Scott v. State

Deborah S. Eyler, J. In this case we must decide whether, when a mandatory enhanced sentence for a third crime of violence is vacated on appeal because the evidence was legally insufficient to support a finding that one of the prior convictions was for a crime of violence, double jeopardy bars the State from introducing new evidence at resentencing on remand to show that the same prior conviction was for a crime of violence. We hold that it does not. Our holding is at odds with the Court of Appeals decision in Bowman v. State, 314 Md. 725 , 552 A.2d 1303 (1989). As we shall explain, the holding in Bowman was based solely on an analysis of federal constitutional double jeopardy law that the United States Supreme Court has since rejected.

FACTS AND PROCEEDINGS A jury in the Circuit Court for Prince George’s County convicted Theodore Scott, the appellant, of attempted robbery with a deadly weapon, use of a handgun in the commission of a crime of violence, and conspiracy to commit robbery with a deadly weapon. Scott committed the crimes on December 24, 2011, at a convenience store in Mt. Rainier. ⁴¹⁷ For Scott’s attempted armed robbery conviction, the State sought a mandatory minimum sentence of 25 years, without parole, for a third crime of violence, under Md. Code (2002, 2012 Repl. Vol.), section 14-101(d) of the Criminal Law Article (“CL”).

The two predicate convictions for crimes of violence were Scott’s prior conviction for first degree assault in Maryland 1 and his prior conviction for aggravated assault in the Superior Court for the District of Columbia (“the D.C. conviction”). The D.C. conviction resulted from a guilty plea. Under the D.C. aggravated assault statute, there are two modalities by which that crime may be committed. First, a person commits the crime if “(1) By any means, that person knowingly or purposely causes serious bodily injury to another person[.]” Second, a person commits the crime if “(2) Under circumstances manifesting extreme indifference to human life, that person intentionally or knowingly engages in conduct which creates a grave risk of serious bodily injury to another person, and thereby causes serious bodily injury.” D.C. Code 22-404.01(a)(l)-(2).

The first modality of aggravated assault is virtually identical to the Maryland crime of first degree assault, which, as noted, is a “crime of violence” under CL section 14-101(a)(19). The second modality is similar to the Maryland crime of reckless endangerment, which is not a “crime of violence” under that statute. At the sentencing hearing, the State introduced a certified copy of Scott’s D.C. conviction. When defense counsel argued that the document was inadequate to prove the modality of the crime, and therefore that it was a crime of violence, the court postponed the sentencing hearing.

At the reconvened sentencing hearing, the State introduced the statement of charges in the D.C. case. From that evidence, the sentencing court found that Scott’s D.C. conviction was for a crime of violence and that his attempted armed robbery conviction was his third conviction for a crime of violence, under CL section 14-101(d). On that basis, it imposed the mandatory minimum sentence of ⁴¹⁸ 25 years’ imprisonment, without parole, for attempted armed robbery. In addition, it sentenced Scott to 10 years, with all but 5 years suspended, for use of a handgun, to be served consecutively to the sentence for attempted armed robbery, and 10 years, all but 5 years suspended, for conspiracy, to be served consecutively to the sentence for use of a handgun.

Scott noted an appeal to this Court in which he argued, among other things, that the State’s evidence at sentencing was legally insufficient to prove that his D.C. conviction was for a crime of violence, as defined in CL section 14-101(a), and therefore to establish that his attempted armed robbery conviction was for a third crime of violence. We agreed and vacated the sentence for attempted armed robbery, explaining: [T]he transcript of the D.C. plea hearing was not produced at [Scott’s] Maryland sentencing hearing. We are unable to tell “whether the statement of facts in support of the guilty plea tracked the Statement of Charges or whether other facts were subsequently developed or ignored for purposes of securing the plea.” ‡ ‡ ‡ Furthermore, the D.C. indictment alleged, in the alternative, conduct that the State concedes would have amounted to the Maryland crime of reckless endangerment, a crime not included as a “crime of violence” under C.L. § 14-101[a], In the absence of evidence of a clear judicial admission by [Scott], we are persuaded that the State failed to meet its burden of proving the necessary predicates to support imposition of the mandatory sentence on Count 1 [attempted armed robbery] in this case. Theodore Scott v. State of Maryland, No. 2491, September Term, 2012 (filed September 3, 2014), slip op. at 61.

