text:
    STATE OF MARYLAND v. JEFFREY LEVITT STATE OF MARYLAND v. NICHOLAS KOURKOULES
    [No. 690,
    September Term, 1980.]
    [No. 928,
    September Term, 1980.]

      Decided March 3, 1981.

      The cause was argued before Thompson and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and John F. Hanson, Assistant State’s Attorney for Baltimore County, on the brief, for appellant.

      Benjamin A. Bronstein, with whom was Gary Huddles on the brief, for appellee Levitt.

      Leslie L. Gladstone for appellee Kourkoules.'
   Orth, J.,

delivered the opinion of the Court.

The General Assembly has declared it to be the policy of Maryland that "it is necessary to regulate and control the manufacture, sale, distribution, transportation and storage of alcoholic beverages within this State and their transportation and distribution into and out of this State to obtain respect and obedience to law and to foster and promote temperance.” Md. Code (1957, 1976 Repl. Vol.) Art. 2B, § 1. In furtherance of that policy, and "for the protection, health, welfare.and safety of the people of this State,” id., it devised a comprehensive scheme, comprised of the "restrictions, regulations, provisions and penalties . ..” contained in Art. 2B, sometimes hereinafter referred to as the Alcoholic Beverages Law. To enhance the integrity of the scheme and to promote the administration and enforcement of it, various penalties were prescribed for violations of its provisions. Art. 2B, §§ 198-203. Section 198, under the heading "False statements,” reads:

"If any signed statement, report, affidavit', or oath, required under any of the provisions of this article, shall contain any false statement, the offender shall be deemed guilty of perjury, and upon conviction thereof, shall be subject to the penalties provided by law for that crime.”

During the forty-eight years since the enactment of the Alcoholic Beverages Law — Acts 1933 (Special Session) Chapter 2 — an appellate court of this State has not had occasion to construe the provisions of § 198 or to determine its constitutionality. These appeals shall call on us to do so.

At the center of each of the two cases before us is an application for renewal of a liquor license. The renewal application is required by § 68 of Art. 2B, which provides, inter alia, that "| tjhe holder of any expiring license ... shall [within a designated time] file a written application, duly verified by oath, for the renewal of such license with the official authorized to approve the same.” The applications here, addressed to the Board of Liquor License Commissioners for Baltimore County, warn against making a false statement by setting out an "extract” from § 198 which is practically a repetition of its provisions. The applications include a certification by the applicants over their purported signatures that "the facts and information set forth in the application upon which the present license was issued are unchanged.” They contain an "Affidavit” in which a notary public certified over his signature and Notarial Seal that the applicants named therein personally appeared before him "and made oath in due form of law that the matters and facts contained in said application are true.” Each application was the basis of an indictment filed in the Circuit Court for Baltimore County. The indictments present, respectively, that Nicholas Kourkoules (Appeal No. 928) and Jeffrey Levitt (Appeal No. 690)

"did unlawfully make and sign a renewal application for Alcoholic Beverage License to the Board of Liquor License Commissioners for Baltimore County under the provisions of the State Alcoholic Beverage Law, Article 2B, § 68 of the Annotated Code of Maryland, to wit: unlawfully and falsely did certify that the facts and information set forth upon which this license was issued are unchanged, the matters so stated being material, willfully, corruptly, and knowingly false contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.”

Below this is typed "(Article 2B, § 198 — False Statement).”

The Kourkoules Case

Kourkoules filed a motion to dismiss the indictment. The State answered, and the matter was heard and determined by the Circuit Court for Baltimore County (Alpert, J.) prior to trial. The court issued an order granting the motion. From this final order the State appealed. Md. Code (1974, 1980 Repl. Vol.) § 12-302 (c) of the Courts and Judicial Proceedings Article. The issue before us is whether § 198 of Art. 2B is void as repulsive to the dictate of constitutional due process because of vagueness. See Bowers v. State, 283 Md. 115, 120, n.5, 389 A.2d 341 (1978).

At the hearing on the motion, Kourkoules argued that § 198 of Art. 2B was unconstitutionally vague because it "did not set forth there must be a wilful rather than a negligent or unknowingly false statement,” and because it did not require that the false statement be material. The State’s position was that the Legislature had made the mere making of a false statement in a signed statement, report, affidavit, or oath, required by the Alcoholic Beverages Law, the crime of perjury; the perjury elements do not "enter into it.” The only element, the state urged, is that such a false statement be made and, if it were, the one making it (the offender) committed the crime proscribed.

As we have indicated, note 3 supra, § 198 had been declared to be unconstitutional by Raine, C.J. in the Levitt case. Chief Judge Raine found that the statute was unconstitutionally vague because it

"refers to 'the offender,’ without specifying with any particularity the conduct that renders one an offender. It equates the offense with the crime of perjury but refers merely to a signed statement. If such a statement was not under oath, it would not be deemed to be perjury. It refers to a 'report.’ If a verbal report was false, would the person making the oral statement be an offender? Does an 'offender’ encompass the notary? Is one who utters a false document an 'offender’? All of these questions are the subject of speculation. Is one who makes a false statement believing it to be true, an 'offender.’? ”

"There is little doubt,” the judge observed, "that the Legislature intended to punish a person who made a false statement in writing under oath.” But, the judge opined: "If that were all the Legislature intended, the Statute would have been unnecessary, for the person making the false statement under oath could be charged with the crime of peijury.” The judge admonished: "If the Legislature had meant to create a new crime, they should have used specific language such as is found in every other criminal statute to which the Court’s attention has been directed.”

