Parks v. State

Wilner, J., delivered the opinion of the Court. On or about May 27, 1976, Joseph W. Parks, appellant, decided to depart from his current residence and seek other quarters. The problem was that his current residence was the Maryland House of Correction, and his departure was deemed by the warden thereof to be premature. This- resulted in the filing of a detainer against appellant by the Maryland State Police charging him with the crime of escape.

Md. Annot. Code art. 27, § 139 (a). On August 26, 1976, having in the meanwhile been apprehended and returned to prison, appellant filed a Request for Disposition of Intrastate Detainer, seeking an early disposition of this detainer pursuant to Md. Annot. Code art. 27, § 616S (the Intrastate Detainer Act).

A copy of this request was received by the court (and apparently as well by the State’s Attorney) on September 8, 1976. Notwithstanding that the law (§ 616S) required that appellant be brought to trial within 120 days after receipt of the request, appellant was not in fact tried on the escape charge until January 10,1977 — some three or four days too late. But tried he was, in the Circuit Court for Anne Arundel County, where he was convicted and sentenced to a six-month term of imprisonment, consecutive to the sentence then being served. We reversed that judgment, concluding, in an unreported per curiam Opinion, that, because the State failed to bring the escape charge to trial within the statutory period, or to obtain a valid continuance, the. court had “lost jurisdiction of the case and was powerless thereafter to entertain the matter.” Parks v. State, No. 75, Sept. Term, 1977, Opinion filed October 21, 1977.

Pursuant to this decision, the lower court, on February 24, 1978, dismissed the charge. Five weeks later, however, the ³⁸³ Anne Arundel County Grand Jury returned an indictment against appellant, charging him with the very same escape that was the subject of the earlier proceeding. In response, appellant moved to dismiss the indictment on grounds of double jeopardy. His motion was denied, and, in advance of any further proceedings in the Circuit Court, he has filed this appeal.

The sole issue before us is whether retrial of appellant upon this new indictment, after dismissal of the charge arising from the original detainer, would place him twice in jeopardy for the same offense. 1 The Intrastate Detainer Act was first enacted in Maryland in 1965, in the same session of the General Assembly that enacted the Interstate Agreement on Detainers; and on more than one occasion we have observed that the purpose and rationale of the two enactments are identical. See, for example, Barnes v. State, 20 Md. App. 262 , aff’d 273 Md. 195 (1974). 2 As originally enacted, the Intrastate Act applied only ³⁸⁴ to prisoners serving a sentence in an institution operated by the State Department of Correction, thus excluding ³⁸⁵ convicted prisoners incarcerated in the local jails or at Patuxent Institution. It set forth, in a somewhat confusing way, the requirement of notifying an eligible prisoner of untried indictments, informations, or complaints, and the right of the prisoner, within 30 days after such notice, to request trial on such charges within 120 days of the request. Subsection (c) of this original enactment stated: “If action is not commenced on the matter for which request for disposition was made, within the time limitation set forth in subsection (a) above \j.e., 120 days after the request], the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in such case the court shall enter an order dismissing the untried indictment with prejudice.” (Emphasis supplied.) This provision, mandating that the failure to comply with the specified time requirements would result in the dismissal of the untried indictment with prejudice, followed closely not only the virtually identical provision in the companion Interstate Agreement, but also those of both the original Council of State Governments proposal and the Uniform Act. 3 ³⁸⁶ The words “with prejudice”, when used in that context, have, of course, a well-established meaning in the law.

They signify that the dismissal is final, that the controversy is concluded and cannot be reopened by a new or subsequent action. See Foundry Systems & Supply, Inc. v. Industry Dev. Corp., 185 S.E.2d 94 (Ga., 1971); Harris v. Moye's Estate, 202 S.W.2d 360 (Ark., 1947). A dismissal “with prejudice” has been held to be as conclusive of the rights of the parties as if the action had been prosecuted to a final adjudication on the merits adverse to the complainant, in this instance the State.

See Gonzalez v. Gonzalez, 127 N.E.2d 673 (Ill., 1955); Fenton v. Thompson, 176 S.W.2d 456 (Mo., 1943); Mayflower Industries v. Thor Corp., 86 A. 2d 293 (N.J. Super., 1952); Schuster v. Northern Co., 257 P. 2d 249 (Mont., 1953). There is nothing in the original enactment (ch. 628) or in its legislative history that would justify construing the phrase in any other way; indeed, to consider it as suggesting anything other than the absolute finality of the dismissal would be entirely' inconsistent with the whole purpose and thrust of the enactment. Thus, under the law as originally enacted by the General Assembly, the current indictment against appellant would have been a nullity, not because of double jeopardy, but because, by statute, the court would have had no jurisdiction to try it. Unfortunately for appellant, however, the General Assembly changed the law — significantly changed it — in 1976.

