Larsen v. State

Bishop, J., delivered the opinion of the Court. Gerard Larsen, appellant, was convicted by a jury in the Circuit Court for Harford County of two counts of theft and two counts of false application to insurance companies. Because his trial did not begin until July 7, 1982, 223 days after his attorney entered his appearance, appellant contends that the trial court should have granted his motion to dismiss the charges against him in accordance with Maryland Rule 746 and State v. Hicks, 285 Md. 310 , on motion for reconsideration, 285 Md. 334 (1979). The crucial postponement occurred on April 7, 1982, the second trial date, when the case was postponed "due to the unavailability of Judge or Jury to hear case.” April 7th was the 133rd day on the Hicks’ timetable.

No new trial date was ¹³⁷ set during that postponement hearing, but appellant’s trial counsel (now his appellate counsel) made the following statement: "Your Honor, we would ask that the Court dismiss the case. I think the State knew on February the 4th that the Defendant requested a jury trial. The State set it back in when it was suitable for them, and now they tell us they are not ready.” This was an oral motion to dismiss, but no basis or reason was given. From April 7th until the date of trial, July 7th, appellant did not move to dismiss the case.

On July 7th the appellant filed, for the first time, a motion to dismiss for lack of a speedy trial, in which he alleged for the first time a violation of Maryland Rule 746 and constitutional rights under the Sixth Amendment of the United States Constitution. 1 On appeal the only issue raised by the appellant is the failure of the State to comply with Maryland Rule 746. We shall, therefore, treat the constitutional speedy trial issue as abandoned. Maryland Rule 736 The State argues that since the appellant did not file his motion to dismiss until July 7, 1982, the date of trial, some 90 days after the April 7th postponement date, he is precluded from raising the issue on appeal by Maryland Rule 736 and Pennington v. State, 53 Md. App. 538 (1983). We do not agree with the State’s contention that the only real difference between Pennington and the case subjudice is that the motion in Pennington was oral and the motion in this case is in writing.

It is not necessary to go into the additional factors in Pennington that distinguish that case from this. The only difference between this case and Carey v. State, 54 Md. App. 448 (1983), is that in Carey the motion ¹³⁸ was oral and in this case it is in writing. Since the motions in both Pennington and Carey were oral motions, we are called upon in the case subjudice to decide for the first time whether a written motion to dismiss filed on the date of trial comports with the requirements of Maryland Rule 736. As we pointed out in Pennington and repeated in Carey , a motion to dismiss is governed by the "other motions” category of Rule 736, which is composed of the following three sub-sections: "c.

Other Motions. Any other defense, objection or request capable of determination before trial without trial of the general issue shall be raised by motion filed at any time before trial. d. Content of Motions. A motion filed pursuant to this Rule shall be in writing unless the court otherwise directs, shall state the grounds upon which it is made, and shall set forth the relief sought.

A motion alleging an illegal source of information as the basis for probable cause must be supported by precise and specific factual averments. e. Statement of Points and Authorities. Every motion shall contain or be accompanied by a statement of points and citation of authorities. A response, if made, shall be filed within 15 days and be accompanied by a statement of points and citation of authorities.” As the Court of Appeals held, and as we in turn have repeatedly held ad nauseum, the rules "are not mere guides or bench marks to be observed, if convenient.” State v. Hicks, supra, 285 Md. at 318 ; Pennington, supra, 53 Md.App. at 542 .

With reference to the filing of the motion on the date of trial, we quoted in Carey what we had observed in Pennington : ¹³⁹ "Sections c, d and e of that rule (Rule 736) clearly anticipate something more than a last minute spinning hipshot... While the State must justify any violation of Rule 746, we hardly think that it must come to court on the trial date fully prepared for a hearing on a motion to dismiss, of which nothing has been suggested let alone filed pursuant to Md. Rule 736. Implicit in Rule 736’s procedural requirements of writing, grounds, relief, points and authorities and 15 days to respond is the opportunity for the State to prepare its justification for whatever is alleged and prayed by the appellant’s motion.” Carey, supra., 54 Md. App. at 450 . The motion to dismiss filed in the case before us was "something more than a last minute spinning hipshot...”.

It was filed before trial (c), it was in writing (d), and it did contain a legal memorandum which provided a statement of points and authorities (e). The one item lacking was the fifteen day period required by sub-section (e) as the time allotted for the response of the State. The State’s failure to request a postponement to avail itself of this time requirement amounted to a waiver of that requirement. If a defendant files a timely, written motion to dismiss on the date of trial, it then becomes the option of the State to argue the motion at that time or to request a postponement "to prepare its justification for whatever is alleged and prayed by the appellant’s motion [to dismiss].” Pennington, 53 Md. App. at 542 .

