text:
    JAMES H. EISENHARDT v. ROSARIO J. PAPA et ux.
    [No. 1525,
    September Term, 1979.]

      Decided July 15, 1980.

    The cause was argued before Moylan and Wilner, JJ., and Irving H. Fisher, Associate Judge of the District Court of Maryland for District 5, specially assigned.

      Emil Hirsch, with whom was David Freishtat on the brief, for appellant.

      Bayard Z. Hochberg for appellees.
   Wilner, J.,

delivered the opinion of the Court.

We are asked here to resolve a conflict among two principals and four principles. The principles, each clear and well set out in the law, concern the finality, "reviewability,” and revision of judgments. They are:

FIRST: A judgment entered by a court that had no "jurisdiction” to enter it is absolutely void. Such a judgment, said the Court in Fooks’ Executors v. Ghingher, 172 Md. 612, 619 (1937), "may be attacked anywhere, at any time, by any person affected by it. .. ,” it being but "a dead limb upon the judicial tree.”

SECOND: After a judgment has become enrolled, a trial court is without authority to vacate or revise it except for fraud, mistake, or irregularity. This maxim is directly stated in Maryland Rule 625 a which, the Court said in Eliason v. Comm’r of Personnel, 230 Md. 56, 59 (1962), "embraces all the power the courts of this State have to revise and control enrolled judgments and decrees.”

THIRD: A trial court has no authority to modify a judgment after that judgment has been affirmed on appeal, for that would involve modifying the ruling of a higher court. See Buffín v. Hernandez, 44 Md. App. 247 (1979), and cases cited therein.

FOURTH: A trial court’s refusal to vacate an unenrolled judgment, rendered on the merits, is not ordinarily appealable. Three reasons have been cited for this: (1) under Maryland Rule 625 a, a trail court’s revisory power prior to enrollment is purely a discretionary one that will not ordinarily be disturbed by an appellate court; (2) the proper way to test the correctness or validity of the court’s action is to appeal from the judgment itself and not from a refusal to vacate it; and (3) to permit an appellant to challenge the judgment indirectly by appealing the court’s refusal to vacate it would, in most cases, serve to emasculate the statutory requirement that appeals be noted within 30 days of the entry of judgment. See Gold Dust Corp. v. Zabawa, 159 Md. 664 (1930); Tilghman v. Riggs National Bank, 261 Md. 306 (1971); Hardy v. Metis, 282 Md. 1 (1978). Compare First Federated Com. Tr. v. Comm’r, 272 Md. 329, 333 (1974), dealing with the appealability of an order refusing to strike an enrolled decree.

We are required to consider and sort out these principles, and a few others, because of the unusual posture in which this case reaches us. This is an appeal from a refusal by the Circuit Court of Baltimore City to vacate an unenrolled amended decree (compare fourth principle), in which the record suggests that, in entering the amended decree, the court revised (in effect, annulled) a previously enrolled decree (i) in the absence of any showing of fraud, mistake, or irregularity (compare second principle) and (ii) after that decree had been affirmed by this Court on a direct appeal (compare third principle). On this basis, appellant contends that the court was without jurisdiction to enter the amended decree, that such decree is therefore absolutely void, and that it may properly be attacked on appeal from the trial court’s refusal to vacate it (see first principle).

The genesis of this case was an action for specific performance filed by appellant on August 4, 1977, in the Circuit Court for Baltimore City. He alleged, and proved, that appellees had agreed to sell him, on an installment basis, a parcel of land in Baltimore City of which he had been a lessee and on which he conducted a used car business. The bone of contention between the parties at the time concerned (1) a collateral debt owed to appellees by appellant, evidenced by two confessed judgment notes, which appellees insisted be paid before they delivered a deed to the property, and (2) appellant’s claim to a share of certain insurance proceeds received by appellees by reason of fire damage to the property, which share he sought to deduct from the unpaid purchase price.

These matters came before the court in its consideration of appellant’s bill for specific performance and money damages. After trial, the court determined that appellant was entitled to specific performance; and, on February 22, 1978, it issued a decree (1) ordering appellees to give to appellant a deed to the property upon payment of the unpaid purchase price of $20,103, (2) directing that all settlement expenses be borne by appellant, (3) ordering that taxes and other public charges be adjusted as of August 30, 1976, and be borne by appellant, and (4) dismissing appellant’s claim for monetary losses, without providing for any apportionment of the fire insurance proceeds.

Appellees appealed from that decree, primarily on the ground that the chancellor had failed to give proper account to appellant’s default under the collateral confessed judgment notes in ordering specific performance. Appellant did not cross-appeal. In an unreported per curiam Opinion filed January 19,1979, this Court affirmed the decree (Papa, et ux. v. Eisenhardt, No. 290, Sept. Term, 1978). Our mandate (following denial of a motion for reconsideration) was issued on February 21, 1979.

On June 4,1979, appellees filed a petition with the Circuit Court to modify the decree. They alleged, in essence, that following the mandate of this Court, they had attempted to arrange for settlement of the property in accordance with the decree of specific performance, and were ready, willing, and able at all times thereafter to conclude settlement in accordance with that decree, but that appellant refused to conclude settlement except upon extraneous and unacceptable conditions. As a result, they asked the court to modify the decree by eliminating therefrom the requirement that appellees deed the property to appellant — in effect, to negate entirely the order for specific performance. No claim was made (and no evidence was offered) that the decree had been entered by fraud, mistake, or irregularity. Indeed, such a claim would likely have been foreclosed by our affirmance of the decree. See Buffin v. Hernandez, supra, 44 Md. App. 247, and the cases cited therein.

In response to this petition by appellees, appellant filed his own petition for modification of the decree. Alleging that his claim to a share of the insurance proceeds was not foreclosed by the decree, but was agreed to by appellees, that, subsequent to the decree appellees had removed about $8,000 worth of electrical fixtures from the property, and that the underlying purchase agreement was really a land installment contract, he asked that the court modify the decree by (1) appointing an auditor to determine the proper apportionment of the insurance proceeds, (2) requiring appellees to return the fixtures or allowing a deduction for their value, (3) amending the clause requiring an adjustment of expenses as of August 30, 1976, so as to require appellees to pay the real estate taxes after that date, and (4) requiring appellees to comply with their obligations "under Title 10 of the Real Property Article” (without specifying what those obligations were or which, if any, had not been satisfied).

Upon these cross-petitions (and answers to them) the court conducted a hearing at which certain documentary evidence was admitted by stipulation. That evidence, mostly correspondence between counsel, essentially illustrates the basic disagreement between the parties noted above — appellees’ efforts to conclude settlement in strict accord with the decree and appellant’s insistence on a credit for part of the insurance proceeds and that his wife be joined in a deed as a co-grantee. At the conclusion of the hearing, the court announced that, instead of interpreting and enforcing the decree by making clear what the obligations of the parties were under it (see Maryland Rules 681 and 685), it would grant appellees’ petition for modification, striking from the decree their obligation to convey the property, and would deny appellant’s cross-petition. The court pointed out that, as the matters complained of by appellant occurred prior to the decree, the court was powerless to modify it on their account; but that it was not so impotent with respect to the post-decretal matters raised in appellees’ petition. An amended decree, effectuating these decisions, was entered on October 15, 1979.

A week later, counsel for appellant withdrew his appearance. On October 31, 1979, appellant filed what appears to be a professionally drawn but nonetheless pro se motion to strike the amended decree. Among a variety of alleged improprieties (lack of due process, failure to state grounds, gross injustice, fraud, conspiracy), appellant claimed:

"THE AMENDED DECREE dated October 15, 1979, is void in that this Court lacks the power and authority to enroll such amended decree in that it materially extinguishes or strikes the Decree dated February 22, 1978 in direct contravention to the mandate of the Court of Appeals in Hughes v. Beltway Homes Inc. 276 Md. 382, 347 A.2d 837 (1975). The language of Rule 625 embraces all of the power the Court has to revise and control the Decree dated February 22, 1978, Meyer v. Gyro Transp. Sys. 263 Md. 518, 282 A.2d 608 (1971). By reason of each and every paragraph herein, plaintiffs rights under the Decree dated February 22, 1978 is 'res judicata’ and this Court has abused and usurped its power and authority with the entry of the AMENDED DECREE dated October 15, 1979.” (Emphasis in the original.)

In the next paragraph, in the context of complaining about the court’s failure to state the grounds for its decision (Maryland Rule 18b), appellant stated:

"This failure to make a statement of grounds for its decision is an 'act of discretion.’ This Court lacks any discretionary power to strike or materially extinguish the Decree dated February 22, 1978, Travelers Indem. Co. v. Rosedale Passenger Lines, 450 F.2d 975 (4th Cir. 1971); Ventresca v. Weaver Bros. 266 Md. 398, 292 A.2d 656 (1972).”

These were the only complaints of a jurisdictional nature made by appellant in his motion to strike.

On November 5, 1979, the court, finding "no basis upon which [the motion] should be granted,” denied it. The next sequence of events, which accounts for the peculiar posture of the appeal now before us, was as follows: (1) On November 15, 1979, appellant noted an appeal from the (October 15) amended decree; (2) on December 3,1979, he noted an appeal from the court’s denial of his motion to strike the amended decree; (3) on December 31, 1979, pursuant to appellees’ motion and Maryland Rule 1013, the court struck appellant’s November 15 order for appeal as not having been timely filed; and (4) on January 24,1980, appellant noted an appeal from the court’s December 31 order striking his first order for appeal.

