State v. Manck

BATTAGLIA, J. This case presents us with the task of determining the scope of this Court’s authority to issue prerogatory writs or other extraordinary relief when requested by the State, when the trial court has stricken the Notice of Intention to Seek the Penalty of Death. Based upon our jurisprudence and that of the federal system with respect to its identical powers to issue writs of mandamus or prohibition, we conclude that the State’s Petition for Writ of Prohibition, Mandamus, or Other Appro ⁵⁸⁴ priate Extraordinary Relief cannot be granted under the circumstances of this case. I. Background On June 7, 2002, a grand jury in Anne Arundel County indicted Michael Darryl Henry for first degree murder under Section 407 of Article 27 of the Maryland Code 1 for his actions in the death of a fellow inmate at the Maryland House of Correction Annex in Anne Arundel County. On February 3, 2003, the State filed a Notice of Intention to Seek the Penalty of Death (hereinafter “Notice”) pursuant to Md.Code (2002), § 2-202(a)(l) of the Criminal Law Article. 2 In the Notice, the State set forth two aggravating factors enumerated in Md. Code (2002), § 2-303(g)(l)(ii) and (vii) of the Criminal Law Article, which provides: (ii) the defendant committed the murder while confined in a correctional facility; (vii) the defendant employed or engaged another to commit the murder and the murder was committed under an agreement or contract for remuneration or promise of remuneration.

On May 1, 2003, Henry filed a motion to strike the State’s Notice and argued that based on the United States Supreme Court’s opinions in Apprendi v. New Jersey, 530 U.S. 466 , 120 ⁵⁸⁵ S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), the State constitutionally could not seek to impose the death penalty unless all of the elements of a crime required for the defendant to be eligible for death are considered by the grand jury and contained in the indictment. Henry contended that he would not be eligible for the death penalty because the indictment failed to allege that he was a first degree principal. On June 25, 2004, Judge Joseph P. Manck denied Henry’s motion. At approximately the same time, Judge Pamela J. North of the Circuit Court for Anne Arundel County heard similar arguments in another capital proceeding.

In that case, State v. Kenneth Ernest Abend, K-02-00506, the State, on May 4, 2002, had filed a Notice of Intention to Seek the Penalty of Death enumerating two aggravating circumstances contained in Section 2-303(g)(l) of the Criminal Law Article. 3 As in the case against Henry, the indictment failed to allege Abend’s status as a first degree principal. Abend filed a motion to strike the State’s Notice arguing that the indictment was insufficient to support the Notice because it did not allege that he was a principal in the first degree. On September 2, 2004, Judge North granted Abend’s motion and permitted the State to either withdraw its notice and pursue life imprisonment or to re-indict Abend and allege that he was a first degree principal, if the State wanted to continue to seek the death penalty. The State chose to re-indict Abend and did so on September 3, 2004.

On September 28, 2004, Judge Manck reconsidered his earlier denial of Henry’s motion and, relying in part on Judge North’s analysis in the Abend case, granted Henry’s motion to strike the State’s Notice of Intention to Seek the Penalty of Death. Judge Manck granted a postponement to permit the ⁵⁸⁶ State time to obtain a new indictment and file a new notice within the required 30-day period prior to trial. On September 29, 2004, rather than obtain a new indictment, the State filed a Petition for Writ of Prohibition, Mandamus, or Other Appropriate Extraordinary Relief with this Court requesting that we direct Judge Manck to vacate his order striking the notice. On October 4, 2004, we ordered both the State and Henry to file briefs or memoranda addressing the following issues: 1.

Does this Court have the authority to grant a writ of prohibition, mandamus or to grant other appropriate extraordinary relief under the circumstances presented herein? 2. Does a judge have any discretion to strike a notice of intention to seek death penalty that is timely filed and conforms to Md.Code, Criminal Law, §§ 2-202(a) and 2-301? On November 9, 2004, the State and Henry presented oral argument. The following day this Court issued a stay of “all proceedings in the Circuit Court ... pending a decision by this Court.” II.

