Moss v. Director

Orth, J., dissenting: It is my opinion that the Court of Appeals does not have jurisdiction to review the judgment of the Court of Special Appeals. Edward Arnold Moss was found to be a defective delinquent by a jury in the Circuit Court for Montgomery County. The court thereupon ordered Moss to be confined in Patuxent Institution as a defective delinquent for an indeterminate period. Moss applied for leave to appeal from that order to the Court of Special Appeals.

The application was granted. The case was transferred to the appeal docket, briefs were filed, and argument heard. The order of the lower court was affirmed. Moss v. Director, 32 Md. App. 66 , 359 A. 2d 236 (1976). ⁵⁷⁰ Maryland Code (1957, 1976 Repl.

Vol.) Art. 31B, § 11, pertaining to applications for leave to appeal in defective delinquent proceedings, includes the provision: “If the application for leave to appeal is granted, the procedure for appeal shall conform to the rules of the Court of Special Appeals.” Maryland Rule 1094 c provides in material part: “If leave to appeal is granted, unless the Court [of Special Appeals] otherwise directs, further proceedings shall be had pursuant to this chapter as if the order granting leave to appeal were the order of appeal filed pursuant to Rule 1012 (Appeal — Times for Filing).” Maryland Code (1974, 1975 Cum. Supp.), Courts and Judicial Proceedings, Article § 12-201, confers upon the Court of Appeals the power to issue a writ of certiorari to the Court of Special Appeals in any case or proceeding pending in or decided by the Court of Special Appeals upon appeal from a circuit court or an orphans’ court or the Maryland Tax Court “[e]xcept as provided in § 12-202. .. .” Section 12-202 reads: No review by way of certiorari may be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted: (1) Leave to prosecute an appeal in a post conviction proceeding; • (2) Leave to prosecute an appeal in a defective delinquent proceeding; (3) Leave to appeal from a refusal to issue a writ of habeas corpus sought for the purpose of determining the right to bail or the appropriate amount of bail. To me, there is no ambiguity whatsoever in the dictates of § 12-202. The plain and certain language leaves nothing to be construed or interpreted.

The sure legislative intent is clearly expressed in the command that “[n]o review by way of certiorari may be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted. ..” leave to appeal in any of the three ⁵⁷¹ specified proceedings, one of which is the proceeding here — a defective delinquent proceeding. The Court of Appeals has