Judge Alpert adopted the opinion of Chief Judge Raine by reference but disagreed with parts of it. He thought that it was "relatively clear that the Legislature desired to engraft the elements of peijury into this statute, . .but he also thought that "it [was] fundamentally clear they failed to do so.” This failure, which Judge Alpert believed the Legislature did not intend, left the meaning of the provisions vague, particularly with respect to criminal intent. Mens rea, the judge pointed out, is a necessary element of a crime. Although "[i]t is within the power of the Legislature, if it sees fit, to dispense with the necessity for a criminal intent, and to punish particular acts without regard to the mental attitude of the doer,” such intention must clearly appear. Judge Alpert thought that it did not clearly appear in this statute.

The tenets of the void-for-vagueness doctrine were lucidly set out in Bowers v. State, supra, and supported by ample authority.

"The cardinal requirement is that a penal statute 'be sufficiently explicit to inform those who are sub-r -ject to it what conduct on their part will render them liable to its penalties.’ . . . '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ ... The Fifth and Fourteenth Amendments guarantee that '[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ ” 283 Md. at 120 (citations omitted).

"A statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.” Id. at 125.

Two basic criteria should be considered in assessing the constitutionality of a statute assailed as overly uncertain either in respect of the acts it purports to prohibit or the persons to whom it applies. The first criterion is the fair notice principle. Simply put, it is that "[sjince 'vague laws may trap the innocent by not providing fair warning,’... no one should be subject to criminal responsibility for conduct which he could not reasonably understand to be prohibited.” Id. at 120-121, (citations omitted). The second criterion is the failure to provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws. A statute is not void merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials, but it must not be so broad as to be susceptible to irrational and selective patterns of enforcement. Id. at 121-122.

The general rule is that the constitutionality of a statutory provision challenged for vagueness must be determined strictly on the basis of the statute’s application to the particular facts at hand. "Thus, it will usually be immaterial that the statute is of questionable applicability in foreseeable marginal situations, if a contested provision clearly applies to the conduct of the defendant in a specific case.” Id. at 122. When, however, a criminal statute may, because of imprecise draftsmanship, impact upon fundamental constitutional liberties, particularly the First Amendment guarantees of free speech and assembly, the void-for-vagueness doctrine demands a greater degree of specificity than in other contexts. "Translated, this principle of strict specificity means that where First Amendment values are at least potentially involved, the statute is to be tested for vagueness on its face.” Id. at 122-123. Since the statute here does not intrude upon the First Amendment guarantees, it is to be tested under the general rule. See In re Leroy T., 285 Md. 508, 511-512, 403 A.2d 1226 (1979), citing and applying Bowers. Therefore, the heart of the issue before us is whether, on the basis of the facts at hand, the statute gives adequate notice and has sufficient adjudicative guidelines in respect to the acts it purports to prohibit and to the persons to whom it applies. In other words, whether it is constitutional under the void-for-vagueness doctrine as it applies to Kourkoules.

Section 198 of Art. 2B is not overly uncertain in respect of the persons to whom it applies. It speaks in terms of "the offender.” Webster’s Third New International Dictionary (1967) defines "offender” as "one that violates a law, rule, or code of conduct; one that commits an offense.” Black’s Law Dictionary (4th ed. 1951) speaks of offender as "[cjommonly used in statutes to indicate person implicated in the commission of a crime. . ..” It is readily apparent from a plain reading of the statute that a person who commits the acts it proscribes is "the offender” it punishes. On the basis of Kourkoules’ conduct as alleged, the statute clearly applies to him.

Having determined that the contested statute is not unconstitutionally vague in respect of the persons to whom it applies, we test it in respect of the acts it purports to prohibit. Section 198 deals with false statements in any signed statement, report, oath, or affidavit required under any of the provisions of the Alcoholic Beverages Law. It declares that the person who makes such a false statement "shall be deemed guilty of perjury, and upon conviction thereof, shall be subject to the penalties provided by law for that crime.” Since the offender is subject to punishment only upon conviction of perjury, the elements of that offense are necessarily incorporated into § 198.

The crime of perjury was part of the common law to which the inhabitants of Maryland became entitled by the declaration in Art. 5 of the Declaration of Rights, Constitution of Maryland. Deckard v. State, 38 Md. 186, 201-202 (1873). The Legislature has enacted a Perjury Act which explicitly recognizes common law perjury. Md. Code (1957,1976 Repl. Vol.) Art. 27, §§ 435-439. See Tischler v. State, 206 Md. 386, 391, 111 A.2d 655 (1955). Section 435 of the Act provides, in relevant part:

"An oath or affirmation, if made willfully and falsely in any of the following cases, shall be deemed perjury: First, in all cases where false swearing would be perjury at common law; secondly, in all affidavits required by law to be taken____”

In the statute, perjury encompasses common law perjury as well as other acts which at common law constituted the lesser crime of false swearing. Gatewood v. State, 15 Md. App. 314, 317, 290 A.2d 551 (1972).