The record before us in this case thus shows three orders for appeal — the November 15 appeal from the amended decree, which was subsequently stricken by the trial court; the December 3 appeal from the denial of appellant’s motion to strike the amended decree; and the January 24 appeal from the trial court’s order striking the November 15 appeal. Although the last of these appeals — that of January 24 — was timely filed and was properly included in the record transmitted by the clerk of the Circuit Court, and although the court’s Memorandum Opinion and Order striking the November 15 appeal is included in the Joint Record Extract pursuant to Maryland Rule 1028, appellant has not seen fit to include in his brief any mention of or argument concerning that appeal. We therefore consider that he has abandoned any complaint about that action of the court (see Maryland Rule 1031) and, pursuant to Maryland Rule 1035 a. 2 and b. 7, shall, on our own motion, dismiss that appeal. We hasten to add that the November 15 order for appeal shows on its face that it was not timely filed, and we therefore would have dismissed the appeal under Maryland Rule 1035 a. 2 and b. 3 had the lower court not acted under Maryland Rule 1013.

As a result of this action, we are left only with the December 3 appeal from the order denying appellant’s motion to strike the amended decree. This, as we initially noted, is ordinarily a decision that is purely discretionary and has been held to be nonappealable. Whatever our inclination might be in considering a direct appeal from the amended decree itself, unless we conclude that it is absolutely void, having been entered in a jurisdictional vacuum, it is not our function, or perhaps even our power, to disturb the trial court’s refusal to vacate it.

In this regard, we must look carefully at the claims made by appellant. As we have already observed, the jurisdictional deficiency raised in the lower court with respect to the amended decree was based solely upon Maryland Rule 625 a — that in the absence of fraud, mistake, or irregularity, the court had no authority to amend the decree (this being, of course, entirely inconsistent with his own petition to amend the decree). In his brief before us, however, he makes no mention whatever of this defense. Instead, he asserts that court’s lack of jurisdiction arose not under Maryland Rule 625 a but rather because the original decree had been affirmed by this court. The issue before us, he says, "is controlled by this Court’s recent decision in Buffin v. Hernandez, 44 Md. App. 247 (1979),” which dealt with the trial court’s authority to revise a judgment, following affirmance on appeal, in a manner inconsistent with the mandate of affirmance by the appellate court.

Because both of these grounds are jurisdictionally based, it is incumbent upon us to consider them both. Maryland Rule 1085; Stacy v. Burke, 259 Md. 390, 403 (1970); Webb v. Oxley, 226 Md. 339, 343 (1961); Moore v. State, 15 Md. App. 396, cert. den. 266 Md. 740 (1972).

These grounds are, of course, somewhat related. Both question not the substance of what the court did (i.e., the contents of the amended decree), but rather its authority to pass an amended decree in the first instance. In this regard, the essential issue as to both lines of attack is whether the court actually exceeded its jurisdiction — i.e., had no underlying inherent power to do what it did — or whether it had the requisite jurisdiction but merely exercised it improperly.

The Court of Appeals first noted this distinction in Fooks’ Executors v. Ghingher, supra, 172 Md. 612. The genesis of that case was a proceeding in equity by the receiver of a bank to recover from the bank’s stockholders amounts equivalent to the full par value of their respective shares of stock. Some of the stockholders, by demurrer, contended that equity had no jurisdiction over such a proceeding, in that there was an adequate remedy at law; and, in Allender v. Ghingher, 170 Md. 156 (1936), the Court of Appeals, reversing the ruling of the trial court, agreed with them. Other stockholders, also sued in equity, declined to raise the "jurisdictional” defense, and decrees on the merits were taken against them, these decrees being unaffected by the favorable result in Allender. Nearly three years later, those stockholders moved in the lower court to strike the decrees on the ground, sustained by the Court of Appeals in Allender, that the court had no jurisdiction to enter them. The lower court dismissed the petition.

Conceding that the decree of a court lacking the jurisdiction to enter it is void and subject to attack at any time, the Court of Appeals nevertheless affirmed, observing at p. 624 (of 172 Md.) that "[t]here is a wide distinction between the lack of jurisdiction to decide a given case, and the improper or irregular exercise of a power which, while within the general jurisdiction of the court, under its established practice, is not applicable to the facts in respect to which it is exerted. ” (Emphasis supplied.) In a similar vein, the Court noted at p. 622 that the court’s "jurisdiction” may refer to its jurisdiction "to try the particular case or to its jurisdiction of the class of cases within which the particular case falls.” Which it is, the Court said (p. 623),

"can only be ascertained from an examination of the subject-matter of the proceeding, and the law which prescribes the forum in which a proceeding to enforce rights incidental to that kind of subject-matter must be tried. So that, while it may appear on the face of the proceedings that through lack of appropriate allegations a court had no power to enter a particular decree, nevertheless, if it had jurisdiction of the class of cases to which that in which the decree was entered belonged, its decree would not be void, but voidable.” (Emphasis supplied.)

Although these concepts were applied in Fooks’ Executors in the context of distinguishing between jurisdiction generally and what the Court referred to as "equity jurisdiction” (see also Moore v. McAllister, 216 Md. 497 (1958), and Wells v. Price, 183 Md. 443 (1944)), they have been given similar application in other contexts as well.

In a series of cases beginning with Parojinog v. State, 282 Md. 256 (1978), the Court drew a similar distinction in the

context of a double jeopardy issue. In Block v. State, 286 Md. 266 (1979), the Court dealt with a situation in which the trial court (the District Court) entered a verdict of guilty following the defendant’s trial but withheld the imposition of sentence, later struck that verdict and entered a verdict of not guilty, and then struck that verdict and awarded the defendant a new trial. The State defended against a motion to dismiss on double jeopardy grounds on the premise that the initial "revision” — the entry of the not guilty verdict — was a nullity. Under the circumstances of the case, the State argued, the court had no revisory power over the first verdict — that the action taken was in violation of Maryland Rule of Procedure 770, which established and limited the court’s revisory power. Relying in part on Parojinog, which involved a defective proceeding by a juvenile court, the Court concluded, however, at p. 273-74, that "the fact that the court may not have been authorized under the rules to render the verdict does not make it void for double jeopardy purposes. The cases make it clear that an improper or defective exercise of jurisdiction does not deprive an acquittal of its finality.”

In a similar vein was Parks v. State, 287 Md. 11 (1980), dealing with a judgment of conviction rendered in clear violation of the Intrastate Detainer Act. Md. Ann. Code art. 27, § 616S (e) provides that if an indictment subject to the Act is not tried within 120 days of a request for trial, "the court no longer has jurisdiction, and the untried indictment . . . has no further force or effect.” Notwithstanding this provision, the Court concluded that a conviction following a trial occurring after the 120-day period was only voidable as an improper exercise of jurisdiction and not a complete nullity. It stated: 287 Md. at 19:

"[IJt is clear that the trial court at all times had jurisdiction over both the defendant and the subject matter. The expiration of the 120 day period in the statute affected neither of these grounds of jurisdiction. The statute only impaired the court’s authority to exercise that jurisdiction.”

In the most recent of the cases involving criminal proceedings, Pulley v. State, 287 Md. 406 (1980), and Stewart v. State, 287 Md. 524 (1980), the Court synthesized the concepts announced in Fooks’ Executors and the other civil cases with those applied in the double jeopardy context. Among the issues considered in Pulley was whether the trial court had lost its 'jurisdiction” to proceed with trial (the fourth) while the defendant’s interlocutory appeal on double jeopardy grounds was pending in this Court. Noting that, in general, a trial court does suffer a "lack of jurisdiction” or "suspension of authority” pending an appeal, the Court concluded that this loss or suspension was not one of "fundamental jurisdiction” sufficient to render its judgment void. This "fundamental jurisdiction,” the Court said, quoting in part from Cooper v. Reynolds’ Lessee, 77 U.S. 308 (1870) (Slip Opinion, p. 12), "is the power to act with regard to a subject matter which 'is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.’ ” Similarly, in Stewart, the Court concluded that the circuit court did not lose fundamental criminal jurisdiction to try a juvenile following a waiver of juvenile court jurisdiction during the pendency of an appeal from that waiver order.

When we consider the framework of the issue before us in the light of these principles, and these holdings, it becomes evident that even if the Circuit Court erred in passing the amended decree, even if that act was unauthorized and in violation of Maryland Rule 625a, there was no lack of basic, fundamental subject matter jurisdiction; and thus, at best (or worst), the amended decree would be voidable and not void.

Maryland Rule 625 a permits decrees to be revised after 30 days; it authorizes trial courts to take such action. What it limits is not the power to revise but the grounds upon which the decree may be revised — the circumstances under which the power may properly be exercised. If there is shown to be fraud, mistake, or irregularity (plus due diligence in seeking the revision), there is no doubt about the court’s fundamental power/jurisdiction to consider and grant a motion to revise an enrolled judgment or decree. When the court acts in the absence of those circumstances, therefore, what it is doing is improperly exercising that fundamental jurisdiction to revise; it is exercising its jurisdiction in an unauthorized and inappropriate manner, as the equity court did in Fooks’ Executors, as the District Court did in Block, as the Circuit Court (criminal) did in Parks. See First Federated Com. Tr. v. Comm’r, supra, 272 Md. 329, 334, et seq. In such a case, its action is subject to reversal upon a timely filed and properly perfected direct appeal from that action. The action is thus voidable by an appellate court. But, because there is no lack of fundamental jurisdiction, the action is not void; and its validity or correctness is therefore not subject to our review on appeal from an order declining to undo it.

A similar result obtains with respect to the second ground raised by appellant — that based on Buffin v. Hernandez, supra — and for similar reasons.

