State v. Glenn

ELDRIDGE, Judge. Alan Jay Glenn, Michael Lee McKinney, and Wayne Melvin Wolfensberger were charged in the District Court of Maryland with distribution of obscene matter. Upon the defendants’ requests for a jury trial, the cases were transferred to the Circuit Court for Prince George’s County. The defendants were arraigned in the circuit court, and their attorney’s appearance was entered, on July 17, 1981.

Thus the 180-day time period for commencing trial of the cases, prescribed by Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 591, and Maryland Rule 746, would have expired on January 13, 1982. Trial was scheduled for November 17, 1981, well within the 180-day time period. Sometime before the trial, the prosecuting attorney concluded that the charging documents were defective because they failed to allege that the defendants “knowingly” distributed the obscene material. The prosecuting attorney notified the defendants’ attorney that he believed that the charging documents would have to be amended, but the defendants’ attorney stated that he would object to the amendment.

Being of the view that the amendment was a matter of substance and could not be made over an objection, the prosecuting attorney decided to nol pros the cases. ⁴⁶⁶ When the cases were called for trial on November 17, 1981, the State nol prossed all three of them. On the same day, new corrected charging documents were filed in the District Court, alleging the same offense. The defendants again demanded a jury trial, and the new cases were transferred to the Circuit Court for Prince George’s County. The defendants were arraigned under the second charging documents, and their attorney’s appearance was entered, on January 11, 1982.

A 180-day period from January 11th would have expired on July 10, 1982. On January 12, 1982, a trial date of March 29, 1982, was assigned. The defendants’ attorney, on February 18, 1982, filed a written motion to dismiss the three cases based on claimed violations of (1) the defendants’ constitutional right to a speedy trial and (2) Art. 27, § 591, and Rule 746. The defendants’ theory regarding § 591 and Rule 746 was that the same 180-day period for trial under the initial charging documents continued to run after the nol pros and new charging documents.

Therefore, according to the defendants, January 13, 1982, was the last day for trial of the cases under § 591 and Rule 746. After hearings and arguments, the circuit court held that § 591 and Rule 746 were violated. The court dismissed the charges with prejudice. In a written opinion the circuit court agreed with the defendants’ position with respect to § 591 and Rule 746, stating that “calculations cannot run anew with each indictment or charging document nor can they be held in abeyance for the periods ‘between’ charging documents.” The circuit court did not reach the defendants’ constitutional speedy trial contention.

Upon the State’s appeal, the Court of Special