Citing Rule 8-604(d)(2), we remanded the case “for resentencing,” At the resentencing hearing on remand, the State again sought to have Scott sentenced to a mandatory term of 25 years’ imprisonment, without parole, for attempted armed robbery, under CL section 14—101(d), based on the same two ⁴¹⁹ prior convictions. This time, the State moved into evidence the transcript of the guilty plea hearing that led to Scott’s D.C. conviction. Scott objected, arguing that, having failed to introduce legally sufficient evidence to prove that the D.C. conviction was for a crime of violence at the original sentencing, the State was prohibited, by principles of double jeopardy, from introducing evidence to prove the same thing on remand. The sentencing court overruled Scott’s objection and, based on the guilty plea transcript, found that his D.C. conviction was for a crime of violence under CL section 14-101(a) and imposed the mandatory sentence of 25 years’ imprisonment, without parole, for attempted armed robbery, under CL section 14-101(d).

The court did not resentence Scott on the use of a handgun and conspiracy convictions. Scott noted this appeal, presenting four questions, which we have rephrased: I. Did the resentencing court violate his double jeopardy rights by imposing a mandatory twenty-five year sentence for attempted armed robbery, under CL section 14—101(d), based on prior convictions that included the D.C. conviction?

II

Did the resentencing court exceed the scope of its authority under this Court’s remand order?

III

Did the resentencing court err by ruling the evidence legally sufficient to prove that the D.C. conviction was for a crime of violence?

IV

Did the resentencing court err by refusing to consider making the sentences for use of a handgun and conspiracy concurrent with the mandatory twenty-five year sentence for attempted armed robbery? For the following reasons, we shall affirm the judgments. DISCUSSIOn I. A. Federal Constitutional Law of Double Jeopardy Because the evidence adduced at his original sentencing hearing was legally insufficient to prove that his D.C. convic ⁴²⁰ tion was for a crime of violence, Scott contends the State was barred by the Double Jeopardy Clause of the Fifth Amendment from introducing new evidence at resentencing to prove that the D.C. conviction was for a crime of violence. He relies primarily on Bowman v. State, 314 Md. 725 , 552 A.2d 1303 (1989).

The State responds that double jeopardy principles did not bar it from introducing the new evidence on resentencing because the evidence was being used to prove “sentencing factors,” not to prove the elements of an offense. It relies on Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), and Monge v. California, 524 U.S. 721 , 118 S.Ct. 2246 , 141 L.Ed.2d 615 (1998), and argues that the precedential effect of Bowman must be re-evaluated in light of those Supreme Court cases. The Double Jeopardy Clause guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb[.]” U.S. Const, amend V. That right, applicable to the states through the Fourteenth Amendment, see Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), protects criminal defendants from successive prosecution for the same offense and cumulative punishment for the same offense. Farrell v. State, 364 Md. 499, 504 , 774 A.2d 387 (2001); see also Randall Book Corp. v. State, 316 Md. 315, 323 , 558 A.2d 715 (1989) (“The Double Jeopardy Clause of the Fifth Amendment protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction and multiple punishments for the same offense.”).

As long ago as United States v. Ball, 163 U.S. 662 , 16 S.Ct. 1192 , 41 L.Ed. 300 (1896), the Supreme Court recognized that a defendant who successfully challenges his conviction for an offense on direct appeal can be retried for the same offense, without double jeopardy acting as a bar. United States v. Tateo, 377 U.S. 463, 465 , 84 S.Ct. 1587 , 12 L.Ed.2d 448 (1964) (allowing retrial of an offense after conviction was reversed on collateral attack). In Ball , the reversal on appeal was for trial ⁴²¹ court error. As the Court later explained in Burks v. United States, 487 U.S. 1, 14-15 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), however, the cases that arose after Ball “generally do not distinguish between reversals due to trial error and those resulting from evidentiary insufficiency.” The Burks Court was presented with the question whether the Double Jeopardy Clause bars a retrial of a defendant for an offense after his conviction was reversed on appeal not for trial court error but for “the evidence [being] insufficient to sustain the verdict of the jury.” Id. at 5, 98 S.Ct. 2141 (footnote omitted).

The defense argued that, for double jeopardy purposes, no rational distinction could be drawn between an acquittal by the trial court for legally insufficient evidence and a reversal by a reviewing court for legally insufficient evidence. In the former situation, a retrial for the offense plainly is prohibited because the defendant was acquitted. In the latter situation, the only trial court error was to have not granted a judgment of acquittal, and therefore a retrial also should be prohibited. Recognizing that in some of its previous decisions it had permitted a retrial after a reversal for legally insufficient evidence, when the defendant had sought a new trial as one form of relief, the Court characterized its holdings in those cases as inconsistent and unclear and rejected them, adopting the defense’s argument.