What constituted perjury at the common law is universally accepted. At the common law perjury is "a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question.” 4 Blackstone, Commentaries * 137 citing 3 Coke, Inst. * 163. Similar definitions are given in Hochheimer, Criminal Law § 404 (2d ed. 1904); Clark & Marshall, A Treatise on the Law of Crimes § 14.03 (7th ed. 1967); 3 Wharton, Criminal Law and Procedure § 1290 (Anderson ed. 1957). The Maryland cases are in accord. See Brown v. State, 225 Md. 610, 616, 171 A.2d 456 (1961); State v. Mercer, 101 Md. 535, 538, 61 A. 220 (1905); State v. Floto, 81 Md. 600, 601, 32 A. 315 (1895). The same elements appear in all the definitions: (1) a false oath, (2) wilfully and corruptly made, (3) in a judicial proceeding, (4) as to a matter material to the point in question.

Just as the Legislature has specifically eliminated the necessity of a judicial proceeding as an element of perjury by the provisions of § 435 of Art. 27, so, in § 198 of Art. 2B, it has explicitly obviated a false oath as a necessary element of perjury as far as the Alcoholic Beverages Law is concerned. Section 198 deems to be perjury a false statement in any signed statement or report required by that Law even though the document was not under oath or affidavit. This is not unique. "[Tjhere is not the slightest doubt that the Legislature had the power to define what acts shall constitute criminal offenses and what penalties shall be inflicted on offenders, the only limitation being that such enactments shall not infringe on constitutional rights and privileges.” Greenwald v. State, 221 Md. 235, 240, 155 A.2d 894 (1959), appeal dismissed, 363 U.S. 719 (1960). See Glickfield v. State, 203 Md. 400, 404, 101 A.2d 229 (1953); State v. Seney Company, 134 Md. 437, 107 A. 189 (1919). In Greenwald the Court found that the legislative removal of an oath as a necessary element of the crime of perjury with respect to procurement of a marriage license was valid. The statute there, § 11 of Art. 62, deemed a material false statement, knowingly made, to be perjury. The Court observed that "there was no reason why the Legislature could not remove the requirement of an oath, and in this instance it has explicitly and effectively done so by providing a non-oath substitute for it as it has done several times before.. .. All such substitutions, however, either directly or impliedly, are made the equivalent of an oath.” 221 Md. at 241. The Court found it implicit in the marriage license law that the non-oath substitute was the equivalent of an oath.

Following the Greenwald rationale, the signed statement or report in § 198 is a non-oath substitute and is the equivalent of an oath. It is clear that the Legislature intended to remove the requirement of an oath in this context. Originally the "False statements” provisions concerned only "any affidavit or oath required under the provisions of [Art. 2B], . . .” Acts 1933 (Spec. Sess.) ch. 2, § 35. The section was amended by Acts 1939, ch. 775, § 53B to add any signed statement or report. Thus, the Legislature explicitly and effectively provided a non-oath substitute for the requirement of an oath as an element of perjury with respect to the Alcoholic Beverages Law. The signed statement or report called for in § 198 is the equivalent of the oath required in common law perjury and reference hereinafter to "oath” includes this non-oath substitute.

It is abundantly clear that § 198 of Art. 2B feeds on § 435 of Art. 27 which, in turn, feeds on the common law. Therefore, except for the necessity of a judicial proceeding, which has been explicitly eliminated by including false swearing, all the elements of common law perjury are present in § 198. The requirement of an oath is expressly satisfied as the unsworn signed statement or report is a valid non-oath substitute. The element of falsity is specifically designated. The requirement that the false oath be wilfully and corruptly given and that it be in regard to a material matter is read into the statute through Art. 27, § 435 and the common law. The implication rather than the expression of wilfulness, corruption and materiality does not, in the circumstances, bring the statute within the void-for-vagueness doctrine.

The view above expressed is consistent with the principles of statutory construction. Both Art. 27, § 435 and Art. 2B, § 198 deal with the crime of perjury. "[Wjhere possible, statutes dealing with the same subject matter should be construed as supplementary to each other.” State v. Fisher, 204 Md. 307, 314, 104 A.2d 403 (1954). "Statutes which relate to the same subject-matter and are not inconsistent with each other are in pari materia, and should be construed together so that they will harmonize with each other and be consistent with their general object and scope, even though they were passed at different times and contain no reference to each other.” Pressman v. Elgin, 187 Md. 446, 450, 50 A.2d 560 (1947), and cases therein cited. See Finance Co. v. Schlissler, 165 Md. 585, 586-587, 170 A. 173 (1934). Furthermore, "[tjhere is the . .. presumption that the Legislature had full knowledge of and information as to existing law and legislation on the subject matter of the statute it was enacting.” St. Joseph Hospital v. Quinn, 241 Md. 371, 379, 216 A.2d 732 (1966).

Section 198 of Art. 2B deems the offender guilty of perjury and makes him subject upon conviction to the penalties provided by law for "that crime.” "That crime” is defined in § 435 of Art. 27 which not only refers to the common law but speaks in terms of "willfully and falsely,” which, as we have indicated, includes "corruptly.” In the permissible form of indictment for the crime, prescribed by the Legislature in § 436 of Art. 27, the elements of wilfull and corrupt false swearing to material matters, the common law elements, are expressly set out.

