaining an indictment. In appropriate circumstances a defendant has means to obtain an early trial, if he desires to invoke them, under Md. Rule 709 and Md. Code, Art. 27, § 616A-S (Interstate and Intrastate Detainers). Montgomery v. State, supra, 480. And we noted in Montgomery , at 480, that such delay in indictment may constitute a denial of due process of law.

On the record before us we cannot justify the delay by the State in obtaining the new indictments more