It gave the following rationale for allowing a retrial after reversal for trial court error: [The reversal] does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies notjiing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant had been convicted through a judicial process which is defective in some fundamental respect .... When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. ⁴²² Burks, 437 U.S. at 15 , 98 S.Ct. 2141 .

By contrast, “when a defendant’s conviction has been overturned due to a failure of proof at trial ... the prosecution cannot complain of prejudice for, it has been given one fair opportunity to offer whatever proof it could assemble.” Id. at 16, 98 S.Ct. 2141 (footnote omitted). The Court emphasized that a reversal for legally insufficient evidence “means that the government’s case was so lacking that it should not have even been submitted to the jury.” Id. (emphasis in original). Since we necessarily afford absolute finality to a jury’s verdict of acquittal—no matter how erroneous its decision— it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

Id. Ten years later, in Lockhart v. Nelson, 488 U.S. 33, 40 , 109 S.Ct. 285 , 102 L.Ed.2d 265 (1988), the question before the Supreme Court was whether a defendant could be retried after his conviction was reversed for trial court error in admitting evidence without which the evidence would have been legally insufficient to support the conviction. The Court characterized as the “general rule” the settled law that the Double Jeopardy Clause does not bar the retrial of a defendant for an offense after a reversal of a conviction of that offense for trial court error. Lockhart, 488 U.S. at 39 , 109 S.Ct. 285 .

The Court explained that the Burks holding is an exception to that general rule: “Burks was based on the view that an appellate court’s reversal for insufficiency of the evidence is in effect a determination that the government’s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal[.]” Id. In Lockhart , the defendant was convicted of burglary and theft and was given an enhanced sentence under a state habitual criminal statute. That statute required the state to prove, beyond a reasonable doubt, to a trier of fact (in his case a jury), that the defendant had a certain number of prior ⁴²³ convictions (in his case, four). The state introduced evidence of four prior convictions and the jury imposed an enhanced sentence.

During that proceeding, the defendant testified that he had been pardoned for one of his prior convictions, but then agreed that his sentence on that conviction merely had been commuted. In a later habeas corpus proceeding, the defendant introduced evidence that he had in fact been pardoned for the conviction. The district court ruled that the enhanced sentence was invalid and further ruled that the Double Jeopardy Clause barred the government from using another fourth prior conviction to obtain an enhanced sentence. After an affirmance by the Eighth Circuit Court of Appeals, 828 F.2d 446 (8th Cir. 1987), the Supreme Court took the case and reversed.

It held that the Burks exception did not apply, because the case involved an error by the trial court in admitting the evidence of a conviction for which, as was later revealed, the defendant was pardoned. As admitted, the evidence was legally sufficient to support the jury’s finding of four prior convictions. The Court held that the fact that the evidence would not have been legally sufficient to support the jury’s finding if the evidence that should not have been admitted had been excluded did not put the case within the Burks exception. Accordingly, a “retrial” on the habitual offender sentencing was permissible under the Double Jeopardy Clause.

Lockhart, 488 U.S. at 42 , 109 S.Ct. 285 . Such was the state of federal double jeopardy law in 1989, when the Court of Appeals decided Bowman . There, a jury found the defendant guilty of armed robbery and related crimes. The State sought a mandatory sentence of 25 years’ imprisonment without parole for the armed robbery conviction, as a third crime of violence, under section 643B(c) of Article 27 of the Maryland Code, the predecessor statute to CL section 14-101(d).

It relied upon two D.C. convictions for the predicate crimes of violence. The prosecutor and the sentencing judge were under the mistaken belief that the D.C, convictions both were for armed robbery. In fact, one was for ⁴²⁴ armed robbery and the other was for robbery. In D.C., robbery is a statutory offense that can be committed a number of ways, some of which would be a crime of violence within the meaning of CL section 14-101(a) and others of which would not (for example, pickpocketing).