In the light of all this it would take a strained construction indeed to find that § 198 deems to be a perjurer a person who makes an untrue statement by mistake of fact or law or by defect of memory, or inadvertently, or with sincere belief in its complete and undoubted accuracy. It would not only be contrary to statutory construction but repellent to reason and common sense to interpret the statute as encompassing a false statement regarding some matter not material to the subject. What constitutes perjury as used in § 198 can be fairly ascertained by reference to Maryland statutes on the subject, judicial determinations, the common law, dictionaries and treatises. See Bowers, 283 Md. at 125. Therefore, it is explicit enough to enable a person of ordinary intelligence to ascertain with a fair degree of certainty what it prohibits and what conduct on the offender’s part will render him liable to its penalties. It gives Kourkoules fair notice so that he was free to choose between lawful and unlawful conduct. We hold that Art. 2B, § 198 does not affront the constitutional guarantees of due process.

References to perjury run rampant throughout the Maryland Code — 115 references to "perjury” in 88 sections. There are many areas in which the Legislature has invoked the crime of perjury as a sanction for false statements. In some of the situations the elements of wilfulness and materiality are expressly set out. In others, one of them is designated. In a number, none are explicitly specified. For example, as we have seen, "[a]ny person who shall knowingly make any material false statement to procure, or to assist any other person to procure, any license or marriage ceremony in violation of the provisions of [Art. 62, Marriages]... shall be guilty and punished for perjury.” Md. Code (1957, 1979 Repl. Vol.) Art. 62, § 11 b. And "[a]ny person wilfully testifying falsely under oath as to any matter material to any such examination, investigation, or hearing [under the Insurance Code], shall upon conviction thereof be guilty of perjury and shall be punished accordingly.” Code (1957, 1979 Repl. Vol.) Art. 48A, § 27 (4). But in the area of parole and probation the statute specifies materiality without expressly setting out wilfulness. It reads: ". .. false swearing on the part of any witness testifying before said members of said Board [of Parole and Probation] on a matter material to inquiry shall be deemed perjury.” Code (1957, 1978 Repl. Vol.) Art. 41, § 121. On the other hand, the false statement provision of the Motor Fuel Inspection Law designates "wilfully” but does not mention materiality. "If any signed statement, report, affidavit, or oath, required under any of the provisions of this subtitle, shall contain any false statement willfully, the offender shall be deemed guilty of perjury, and upon conviction thereof, shall be subject to the penalties provided for that crime.” Code (1957, 1979 Repl. Vol.) Art. 56, § 157 L. This is also so with respect to Code (1957, 1976 Repl. Vol.) Art. 33, § 24-12 (False swearing in oath or affirmation prescribed by any examination provided for in the Election Code or prescribed by the State Administrative Board of Election Laws) and § 26-15 (False, fraudulent, or misleading statements made by candidate for office or any member or officer of any political committee); Code (1957, 1979 Repl. Vol.) Art. 48A, § 361 (False statement in procuring license from Insurance Commissioner to engage in business of operating health service plans); Code (1957,1979 Repl. Vol.) Art. 88B, § 35 (False swearing in obtaining or procuring any share or payment under State Police retirement" pnd pension system); and Md. Real Property (1974) Code Ann. (1980 Cum. Supp.) § 13-105 (False verification or oath 'filed in patent proceeding). Emphasis in the quotes above is added.

A number of the statutes concerning perjury do not set out either wilfullness or materiality. Another section of the Alcoholic Beverages Law is in this category. Section 57 (e) of Art. 2B provides: "If any false statement is made in any part of [the application for Alcoholic Beverage License in Caroline County] the said applicant or applicants shall be deemed guilty of perjury, and upon conviction therefor his license shall be revoked and the applicant subjected to penalties provided by law for that crime.” The law with respect to the Commissioners of Pharmacy also falls in this classification. "Anyone swearing falsely in the affidavit [accompanying the application of an assistant pharmacist for a special examination for registration as a pharmacist] shall be deemed guilty of perjury.” Code (1957, 1980 Repl. Vol.) Art. 43, § 262. Similarly, "[ajnyone swearing falsely in the affidavit [filed with the application for examination as a pharmacist] shall be deemed guilty of perjury.” Id. § 263. And the former law relating to banks and trust companies simply read in regard to a report to the Bank Commissioners that "any person making oath to false statements on such report shall be deemed guilty of perjury, and upon conviction shall be subject to the penalties provided by law for that offense.” Code (1957) Art. 11, § 44. Likewise is Code (1957, 1978 Repl. Vol.) Art. 38A, § 8 (h) which provides that "false swearing in any matter or proceeding [before the State Fire Marshall ] shall be deemed perjury and shall be punishable as such.” And Code (1957, 1978 Repl. Vol.) Art. 40, § 30 (1980 Cum. Supp.) which provides that "[fjalse swearing by any witness before the Legislative Policy Committee or any standing committee constitutes and is punishable as perjury.” And Code (1957, 1980 Repl. Vol.) Art. 78B, § 11 (e) which provides that "[f]alse swearing on the part of any witnesses [testifying before the Racing Commission] shall be deemed perjury and shall be punished as such.” And Code (1957, 1976 Repl. Vol.) Art. 27, § 675 which provides that "false swearing or testimony on the part of any .. . witness [testifying before the Commissioner of Correction] is perjury and punishable as such.”