The original enactment of the Maryland Intrastate Detainer law (§ 616S) was hardly a model of clarity. Indeed, in King v. State, 5 Md. App. 652, 658 (1969), this Court commented that “[wjhile the Act may be praised for its objective, it may be more damned for its provisions establishing the procedure to attain the objective. The provisions are vague, obscure and with one exception, lack sanctions to compel compliance with them.” The confusion emanating from the imprecise drafting of the statute ³⁸⁷ continued to create problems for the Court and more so, no doubt, for the inmates intended to be its principal beneficiaries. The major problem for the inmates was that, while the 120-day period did not commence to run until the request was actually received by the court and the State’s Attorney, the requirements placed upon correctional officials to notify the inmate of outstanding detainers and to forward his request for prompt disposition on to the proper authorities were held to be directory, and no sanctions were provided in the event they failed to carry out their statutory duties.

See, for example, King v. State, supra; Davis v. State, 24 Md. App. 567 (1975); State v. Barnes, 273 Md. 195 (1974). In order to clarify the procedures with respect to notifying the prisoner of outstanding detainers and processing his request for a trial on those charges, to provide sanctions upon the failure of certain officials to comply with, the requirements of the law, and to extend the benefits of the law to inmates at Patuxent Institution, House Bill 1370 was introduced into the 1975 session of the General Assembly. This bill would have completely rewritten § 616S of art. 27, and placed clear and mandatory duties upon the Division of Correction and the warden or superintendent of the institution in which the inmate was confined. In proposed new § 616S (c), House Bill 1370 provided that if a prisoner was not informed of an outstanding detainer and his right to request a final disposition of it, within one year, the court would lose jurisdiction and would be required to enter an order dismissing the untried charges with prejudice.

This was the sanction that was missing under the then-current law, and it was taken, apparently, from section 1 (c) of the Uniform Act. See State v. Barnes, supra, 273 Md. 206, 207 (footnote 10). Proposed subsection (e) provided the same sanction for failing to bring the prisoner to trial within 120 days after receipt of his request — loss of jurisdiction and dismissal with prejudice — although, in that context, this represented no change from the existing law. House Bill 1370 was not enacted; it received an unfavorable report from the House Judiciary Committee.

The next year, however, virtually the same bill was introduced as House Bill ³⁸⁸ 368. There were but two substantive differences between the two bills, one of them critical to appellant’s complaint. In both subsections (c) and (e), the last sentence was rewritten to require that the untried indictment be dismissed without prejudice. With but these changes from the bill submitted a year earlier and two amendments not relevant to this controversy that were made during the legislative process, House Bill 368 passed both houses of the General Assembly without a dissenting vote (see 1976 House Journal, p. 1767, Senate Journal, p. 2997) and was signed into law as Laws of Md., 1976, ch. 653.

As so enacted, § 616S (e) now reads: “If the untried indictment, information, warrant, or complaint, for which request for disposition is made, is not brought to trial within the time limitation set forth in subsection (b) of this section, the court no longer has jurisdiction, and the untried indictment, information, warrant, or complaint has no further force or effect. In that case, the court upon request of the prisoner or his counsel shall enter an order dismissing the untried indictment without prejudice.” (Emphasis supplied.) Given the plain wording of this provision, much less its legislative history, the change made in the law is not only obvious, but patently deliberate. No attempt was made during the legislature’s consideration of House Bill 368 to restore the phrase “with prejudice”. In stark contrast, then, to the finality of the dismissal envisioned by and implicit from the preexisting law — “with prejudice” — and notwithstanding that this change, in the words of the Court of Appeals “would render the statute ineffective and defeat its plain object” (State v. Barnes, supra, at 212), the General Assembly has made clear its intent that such a dismissal for failure to comply with the requirements of the Act should serve only to terminate that particular action and not to preclude another.

This is what is meant by the phrase “without prejudice.” See O’Keefe v. Irvington Co., 87 Md. 196 (1898); Block v. Baltimore, 149 Md. 39, 60 (1925); Rosenberg v. State, 164 Md. 473 (1933); Adams v. Bear, 349 P. 2d 184 (Ariz., 1960). ³⁸⁹ The question at issue is whether the “re-charging” of appellant by a new and independent indictment, though clearly permissible under the current statute, nevertheless is constitutionally impermissible because it would serve to place appellant twice in jeopardy for the same offense. In Ball v. United States, 163 U. S. 662, 669 (1896), the Supreme Court observed of the double jeopardy clause of the Fifth Amendment that “[a]n acquittal before a court having no jurisdiction is, of course, like all proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.” This maxim, which appears to have been dicta in that case, has nevertheless been referred to with approval by the Supreme Court on at least three subsequent occasions, 4 and has ripened into a well-established rule of law in the various State and lower Federal courts, applying equally to convictions as well as acquittals. 5 This Court specifically applied the rule in Tipton v. State, 8 Md. App. 91 (1969), basing its decision in large part upon an analogous conclusion of the Court of Appeals in Crawford v. State, 174 Md. 175 (1938). 6 ³⁹⁰ There is, as pointed out by Judge Friendly in United States v. Sabella, supra, at 208, footnote 5, “some degree of unreality in a cláim that a convicted defendant who has been in jail has not been in jeopardy.” Indeed, it may be difficult for any defendant who has, in fact, been forced to undergo the actual rigors and uncertainties of a trial brought to determine whether his life, liberty, or property should be forfeited to accept that he has not been placed in jeopardy, whatever the verdict, because the court that tried him was without jurisdiction to do so. Yet, in the legal and constitutional sense, reality is not the test. Jebpardy refers not to