Moon v. State

Per Curiam. Dennis Mullene Moon, the appellant, appeals from a conviction for armed robbery in the Circuit Court for Montgomery County after a trial before a jury. He was sentenced to imprisonment in the Maryland Penitentiary for a period of twenty years. 1 Credit was given for the time served since the date of his arrest. It appears that at a former trial the defendant was convicted of armed robbery, but before the decision became valid he elected to void the indictment under Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 .

At the former trial he was sentenced to imprisonment for twelve years. The present appeal arises from the subsequent indictment and trial. The question presented is: Does the due process clause of the Fourteenth Amendment of the Constitution of the United States, or the common law as applied in Maryland, preclude a greater sentence at the second trial than at the former ? Tate v. State, 236 Md. 312 , 203 A. 2d 882 , and State v. Barger, 242 Md. 616 , 220 A. 2d 304 , make clear that where an indictment is invalid, a defendant can be retried since he has not previously been put in jeopardy.

It would seem obvious that in such an event his punishment could be greater than at the prior trial. Although the question of the validity of the indictment was not involved, in Hobbs v. State, 231 Md. 533 , 191