In the law pertaining to revenue and taxes, "[ejvery report, application and response required by this article shall be deemed to have been made under oath if it contains a declaration, preceding the signature of the maker, to the effect that it is made under the penalties of perjury.” Code (1957, 1975 Repl. Vol.) Art. 81, § 5. This approach is followed in a great number of instances throughout the Code. It follows that if the report, application or response contains a false statement, willfully made, in regard to a material matter, the maker would be guilty of perjury. For a discussion of this type of oath-equivalent see Perkins, Criminal Law 456 (2d ed. 1969). The law concerning social services approaches the matter of false statements in a different way. It provides: "Any person who in making and signing... an application [for money, property, food stamps, medical care or other assistance] .. . makes a false or fraudulent statement with intent to obtain any such money, property, food stamps, medical care or other assistance is guilty of perjury and upon conviction therefor is subject to the penalties provided by law for perjury.” Code (1957, 1979 Repl. Vol.) Art. 88A, § 62 (a), (1980 Cum. Supp.).

It is readily apparent that there is no rationale governing the express inclusion or the omission of the elements of perjury in the various statutes. In any event, it is certain that in none of the statutes did the manner in which they were drafted demonstrate a change in the nature of the offense of peijury or create a new crime.

The Levitt Case

As the license of Nettie Levitt for the sale of alcoholic beverages was about to expire, an application for renewal was filed in her name over what was purported to be her signature with the Board of Liquor License Commissioners for Baltimore County. The renewal application contained an affidavit certifying that she had appeared before a Notary Public, Jeffrey Levitt, and made oath in due form of law that the matters and facts contained in the application were true. The affidavit bore the signature "Jeffrey Levitt” as to the notary public before whom the oath was made, and the notarial seal of Jeffrey Levitt was imprinted thereon. Jeffrey Levitt was indicted for violating the provisions of Art. 2B, § 198. See supra.

The indictment came on for trial in the Circuit Court for Baltimore County, Raine, C.J., presiding. Levitt was arraigned, pleaded not guilty and elected a court trial. The witnesses were sequestered upon motion of the defense, and the case proceeded to trial. Evidence was adduced on behalf of the State through the testimony of seven witnesses, each fully examined and cross-examined, and the introduction of ten exhibits. The evidence tended to show that Jeffrey Levitt had signed the name of his mother, Nettie Levitt, on the application for renewal of her license, and that the business relating to the license had in fact been sold, contrary to statements in the application. The State concluded its case in chief and rested. Levitt moved for judgment of acquittal. The motion was argued at length. The court issued an order accompanied by a memorandum opinion, granting "the Defendant’s Motion of Acquittal offered at the close of the State’s case. ...” The State appealed.

Md. Rule 756 a permits a defendant to move for a judgment of acquittal at the close of the evidence offered by the State. Section b of the Rule provides:

"If the court grants a motion for judgment of acquittal or determines on its own motion that a judgment of acquittal should be granted, it shall direct the clerk to enter the judgment of acquittal and to note that it has been entered by direction of the court.”

Beyond question, the trial court granted a motion for judgment of acquittal made by Levitt pursuant to the Maryland Rules of Procedure and fully argued. The effect of the grant of the motion was the acquittal of Levitt of the crime with which he was charged, namely, the making of a false statement proscribed by § 198 of Art. 2B. Obviously, "the judgment rendered by Judge Raine” from which the State appealed could only be the acquittal of Jeffrey Levitt as to that crime. It is clear that the appeal is not allowed by law.

Jeffrey Levitt was placed in jeopardy on the offense charged. The trial before the court had proceeded to the conclusion of the State’s case in chief with the testimony of witnesses and the introduction into evidence of a number of documents. Even before Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056 (1969) made the double jeopardy provision of the Fifth Amendment to the federal constitution applicable to the states through the Fourteenth Amendment, it was the established law of this State that a person may not be twice placed in jeopardy for the same offense. State v. Adams, 196 Md. 341, 76 A.2d 575 (1950); State v. Stanley, 34 Md. App. 393, 367 A.2d 27 (1977). Certainly, Jeffrey Levitt, in the circumstances, could not be retried for the crime here charged against him. Common sense, which "often makes good law,” Peake v. United States, 353 U.S. 43, 46, 77 S. Ct. 613 (1957), dictates that Levitt "not be forced to defend [the] appeal taken by the State.” Stanley, 34 Md. App. 397, n. 4.

There is the principle in Maryland that appellate jurisdiction is dependent upon a statutory grant of power. Lohss and Sprenkle v. State, 272 Md. 113, 116, 321 A.2d 534 (1974) and cases therein cited. In criminal cases the Legislature has authorized the State to appeal only "(1) From a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition; and (2) From a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.” Code (1974, 1980 Repl. Vol.) § 12-302 (c) of the Courts and Judicial Proceedings Article. There is no statutory grant allowing the State to appeal from the grant of a motion for judgment of acquittal, and, even if there were, it would offend the federal constitution.