Whether to grant the postponement, of course, will be in the sound discretion of the trial court. For these reasons we hold that the appellant did comply with Maryland Rule 736 and is not precluded from raising the Maryland Rule 746 issue on appeal. ¹⁴⁰ Maryland Rule 746 Appellee sets out in its brief the following docket chronol ogy: November 17, 1981 Indictment filed. November 25, 1981 Appearance of counsel for appellant; appellant entered a plea of not guilty and elected a jury trial; appellant filed a motion for speedy trial. * February 4, 1982 Trial postponed "due to lack of availability of judges and jurors.” 2 April 7, 1982 Trial postponed "due to unavailability of Judge or Jury to hear case.” July 7, 1982 3 Appellant filed written motion to dismiss for lack of speedy trial under Maryland Rule 746; hearing on motion to dismiss; motion denied; trial commenced and continued. July 8, 1982 Trial resumed but not concluded.

July 9, 1982 Trial concluded. Maryland Rule 746 provides: "(a) Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723, a ¹⁴¹ trial date shall be set which shall be not later than 180 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723. and (b) Upon motion of a party made in writing or in open court and for good cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.” Failure to comply with the 180 day requirement of the rule mandates dismissal of the charge. State v. Hicks, supra. The question in this case is whether the unavailability of a judge and a jury was good cause to postpone the case on April 7, 1982.

As we have previously stated, determination of whether there is good cause must take into account the purpose of section 591 and Rule 746. Goins v. State, 48 Md. App. 115 (1981), aff'd. 293 Md. 97 (1982). That end is not solely to protect the defendant’s constitutional right to a speedy trial, e.g., State v. Hicks, supra, 285 Md. at 320 ; State v. Green 54 Md. App. 260 (1983), but also to protect society from the harms of unnecessarily delayed criminal trials. State v. Lattisaw, 48 Md. App. 20, 27 (1981).

Within constitutional constraints, the legislature has the choice of means to attain this end. In enacting section 591, it has not chosen to prevent all possible causes of delay, State v. Farinholt, 54 Md. App. 124 (1983). Apparently it has chosen to prevent unnecessary scheduling delays and postponements, which were major causes of trial delays. As Chief Judge Murphy wrote for the Court of Appeals in Hicks, the enactment of section 591 "... manifested the legislature’s recognition of the detrimental effects to our criminal justice system which result from excessive delay in scheduling criminal cases for trial and in postponing scheduled trials for inadequate reasons.

Judge Jerrold ¹⁴² Powers, speaking for the court, in Guarnera v. State, 20 Md. App. 562 , 318 A.2d 243 (1974), highlighted the problem underlying enactment of § 591 in these forceful words: 'Postponement of cases from dates scheduled for trial is one of the major factors contributing to delay in the administration of justice, civil as well as criminal. Courts and court supporting services spend substantial time "spinning their wheels” in rescheduling cases. Available court time is lost. The time of attorneys and witnesses is lost.

Witnesses themselves are lost. Those who are not are put to severe inconvenience as well as actual loss, and end up in despair at the frustrations of being involved in the trial of a case in the courts. The very image of the judicial system is in serious jeopardy. Public confidence in the courts as instruments of the people is impaired.

Judges and lawyers cannot blame the "system” for they are the people who run that system.’” State v. Hicks, supra, 285 Md. at 316-17 . In sum, the statute promotes efficient use of the court system by mandating that "the people who run that system” — i.e., the judges, State’s attorneys and defense attorneys — ensure that cases be scheduled promptly and postponed only on a showing of good cause. Sub-section (b) of the statute authorized implementation by the Court of Appeals, which "... deemed it essential, as is evident from the language of Rule 746, to place mandatory controls over the scheduling of criminal cases for trial, and over their postponement, to assure that criminal charges would be promptly heard and resolved.... The provisions of Rule 746 are of mandatory application, binding upon the prosecution and defense alike....” Id. at 318 . ¹⁴³ In State v. Lattisaw, supra, Judge Wilner summarized the Court’s implementation of the statute: "Although the dissent in Hicks viewed the requirements of Rule 746a primarily from the perspective of the defendant — as an extension of his constitutional right to a speedy trial — the majority looked upon it more from a societal point of view, as a device to alleviate the problems caused to the criminal justice system by delays and initially scheduling cases for trial and by the inappropriate postponing of scheduled trial dates.” Id. at 27.

Accord Briscoe v. State, 48 Md. App. 169, 180-81 (1981). Thus, the purpose of the statute and rule is to promote the public interest by requiring the participants in the court system to make efficient use of available judicial resources. In Carter and Turner v. State, 54 Md. App. 220 (1983) we stated that: "Determination of whether there is good cause for a continuance must take this purpose into account.” Id. at 227 . We held that: " 'Good cause’ is a normative term, permitting