The Power to Issue Prerogatory or Extraordinary Writs A. When Such Writs May Be Issued In In re Petition for Writ of Prohibition, 312 Md. 280 , 539 A.2d 664 (1988), our seminal opinion on prerogatory writs authored by Judge William Adkins, we considered this Court’s authority to issue prerogatory or extraordinary writs such as writs of mandamus or prohibition. Although there is no express language authorizing the issuance of such writs by this Court as an aspect of our original jurisdiction in the Maryland Constitution, we identified the power to do so as arising out of the Court’s appellate jurisdiction. We explained: The Maryland Constitution is silent as to any mandamus or prohibition power in this Court. The only general statutory ⁵⁸⁷ provision dealing with mandamus jurisdiction is [Md.Code (1973, 2002 Repl.Vol.); § 3-8B-01 of the Courts and Judicial Proceedings Article]; it relates only to the circuit courts.

Nor is there any express grant of superintending power to this Court. Whether we have, as the highest court in this State, an inherent superintending or supervisory power over the courts below us in the judicial hierarchy, and whether any such power is implicit in Article IY, § 18 of the Maryland Constitution, are questions we reserve for another day. We need not and do not address them today because we hold that under the circumstances of this case we have the power to issue a writ of mandamus or a writ of prohibition in aid of our appellate jurisdiction. In re Petition for Writ of Prohibition, 312 Md. at 292-93 , 539 A.2d at 669-70 (citations omitted).

Moreover, we stated that: it is manifestly necessary, to the ends of justice, that there should be a power in special cases to suspend proceedings on the matter appealed from.... Id. at 298 , 539 A.2d at 672 . We recognized that the availability of the writs “in aid of our appellate jurisdiction” has long been established, even if “we almost never exercised the power to issue them,” id. at 297 , 539 A.2d at 672 , and then considered what circumstances would properly warrant issuing a writ “in aid of [our] appellate jurisdiction.” Id. In response to this inquiry, we stated: [I]t appears that mandamus or prohibition may issue in aid of appellate jurisdiction even though no appellate proceeding is pending in the appellate court, at least where there is some potentiality of eventual appellate review by appeal or by certiorari....

If the writ is “necessary to enable ... [the Court] to exercise appellate jurisdiction” it is in aid of that jurisdiction. Id. at 302-03 , 539 A.2d at 675 . Thus, we recognized that “by making possible the review of a potentially unreviewable question [writs such as mandamus and] prohibition aided the appellate process.” Id. at 299 , 539 A.2d at 673 . These writs are used “to prevent disorder, from a failure of justice, where ⁵⁸⁸ the law has established no specific remedy, and where in justice and good government there ought to be one.” Id. at 307 , 539 A.2d at 677 , citing Runkel v. Winemiller, 4 H. & McH. 429, 449 (Gen.

Ct. Oct. Term 1799). The power to issue prerogatory writs is “necessarily incident to this Court, to preserve the usefulness of its appellate jurisdiction. If it were otherwise, cases might arise in which the appeal would be but as a shadow, pending which the substance might be lost.” In re Petition for Writ of Prohibition, 312 Md. at 298 , 539 A.2d at 672 , quoting Thompson v. McKim, 6 H. & J. 302, 333 (1825). In Philip Morris, Inc. v. Angeletti, 358 Md. 689 , 752 A.2d 200 (2000), we determined that mandamus relief should be granted, based upon a petition for interlocutory relief, where a trial judge improperly certified a class action in complex civil litigation about tobacco.

Id. at 699-700 , 752 A.2d at 205-06 . Several large tobacco manufacturers and distributors petitioned this Court to vacate the circuit court’s certification of two plaintiff classes, current and former users of tobacco products, that claimed to be injured by tobacco use or nicotine addiction and argued that the circuit court grossly abused its discretion in certifying the classes, in violation of the Maryland Constitution and this Court’s rules of civil procedure. Id. at 699-700, 704 , 752 A.2d at 205-06, 208 . We noted, however, that class certification normally was only appealable after a final judgment in the underlying case.