The State suggests that because the court’s action was constitutionally based (the court declared that "[t]he State’s case must fail because of the unconstitutionality of the law under which the Defendant was charged”) a motion to dismiss the indictment rather than a motion for judgment of acquittal was appropriate. It urges that "[t]he effect of the Order [granting the motion for judgment of acquittal] was not the intentional rendering of a verdict of 'not guilty.’ ” Thus, the State concludes, its "appeal is allowed by law.” We cannot accept this gambit. Unequivocally, the court granted a motion for judgment of acquittal. No motion to dismiss the indictment was ever before it. We are unable to gather from the proceedings that the true intention of the court was other than to find Levitt not guilty. The crux of the argument of the defense was that Nettie Levitt, not Jeffrey Levitt, was the licensee, that, therefore, there was no requirement that Jeffrey submit the application for renewal, and that as he was not required to submit it, there was no violation of § 198. The fact that he signed Nettie’s name to the application, the defense urged, was not pertinent. Although he (may have committed a number of other crimes, he was not guilty of the one charged. The trial judge suggested that Levitt was guilty of "forgery, guilty of conspiracy to violate the liquor laws, guilty of subornation of perjury and guilty of false pretenses.” He said: "These are four that occur to me right off hand. But query, is he guilty of Article 2B, 198?” After persistent argument by the Assistant State’s Attorney the judge again noted the crimes of which Levitt may have been guilty, and observed: "The only thing that concerns me is, though, whether he’s guilty of a violation of the one little count in this indictment. Why the State didn’t put in four or five counts and cover the waterfront is beyond me.” The court noticed the failure of Nettie Levitt to testify: "Trying this case without Nettie Levitt is like Hamlet without the prince.” And later, it noted: "The question is narrow. Has the State proved that this particular section has been violated.” During further and prolonged argument by both sides the court mentioned the matter of the constitutionality of the statute.

No matter what basis the judge ultimately assigned in support of his grant of the motion for judgment of acquittal, grant it he did. The grant of the motion was his deliberate and considered decision. We can view his action in no other light than to operate to acquit Jeffrey Levitt. The Court of Appeals said over a hundred years ago in State v. Shields, 49 Md. 301, 303 (1878):

"It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury.”

Since the appeal by the State in Levitt’s case is not allowed by law, it is dismissed. Md. Rule 1035 b 1.

Case No. 928, State v. Kourkoules: Order dismissing the indictment vacated; case remanded for further proceedings; costs to be paid by appellee.

Case No. 690, State v. Levitt: Appeal dismissed; costs to be paid by Baltimore County.

      . Upon motion of the Attorney General of Maryland suggesting that the two cases sub judice present a common issue, i.e., the constitutionality of § 198 of Art. 2B, we consolidated them for oral argument.

      . The motion as submitted moved the court to dismiss "the case.” In open court it was agreed that the motion went to the dismissal of the indictment, and it was so considered by the court and the parties.
      Kourkoules was one of three applicants in the renewal application which was the subject of the indictment returned against him. The application entered the case as a joint exhibit "for the purposes of [the court’s opinion]” which accompanied the order granting the motion to dismiss.

      . In his written motion to dismiss the indictment, Kourkoules put it this way: "[The statute] does not purport to require that the 'offender’ willingly and knowingly make a false statement (mens rea)...The Levitt case had been tried before Raine, C.J., who had issued an opinion in which he declared that § 198 of the Alcoholic Beverages Law was unconstitutional. Kourkoules referred to this opinion in support of his motion.

      . As we have indicated, the general rule by which the constitutionality of a statutory provision under attack on void-for-vagueness grounds is tested applies here. Under this rule constitutionality must be determined strictly on the basis of the statute’s application to the particular facts at hand, Bowers v. State, 283 Md. 115, 122, 389 A.2d 341 (1978), that is, to Kourkoules in light of the circumstances surrounding him. Therefore, some matters which bothered Raine, C.J., in his determination of the constitutionality of the statute in the Levitt case are immaterial in our consideration of the Kourkoules case. Thus, that "offender” perhaps may be of questionable applicability to "one who utters a false statement,” or to the Notary Public administering the oath need not now concern us.

      . "False swearing is what would be perjury except that it is not in a judicial proceeding but in some other proceeding or matter in which an oath is required by law.” Perkins, Criminal Law 454 (2d ed. 1969).
      The statute also placed an affirmation under the crime of perjury as an oath-equivalent. "An affirmation, which differs from an oath in omitting the appeal to the Deity, when permitted by law to take the place of an oath, places the person taking it in the same situation as to penal consequences of falsity as an oath.” Hochheimer, Criminal Law § 405 (2d ed. 1904).

      . In this jurisdiction the words "falsely,” "wilfully,” and "knowingly” are deemed to necessarily involve "corruptly.” State v. Bixler, 62 Md. 354, 357 (1884). See State v. Devers and Webster, 260 Md. 360, 372, 272 A.2d 794, cert. denied, 404 U.S. 824 (1971) in which co.rruptly and wilfully appear to be considered synonymous. For a discussion of the matter see 3 Wharton, Criminal Law and Procedure § 1292 (Anderson ed. 1957).
      Professor Perkins defines common law perjury without mention of wilfully and corruptly: "Perjury is a false oath in a judicial proceeding in regard to a material matter.” Perkins, Criminal Law 454 (2d ed. .1969). He acknowledges that "[a] wrongful intent is an essential ingredient of the crime,” id. at 460, but he asserts that "[wjilfulness and corruption are inherent in the false-oath concept, and it would be tautological to define perjury in terms of a 'false oath wilfully and corruptly given.’ ” Id. "A false oath is a sworn statement, whether accurate or not, given without sincere belief in its complete and undoubted accuracy. Any such oath is wilfully and corruptly false.’
        Id. at 461. And "[gjenerally, ... a belief as to the falsity of testimony may be inferred by the jury from proof of the falsity itself.” Id.