Although the prior robbery conviction could have resulted from a modality of perpetration that was a crime of violence, there was no evidence introduced at sentencing to show that it was. The Court of Appeals concluded that the evidence presented at sentencing was legally insufficient to support a finding that the defendant had committed two prior crimes of violence, and therefore the trial court had erred by imposing the mandatory 25 year sentence without parole under section 643(c). The Court then turned to the issue of resentencing. Reasoning that, for Fifth Amendment Double Jeopardy purposes, there is no distinction between a retrial of an offense and resentencing for a conviction, the Court stated: It is apparent that the case at hand does not fall within the holding of [Lockhart], There was never evidence erroneously admitted legally sufficient to establish the necessary proof that Bowman was a subsequent offender within the contemplation of § 643B.

The trial judge simply completely misinterpreted the evidence. Only one qualifying predicate conviction was shown and there was no competent evidence to establish the second. ... [T]he Burks exception to the general rule [as stated in Lockhart] is applicable. 314 Md. at 740 , 552 A.2d 1303 (first emphasis in original). It held that the Double Jeopardy Clause prohibited the State “from attempting to resentence [the defendant] as a subsequent offender either on the basis that the District of Columbia robbery conviction in fact met the definition of a crime of violence under Maryland law or on the basis of another qualifying conviction not offered or admitted at the initial sentencing hearing.” Id. at 740 , 552 A.2d 1303 . 2 ⁴²⁵ Scott argues that Bowman controls and cannot be distinguished from his case. He maintains that, under Bowman , the resentencing court violated his federal double jeopardy rights by sentencing him to a mandatory 25 year sentence without parole for a third crime of violence, based on newly introduced evidence that the D.C. conviction was for a crime of violence, when the evidence at the original sentencing hearing was legally insufficient to prove that the D.C. conviction was for a crime of violence.

The State responds that two Supreme Court cases decided in 1998, after Bowman , undercut that decision’s foundation. In Almendarez-Torres, supra, the Supreme Court held that when the fact of a prior conviction is being used for sentence enhancement purposes, it is not an “element of [the] offense” or a separate crime; therefore, its existence need not be decided by a jury and proven beyond a reasonable doubt. 523 U.S. at 244 , 118 S.Ct. 1219 . “To hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘go[ing] to the punishment only.’ ” Id. (citation omitted). The “prior commission of a serious crime—is as typical a sentencing factor as one might imagine.” Id. at 230 , 118 S.Ct. 1219 . ⁴²⁶ A few months later, the Supreme Court decided Monge, supra, which extended its holding in Almendarez-Torres , and is especially pertinent here.

After the defendant was found guilty of three drug-related felonies, the government sought to have the court impose a statutory enhanced penalty based on his having committed a prior “serious felony.” Monge, 524 U.S. at 724 , 118 S.Ct. 2246 . The defendant’s prior conviction was for assault and, under the enhanced penalty statute, an assault qualified as a “serious felony” “if the defendant either inflicted great bodily injury on another person or personally used a dangerous or deadly weapon during the assault.” Id. at 724-25 , 118 S.Ct. 2246 . At the sentencing hearing, the court considered the evidence relevant to whether the defendant’s prior assault conviction was for a “serious felony” under the sentence enhancement statute and found that it was. It imposed an enhanced sentence.

When the defendant challenged that finding on appeal, the government conceded that it had not introduced legally sufficient evidence to prove that the prior assault conviction was for a “serious felony.” The government argued that on remand for resentencing it should have another opportunity to prove that the prior assault conviction was for a “serious felony.” Ultimately, the case reached the Supreme Court on the question of whether the Double Jeopardy Clause barred the government from having a second chance to prove that the prior assault conviction was for a “serious felony.” The defendant argued that Burks controlled and prohibited the government from doing so. The government countered that Burks did not apply because failure of proof of a sentencing enhancement factor is not tantamount or even comparable to an acquittal. It maintained that only when the evidence of criminal liability for an offense was legally insufficient, which should have produced an acquittal, is a retrial prohibited by the Double Jeopardy Clause. In a 5-to-4 decision, the Supreme Court held that, except in death penalty cases, for which it already had carved out an ⁴²⁷ exception, the Double Jeopardy Clause does not apply to sentencing, and therefore on remand the government could attempt, a second time, to prove that the defendant’s prior assault conviction was for a “serious felony.” 3 The Court reasoned that because a sentence enhancement is not part of the “offense,” a second decision on sentencing does “not place a defendant in jeopardy for an ‘offense.’” 524 U.S. at 728 , 118 S.Ct. 2246 (citations omitted).