Id. at 714 , 752 A.2d at 213-14 . See Md. Rule 8-131(d) (stating “[o]n appeal from a final judgment, an interlocutory order previously entered in the action is open to review by the Court unless an appeal has previously been taken from that order and decided on the merits by the Court”). Petitioners, therefore, would have had to endure a costly and lengthy trial and the trial court’s entry of a final judgment before seeking appellate review of the class certification action. Philip Morris, Inc., 358 Md. at 714 , 752 A.2d at 213-14 .

We concluded that although the traditional routes of appeal were available, because the parties would have suffered as a result of proceeding to trial based on the assertedly erroneous ⁵⁸⁹ certification decision and the potential waste of judicial resources was substantial, this Court’s exercise of its appellate jurisdiction at an interlocutory point in the proceedings was warranted. Id. We also found that, had there been no such intervention, the expense and delay of the trial would have prejudiced the parties’ ability to utilize effectively the appellate process. Id.

Thus, Judge Raker, speaking for this Court, stated, “Both the public interest and our responsibility in exercising the supreme judicial authority of this State thus eompel[led] the exercise of this Court’s discretion in [that] extraordinary case.” Id. at 718 , 752 A.2d at 215 . Accordingly, we issued the writ. B. The State’s Right to Appeal in Criminal Cases The origins in Maryland of the right to appeal in criminal cases are shadowy. Judge Eldridge, examining the State’s right to appeal in criminal cases in his dissent in Cardinell v. State, 335 Md. 381 , 644 A.2d 11 (1994), overruled by State v. Green, 367 Md. 61 , 785 A.2d 1275 (2001), discovered only one reported pre-Revolutionary War case, Jenifer v. Lord Proprietary, 1 H. & McH. 535 (Provincial Court 1774), which touched upon the right to appeal in criminal cases generally.

In that case, Daniel Jenifer, the former Sheriff of Charles County, was convicted of receiving unlawful fees as Sheriff and was fined the value of the fees plus 5,000 pounds of tobacco. Id. at 535-36. He filed an appeal in the Provincial Court, and argument was heard during the Court’s April Term, 1770. Id. at 536-37.

Attorney General Jenings contended that there was no right to appeal in criminal cases under English statutes, common law, or the Act of 1713; 4 and as such, Jenifer’s appeal should have been dismissed. Id. at 536-38. Although the Court continued the case until its September Term, 1774, ⁵⁹⁰ it ultimately dismissed the appeal, apparently holding that no appeal would lie. Id. at 538.

After the Revolution, Ch. 87 of the Acts of 1785, Section 6 granted the “full power and right to appeal to any party or parties aggrieved by any judgment or determination of any county court in any civil suit or action, or any prosecution for the recovery of any penalty, [or] fíne.... ” 1785 Md. Laws, Chap. 87, § 6. The first reported criminal case after the Act of 1785 appears to be Peter v. The State, 4 H. & McH. 3 (General Court 1797), in which the General Court permitted an appeal by the defendant, on writ of error, who argued that the indictment on its face violated a statute. Id. Without opinion, the Court reversed the judgment of the County Court, evidently finding that the writ of error would lie and that the defendant’s position was meritorious.

Id. at 3-4 . Five years later, in Cummings v. The State, 1 H. & J. 340 (General Court 1802), the availability of a writ of error was argued again before the General Court, but the writ was quashed on a procedural ground. Id. at 341, 344 . This Court’s first discussion of this issue in a reported opinion was in Queen v. The State, 5 H. & J. 232 (June Term 1821), in which we held that an appeal or writ of error was authorized in a criminal case to review a question of law apparent on the record even though a bill of exceptions was not authorized.

Id. at 233-34 . In its rationale, this Court stated that “[t]he act of 1785 does not give a bill of exceptions in criminal cases there enumerated,” but that, “if error appeared on the record,” then “the Legislature gave the party complaining an election to carry up the case either by writ of error or appeal....” Id. at 234 . In the December 1821 Term, this Court in The State v. Buchanan, et al., 5 H. & J. 317 (1821), also determined that the State could pursue a writ of error where the county court quashed the indictment. Id. at 329-30 .

