Tucker v. State

Moore, J., delivered the opinion of the Court. At a bench trial in the Circuit Court for Anne Arundel County, appellant, Charles S. Tucker, was convicted of escape and a consecutive 18-month sentence was imposed. In his brief, filed on October 3,1978, six separate issues were raised. At oral argument on December 13, 1978, counsel for appellant requested leave to raise a new issue, that of noncompliance with Maryland Rule 735, in light of this Court’s decision in Biddle v. State, 40 Md. App. 399 , filed on October 13, 1978, some 10 days subsequent to the filing of appellant’s brief.

Thereafter, pursuant to leave of court, appellant’s counsel filed a written motion on January 9,1979 that the court, pursuant to Maryland Rule 1046 (f), consider this new issue. On January 16, 1979, the court signed an Order “that the issue, ‘Did the trial judge err in permitting trial to proceed without first determining on the record that the appellant had knowingly and intelligently waived his right to jury trial as required by Maryland Rule 735?’ first raised before this Court upon oral argument be considered along with other issues raised in the brief of appellant.” The court also granted a motion by appellant to supplement the record, pursuant to Maryland Rule 1027, by the inclusion of the transcript of appellant’s arraignment on October 10, 1978 in the Circuit Court for Anne Arundel County and of proceedings on a motion for discovery held on November 18, 1978 (Goudy, J.). The basis for the aforesaid motion and Order was appellant’s statement that “matters which transpired in prior proceedings may be pertinent to the success of the present appeal.” Upon our examination of the record, we find that although two written elections for a court trial were filed, there was no inquiry on the record to determine if the election was ¹⁰⁵ voluntary. There was no compliance with Maryland Rule 735 d as amended by 5 Md. Reg. 1788 -89 (1978) which provides: “d.

When Court Trial Elected. If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise,