Scott v. State

Prescott, J., delivered the opinion of the Court. In some of its aspects, this is an unusual case. On December 16, 1959, Charles Scott was tried for, and convicted of, statutory burglary, by a judge of the Criminal Court of Baltimore, sitting without a- jury. From a three years’ sentence in the Maryland Penitentiary, he has appealed.

The Attorney General has filed a motion to dismiss the appeal, which we shall dispose of first. The appellant was sentenced by the court on January 20, 1960. He then filed a motion to vacate the judgment and set aside the sentence. This motion was denied by the trial judge on February 9, 1960.

On February 15th, following; the clerk received from the appellant a “Notice of Appeal.” It would serve no present purpose to set forth its contents in detail. As a result of its receipt, the clerk, on February 17th, wrote the appellant and stated: “I gather from the contents of your Notice of Appeal received on February 15th, that you wish the Court of Appeals to review your conviction and sentence of three years imposed on January 20th. If this is correct, you are within the thirty days allowed by law to do so and, in order to protect your rights, I am making the appropriate entry on the docket.” (Emphasis added.) The clerk, also, called to the appellant’s attention that the denial of his motion to vacate the judgment appeared on the docket, and inquired whether he wanted to note an appeal from this denial. The appellant replied that he did.

The State contends that the defendant’s first notice of appeal (as well as his reply to the clerk) only applied to his motion to vacate the judgment, and there has, in fact, never been any appeal from the judgment of January 20th. In view of the quoted portion of the clerk’s letter, whereby the defendant, who was confined in prison, was informed that" the clerk was ³⁷⁹ making an appropriate entry on the docket to have the Court of Appeals review his conviction and sentence of January 20th, we think the contention is unsustainable. The motion to dismiss will, therefore, be denied. Cf.

Cahill v. Baltimore City, 93 Md. 233 , 48 A. 705 . At the conclusion of the presentation of the State’s evidence at the trial below, the defendant, who was represented by counsel, rested his case. The trial court took a short recess, and, upon his return to the courtroom, rendered a verdict of “guilty generally,” and inquired of defendant’s attorney if he wished to file a motion for a new trial. The attorney replied, “We request a motion for a new trial,” and the court said, “All right.” At this point, the defendant asked if he could address the court.

His lawyer stated that although he had advised his client (who had a record of previous convictions) not to do so, the defendant desired to take the stand and deny certain of the testimony presented by the State. The court stated that if the case were a jury trial, “it would not be possible to do this,” but if “he has no objection and wants to testify, I believe I could still reopen the case.” “I cannot strike out the verdict“I can only hear what he has to say in mitigation of sentence * * (Emphasis supplied.) A colloquy between the court, Scott and his attorney followed, during which the court stated: “Frankly, I would like to hear from you [the defendant], too, but it is a bit irregular at this time in view of the fact that you have been convicted and that your counsel has stated that he is going to file a motion for a new trial. The only issue before me under the circumstances would be the nature of the sentence to give you.” Further colloquy ensued, and, just before Scott was sworn, the following occurred: (Scott), “I feel after I testify you [the court] would have an opportunity to reconsider your finding.” (The court), “I don’t know whether it is within my power to do that now since you did not testify before.” ³⁸⁰ (Scott), “I was not given the opportunity. I sure requested it.” (The court), “Right or wrong, I will let you testify.

I will take whatever you say under advisement.” Scott was then sworn, and he testified, relative to his guilt or innocence, at some length. Court was, thereafter, adjourned for the day, accompanied