Buffín, and the decisions of the Court of Appeals on which it relied, involved attempts by a trial court (or attempts to induce a trial court) to modify a judgment that had been ruled upon on appeal, in a manner that was inconsistent with the appellate court mandate, by reason of matters that could (or should) have been considered and determined prior to or in the course of the appeal. See, for example, Korotki v. Springer, 218 Md. 191 (1958), and Rent-A-Car Co. v. Fire Ins. Co., 166 Md. 447 (1934), where, after affirmance or remand by the appellate court, an attempt was made to have the judgment stricken on the ground that it was procured by fraud; and Buffín itself, where, after affirmance on appeal, the trial court attempted to modify the judgment to recognize the claim of a subrogee. Such authority, we said, does not exist. "A trial court simply does not have jurisdiction to modify, in effect, the ruling of a higher court.” 44 Md. App. at 255.

Here, again, however, the word (and concept of) "jurisdiction” must be viewed in a proper context. Many types of equity decrees, continuing in nature, are clearly subject to modification after appellate review and affirmance. Decrees entered in domestic cases — custody, spousal and child support orders — are an example, as are injunctions. The power to modify is present; it is the exercise of that power that is limited. Judgments and decrees of a particular type — that have been through a particular procedure — may not be modified, this being due not to a lack of fundamental power in the trial court or to anything inherent in the decree itself, but rather to the supervening action of a superior tribunal with respect to that particular decree. In that situation, and for that reason, the power may not be exercised; and if the court wrongfully does exercise the power, its action is merely voidable on a direct appeal. Compare Pamelin Industries v. Sheen-U.S.A., Inc., 600 P.2d 651 (Wash. App. 1979); Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), cert. den. 421 U.S. 991 (1975).

We thus conclude that the amended decree is not void but, if improperly entered, merely voidable. Because it is not void, we shall not consider its validity or correctness in an appeal from a refusal to vacate the decree. Tilghman v. Riggs National Bank, supra, 261 Md. 306.

Appeals dismissed; appellant to pay the costs.

      . Ordinarily, an order would not be considered nonappealable simply because it is discretionary, there always being open the question of whether the court abused its discretion. Yet, in Tilghman, which involved an appeal from an order denying a motion to strike an unenrolled decree, the Court actually dismissed the appeal rather than affirm the order. This approach is not inconsistent with what the Court said in Gold Dust Corp. See also Suitland Dev. v. Merchants Mort., 254 Md. 43 (1969). It would appear that the major rationale for this approach is one of public policy. As the Court said initially in Lefever v. Lefever, 6 Md. 472, 478 (1855), and again in Gold Dust Corp., 159 Md. at 667: "If parties could open decrees and judgments, on appeal, in this indirect way, it would virtually amount to a repeal of the laws limiting the time within which appeals should be taken, and would lead to interminable litigation.”

      . Appellant asked the court to specifically enforce the agreement (i.eto require or provide for a conveyance of title) and to "fix and determine the monetary losses sustained by the Plaintiff.” Appellant did not specify in his bill any particular damages or losses but averred that they arose in the operation of his used car business conducted on the property. At trial, he made a specific claim to a share of the insurance proceeds as part of the monetary losses for which he sought recovery.

      . The two conditions insisted upon by appellant were that the deed include his wife as a co-grantee and that he receive a deduction from the $20,103 unpaid purchase price for his share of the fire insurance proceeds. Appellees resisted these demands on the basis that (1) as to the inclusion of appellant’s wife, this was simply a ploy to prevent the judgments obtained by appellees on the two confessed judgment notes from becoming a lien on the realty, and was not authorized by the decree, which ordered a deed to appellant and said nothing about his wife; and (2) as to the insurance proceeds, that issue was resolved when appellant’s claim for monetary damages was dismissed.

      . The cases cited by appellant in these passages all involved Maryland Rule 625a and concluded that once a judgment or equity decree became enrolled, it was subject to revision or vacation by the trial court only for fraud, mistake, or irregularity.

      . See Maryland Rule 1026a.l: "Unless otherwise ordered by the lower court pursuant to section f [d] of this Rule, all the original papers filed in the action in the lower court, except such papers as the parties may stipulate shall be omitted, shall constitute the record on appeal....”

      . Although the Rule generally limits our review to points "tried and decided by the lower court,” it also provides that "a question as to the jurisdiction of the lower court may be raised and decided in this Court whether or not raised and decided in the lower court.”

      . Jordon involved a clear issue of fundamental jurisdiction — the power of a Federal Court under the Eleventh Amendment to enter a money judgment against a State. We express no comment with respect to Pamelin Industries.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    CHARLES OLIN SCHMITT v. STATE OF MARYLAND
    [No. 1578,
    September Term, 1979.]

      Decided July 15, 1980.

    The cause was argued before Liss and Couch, JJ., and J. William Hinkel, Associate Judge of the District Court of Maryland for District 8, specially assigned.

      Geraldine K. Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Ray E. Stokes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Joseph A. Dugan, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the court.

Appellant, Charles Olin Schmitt, was charged in the Circuit Court for Prince George’s County by a seven count indictment with housebreaking, larceny, receiving stolen goods and burglary. The cases were submitted to a jury on November 28,1979, and the jury returned guilty verdicts on the burglary and grand larceny charges. Sentences were imposed, and it is from those judgments that this appeal was filed.

The questions raised by the appellant are as follows:

1. Did the trial court err in denying appellant’s motions to dismiss the indictment for lack of a speedy trial?

2. Did the trial court err in denying appellant’s motions to suppress illegally seized evidence?

1.

This case presents another in the seemingly unending series of complaints by defendants in criminal prosecutions that they have been denied their Sixth Amendment right to a speedy trial. Previous decisions of the Supreme Court of the United States, the Court of Appeals of Maryland and our Court have established the guidelines by which we must measure the delay in bringing a defendant to trial. These guidelines necessarily determine whether the defendant is entitled to a dismissal of the indictment against him because of the State’s failure to comply with the requirements of the Sixth Amendment.

When the period of delay between a defendant’s arrest and trial is of constitutional dimension, the court is required to consider a four-factor balancing test to determine whether the defendant has been deprived of his right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972); Wilson v. State, 281 Md. 640, 382 A.2d 1053 (1978), aff'g, State v. Wilson, 35 Md. App. 111, 371 A.2d 140 (1977); Epps v. State, 276 Md. 96, 345 A.2d 62 (1975); State v. Hiken, 43 Md. App. 259, 405 A.2d 284 (1979).

Because the balancing test necessarily compels courts to approach speedy trial cases on an "ad hoc” basis, the four factors mentioned in Barker v. Wingo and its progeny must be applied individually to the facts in each of the cases considered. These factors are: (1) the length of the delay; (2) the reasons for the delay; (3) the assertion of the speedy trial right; and (4) prejudice to the defendant.

(1) Length of delay

The speedy trial clock began to run in this case on the date the appellant was arrested, which was March 20, 1979. The trial of his case was commenced and concluded on November 28, 1979. Thus, the total period involved was eight months and eight days. Unless the court finds this total delay to be of "constitutional dimension” the interaction of the four-pronged balancing test is not triggered. However, in Barker v. Wingo, supra, it is pointed out that whether a delay is of "constitutional dimension” is determined not solely by the length of the period of delay. The Supreme Court there said:

[B]ecause of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious complex conspiracy charge. [407 U.S. at 530-31.]

The charges in this case were the common garden variety of burglary and larceny of an apartment. The case was originally set for trial on July 17, 1979 (four months after the arrest), and at no time after that date until the trial on November 28,1979 did the State indicate to the several trial judges who were involved in the case that the State had any difficulty in preparing its case for trial. Certainly the complexity of the case was not offered as a reason for any of the delays which occurred.

By way of comparison, we note that in McIntyre v. State, 17 Md. App. 526, 302 A.2d 672 (1973), a robbery case, and State v. Becker, 24 Md. App. 549, 332 A.2d 272 (1975), an automobile larceny case, that a delay of six and one half months and nine and one half months, respectively, were held to be of "constitutional dimensions.” Most recently, this Court found a nine month and twenty-three day delay to be sufficiently long to invoke the balancing test even though the charges in the case involved complex issues of conspiracy and insurance fraud. State v. Hiken, supra, at 272. We conclude, taking in consideration all the facts available to us in the record, that the delay in this case does, indeed, cross the threshold of "constitutional dimension.”

In order to assess intelligently the balancing tests it becomes necessary for us to state the chronology of events relevant to the issue of speedy trial as follows:

March 20, 1979 — Appellant arrested

April 25, 1979 — Indictment filed containing counts 1 through 7.

May 23, 1979 — Notice setting case for jury trial on July 17.

July 17, 1979 — State motion for continuance granted on grounds of unavailable prosecuting witness.

July 20, 1979 — Notice setting case for jury trial on September 6, 1979.

September 6, 1979 — Co-defendant McCoy failed to appear. Case continued because it could not be reached and no other judge available.

September 10, 1979 — Notice setting case for jury trial on October 15, 1979.

October 15, 1979 — Case could not be reached and was continued. State’s Attorney involved in another case and no other judge available. Trial reset for November 21.

October 15, 1979 — Appellant moved for a speedy trial and moved to dismiss for want of a speedy trial.

October 26, 1979 — Appellant’s motion to dismiss for want of a speedy trial denied.

November 21, 1979 — State motion for a continuance because of unavailable witness granted. Trial date reset for November 28.

November 21, 1979 — Appellant’s motion to dismiss for want of a speedy trial denied.

November 28, 1979 — Appellant’s motion to sever counts 1 through 3 from counts 4 through 7 denied. Motion to dismiss for lack of speedy trial denied.

(2) Reasons for delay and (3) Assertion of right to speedy trial.

In making its analysis, this Court is required to ascertain whether a delay has been caused by the State or the defense and what blame, if any, is associated with the reason for the delay. Barker v. Wingo, supra, at 531. Different weight must be assigned to different reasons for delay. Therefore, a deliberate attempt to delay a trial in order to hamper a defendant’s defense must be weighed heavily against the State. On the other hand, more neutral reasons such as negligence or overcrowded courts must be weighed against the State but less heavily.

(March 20, 1979 to July 17, 1979)

This period is, we conclude, attributable to the orderly processing of appellant’s case and thus not chargeable to the State. See Nocera v. State, 36 Md. App. 317, 374 A.2d 608 (1977); State v. Lawless, 13 Md. App. 220, 283 A.2d 160 (1971).

(July 17, 1979 to September 6, 1979)

The State urges that the delay in the period between July 17,1979 to September 6,1979 should not be charged against the State because the delay was caused by the absence of the complaining witness who required back surgery. Apparently, no effort was made to reach a stipulation with defense counsel as to a proffer of what her testimony would have been had she been called as a witness. As we see it, it should have been a simple matter to have reached such a stipulation and to have proceeded with the trial on the date scheduled without the necessity for a postponement. Under these circumstances, we conclude this delay is chargeable against the State.

(September 6, 1979 to October 15, 1979)

This interval is chargeable against the State. The reason for the postponement on September 6 was that the State’s Attorney handling appellant’s case was trying another case and no other judge was available to hear the instant matter. The period, then, must be weighed against the State, but may not be weighed as heavily as a delay caused intentionally by the State. State v. Statchuk, 38 Md. App. 175, 380 A.2d 225 (1977).

(October 15, 1979 to November 21, 1979)

The period between October 15, 1979 to November 21, 1979 is also chargeable to the State because the same State’s Attorney was involved in another case and no other judge was available to hear appellant’s case.

(November 21, 1979 to November 28, 1979)

This period must be weighed heavily against the State for the reasons we shall recite. A review of the record discloses that the appellant was unusually diligent in his assertion of his right to a speedy trial. The record reflects that appellant asserted that right on October 15, 1979, November 21, 1979 and on November 28, 1979. Arguments were heard before three different judges on each of appellant’s motions to dismiss the indictment against him for failure to provide a speedy trial. The motions were denied in each instance. In addition, appellant sought pre-trial release and reduction of bond on at least two occasions before an additional judge and relief was denied in each of those instances, also.

We examine at this point the failure of the State to proceed to trial on November 21, 1979. At that point in the proceedings, the State had already postponed the case on two occasions because the particular State’s Attorney was engaged in the trial of another case and no court was available. Prior to the case being set for trial on November 21, the State routinely issued summonses on October 25, 1979, to, among others, a Prince George’s County police sergeant whose testimony was vital to the case. The court records disclose the sergeant was served on October 26. On October 29, the sergeant sent a memo to the State’s Attorney, received on October 31, which read as follows:

This is to inform your office that on the court date scheduled 11/21/79, I have scheduled vacation in Florida from 11/14/79 through 11/26/79. I am making notification at this time so changes can be made with the least amount of inconvenience to all persons involved.

The State’s Attorney replied to the memo from the sergeant on November 2, 1979:

This is to inform you that this case has been specially set for November 21, 1979, and must be tried on that date or else it will be dismissed by the Court. The Court has provided a special judge and courtroom just for this case, and I have been specially assigned by my office to prosecute it.
You are an essential witness and, therefore, cannot be excused. I am making the notification at this time so changes can be made with the least inconvenience to all persons involved.

Thereafter, on November 5, the sergeant called the State’s Attorney, and in the course of the discussion, the officer was advised that the delay in the case was becoming substantial and that the State was under a great deal of compulsion to try the case. The officer stated that he would come back from Florida so that he could attend and testify in the case. There was no further contact between the State’s Attorney and the officer or any of his superior officers to further assure his attendance at trial. At 8:27 a.m. on November 21, the date of trial, the sergeant called the State’s Attorney’s office and left a message with the State’s victim/witness coordinator, Miss Hess, that he was sick and would not attend the trial. Miss Hess told the sergeant to hold on and went to notify the Assistant State’s Attorney. By the time the State’s Attorney picked up the phone, the sergeant had hung up. Miss Hess, who had no information concerning the sergeant’s vacation plans, opined to the State’s Attorney that the call seemed to be a long distance call. The State’s Attorney then called the station commander at the Oxon Hill station where the sergeant was assigned and requested his assistance in securing the attendance of the sergeant at the trial. The station commander called the sergeant’s home and received no answer. Another officer was sent to the sergeant’s home. He learned that the sergeant was not at home even though he had reported he was ill and was unable to attend the trial. At this period in the proceedings, the State again requested a postponement (to November 28) over the objection of the appellant who again asserted his right to a speedy trial and to a dismissal of the indictment.

When the case had been postponed from October 15 to November 21, another trial judge in the circuit, after reviewing the history of the case, denied appellant’s motion for dismissal because of a lack of speedy trial but stated as follows:

This case is set for November 21,1979. If it is not tried on that date, on an oral motion to dismiss, except for extraordinary causes, I will re-evaluate my denial of your motion. So that as far as I am concerned, if this case doesn’t go to trial on the 21st, and the State doesn’t have an extraordinary reason why it doesn’t, then at that time I will reconsider this one.

The clear implication of that statement was that if the case was not tried when scheduled on November 21, unless there was some extraordinary reason advanced by the State, the trial court would grant the appellant’s motion. That this was the clear understanding of all the parties is evidenced by the State’s Attorney’s statement to the sergeant that the case must be tried on November 21 or it would be dismissed. In spite of this, at the request for postponement on November 21, yet another judge denied the defendant’s motion to dismiss the indictment and granted a further postponement on what was clearly less than extraordinary grounds. The sole reason given by the judge for granting the postponement was that the defendant was not being unduly prejudiced.

(4) Prejudice to the appellant

This brings us then to the question of whether the appellant sustained any prejudice in the delay of bringing the case to trial. When the length of delay between indictment and trial is of constitutional dimension, the presence of prejudice is presumed. The three types of prejudice considered under speedy trial analysis are: (1) oppressive pretrial incarceration; (2) anxiety and concern; and (3) prejudice to an accused’s defense. State v. Wilson, supra, at 127.

In our analysis of the record, we find some evidence of prejudice as to each of these facets of the case. At the time of his arrest, the appellant was on parole and was employed. Immediately after his arrest, his parole was revoked. He was denied pre-trial release and reduction of bond, and while it is true that a detainer was later issued by another jurisdiction, the appellant’s incarceration for more than eight months awaiting trial prevented any effort to resolve his detainer problem prior to trial for this offense. In addition, one of the trial judges in the course of denying appellant’s motion for dismissal concluded that the appellant had suffered oppression and anxiety as a result of the long period of incarceration. Finally, there is at least a suggestion that the appellant suffered an impairment of his defense because of his inability to secure the testimony of his co-defendant as a result of the disappearance of that co-defendant prior to September 6, 1979. Counsel for the State and defense differed over whether the co-defendant would exonerate or implicate the appellant. The investigating officer conceded that on the night of the arrest the co-defendant may have said a few times that the appellant was not involved. It was the State’s burden to establish that there was an absence of serious prejudice, and we find that it did not meet that burden.

Applying the balancing test mandated by Barker v. Wingo, supra, in assessing the four relevant factors, we reach the conclusion that the appellant was denied his right to a speedy trial. We are persuaded not only by the successive postponements granted the State because no court was available but also because of the specific instances the State’s Attorney was engaged in trying another case. In each instance, the State had more than five weeks to arrange its schedule to be certain that the case would be tried on the date set. The State knew that the accused was insisting on a prompt trial. Even more culpable was the State’s failure to guarantee the appearance of its indispensable witness, the police officer, after it was put on notice that there might be a problem with his being available on the date of trial. The conduct of the officer was inexcusable. It is obvious to us that he had made up his mind not to let the trial of this defendant interfere with his vacation. His message apparently delivered from out of town on the morning of trial that he was ill and could not attend was at least unprofessional. The State had been told that the case must be tried on November 21, and once the State knew there might be a problem in securing the attendance of the police officer, it was obligated to do more than discuss the matter over the telephone with the officer. It is significant that in a period of more than two weeks after that phone conversation no further contact with the police officer was attempted by the State’s Attorney. We believe that at a minimum, communication with the officer’s superiors would have obviated the necessity for a further postponement. In this case, the police officer was the State’s witness, and it was the State’s responsibility to make every reasonable effort to guarantee his attendance at trial. In view of the circumstances the issuance of a subpoena was not enough. Certainly, we cannot condone a situation in which a police officer appears if it suits his convenience.

Under all the circumstances of this case, we conclude the accused was deprived of his right to a speedy trial and that the trial judge should have granted his motion to dismiss the indictment.

In view of this conclusion, appellant’s second argument that the trial judge erred in denying appellant’s motion to suppress illegally seized evidence is moot.

Judgments reversed, costs to be paid by Prince George’s County.

      . We find no significance in the fact that the postponement was only for one additional week.


author: Lowe, J.,

text:
    MILLER LUMBER INDUSTRIES, INC. v. MARVIN W. BROWN et al.
    [No. 1643,
    September Term, 1979.1

      Decided July 15, 1980.

      The cause was argued before Gilbert, C. J., and Lowe, J., and Jacob S. Levin, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      Leonard M. Murphy, with whom was John C. Hancock on the brief, for appellant.

      Mark C. Treanor for appellee Maryland National Bank. Walter W. Sawyer and Myerberg, Sawyer & Rue on the brief for appellees Browns.
   Lowe, J.,

delivered the opinion of the Court.

This appeal is concerned with a performance bond securing to its owners and their mortgagee the cost of completing the construction of a home. Troubling in our deliberation is the fact that the defaulting builder has not been found in default by judgment or opinion; however, since the issue was not raised on appeal, nor raised as a defense by the surety, 72 C.J.S. Principal and Surety § 255 (1951), we will proceed on the presupposition that the building contract was breached. The evidence was certainly sufficient to so indicate.

On August 20, 1975, Marvin and Billie Brown contracted with White Point Construction Company, Inc., to build a house on land they had purchased in California, Maryland. Their construction lender, Maryland National Bank, required that White Point obtain a performance bond before any money was advanced. Mr. Peter Rucker of Miller Lumber agreed to provide a performance bond with Miller Lumber as surety, with the understanding that all checks would include Miller Lumber as payee. Before signing the bond on behalf of Miller, Mr. Rucker wrote on the bottom of the bond just below the signature line, "All draw checks to be made jointly”. Maryland National Bank accepted the bond and began issuing checks payable to White Point and the Browns for the construction of the house, but without including Miller Lumber as payee on the checks. By the spring of 1976, White Point had gone out of business leaving the Brown’s house only partially completed. After making arrangements with another contractor (Cameron Construction Company) to complete the house, the Browns brought suit against White Point and Miller Lumber. Miller Lumber responded to the suit and filed a third party claim against Maryland National Bank alleging that the Bank’s failure to name Miller Lumber as a payee on the checks served to release Miller Lumber from its obligation as surety. The Browns then amended their declaration to include counts against the Bank based upon the allegations in the third party claim. Maryland National Bank moved for summary judgment alleging that it had not contracted and had never agreed to issue checks jointly to Miller. The Bank’s motion for summary judgment was granted at a hearing on February 17, 1978. The judge noted that there had admittedly been no communication directly between Miller and the Bank, and the phrase appended by Miller to the bond was too

"indefinite, vague, in that it doesn’t name what parties jointly it should be, it just says jointly. From the argument I assume the checks were made jointly to the Browns and the construction company.”

On February 23, 1978, at trial, judgment was entered in favor of the Plaintiffs, Marvin and Billie Brown, against Miller Lumber in the amount of $13,372.54. The court found that Miller had made it a condition precedent that draw checks were to contain its name jointly, but the "vague” phrase by which it attempted to so indicate was not part of the contract because it appeared after the signatures.

"THE COURT: Well, the Court’s of the opinion that the performance bond, that all above the signatures is the bond. The Court finds that this bond was executed by Mr. White as principal and the Miller Lumber Company as surety. This was a condition placed upon the loan by the bank. The surety is made out to Miller Lumber Company and the Maryland National Bank. This bond was given to the bank, and upon its reliance thereon the money was loaned and disbursed.
I have no doubt that Mr. Rucker made it a condition precedent that the check was to be written in his name, which he testified to, but certainly it’s basic law that you can’t change a written instrument with a verbal contract. This was a verbal instruction to Mr. White. Whatever duty he breached to Mr. Rucker the Court is not here to decide; but when this instrument was executed, that is, Exhibit No. 12, it was relied upon and there was consideration for this loan. In other words, the bank loaned the money to the Browns and the Browns paid for it. But to rule that anything that’s written below the signatures of the people is just unconscienable [sic] to this Court. Anybody could have a contract or a contract could be entered into between two parties and one or the other party at a later date wrote something outside the signatures. I think it’s just unconscienable [sic] that anything some person would write below the signatures would be enforceable. It’s just not good law.
I don’t have any doubt, as I said, that Mr. Rucker placed this condition upon Mr. White. Mr. White by no stretch of the imagination was either the agent of the bank or the agent of the Plaintiffs, the Browns. Mr. White was looking out for himself. In fact, there was a condition that he had to give this performance bond and it was for the benefit of the Browns. So, as I say, it’s very clear that certainly the contract, you have to look to the four corners of the contract, and this, in this Court’s opinion, the contract ends with the signatures and not what is placed thereunder. Had this been placed in the body of the contract above the signatures, there would be no dispute; but it was not put in there, and certainly the parties are not bound.
So, the Court feels it has no alternative but to grant the relief as prayed and judgment nisi will be entered up in favor of the Plaintiffs, Mr. and Mrs. Brown, against the Miller Lumber Company.”

From both of those judgments, Miller Lumber appealed on March 13, 1978. On March 28, 1979, we dismissed that appeal pursuant to Md. Rule 605 a. The claims in the action below which had not been adjudicated were the Browns’ claim against White Point and Miller Lumber’s cross-claim against White Point. In response to motions to modify decree and for final judgment on less than all claims, the court below entered a decree of December 7, 1979, and an order of January 2, 1980, making the express findings called for by Md. Rule 605 a, thereby permitting an appeal. Miller Lumber again noted its appeals propitiously.

— summary judgment —

In ruling on the Bank’s motion for summary judgment, the trial judge stated preliminarily:

"Very well. In ruling on the motion for summary judgment the Court must find that there’s no dispute as to a material fact raised relative to the issue of a contract between the Maryland National Bank and the Miller Lumber Company which would make them liable or, conversely so, if it does not find that, then there’s a disputed fact.”,

and ultimately decided:

"So, for the reasons stated the Court finds that there is no dispute as to a material fact raised relative to the issue of contractural [sic] obligations between Miller Lumber and the bank which would make them liable, so therefore the Court must grant the motion for summary judgment.”

Because of the precise allegations set forth in the third party claim, that was the proper issue to be determined, i.e., whether there was a contractual obligation undertaken by the Bank under the contract between Miller and White.

". . . it may be that Plaintiffs are not bound by the said condition precedent intended to be made a term of said bond by Third Party Plaintiff, or it may be that said condition may legally be interpreted not to be a condition precedent in so far as Plaintiffs’ rights are concerned, in either of which events, Third Party Plaintiff may be liable to Plaintiffs for all or a portion of the sums claimed by Plaintiffs in their said Declaration; and that, if Third Party Plaintiff is found to be liable to Plaintiffs in any amount such liability is the direct result of the failure of Third Party Defendant to perform its contractual obligation undertaken by it under the contract between Third Party Plaintiff and Third Party Defendant as herein set forth.”

At this stage, however, the judge may only decide whether there is a genuine dispute as to a material fact, and, if not, what the ruling of law should be upon those undisputed facts. In doing so, he must resolve all inferences against the moving party, Brewer v. Mele, 267 Md. 437, 442 (1972); Leonhart v. Atkinson, 265 Md. 219, 220 (1972). When the judge found that the phrase, "[a]ll draw checks to be made jointly”, was "quite indefinite, vague, in that it doesn’t name what parties jointly it should be ...”, there immediately arose a factual dispute, i.e., the meaning of the ambiguous term. Extrinsic evidence was admissible to determine the intention of the contracting parties, Pulaski v. Riland, 199 Md. 426, 431 (1952), which made it a factual question, Ebert v. Millers Fire Ins. Co., 220 Md. 602, 610 (1959). See also Della Ratta, Inc. v. Amer. B. Com. Dev., 38 Md. App. 119, 130 (1977). The judge observed from argument on the summary judgment that he "assumed” the checks had been made jointly to the Browns and White. Thus he appeared to have concluded that interpretation of the ambiguous phrase to have been the proper one.

"From the argument I assume the checks were made jointly to the Browns and the construction company.”

Such a conclusion at that juncture was improper. It was enough that he found ambiguity in the phrase which if interpreted in the light most favorable to Miller and least favorable to the Bank, could have provided evidence of a contractual obligation. But he could go no farther, and while the evidence at the subsequent trial did not show that the Bank accepted such condition as a contracting party, that was of no consequence on the summary judgment motion. Although summary judgment was inappropriate at this juncture, the error was harmless for reasons which will become evident hereafter.

— the trial —

Ironically, after having heard the extrinsic evidence admitted at the subsequent trial to explain the ambiguous phrase, the judge, as factfinder, had "no doubt” that Miller’s vice-president,

"Mr. Rucker made it a condition precedent that the check was to be written in his name.”

But this was a condition that he found had been placed on the principal, White.

"I don’t have any doubt, as I said, that Mr. Rucker placed this condition upon Mr. White.”

In the absence of the Bank as a party to the case, the significance of the appended phrase took on a different connotation. The question was no longer whether the Bank contracted with Miller through White. The issue had become whether the Bank, as an obligee, failed to perform a condition precedent. If it had failed to do so, the surety cannot be required to perform, see Williston on Contracts § 10-1244 (1957); Rice v. Fidelity and Deposit Co., 103 F. 427 (8th Cir. 1900); Hubbard v. Reilly, 98 N.E. 886 (Ind. 1912).

For the surety to escape liability, however, it must be shown that the condition was known to the obligees.

"No arrangement between .. . the principal, and ... the surety, with respect to the addition of another security could be binding on or could affect the rights of the obligees, in the absence of knowledge or information on their part of the existence of such an understanding, unless there was something on the face of the bond to put them on inquiry as to the manner of its execution.” Harris v. Regester & Sons, 70 Md. 109, 122 (1889) (emphasis added).

This rule of suretyship law is an outgrowth of the equitable doctrine of estoppel, i.e., unless an obligee was apprised of a condition precedent or put upon inquiry by something on the face of the bond, he who executed the bond with the condition should better bear the loss than an innocent who has Unknowingly moved to his detriment. See McIver Constr. Co. v. Hurwitz, 144 Md. 451, 462 (1924).

When the judge below decided that the phrase on the face of the bond was ambiguous it was tantamount to holding as a matter of law, that it was sufficient to put the obligees upon inquiry. He said, in fact, that:

"Had this been placed in the body of the contract above the signatures, there would be no dispute

The surety then was not estopped from raising the defense of an unperformed condition precedent, which the court found upon the evidence to have been the fact. We come now to the reason upon which the judge decided that the condition was unenforceable as a matter of law, i.e., because a

"contract ends with the signatures and not what is placed thereunder.”

We know of no law, case or statute, so proclaiming and neither appellee has brought such law to our attention. The position of a contractual condition is relevant as evidence to persuade a factfinder that it was present at the time of execution, that it was known, or should have been known, to the parties upon execution, etc. Location on the page may be a factual consideration for the factfinder in determining whether a phrase was appended after execution, just as an uninitialled interlineation on the face of a contract raises some question of whether the addition was mutually made and intended as a part of the agreement. But there was no evidence or allegation of such facts here; therefore, such deviation of form did not, as a matter of law, obviate the contract or term appended.

It is noteworthy that the Browns do not argue the law to be other than we have observed it. Their contention is that the holding of the court was not precisely what the court appeared to say in the quotation above, but that

"[f]rom the testimony and arguments at trial, it is clear that the Court’s decision was based upon the fact that neither the Browns nor Maryland National had actual or constructive notice of the agreement between Miller and White concerning the payment of the draw checks, and was not based on the positioning of the vague and indefinite statement on the bottom of the performance bond.”

We have already addressed the obvious answer to that contention, i.e., Miller could not be — and was not — estopped from proving an unperformed condition precedent to his contract with White for the benefit of the Browns (and the Bank) because the ambiguous condition on its face put the obligees upon inquiry.

The testimony showed, however, that the Browns had never seen the contract:

"Q Mrs. Brown, when did you first become aware that there had been a bond executed by Miller Lumber and Mr. White?
A About a week before settlement when I was called that we would be having settlement November 6.
Q And had you seen that bond?
A No, sir.
Q Had you been given a copy of it?
A No, sir.
Q Was it shown to you on the date of settlement?
A No, sir.
Q So you had merely been told but you didn’t actually know whether there was a signed bond, is that correct?
A I had been told.
Q By Mr. White.
A By Mr. White and by Mr. Gass.”

But they cannot now argue that because the evidence disclosed they had not seen the bond after its execution, they should be excused from the duty to inquire made evident from the phrase on the face of the instrument. If they intend to rely upon the bond, which was a Bank requirement to loaning them money, they are at the very least charged with the terms of the agreement which appear upon its face, and that includes the phrase found to have been ambiguous by the trial judge, which ambiguity was sufficient to put them upon inquiry (Regester, supra). See Williston on Contracts § 90A (1957) (acceptance of a paper which purports to be a contract indicates an assent to its terms whatever they may be, and it is immaterial if they are in fact unknown).

The evidence did not show whether the Bank owed any duty of disclosure to the Browns although it did inferentially, if not explicitly, show that the Bank did not apprise the Browns of the appended condition. Indeed, the evidence indicated that the Bank officials were not aware of it although the bond was in its possession. While it is possible that evidence could have been produced to sustain the second count of the Browns’ amended declaration which impleaded the Bank as an alternative defendant, no appeal was taken by the Browns from the granting of summary judgment on behalf of the Bank.

The evidence did convince the factfinder that the surety had appended a condition precedent which had not been performed and since he was kind enough to provide us his factual conclusions, as well as his legal result, we will therefore reverse on the erroneous ruling as a matter of law but see no purpose in remanding for retrial. The error of granting summary judgment on behalf of the Bank as to Miller is erased by the result we reach favorable to Miller. The same error as it affects the Browns was not appealed and we can do naught to remedy it.

Judgment reversed.

Costs to be paid by appellees.

      . The deposed testimony of Rucker which the court interpreted to reach its conclusion on summary judgment contained sufficient from which an inference of agency may have been taken by a factfinder, as between White and the Bank. Such interpretations of testimony are factfinders’ duties, not a judge’s role on summary judgment.

      . Since the Bank was no longer in the case in any event, any evidence relating to a contract with it would have been immaterial.

      . At the summary judgment hearing the judge stated that:
      "No where in the performance bond does the bank’s name appear in there.”
      The bond was a printed form, however, with the Bank’s name boldly printed as an obligee in four places along with the Browns whose names had been filled in by hand.


author:
Couch, J.,

      Thompson, J.,

text:
    LAMONT WILLIAM RICKETTS v. STATE OF MARYLAND
    [No. 1261,
    September Term, 1979.]

      Decided July 16, 1980.

    The cause was argued before Morton, Thompson and Couch, JJ.

      Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Thomas P. Barbera, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Scott Patterson, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court. Thompson, J., dissents and files a dissenting opinion at page 418 infra.

Lamont William Ricketts, the appellant, was convicted of larceny after a bench trial in the Circuit Court for Anne Arundel County. Judge H. Chester Goudy, Jr. imposed a sentence of ten years. He complains here that the jury trial was not properly waived, that the trial court erred in ruling that the appellant’s suitcase was lawfully seized and searched, and that the evidence was insufficient to support his conviction.

Karen Webb, an employee of Avis Rent-A-Car at B.W.I. Airport, testified that on December 16, 1978, she rented a blue Chevrolet Caprice with Virginia tags RDK-199 to a Mr. Jeffers, later identified as the appellant. Michael Bolin testified that he worked for Avis Rent-A-Car at B.W.I. Airport on December 16, 1978. He identified State’s Exhibit 3 as the title to a 1979 Chevrolet Caprice with Virginia tags RDK-199. He stated that the return due date for that car was December 23, 1978, which was seven days after the rental. Avis recovered the car in Philadelphia on January 3, 1979 and Maryland State Trooper Robert Raffel was notified that the car had been found. Bolin testified further that on January 18,1979, he pulled out of the computer a request for a reservation of a Cadillac which was reserved in the same company name, System Design, as had been the blue Chevrolet Caprice. The reservation was made by an individual under the name of L. King. Bolin stated that appellant came to the Avis counter to rent the reserved Cadillac. He identified State’s Exhibit 6 as an Avis rental agreement signed by Leonard King.

Trooper Raffel of the Maryland State Police Airport Division, testified that he initiated an investigation into the possible theft of a blue Chevrolet Caprice which had been rented by a George Jeffers from Avis. He stated that on January 18, 1979, a surveillance was set up in B.W.I. Airport in the immediate area of the Avis counter. He stated that at 7:00 p.m. appellant entered the airport, approached the Avis counter, identified himself as Leonard King, and signed a rental agreement for a 1979 Cadillac which he had reserved. As appellant left the counter with the keys, Raffel "detained” him for investigation for the larceny of the Chevrolet. Appellant was taken to the Airport Division Police Station where his wallet was searched. Trooper Raffel found 12 identification cards in three names. Raffel stated that, at 7:42 p.m., he advised appellant of his Miranda rights and appellant waived those rights. He testified that appellant said he was Leonard King but, after being confronted with information obtained from another source, admitted he was Lamont Ricketts.

Raffel further testified that a State Trooper went to the motel where appellant had been staying and seized his luggage. A female companion of appellant who was at the motel was brought to the police station for investigation. Raffel stated that he placed appellant’s baggage between himself and appellant, that he asked appellant if he minded if Raffel looked through his bags, and that appellant said he did not mind. Raffel did not tell appellant he had a constitutional right to refuse to let Raffel search his baggage, nor did he tell appellant that the purpose of the search was to find known handwriting exemplars. Appellant had given handwriting exemplars to Trooper James K. Sevick before his baggage was searched but both he and Sevick thought appellant had tried to disguise his normal handwriting. The court overruled appellant’s objection to the search of the baggage on the basis of consent.

Trooper Raffel stated that he took from appellant’s suitcase a Budget Corporation application form and various other letters, papers, and notebooks, most of which contained handwriting that appellant admitted was his. The seized items, along with the handwriting samples appellant had given to Trooper Sevick and the original rental contract for the Chevrolet Caprice in the name of George Jeffers, were sent to the State Police for handwriting comparisons.

Detective Sergeant Gary Gurton, a Maryland State Police handwriting expert, testified that the handwriting on the December 16, 1978 rental contract signed by George Jeffers and the handwriting on the exemplars and documents taken from appellant were made by the same person.

I Jury Trial

The record shows that the following occurred at the beginning of the trial:

"Mr. Patterson: Your Honor, at this time the State would call criminal number 22,187. State of Maryland vs. Lamont W. Ricketts for the purpose of trial.
Mr. Cochran: Your Honor, Mr. Ricketts is represented by the office of the Public Defender. Mr. Ricketts, would you stand up, sir. Mr. Ricketts, you have told me that you wished to elect a judge trial. That means that we will not have a jury hear your case. A jury would consist of 12 people that would sit over there in that jury box, if in fact the 12 people unanimously agreed as to your guilt or to your innocence, that’s the only way a conviction could be arrived at. It takes the unanimous consent of the 12 jurors. Do you understand that, sir?
Mr. Ricketts: ....
Mr. Cochran: You have to say yes or no.
Mr. Ricketts: Yes.
Mr. Cochran: Now, do you wish to waive your right to a jury trial and have Judge Goudy try without a jury?
Mr. Ricketts: Yes.”

Appellant argues here that this was not a compliance with Md. Rule 735 d which provides as follows:

"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, it shall give the defendant another election pursuant to this Rule.”

