Matter of Ingram

Gilbert, J., delivered the opinion of the Court. Appellant, John Ingram, who was 16 years old in 1967 when the offense of robbery with a deadly weapon was committed, was convicted of said charge in the Criminal Court of Baltimore on May 27, 1969, and pled guilty to a similar offense on June 9, 1969. The appellant was not then considered to be a juvenile in Baltimore City, although elsewhere in the State he would have been considered such. Appellant received sentences of 20 years and 10 years, respectively, with both sentences to be served consecutively.

He was subsequently found to be a defective delinquent and was admitted to the Patuxent Institution. On March 26, 1971, appellant filed a petition for review under the provisions of the Uniform Post Conviction Procedure Act of Maryland, Article 27, § 645 A-J. On June 1, 1971, Ingram also filed a petition for a Writ of Habeas Corpus. Both petitions were heard before a judge in the Baltimore City Court and the Writ of Habeas Corpus was dismissed. Similar action was taken on the post conviction petition although it was dismissed “without prejudice.” This Court, in an unreported post conviction per curiam opinion, No. 57, September Term, 1971, filed August 6, 1971, reversed the Baltimore City Court’s action in dismissing appellant’s post conviction petition and remanded the matter to the Circuit Court of Baltimore City, Division of Juvenile Causes, in order that it might hold a waiver hearing for the purpose of determining whether jurisdiction over the appellant should be waived under the provisions of § 70-16 of Article 26.

Such a procedure had been erstwhile followed by this Court until the Court of Appeals decided the case of Franklin v. State, 264 Md. 62 (1972). In Franklin , the Court of Appeals held that: ³⁵⁹ “* * * the Criminal Court had neither the right nor the power to try a juvenile who had not been sent to it for trial by the Juvenile Court under the statutory waiver procedures. True, when Franklin was tried the statute law of Maryland on its face and the State and Federal decisions as to legislatively declared geographical classifications in Maryland made it appear that the Criminal Court of Baltimore had jurisdiction to try him on the basis that, for the purposes of trial, he was an adult. But as Greene, \v. State, 11 Md. App. 106 ], in reliance on the Long [v. Robinson, 436 F. 2d 1116 ] decisions, held, he was not such an adult but a child, a juvenile, and as such one who could not be tried in Maryland by a criminal court unless — and only unless — the Juvenile Court so ordered after a proper waiver hearing. “Since the legislature expressly took away the right and the power of the criminal court to try a juvenile unless the Juvenile Court waives in favor of a criminal trial, the trial of Franklin was no more than form — it had no substance and no validity and the conviction it produced was a nullity. * * *.

In our view it could not have life breathed into it, and it could not be made valid and effective nunc pro tunc by a waiver made by the Juvenile Court after the trial had been had.” sfc % “The idea that the judge is a microphone who bindingly broadcasts the words that the unchangeable law has spoken into him and that an overruling decision is not a change of law but a correction of erroneous law, still has sufficient validity, utility value and strength to require us, as we see it, to hold that Greene’s recognition and acceptance of the Long cases must be given retrospective effect sufficient to wipe out Franklin’s trial and conviction by the criminal court.” ³⁶⁰ Here, the State concedes that the convictions in the Criminal Court of Baltimore are null and void. They argue, however, that the waiver hearing held on October 21,1971 complies with the mandate of Franklin, supra. We think that a waiver hearing held after a conviction by the Criminal Court complies with Franklin when it is not a nunc pro tunc type of hearing, that is to say, that the conviction in the Criminal Court is nullified so that for all intent and purposes the waiver hearing is the initial valid step. What Franklin proscribes is a conviction by the Criminal Court and a subsequent waiver by the Juvenile Court while the judgment of the Criminal Court is allowed to stand.

In short, Franklin prohibits an a posteriori waiver hearing which seemingly approves an a priori action of the Criminal Court. Article 26, § 70-16 (a) provides in pertinent part that the Juvenile Court “* * * may hold a waiver hearing and waive the exclusive jurisdiction conferred by § 70-2, and may order the child or minor held for trial under the regular procedures of the court which would have jurisdiction over the offense if committed by an adult. * * *” (Emphasis supplied). The very use of the expression “may order the child or minor held for trial” implies an in futuro act as distinguished from an antecedent one. If it be established that an