The extensive right of appeal contained in the Act of 1785 was maintained in later statutes. Code (1860), Art. 5, Section 3, permitted “any party” to appeal to the Court of Appeals in ⁵⁹¹ “any prosecution for the recovery of any penalty [or] fíne,” and Section 4 provided that “writs of error may be sued out in civil or criminal cases.... ” Code (1860), Art. 5, § 3. Ch. 316 of the Acts of 1872 added a new section to Article 5 of the Code, which provided as follows: Sec. 2. In all trials upon any indictment or presentment in any court of this State having criminal jurisdiction, it shall be lawful for any party accused, or for the State’s Attorney, on behalf of the State of Maryland, to except to any ruling or determination of the court, and to tender to the court a bill of exceptions, which shall be signed and sealed by the court ...; and the party tendering such bill of exceptions, may appeal from such ruling or determination to the Court of Appeals.... [ 5 ] 1872 Md. Laws, Chap. 316, § 2.

This extensive general right of appeal in criminal cases granted by statute to both the defendant and the State continued until 1957. See, e.g., Code (1888), Art. 5 §§ 77 and 78; Code (1924), Art. 5 §§ 86 and 87; Code (1939), Art. 5 §§ 86-88; Code (1951), Art. 5, §§ 86-89. Nevertheless, although the State appeared to possess broad appellate rights under the statutes, the general tendency of decisions by this Court was to preclude a right to appeal by the State. See, e.g., State v. Adams, 196 Md. 341, 350-51 , 76 A.2d 575, 578-79 (1950) (dismissing the State’s appeal because of a lack of explicit statutory authority); State v. Lingner, 183 Md. 158, 165 , 36 A.2d 674, 677 (1944) (holding that the State had no right to appeal a verdict based on the denial of its demurrer to the defendant’s motion); State v. Jones, 182 Md. 368, 369-70 , 34 A.2d 775, 776 (1943) (holding that the State could not appeal from a motion to quash because it was a pretrial motion, and therefore, the trial court’s ruling did not ⁵⁹² appear in the record transmitted to the Court of Appeals); State v. Rosen, 181 Md. 167, 169 , 28 A.2d 829, 829 (1942) (holding that the State may not file a bill of exceptions 6 where the defendant does not do so as well); State v. Shields, 49 Md. 301, 302 (1878) (same).

The 1957 recodification of the Maryland Code restricted the State’s right to appeal in criminal cases and for the first time codified the common law prohibition against State appeals from acquittals in criminal cases. Chapter 399 of the Acts of 1957, Section 14 provided: The State may appeal to the Court of Appeals from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment, information, presentment or inquisition in a criminal action, but the State shall have no right of appeal in any criminal action where the defendant has been tried and acquitted. Md.Code (1957), Art. 5 § 14. The language of this section remained unchanged, except for the change from the “Court of Appeals” to the “Court of Special Appeals” by Chapter 12 of the Acts of 1966, Section 1, until the recodification in 1973.

The 1973 recodification of Article 5, Section 14 as Md.Code (1973), § 12-302(c) of the Courts and Judicial Proceedings Article retained the majority of the language in Article 5, Section 14, but excised the clause prohibiting the State’s access to appellate review where the defendant was tried and convicted. 1973 Md. Laws, Chap. 2,1st Sp. Sess., § 1. Section 12-302(c) of the Courts and Judicial Proceedings Article provided: In a criminal case, the State may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case. ⁵⁹³ McLCode (1973), § 12-302(c) of the Courts and Judicial Proceedings Article. The Revisor’s Note explained that the language concerning the State’s inability to appeal from an acquittal was deleted because “the State may only appeal in the limited situations set forth in [Section 12-302(c) of the Courts and Judicial Proceedings Article] in any event.” 1973 Md. Laws, Chap. 2,1st Sp.