He says the rule was not complied with as interpreted by Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979), because the trial judge did not advise the appellant that his guilt must be established beyond a reasonable doubt. We agree. It seems to us that the Court of Appeals made clear in Countess that the procedure called for by § d of Rule 735 has three aspects: (1) the election; (2) the inquiry; (3) the knowledge necessary for an effective waiver of a trial by jury. It is the latter aspect with which this case is concerned. As can be seen from the colloquy among the appellant, his attorney, and the court, set forth above, there simply is nothing to indicate appellant was made aware that his guilt, whether trial is by a jury or by the court, must be found to be beyond a reasonable doubt. In Countess, the Court actually was considering a series of appeals, all dealing with a common problem, i.e., whether there had been compliance with § d of Md. Rule 735. It reached different conclusions in the cases but set out some general principles applicable to all. In part the Court stated:

"The requirement of § d that the defendant must 'knowingly and voluntarily’ waive the right to a jury trial goes no further than the mandates for a waiver of that right under the constitutions. If the waiver is determined by the court to have been an intentional relinquishment or abandonment of a known right, it meets the test of Rule 735d. For the court to ascertain whether it was a 'known right’ which was waived, § d prescribed that the defendant have 'full knowledge of his right to a jury trial.’ The defendant-petitioners urge that '[t]he term "full knowledge” certainly implies understanding of the most salient features of trial by jury, including, at a minimum, the composition of the jury, the jury selection process, and the unanimity requirement.’ This goes far beyond what is necessary for a waiver of a jury trial to be constitutionally effective; the Supreme Court has certainly not enunciated such a test. We do not believe that Rule 735 calls for knowledge of all the matters which the defendant-petitioners suggest are essential to a valid election of a court trial. Such detailed information regarding a jury is not indicated. What the Rule contemplates is that the defendant have a basic understanding of the nature of a jury trial. We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so find. These are the matters which the defendant acknowledges he is aware of in the written form of election set out in § b of the Rule in designating his election of court trial or jury trial, and normally they should suffice. We saw no need to go further when we adopted the Rule, and we see no need to add other matters now. Ordinarily if the court duly determines that the defendant understands those aspects of a jury trial, he has, under the Rule, 'full knowledge of his right to a jury trial.’ ” (Emphasis added.)

Id. at 455. In our view, what this means is that a trial judge must determine that the defendant understands that he has a right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court his guilt must be found to be beyond a reasonable doubt; and that in a jury trial all 12 jurors must agree .that he is so guilty but in a court trial the judge may so find. This view is supported by what the Court stated in that section of the Countess opinion where the Court was considering the appeal of John Franklin Fairbanks. The Court there stated in part:

"Although Fairbanks did indicate on the record that he understood what a jury trial was and that he understood he had the absolute right to a jury trial and wished to waive it, the record disclosed nothing further. The record is not sufficient to establish that he was aware that ’before a fínding of guilty in a jury trial all 12 jurors must find that [he was]guilty beyond a reasonable doubt,’but that in a court trial he could be convicted by the judge alone so finding. Thus, there was not a showing on the record that Fairbanks had the ’full knowledge of his right to a jury trial’ contemplated by § d.” (Emphasis added.)

Id. at 461. In short, it seems clear the Court of Appeals has set out the minimal requirements that a record must demonstrate in order to show that an accused, in electing a court trial and waiving a jury trial, did so knowingly and voluntarily. Fairbanks stands for the proposition that one of those requirements is that the record has to "establish that he was aware that before a finding of guilty in a jury trial all 12 jurors must find that he was guilty beyond a reasonable doubt, but that in a court trial he could be convicted by the judge alone so finding.” Id. The record in the instant case does not so demonstrate and thus we must reverse.

Since we shall remand this case for a new trial, we deem it advisable to answer appellant’s contention that the trial court erred in ruling that the appellant’s suitcase was lawfully seized and searched. Furthermore, we must answer his contention that the evidence was insufficient to support his conviction. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

II Search

The trial court found that the appellant consented to the search of his suitcase and we agree. On appeal, appellant attempts to expand his argument to include an alleged illegal seizure at the motel. The objection below was only on the basis that the search of the suitcase was not proper; we shall, therefore, confine our ruling to that particular point. von Lusch v. State, 279 Md. 255, 263-4, 368 A.2d 468 (1977). The appellant’s argument is based upon failure of the police officers to inform the appellant of the purpose of the search and to advise him of his right to refuse the search. There are no such requirements. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854 (1973). Although both omissions are factors to be considered, they are not controlling. Inasmuch as the handwriting expert identified the exemplars and the signed documents from the suitcase as in the appellant’s handwriting, the error, if any, is harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976).

Ill Sufficiency of the Evidence

Appellant argues that there was insufficient evidence to show there was a trespassory taking against the owner’s will as required by Madero v. State, 31 Md. App. 500, 356 A.2d 604, cert. denied, 278 Md. 727 (1976). The evidence showed that the appellant under an assumed name rented a vehicle belonging to Avis, which he failed to return. The vehicle was discovered soon thereafter with its motor removed. From this evidence, especially when it is coupled with evidence of an attempt to secure a second vehicle under a second assumed name, the jury could reasonably infer that the appellant possessed a fraudulent intent at the time he acquired the vehicle and thus there was a trespassory taking. Shope v. State, 18 Md. App. 472, 477, 307 A.2d 730, 733 (1973).

Convictions reversed; case remanded for a new trial.

Costs are not reallocated as part of the judgment of this court pursuant to Maryland Rule 1082 f.

Thompson, J.,

dissenting:

It seems a shame that quite a number of criminal trials must be needlessly retried simply because I am unable to persuade at least one of my colleagues to see what appears to me to be a very simple proposition, which is: there is nothing in Md. Rule 735 d or in Countess v. State, supra, that requires any mention of reasonable doubt when the meaning of a jury trial is explained to an accused. Inasmuch as an accused’s guilt must be proved beyond a reasonable doubt, whether the trial is before the court or before the jury, this language can be omitted without a violation of either the literal language or the purpose of the rule.

It should be noted that in the majority’s first quote from Countess, the Court was simply explaining what was contained in the waiver form set out in § b of the Rule; the writer, Judge Charles E. Orth, Jr., himself said there was no intention to add anything to the Rule. Nor does the second quote from Countess support the majority’s position. The Fairbanks case cannot be equated with the instant case because in that case there was no explanation whatsoever as to the meaning of a jury trial; the accused simply stated that he knew what a jury trial was.

I would affirm the judgment below.


author: Mason, J.,

text:
    OFFICE OF FINANCE OF BALTIMORE COUNTY, MARYLAND v. KENNETH WAYNE JONES
    [No. 426,
    September Term, 1979.]

      Decided July 28, 1980.

    The cause was argued before Melvin, Mason and Wilner, JJ.
    Submitted on brief by Leonard S. Jacobson, County Solicitor for Baltimore County, and Alan B. Henderson, Assistant County Solicitor, for appellant.

      J. Edward Smith, Jr., for appellee.
   Mason, J.,

delivered the opinion of the Court.

Appellant, Baltimore County, filed a petition seeking forfeiture of $11,066 seized in a narcotics raid at the residence of appellee, Kenneth Wayne Jones. From a denial of its petition the county appeals and argues:

I. That the trial court erred in denying its petition for forfeiture on the basis that the petition was not filed within the ninety days from the date of final disposition of criminal proceedings.

II. That the trial court erred when it applied the ninety day time limit for filing of the forfeiture petition when the seizure was pursuant to a valid search warrant.

The facts, which are not disputed, reveal that on April 9, 1974 the Baltimore County Police pursuant to a valid search warrant for appellee’s residence, seized $11,066 found in close proximity to a large quantity of heroin. This money was turned over to the county on April 11,1974. Later, Jones was convicted on November 18, 1975, of violating the narcotics laws and was sentenced to a total of 24 years. He filed an appeal on December 17,1975, and was advised by the clerk of the lower court that the record would have to be filed in this Court by February 15,1976, and that the fees for the appeal and transcript would have to be filed with the clerk of the lower court by February 9,1976. Jones took no further action to perfect his appeal. Consequently, neither the transcript nor the record was prepared and transmitted to this Court.

On April 1, 1977, the county filed a petition seeking forfeiture of the $11,066. Thereafter, on May 19, 1977 Jones’s order for appeal filed on December 17, 1975 was stricken by the lower court upon motion by the State’s Attorney for Baltimore County. In an order dated March 7, 1979, the court dismissed the county’s petition for forfeiture and directed the county to return the $11,066 to Jones.

I.

The relevant provisions of Article 27, section 297 of the Maryland Code (1976 Repl. Vol.) relied on by the lower court and the parties to this case, are as follows:

"(a) Property subject to forfeiture. — The following shall be subject to forfeiture and no property right shall exist in them:
(6) All money or currency which shall be found in close proximity to contraband controlled dangerous substances or controlled paraphernalia or which otherwise has been used or intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia.
(b) Seizure of property subject to forfeiture. — Any property subject to forfeiture under this subheading may be seized upon process issued by any court having jurisdiction over the property except that seizure without such process may be made when —
(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(2) The property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding under this subheading;
(3) There is probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) There is probable cause to believe that the property has been used or intended to be used in violation of this subheading.
In the event of seizure pursuant to paragraphs (3) and (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly, except all proceedings relating to money or currency, which shall be instituted within ninety (90) days from the date of final disposition of criminal proceedings which arise out of Article 27, § 276 through § 302 inclusive.” (Emphasis added).

The county argues that the court erred in ruling that it did not institute the forfeiture proceedings within ninety days from the date of final disposition of the criminal proceedings as mandated by section 297 (b) (4) supra. The thrust of its argument is that the forfeiture petition was filed on April 1, 1977 whereas the criminal appeal of Jones was not finally disposed of until May 19, 1977, when the order to strike the appeal was granted. We think the lower court in its memorandum opinion appropriately answered the county’s argument when it said:

"Article 27, section 297 now provides that forfeiture proceedings relating to money shall be instituted within 90 days from the date of final disposition of criminal proceedings. This Court believes that it would do violence to logic and legislative intent to hold that 'final disposition of criminal proceedings’ did not occur until May 19, 1977 when Judge MacDaniel performed the administrative function of striking out the Order for Appeal. Rule 1013 sets forth no time limit within which a Judge shall strike out an Order for Appeal where the would be Appellant has not taken the necessary action to perfect the Appeal. Therefore, many cases could be said to remain open indefinitely for lack of any action by a trial Judge. It would be absurd to contend that a case was not finally disposed of where a convicted defendant had actually completed serving the sentence just because an Order for Appeal had never been formally stricken.”

