Lohss and Sprenkle v. State

Murphy, C. J. dissenting: Maryland Code Article 5, § 14 (now § 12-302(c) of the Courts and Judicial Proceedings Article) affords the State an unqualified right to appeal in criminal cases “from a final order or judgment granting a motion to dismiss, or . . . dismissing any indictment. . . .” In his opinion for the Court of Special Appeals, Chief Judge Orth cogently observed that the language of the statute “means precisely what it says”; that it constituted a plain legislative mandate permitting the State a limited right to appeal from the dismissal of an indictment irrespective of the reasons motivating the dismissal and without regard to which party initiates the order of dismissal. Judge Orth said for the court: “The dismissal is at the sound discretion of the trial court, and whether the dismissal is suggested or proposed or urged or formally moved by the ¹²¹ accused or by the State, or is accomplished by the sua sponte action of the court is not material to our jurisdiction or to the State’s right to appeal. As we have indicated, the statute flatly gives the State the right to appeal ‘from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment’, the only exception being where ‘the defendant has been tried and acquitted.’ We adhere to our expressed belief that the statute means precisely what it says.” 19 Md. App. at 494. I, of course, recognize the principle that ordinarily a party has no standing to appeal from an order to which it consented.

But there is nothing in the record in this case to even remotely suggest that the State consented to the dismissal of Lohss’ indictment. On the contrary, when Lohss’ motion to dismiss was granted by the trial judge, the State simply exercised its express right under § 14 to appeal the legality of that dismissal; that the State now candidly admits that it utilized the dismissal order as the only means to obtain appellate review of the lower court’s obviously incorrect conclusion that the search and seizure were illegal does not indicate agreement or acquiescence on the State’s part in the indictment’s dismissal. Since the appeal was properly taken in Lohss’ case from a final judgment, all interlocutory orders, including the propriety of granting the motion to suppress the evidence, were open to