Sess., § 1, Revisor’s Note. In 1976, the General Assembly augmented the State’s right to appeal in criminal cases to permit an appeal from the failure to impose a mandatory sentence. Chapter 49 of the Acts of 1976, Section 1 7 revised the language of Section 12-302(c) to state: In a criminal case, the State may appeal [only]: (1) from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition [in a criminal case]; and (2) from a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code. 1976 Md. Laws, Chap. 49, § 1. The General Assembly again extended the ability of the State to appeal in criminal cases in 1982 when it enacted Section 12-302(c)(3)(i) of the Courts and Judicial Proceedings Article, which provided that: In a case involving a crime of violence as defined in § 643B [ 8 ] of Article 27, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. ⁵⁹⁴ 1982 Md. Laws, Chap. 493.

Seven years later, the General Assembly broadened the State’s right to appeal to include “cases under §§ 286 and 286A of Article 27” 9 under Section 12-302(e)(3)(i) of the Courts and Judicial Proceedings Article. 1989 Md. Laws, Chap. 5, § 1. 10 Finally, in Chapter 141 of the Acts of 2003, Section 1, the General Assembly enacted another expansion of the State’s right to appeal in criminal cases by revising Section 12 — 302(c)(2) to permit the State to appeal where it “alleges that the trial judge imposed or modified a sentence in violation of the Maryland Rules.” 2003 Md. Laws, Chap. 141, § 1. Thus, Section 12-302(c) of the Courts and Judicial Proceedings Article currently provides: (c) Criminal Case. — In a criminal case, the State may appeal as provided in this subsection. (1) The State may appeal from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition. (2) The State may appeal from a final judgment if the State alleges that the trial judge: (i) Failed to impose the sentence specifically mandated by the Code, or (ii) Imposed or modified a sentence in violation of the Maryland Rules.

(3) (i) In a case involving a crime of violence as defined in § 14-101 of the Criminal Law Article, and in cases under §§ 5-602 through 5-609 and §§ 5-612 through 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. ⁵⁹⁵ McLCode (1973, 2002 Repl.Vol., 2004 Cum.Supp.), § 12-302(c) of the Courts and Judicial Proceedings Article. During this period in which the statutory bases for the State’s right to appeal in criminal cases was in flux, this Court was called upon to address its common law roots. In 1994, in Cardinell v. State, 335 Md. 381 , 644 A.2d 11 (1994), overruled by State v. Green, 367 Md. 61 , 785 A.2d 1275 (2001), the State appealed from the trial court’s grant of the defendant’s untimely motion for revision of sentence under Maryland Rule 4-345(b). 11 Cardinell, 335 Md. at 383 , 644 A.2d at 12 . This Court determined that the State possessed a common law right to appeal in criminal cases and that the language of Section 12-302(c) of the Courts and Judicial Proceedings Article did not reflect a clear intent by the Legislature to abrogate the common law.

Id. at 394 , 644 A.2d at 17 . 12 The Court examined the legislative history of the section, and its predecessors, and concluded that there was no evidence that the General Assembly intended “to strip the State of the right to appeal.” Id. at 396 , 644 A.2d at 18 . The Court examined the Revisor’s Note to Section 12-302 of the Courts and Judicial Proceedings Article and interpreted its statement that ⁵⁹⁶ “the State may only appeal in the limited situations set forth in the section in any event” to mean that the section was not intended to be “an absolute limitation on the State’s right to appeal.” Id. at 395 , 644 A.2d at 18 . The Court reasoned that recodification of statutes is presumed to be for the purpose of clarity rather than to change their meaning. Id. at 407 ,- 644 A.2d at 24 .

Moreover, the Court stated that the deletion of “only” from the Section in 1976 further indicated the legislature’s intention to codify the State’s right to appeal in certain cases, but not to preclude its appeal in the situations not enumerated. Id. Therefore, the Cardinell court determined that the State possessed “a continuing common law right to appeal an action that was outside the jurisdiction of the lower court.” Id. at 398 , 644 A.2d at 19 . In 2001, we had the opportunity to revisit the issue of the scope of the State’s ability to appeal in criminal cases in State v. Green, 367 Md. 61 , 785 A.2d 1275 (2001).