      . Included in the several examples which the Court gave of previous legislative non-oath substitutes with respect to the crime of perjury was a "false statement under alcoholic beverages laws,” Art. 2B, § 198. Greenwald v. State, 221 Md. 235, 241, n. 2, 155 A.2d 894 (1959, appeal dismissed, 363 U.S. 719 (1960).

      . Despite the view the Assistant State’s Attorney advanced at the hearing on the motion to dismiss the indictment, namely, that the elements of perjury were not involved, see supra, the indictment alleged unlawful misconduct on the part of Kourkoules in the express terms of the elements of perjury — that a false oath was given wilfully, corruptly and knowingly in regard to material matters.

      . Article 11 of the 1957 Code was repealed by Acts 1980, ch. 33, § 1. The new general penalty provisions are not structured around peijury. See § 5-802 of the Financial Institutions Article (Code 1980).

      . Before the recodification, Maryland Code (1957,1968 Repl. Vol.) Art. 5, § 14, from which § 12-302 (c) of the Courts and Judicial Proceedings Article was taken, included the express provision, "but the State shall have no right of appeal in any criminal action where the defendant has been tried and acquitted.”


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    STATE OF MARYLAND v. LESLEY LATTISAW and ARTHUR JAMES KEELING
    [No. 883,
    September Term, 1980.]

      Decided March 3, 1981.

      The cause was argued before Wilner and MacDaniel, JJ., and Chari.es E. Ortii, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Thomas A. Blair, Assistant State’s Attorney for Prince George’s County, on the brief, for appellant.

      George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

The State appeals an order of the Circuit Court for Prince George’s County dismissing indictments against appellees Lesley Lattisaw and Arthur Keeling. The circuit court took that action because, in contravention of Maryland Rule 746a, those appellees were not brought to trial within 180 days after the first appearance of counsel on their behalf. The issue before us is not whether there was a violation of the 180-day requirement — that is conceded — but rather whether, under the circumstances evident in this record, dismissal of the indictments was an appropriate sanction. We think not and shall therefore reverse.

On November 21, 1979, the Grand Jury returned a seven-count indictment charging Craig Brooks, Warren Anderson, Lesley Lattisaw, and Arthur Keeling with the armed robbery of William Summers and with various associated and lesser included offenses arising from that incident. Anderson, who was apparently a juvenile, promptly (on November 23) moved to transfer his case to the juvenile court. See Md. Ann. Code art. 27, § 594A. Counsel entered their appearance for the remaining three defendants on December 5, 1979 (Darlene Perry, Public Defender, for Lattisaw), December 6, 1979 (Leonard Casalino, retained counsel, for Keeling), and December 13, 1979 (Beverly Stone, for Brooks). In each case, pleas of not guilty and elections of a jury trial were filed.

Following these appearances, matters proceeded apace, with normal discovery motions, motions to suppress, motions to reduce bail bonds. On January 10, 1980, Brooks moved for a severance of his case; that motion was answered on January 28. On February 20, 1980, following a social service investigation, Anderson’s motion for transfer to the juvenile court was granted, which left, at that time, three co-defendants. On March 6, Keeling moved for a severance of his case. On March 11, 1980, the court granted Brooks’ motion for severance and set his trial for May 27, 1980, but it reserved ruling on Keeling’s motion until the day of trial. Trial of Lattisaw and Keeling had earlier been set, by agreement of counsel, for June 9, 1980. Unfortunately, the 180-day period prescribed under Maryland Rule 746 would expire on June 2 for Lattisaw and on June 3 for Keeling.

Lattisaw and Keeling appeared for trial on the appointed day. No motions to dismiss based upon Maryland Rule 746 had been filed at that point. The case was not reached that day, and it was reset for the next day — June 10; but it appears that at some point on June 9, Judge Chasanow gratuitously observed that more than 180 days had elapsed since the first appearance of counsel, and bells went off in the heads of defense counsel. As the first order of business the next day, they moved to dismiss the indictments against their clients based upon the rules laid down in State v. Hicks, 285 Md. 310 (1979).

The State defended these motions on the ground that, by consenting to the trial date of June 9, appellees, through their counsel, were in part responsible for the violation of the Rule. A precise theory was not clearly articulated. At one point, the State’s Attorney seemed to apply the Constitutional balancing test, allocating certain periods of time to the State and other periods to the defense; intermingled with this were suggestions of waiver or the existence of "good cause” for the violation of the requirement. Underlying all of these approaches, however, was the agreement of defense counsel to the June 9 date.

After hearing some argument, the court took testimony on the issue. Betty Perrie, supervisor of the criminal assignment office, explained • the difficulty in multi-defendant cases in getting an acceptable trial date. Sometimes, she said, it takes as many as eight to ten phone calls back and forth. There was a particular problem, she said, with respect to counsel for Lattisaw, not for any inappropriate reason but simply because she has an extremely busy trial schedule. Patricia Armstrong, the assignment clerk who handled the actual scheduling of this case, also testified. She said that she waited until Anderson’s transfer motion was resolved before attempting to arrange a trial date in order to avoid having to deal with four separate defense counsel. This is what delayed the commencement of her efforts from December to early March.