Nor is a sentence enhancement an “additional punishment for the previous offense; rather,” it is an increased punishment “imposed on a persistent offender.” Id. It is not a “ ‘new jeopardy or additional penalty for the earlier crimes’ but ... ‘a stiffened penalty for a latest crime[.]’ ” Id. (quoting Gryger v. Burke, 334 U.S. 728, 732 , 68 S.Ct. 1256 , 92 L.Ed. 1683 (1948)). Contrasting Burks, the Court explained that “[sentencing decisions favorable to the defendant ... cannot generally be analogized to an aequittal[,]” as is the case when there is “insufficient evidence of guilt[.]” Id. at 729, 118 S.Ct. 2246 .

The pronouncement of sentence simply does not “have the qualities of constitutional finality that attend an acquittal.” United States v. DiFrancesco, 449 U.S. 117, 134 , 101 S.Ct. 426 , 66 L.Ed.2d 328 (1980); see also Bullington, supra, at 438 , 101 S.Ct. 1852 (“The imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed.”). The Double Jeopardy Clause “does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” DiFrancesco, 449 U.S. at 137 , 101 S.Ct. 426 . Consequently, it is a “well-established part of our constitutional jurisprudence” that the guarantee against double jeopardy neither ⁴²⁸ prevents the prosecution from seeking review of a sentence nor restricts the length of a sentence imposed upon retrial after a defendant’s successful appeal. See id., at 135 , 101 S.Ct. 426 ; [North Carolina v.] Pearce [ 395 U.S. 711 ,] 720 [ 89 S.Ct. 2089 , 23 L.Ed.2d 656 ] (1969); see also Stroud v. United States, 251 U.S. 15, 18 , 40 S.Ct. 50 , 64 L.Ed. 103 (1919)(de-spite a harsher sentence on retrial, the defendant was not “placed in second jeopardy within the meaning of the Constitution”).

Id. at 729-30, 118 S.Ct. 2246 . We return to the case at bar. The question is whether Bowman still controls the outcome of the Double Jeopardy Clause issue before us, given that its double jeopardy analysis later was rejected by the Supreme Court in Monge (except in death penalty cases). 4 As the State notes, other state appellate courts that once held that federal double jeopardy protections apply to sentencing enhancement proceedings have changed their positions under the authority of Monge . For example, in People v. Porter, 348 P.3d 922, 928 (Colo. 2015), the Supreme Court of Colorado overruled its holding in People v. Quintana, 634 P.2d 413 (Colo. 1981), that double jeopardy principles applied to recidivist sentencing laws, concluding, based on Monge , that there was “no sound reason for maintaining” that holding.

Id. at 927. The court pointed out that recidivist sentencing statutes concern “ ‘a status rather than a substantive offense.’ ” Id. at 928 (quoting People ex rel. Faulk v. District Court, 673 P.2d 998, 1000 (Colo. 1983) (emphasis in Porter)). “Thus, enhancing a penalty based on prior convictions does not put the defendant in jeopardy for an ‘offense.’ ” Id. It observed that the recidivist sentencing phase of a trial ⁴²⁹ “does not generate the same concerns that drive protecting a defendant against double jeopardy at the substantive trial.” Id.

Furthermore, “when the prosecution fails to proffer evidence of prior convictions in a sentencing proceeding, the analogy to an acquittal is ‘inapt.’... The pronouncement of sentence simply does not have the qualities of a constitutional finality that attend an acquittal.” Id. (quoting Monge, 524 U.S. at 729 , 118 S.Ct. 2246 ). 5 The holding in Monge , that the Burks exception does not bar the government from proving a sentencing enhancement on resentencing when its proof of the same sentencing enhancement in the original sentencing was not supported by legally sufficient evidence, is inconsistent with the holding in jBowman. On federal constitutional issues, we are bound by United States Supreme Court precedent.

U.S.C.A. Const. Art. ⁴³⁰ VI, cl. 2; Baker, Whitfield & Wilson v. State, 15 Md.App. 73, 77-78 , 289 A.2d 348 (1973) (citing Wilson v. Turpin, 5 Gill 56 (1847); Howell v. State, 3 Gill 14 (1845)). In the past, we have departed from a decision of the Court of Appeals when it was based on Supreme Court federal constitutional precedent that had been supplanted by more recent Supreme Court precedent to the contrary, when we expected that the Court of Appeals, if presented with an indistinguishable scenario, would do the same. For example, in Morgan v. State, 79 Md.App. 699, 703 , 558 A.2d 1226 (1989), we declined to follow Allen v. State, 183 Md. 603 , 39 A.2d 820 (1944), in which the Court of Appeals held that a court order requiring the defendant to don a hat found near the crime scene in front of the jury amounted to compelled self-incrimination.