In that case, the State appealed from the granting “of a criminal defendant’s untimely filed motion to revise his statutorily mandated sentence,” essentially the same issue raised in Cardinell. Id. at 65-66, 785 A.2d at 1277 . Relying upon recent cases construing the appeals statutes, Chief Judge Bell, writing for this Court, stated that “questions of appealability have today become entirely governed by statutes.” Green, 367 Md. at 77 , 785 A.2d at 1284 , citing Prince George’s County v. Beretta U.S.A. Corp., 358 Md. 166, 173 , 747 A.2d 647, 651 (2000) (dismissing an appeal from the trial court’s judgment reviewing a decision of the Prince George’s' Human Relations Commission because neither the specific statutory language at issue nor any other provision of law expressly authorized it); Gisriel v. Ocean City Board of Supervisors of Elections, 345 Md. 477 ,. 489, 693 A.2d 757, 763 (1997), cert, denied, 522 U.S. 1053 , 118 S.Ct. 702 , 139 L.Ed.2d 645 (1998) (explaining that the enactment of Section 12-301 abrogated prior law, and holding that an appeal was not authorized under the general grant of the right to appeal contained in Section 12-301 because a more specific provision applied). Moreover, we again expressed our concern that “the invocation of common ⁵⁹⁷ law principles in an area specifically addressed by the General Assembly might violate the constitutional separation of powers principle.” Green, 367 Md. at 77 , 785 A.2d at 1284 .

Furthermore, we stated “[a]lthough the appeals statutes ... contain no specific words of abrogation ... the appeals statutes repealed and replaced the prior statutory scheme.” Id. at 78 , 785 A.2d at 1284 . “In addition, the structure of the appeals statutes, i.e., conferring a broad general grant of appeal subject to enumerated limitations, further suggests that they are meant to represent the entire subject matter of the law of appeals.” Id. Therefore, we overruled Cardinell and recognized that the State’s right to appeal in criminal cases was based entirely on statute. Id. at 84, 785 A.2d at 1288 . C. May the Writ Issue Where the State Would Otherwise be Unable to Seek Appellate Review?

Restrictions on the State’s ability to appeal, presently contained in Md.Code (1973, 2002 Repl.Vol.), § 12-301(c) of the Courts and Judicial Proceedings Article, have been strictly construed against the State. See Derry v. State, 358 Md. 325, 337-38 , 748 A.2d 478, 485 (2000) (dismissing the State’s appeal from an order suppressing evidence for violation of the Maryland Wiretapping and Electronic Surveillance Act because it did not satisfy the terms of the statute); State v. Anderson, 320 Md. 17, 26 , 575 A.2d 1227, 1231 (1990) (dismissing the State’s appeal under Section 12-302(a) based upon a judgment of the circuit court exercising its appellate jurisdiction over the District Court); State v. Pike, 287 Md. 120, 123-24 , 410 A.2d 1079, 1081 (1980) (dismissing the State’s appeal from an order barring further prosecution of the defendant on double jeopardy grounds because it did not fall into a category defined in Section 12-302(c)). As set out supra, Section 12-302(c) of the Courts and Judicial Proceedings Article provides that the State has a limited right to appeal in criminal cases. Unless the issue presented may properly be categorized as one of the actions ⁵⁹⁸ enumerated in the statute, the State has no power to seek appellate review.

The trial court’s decision to strike the State’s Notice of Intention to Seek the Penalty of Death cannot be characterized as falling under any of the provisions of Section 12-302(c). It does not grant a motion to dismiss or quash or dismiss the indictment against Henry, nor has Judge Manck failed to impose a mandatory sentence or imposed or modified a sentence in violation of the Rules. Clearly, Judge Manck’s decision is not appealable under Section 12 — 302(c)(3)(i) because it does not exclude evidence or require the return of property in violation of the Federal or State Constitutions or the Maryland Declaration of Rights. Therefore, the State has no right to appeal from Judge Manck’s decision to grant Henry’s motion to strike the State’s Notice. 13 In the present case, the State, acknowledging that it has no right to appeal the grant of the motion to strike, has asked for this Court, nevertheless, to grant relief through the process of issuing a prerogatory writ.