In reaching for a clutchable straw, the county further argues in its brief that under Maryland Rule 1025 (b) the "failure to perfect an appeal, by not paying the proper filing fees, does not completely foreclose all chance of further appeal... that under the proper circumstances in the right situation the failure to perfect an appeal will not estop the court from hearing the appeal. Therefore, technically under the law, the criminal appeal of Kenneth Wayne Jones was actionable until May 19, 1977, when the order to strike the order of appeal was granted.”

Rule 1025 (a) provides that the clerk of the lower court shall transmit the record to this Court within sixty days after the order for appeal is filed. Section (b) of Rule 1025 provides that upon application and for sufficient cause shown this Court may extend the time for transmitting the record, but "no order extending the time for filing the record may be entered if the application is made after the prescribed time for transmitting the record has expired unless it be shown that the failure to transmit the record was occasioned by the negligence, omission or inability of a judge of this Court, the clerk of the lower court, the court stenographer or the appellee.”

We do not agree with the county’s argument that the appeal filed by Jones remained viable until dismissed. We think the failure of Jones to perfect his appeal was tantamount to not taking an appeal at all. In Town of Lincoln v. Cournoyer, 375 A.2d 410 (R.I. 1977), a case factually similar to the present case, the defendant filed a notice of appeal, but did not perfect it. The Supreme Court of Rhode Island, in holding that the case was not properly before them, said:

"Although the notice of appeal of the denial of his motion to vacate was filed on January 4, 1974, the appeal was never perfected under our Rule 11, which requires transmission of the record to this Court within sixty days of the notice’s being filed. Failure to perfect the appeal leaves Arthur in the same position as not having filed notice at all.” Id. at 412.

Of like import see also Wright v. Mark C. Smith and Sons Partnership, 264 So. 2d 304 (La. App. 1972); and Colavecchio v. Houle, 261 A.2d 649 (R.I. 1970).

Moreover, we do not think that because Rule 1025 (b) permits this Court, under certain defined circumstances, to extend the time for transmitting the record, the unperfected appeal filed by Jones is any less a final disposition of his case than an uncontested enrolled judgment that may be vacated in case of fraud, mistake or irregularity under Maryland Rule 625 (a). The county cannot vicariously assert as a defense for its delay in filing the forfeiture petition, the right of Jones to perfect his appeal under Rule 1025 (b). This is especially true where, as here, there is no evidence or even a contention that Jones, after filing his appeal, ever contemplated perfecting it.

Accordingly, we conclude that when the 60 day period expired for transmitting the record and no application to extend the time was made, this Court lost jurisdiction and the appeal filed by Jones died on the vine. Concurrent with this Court’s loss of jurisdiction over the appeal, the case reached final disposition within the meaning of the statute and triggered the 90 day period within which the county was required to file its forfeiture petition. Because no viable appeal was then pending, a pro forma order of dismissal was not required before forfeiture proceedings could be instituted. To hold otherwise would frustrate and defeat the clear intent of the legislature that forfeiture proceedings must be "instituted promptly.” See Geppi v. State, 270 Md. 239 (1973) where the Court of Appeals held that the unexplained delay of eight months from the date criminal charges were stetted to the date the forfeiture petition was filed, was an impermissible delay under section 297 (b) (4) then in effect which required forfeiture proceedings to be instituted promptly. See also Gatewood v. State, 268 Md. 349 (1973) which held that a four month delay from the date the defendant’s thirty day appeal period expired to the date the forfeiture petition was filed, was not an impermissible delay. In United States Coin and Currency v. Director, 279 Md. 185 (1977) there was a delay of some 119 days from the date the defendants were convicted to the date the forfeiture petition was filed. In holding that the forfeiture petition was untimely filed under section 264 of Article 27, the statute governing the disposition of cash seized in connection with a violation of the gambling or lottery laws, the Court of Appeals said: "[T]he General Assembly has now mandated that the right to institute a proceeding for the forfeiture of seized contraband has as a condition precedent that the petition be filed within the 90-day period set out in the statute. See Geppi v. State, 270 Md. 239, 245, 310 A.2d 768, 771 (1973).” Id. at 187-188.

It is evident that the county’s unexplained fourteen month delay in filing the forfeiture petition violated section 297 (b) (4) of the statute in that the proceedings were not instituted within ninety days from final disposition of the criminal proceedings, i.e., ninety days from the date the time expired for Jones to perfect his appeal.

II.

The county also argues in its brief that the trial court erred when it:

"[A]pplied the 90-day time limit from section 297 (b) (4) to the facts of this case. The money in question was seized incident to a search warrant properly signed. The trial court should have used section 297 (b) (1), seizure incident to a search warrant. If the trial court had applied section 297 (b) (1), then there would have been no time limit to impose and the petition for forfeiture would have been granted.”

Because this issue was neither raised nor decided below, it was not properly preserved for appellate review. Maryland Rule 1085.

Order affirmed.

Costs to be paid by Baltimore County.

      . We note that the seizure in this case occurred on April 9, 1974, whereas the underscored language was added to the statute by Chapter 666 of the Laws of 1974 which took effect July 1, 1974. Because the issue was never raised, we need not consider the retrospective application of the statute. In any event, the result we reach would be the same.


author: Thompson, J.,

text:
    SUPERINTENDENT, CLIFTON T. PERKINS STATE HOSPITAL v. BRUCE L. ZESERMAN
    [No. 230,
    September Term, 1980.]

      Decided September 4, 1980.

    The cause was argued before Thompson, J., and M. Albert Figinski, Associate Judge of the Eighth Judicial Circuit and Stanley Klavan, Associate Judge of the District Court of Maryland for District 6, specially assigned.

      Ellen Finkelstein, Special Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

      Robert A. Jacques for appellee..
   Thompson, J.,

delivered the opinion of the Court.

The Superintendent of Clifton T. Perkins State Hospital contends the Circuit Court for Montgomery County erroneously granted a writ of habeas corpus to Bruce L. Zeserman, the appellee. The record shows that Zeserman was found not guilty by reason of insanity of the crime of attempted rape, and on November 18, 1977, was committed to the Department of Health and Mental Hygiene. He has been a patient at the Clifton T. Perkins State Hospital since that date. In his petition for writ of habeas corpus, he alleged that he was illegally detained because former Md. Code, Art. 59, § 27, which granted him a hearing as to whether or not he should be released in the community was repealed by the enactment of Art. 59, § 27 A-C, and the new statute did not give him any right to a hearing because it applies only to individuals committed after its effective date, July 1, 1979. The hearing judge agreed the appellee was indeed illegally detained and should be released.

The State contends on the other hand that the new article simply changed the procedure whereby the appellee could be granted a hearing and although it repealed Art. 59, § 27, appellee has a right to a hearing under Art. 59, § 15, pursuant to the reasoning of Dorsey v. Solomon, 435 F. Supp. 725 (D. Md. 1977) and under a decision of the Supreme Bench of Baltimore City (Karwacki, J.), Maryland v. Oates, decided March 3, 1980. If the question were properly before us, we would agree with the State and reverse the granting of the writ. Unfortunately for the State’s position, however, the question is not before us because the State has no right to appeal from the granting of this writ of habeas corpus. Md. Rule Z41 provides as follows:

"Any person confined or restrained in his lawful liberty within this State for any alleged offense or under any color or pretense whatsoever, or any person in his behalf, may apply for the writ, to the end that the cause of such confinement or restraint may be inquired into.”

Md. Rule Z56 governs the right to review the granting of the writ and that rule provides as follows:

"Where a person is released or discharged under a writ of habeas corpus on the ground that the statute or law under which such person was convicted is unconstitutional and void, in whole or in part, because it is contrary to the Constitution or Bill of Rights of this State or the Constitution of the United States, the judge shall file the memorandum required by Rule Z53 (Memorandum by Judge) within five days after ordering such release or discharge and the clerk shall forthwith transmit the memorandum, together with the original papers in the case, to the Clerk of the Court of Special Appeals in accordance with the provisions of Rule 1026 (Record on Appeal). The case shall be set by the Court of Special Appeals for hearing at the earliest practicable time, and unless otherwise ordered by the Court of Special Appeals, the parties shall be afforded the right to appear and argue as in other appeals to the Court of Special Appeals. The hearing shall be on the original papers without submission of briefs unless briefs are expressly ordered by the Court of Special Appeals.”

The State seeks to bring this case within Rule Z56 on the basis that the trial judge declared a statute unconstitutional. We are unable to follow the argument. The trial judge made no such determination. He merely decided that it was unconstitutional to keep the prisoner confined without a hearing and that the statute which gave him the hearing had been repealed.

The State argues vehemently that it is important that we review cases of this type because otherwise persons who constitute dangers to themselves or to others might be released upon society. The answer to that argument is simply we do not have the power to review any case unless it is granted by the legislature. See, State v. Layman, 28 Md. App. 332, 345 A.2d 444 (1975). Of course, there is no reason a person who is truly a danger to himself or to others may not be civilly confined under Md. Code, Art. 59, § 12.

Appeal dismissed.

Appellant to pay the costs.

      . Affirmed, 604 F.2d 271 (4th Cir. 1979), except inmate must request hearing and State must assume burden of proof.

      . Md. Code, Courts & Judicial Proceedings Art. § 3-706 also governs review by this Court of the issuance of a writ of habeas corpus if the law under which he is convicted is found to be unconstitutional, in whole or in part. Although there is some overlapping between the statutes and the rules, there seems to be no conflict insofar as the question before this Court is concerned. Courts & Judicial Proceedings Art. § 3-707 also provides for an application for leave to appeal in this Court for denial of bail or if excessive bail has been required.