We did so because in the intervening years the Supreme Court had decided Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), holding that an accused’s compelled submission to a blood alcohol test did not violate his privilege against compelled self-incrimination, and Allen and Schmerber could not be reconciled. In light of the Supreme Court’s express rejection in Monge of the application of the Burks exception to resentencing under the Fifth Amendment Double Jeopardy Clause, in particular for sentencing enhancement findings, we conclude that in a case such as this, which presents a scenario that is not substantively distinguishable from Bowman , the Court of Appeals would depart from its resentencing holding in Bowman and follow Monge . Accordingly, federal double jeopardy principles did not bar the State from presenting new evidence, at resentencing, to prove that Scott’s D.C. conviction was for a crime of violence, within the meaning of CL section 14-101(a)(19), and therefore was a proper predicate for the mandatory enhanced sentence under CL section 14—101(d). B. Maryland Common Law of Double Jeopardy Although there is no guarantee against double jeopardy in the Maryland Constitution or Declaration of Rights, “Maryland common law provides well-established protections ⁴³¹ for individuals against being twice put in jeopardy.” State v. Long, 405 Md. 527, 536 , 954 A.2d 1083 (2008) (citing Taylor v. State, 381 Md. 602, 610 , 851 A.2d 551 (2004)).

Before the Supreme Court’s 1969 decision in Benton v. Maryland, double jeopardy applied to Maryland prosecutions “only as a common law principle.” Cornish v. State, 272 Md. 312 , 316 n. 2, 322 A.2d 880 (1974). Bowman was decided on federal constitutional double jeopardy grounds alone; the opinion makes no reference to the Maryland common law of double jeopardy. Our examination of the common law of double jeopardy leads us to conclude that it also did not preclude the State from attempting to prove a second time, on resentencing on remand, that Scott’s D.C. conviction was for a crime of violence, for purposes of sentence enhancement under CL section 14-101(a) and (d). “Under the Maryland common law of double jeopardy, a defendant cannot be ‘put in jeopardy again for the same offense—in jeopardy of being convicted of a crime for which he had been acquitted; in jeopardy of being twice convicted and punished for the same crime.’ ” State v. Griffiths, 338 Md. 485, 489 , 659 A.2d 876 (1995) (quoting Gianiny v. State, 320 Md. 337, 347 , 577 A.2d 795 (1990)). These principles derive from the English common law “pleas of former jeopardy (iautrefois acquit, autrefois convict, and pardon)” that protect a defendant from being retried for an offense when he previously was acquitted, convicted, or pardoned for the same offense.

Ward v. State, 290 Md. 76, 85 , 427 A.2d 1008 (1981) (emphasis in Ward). With some exceptions, the Maryland common law of double jeopardy also precludes multiple sentences for the same offense. Middleton v. State, 318 Md. 749, 757 , 569 A.2d 1276 (1990) (additional citations omitted). The plea in bar of autrefois convict (already convicted), which “generally means that ‘where there had been a final [judgment] ... of ... conviction, ... the defendant could not be a second time placed in jeopardy for the particular offense[,]’ ” Middleton, supra, at 756-57 , 569 A.2d 1276 (quoting Hoffman v. State, 20 Md. 425, 434 (1863)) (alterations in ⁴³² Middleton), is not relevant to the resentencing issue before us because resentencing did not expose Scott to the risk of being convicted twice for the offense of attempted armed robbery.

Nor would the double jeopardy principle against multiple punishments for the same offense apply, as Scott’s sentence for attempted armed robbery was vacated in the first appeal and on remand he simply was being resentenced for the same conviction. The only possibly relevant common law double jeopardy principle is autrefois acquit. The plea in bar of autrefois acquit (already acquitted) protects a defendant who has been acquitted of an offense from being retried for the same offense. Copsey v. State, 67 Md.App. 223, 225-26 , 507 A.2d 186 (1986) (stating that the plea of former acquittal is designed to prevent a defendant “who has once survived his initial jeopardy from being ‘twice vexed’ by a fresh exposure to the hazard of conviction for that same offense”).