A review of this Court’s opinions reveals that the State has never secured mandamus relief in a criminal case where it did not have the statutory right to appeal. See, e.g., State v. Tobias, Order, Sept. Term 1992 (per curiam) (denying the State’s petition for extraordinary writ in a criminal case). One implicit rationale may be, as the Supreme Court has stated repeatedly, “[m]andamus, of course, may never be employed as a substitute for appeal in derogation of’ the policies behind limiting the State’s access to appellate review. Will v. United States, 389 U.S. 90, 97 , 88 S.Ct. 269, 274 , 19 L.Ed.2d 305, 311 (1967), citing Fong Foo v. United States, 369 U.S. 141 , 82 S.Ct. 671 , 7 L.Ed.2d 629 (1962); Parr v. United States, 351 U.S. 513, 520-21 , 76 S.Ct. 912, 917 , 100 L.Ed. 1377, 1385 (1956); Bank of Columbia v. ⁵⁹⁹ Sweeny, 1 Pet. 567, 569, 7 L.Ed. 265, 266 (1828); see also In re Petition for Writ of Prohibition, 312 Md. at 302 , 539 A.2d at 674-75 , quoting Cohens v. Virginia, 6 Wheat. 264, 397 , 5 L.Ed. 257, 289 (1821) (“a writ of prohibition or any other similar writ [is] in the nature of appellate process.”).

In Will v. United States, 389 U.S. 90 , 88 S.Ct. 269 , 19 L.Ed.2d 305 (1967), the Supreme Court considered the propriety of a writ of mandamus issued by the Court of Appeals for the Seventh Circuit to compel a United States District Judge to vacate a portion of a pretrial order requiring the Government to furnish certain information about witnesses. Id. at 91-92 , 88 S.Ct. at 271-72 , 19 L.Ed.2d at 308 . The Court acknowledged that Congress had limited the State’s right to appeal in criminal cases and that mandamus should never be used as a substitute for appeal in violation of statutory limits. Id. at 97 , 88 S.Ct. at 274 , 19 L.Ed.2d at 311-12 .

The Court further noted that there have been specific instances where mandamus has been issued on behalf of the Government where it has been totally deprived of the right to initiate a prosecution or where the trial court exceeded its authority and denied the Government the proper results of a valid conviction, but that a writ has never successfully been applied to interlocutory procedural orders in criminal cases that do not have the effect of a dismissal. Id. at 97-98 , 88 S.Ct. at 275 , 19 L.Ed.2d at 311-12 . Therefore, considering the strong policies disfavoring appeals by the Government in criminal cases and the Court’s refusal to use mandamus as a means of circumventing the limits on the Government’s right to appeal in criminal cases, the United States Supreme Court held that the Court of Appeals for the Seventh Circuit was not justified in its “invocation of the extraordinary writ in [that] case.” Id. at 98 , 88 S.Ct. at 275 , 19 L.Ed.2d at 312 . Concomitantly, because of the strictures placed on our jurisdiction throughout the Maryland Code, we cannot use the writ “in aid of appellate jurisdiction” to confer appellate jurisdiction on the Court.

To use the writ to create jurisdiction beyond the boundaries set forth in statutes would essentially vest four members of this Court with the power to define ⁶⁰⁰ what can be appealed by the State merely by identifying the judicial act under consideration as extraordinary. We cannot confer upon ourselves appellate jurisdiction under the guise of being “in aid of appellate jurisdiction.” Therefore, we hold that because the State cannot appeal Judge Manck’s grant of Henry’s motion to strike the State’s Notice in the first instance, we may not issue a prerogatory writ to permit appellate review beyond the limitations set forth by statute. In so declaring, we recognize that any language to the contrary contained in dicta in In re Petition for Writ of Prohibition, 312 Md. 280 , 539 A.2d 664 (1988), is hereby disapproved. In In re Petition for Writ of Prohibition, this Court stated, “If the use of a writ is ‘necessary to enable ... [the Court] to exercise appellate jurisdiction’ it is in aid of that jurisdiction.” Id. at 304 , 539 A.2d at 675-76 .