More than a century ago, the Court of Appeals explained: It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside[.] State v. Shields, 49 Md. 301, 303 (1878). As discussed, the Bowman decision was based on a parity of reasoning to Burks: Just as a failure of evidence necessary to prove an offense is tantamount to an acquittal, and therefore bars a retrial upon reversal, a failure of evidence to prove a prior conviction for a crime of violence, in order to support a mandatory enhanced sentence, is tantamount to an acquittal of that enhanced sentence, and therefore bars resentencing based on the same (or even an additional new) prior conviction. The Supreme Court rejected that analogy in Monge . The question is whether the common law principle of autrefois acquit supports it.

It does not. The Court of Appeals has recognized that a ruling by a trial court that is not an outright acquittal can be the functional ⁴³³ equivalent of an acquittal under autrefois acquit. In State v. Taylor, 371 Md. 617 , 810 A.2d 964 (2002), the Court held in two consolidated cases that erroneous trial court rulings were tantamount to acquittals. The defendant in Taylor filed a motion to dismiss the information charging him with a statutory crime, and in granting the motion, the trial court ruled that the conduct alleged in the information was not prohibited by the statute.

The State noted an appeal. In Bledsoe v. State, after the charges against the defendant were dismissed by the District Court, the State appealed to the circuit court, which reinstated the charges and remanded the case to the District Court for trial. The defendant appealed. The Court of Appeals held that the trial courts in both cases erred by granting the motions to dismiss, but the rulings “were the equivalent of granting acquittals,” under the common law principle of autrefois acquit, and therefore had to “be treated as such for jeopardy purposes.” 371 Md. at 664 , 810 A.2d 964 .

It dismissed the appeal in Taylor because autrefois acquit barred the State from appealing from an acquittal, or its equivalent; and it reversed the judgment in Bledsoe, because autrefois acquit barred the State from prosecuting the defendant when he had been granted the equivalent of an acquittal. A few years later, in Giddins v. State, 393 Md. 1 , 899 A.2d 139 (2006), the Court once again was faced with a disposition by the trial court that the defendant contended was tantamount to an acquittal. The defendant was charged with two counts of possession of controlled dangerous substances with intent to distribute. The drugs were found in his residence.

After the trial court ruled that the officers who had obtained the search warrant for the defendant’s residence could not testify about the evidence on which they had based their warrant application, the prosecutor asked one of them to identify the “target of that investigation.” 393 Md. at 11 , 899 A.2d 139 . The defense moved for a mistrial. The judge granted the motion, explaining that he was doing so because by asking that question the prosecutor was bringing to the fore all the ⁴³⁴ evidence in the search warrant application, none of which would be admissible. 6 When the State sought to retry the defendant, he moved to dismiss. Raising the common law plea in bar of autrefois acquit, he argued that the trial judge’s remarks in granting the mistrial were a rejection of critical evidence against him and therefore amounted to an acquittal.

The court denied the motion, and the defendant noted an immediate appeal. Eventually, the case came before the Court of Appeals. The Court observed that “[i]n determining whether the defendant can successfully plead autrefois acquit, the essential inquiry is whether there has been a ruling on the evidence[.]” Id. at 20 , 899 A.2d 189 . Using the consolidated cases in State v. Taylor as examples, it explained that “where the trial judge has taken action based upon the evidence, that action, despite its characterization, constitutes an acquittal for double jeopardy purposes.” Id. at 22, 899 A.2d 139 .

The Court held that the trial judge’s comments about the evidence underlying the search warrant were not a substantive ruling on the evidence, however. They were observations about the admissibility, or more precisely, the inadmissibility, of that evidence. Accordingly, the mistrial motion ruling was not the functional equivalent of an acquittal, and a second prosecution for the same offense was not barred by autrefois acquit. The rulings in question in State v. Taylor and Giddins all concerned criminal liability for the offenses the defendants were being tried for—not sentence impositions.

That is the context in which the Court analyzed whether a ruling that is not expressly an acquittal may be equivalent to one. This is not surprising because, as noted, the plea in bar of autrefois acquit applies to a verdict of acquittal, or the equivalent of a verdict of acquittal, ie., an acquittal of the offense for which ⁴³⁵ the defendant is on trial. See Pugh v. State, 271 Md. 701, 705 , 319 A.2d 542 (1974) (observing with respect to the common law principle of autrefois acquit, “[fjrom the earliest days, it has been clear that once a