After a careful examination of the law of both our sister states and the federal courts, we find that Maryland was singular in its discussion of the possibility of permitting a writ of prohibition to issue “in aid of appellate jurisdiction” in circumstances of a criminal case where appellate review could not be exercised. See, e.g., In re: Bellsouth Corp., 334 F.3d 941, 951-52 (11th Cir.2003) (stating that “[m]andamus is not to be used as a subterfuge to obtain appellate review that is otherwise foreclosed by law.”); Lamb v. Principi, 284 F.3d 1378, 1384 (Fed.Cir.2002) (holding that “extraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial”); Brown & Williamson Tobacco Corp. v. District Court of the Muscogee Nation, 5 Okla. Trib. 447 , 449 (Muscogee 1998) (stating that mandamus cannot be used to expand the statutory scope of interlocutory appeals); United States v. McVeigh, 106 F.3d 325, 333 (10th Cir.1997) (holding that mandamus should never be employed to extend the Government’s right to appeal and thereby create appellate jurisdiction); United States v. Margiotta, 662 F.2d 131 , 134 n. 8 (2d Cir.1981) (holding that because mandamus cannot be used to circumvent the limitations of the Government’s statutory right to appeal in criminal cases, the court may not issue it to accomplish such a purpose); State v. Stirba, 972 P.2d 918 , ⁶⁰¹ 920 (Utah.App.1998) (stating that the State is limited in appellate rights by statute and mandamus cannot be used to circumvent that restriction); Tyson v. State, 593 N.E.2d 175, 179-80 (Ind.1992) (stating that an extraordinary writ will not issue “in aid of appellate jurisdiction” where there is no implication of the court’s appellate jurisdiction); State v. Lewis, 188 W.Va. 85 , 422 S.E.2d 807, 816-17 (1992); Ex Parte Nice, 407 So.2d 874, 877 (Ala. 1981) (noting that mandamus should not be a substitute for appeal and can only issue “in aid of appellate jurisdiction” if the petitioner has the right to appeal). Any reliance by the State, then, on this language is misplaced.

III

Conclusion Because we find that a prerogatory writ may not properly issue in aid of our appellate jurisdiction in the present case, we dismiss the State’s petition for extraordinary relief. 14 PETITION FOR WRIT OF PROHIBITION, MANDAMUS OR OTHER EXTRAORDINARY RELIEF DISMISSED. COSTS TO BE PAID BY PETITIONER. WILNER, CATHELL and HARRELL, JJ„ Dissent. Dissenting Opinion by HARRELL, J. which WILNER and CATHELL, JJ., Join.

I dissent. At the outset, I must give the devil (the Majority opinion) its small due. There is little with which I quarrel regarding the procedural narrative in Part I of the Majority opinion. I note, however, that the record does not support the Majority’s assertion that Judge North’s grant of the Motion to ⁶⁰² Strike in Abend’s case (and the reasoning therefor) was only “part” Maj. op. at 585-86, 870 A.2d at 198-99 of the basis for Judge Manck’s reconsideration of his denial of Henry’s Motion to Strike and ultimate grant of that motion.

It appears rather that Judge Manck’s conversion was incited solely by Judge North’s ruling in the Abend case. The misguided, but dextrous, explanation for the Majority opinion’s ultimate conclusion begins in its Part II, A with the omission from the recitation of what the Court said in In re Writ of Prohibition of the following passages allowing for the availability of the prerogative writs where a lower court’s action is taken in a considered and unauthorized manner designed to frustrate a proper and accepted avenue of appellate review: A lower court which thus exceeds its power ... must be bridled by a court of last resort. Were it otherwise, mandates of the General Assembly could be defied with impunity and the only protection of the public would be the tortuous process of judicial removal which would not have the effect of correcting the specific error. Therefore, if there were no right of appeal in this case, we would have no hesitancy in saying that we would act by issuance of the writ of prohibition. 312 Md. 280, 296 , 539 A.2d 664, 671-72 (1988) (citations omitted) (emphasis added); The writ of mandamus is an aid to the appellate process, because by it, the appellate court directs an inferior tribunal to take some action so its judicial decision may be reviewed on