Sometime in March, Ms. Armstrong began calling the attorneys. She testified:

"Q Do you recall any specific difficulties you had in setting this case with respect to defendants Lattisaw and Keeling?
A Yes.
Q What was that difficulty?
A First of all, it is very hard to get Darlene Perry and Len Casalino together because they are so backed up. This was just the earliest available date I could get for both of them.
Q Approximately how many phone calls did it take you back and forth to select the June 9 date?
A I really can’t remember, but probably about three.
Q Did you propose any tentative dates to either Darlene Perry and Len Casalino?
A I am sure I did.”

Ms. Armstrong indicated that the earliest trial date agreeable to both remaining, defense counsel was June 9, and, as a result, that was the date she picked. She did not advise counsel that June 9 was beyond the 180-day period, although she probably knew that it was so. Her testimony in that regard, on cross-examination by counsel for Lattisaw, was as follows:

"Q Did you ever compute it on the card that the final date, under the Hicks rule, was June 2 or 3?
A No, but we know from the appearance date, when the 180 days runs.
Q So you had full knowledge that, originally when this case was set in for June 9, it was beyond the Hicks rule?
A Yes, but I had such a hard time setting the case in. I am sure I did have knowledge of it.
Q Why didn’t you bring it to the attention of anyone?
A Well, I don’t know.
Q Why didn’t you tell the attorneys, hey, I can’t put it in that date?
A Well, you agreed with it.
Q I understand. Why didn’t you tell any of the attorneys?
A Well, when I am setting up the case, I don’t — I think of the 180 days, but I am going back and forth trying to get these dates in with all of these attorneys, and somehow I probably, it probably just slipped my mind.” (Emphasis supplied.)

Based upon counsel’s agreement, Ms. Armstrong sent written notices of the June 9 trial to both appellees and their counsel. The record indicates that the notices were typed on March 7 and were sent out on the 11th. At no time did either appellee (or counsel) object to the June 9 date, before or after it was set. The evidence showed that the State was prepared to try the cases within the 180-day period. The problem was solely one of obtaining a date agreeable to defense counsel.

Counsel for Lattisaw, Ms. Perry, conceded that she had agreed to the June 9 date, but claimed that she was unaware at the time that the 180-day period would expire before then. Significantly, she did not indicate that her schedule would have permitted any earlier trial date based upon a March 10 notice. She apparently was "booked up” 90 days in advance, and criticized the assignment office for not commencing its efforts in December. Had it done so, she could have been available within the 180 days. The relevant part of her testimony was as follows:

"Q But between December 5, 1979, when you filed your request for speedy trial, and yesterday, when the case was scheduled, you hadn’t done anything or filed any pleadings to cause the case to be tried earlier, had you?
A No, other than to try to get discovery.
Q On March 10, when you were contacted by the assignment office, or March 11, when you returned the call, you agreed to the June 9 date?
A Yes.
Q Did you mention to them you wanted an earlier trial date?
A By the time she called me, my calendar was full for the next, at least, 90 days.
Q If you were called on March 10 or March 11, and the case was set on June 9, that was approximately 90 days?
A Yes. If she had called me earlier than that, it would have been worked in, yes.
Q During the 30 days following the entry of your appearance, did you make any protest concerning the fact the assignment office had not set this case for trial?
A No.” (Emphasis supplied.)

Counsel for Keeling, Mr. Casalino, also recalled the conversation with Ms. Armstrong, but in a somewhat different way. He said that he had called Ms. Armstrong in early March to inquire about a trial date and was told that none had yet been scheduled:

"I indicated to her that she could contact me with reference to clearing certain dates, or we could do it now. She never proposed any trial dates. She never indicated to me any unusual circumstances other than there were other attorneys she had to contact, but she did assure me she would be calling me back.
"I did receive a call back approximately a week or maybe a little bit later, which she first mentioned to me the date of, I believe, June 9, and it wasn’t by way of discussion. She said June 9 seems to be a clear date, do you have anything scheduled? I said, I don’t have anything for the month of June, at this time, maybe one or two things, it is clear on my calendar....”

He acknowledged receipt of the written notice following his conversation and conceded that he never thought to calculate whether there was a problem under Rule 746. He summarized:

"As we went along, again, the June 9 trial date was set in, briefly, as far as I am concerned, only when Ms. Armstrong called me back and said, 'It appears that June 9 is a clear date for everyone. What does your calendar look like’? Mine was fíne. I said, ’Fine, set it in, ’ and it was set in. Mr. Keeling never consented, in any way, shape or form, to a delay beyond the date required, or at least, the time period that we know to be found in the rules. As a practical matter, it wasn’t considered until, and I am being candid with the court, until over the weekend.” (Emphasis supplied.)

The court concluded from all of this that (1) Casalino had never expressly consented to the June 9 trial date, but had merely indicated that his calendar was clear that day, and (2) although Perry had consented to the June 9 date, it was not an effective consent because she was not aware at the time that such date was beyond the mandatory period. In effect, the court applied the Constitutional waiver test to the actions of counsel, holding that a waiver of the 180-day requirement had to be a knowing and intelligent one which could not exist where counsel (and their clients) were unaware that the period would expire before June 9. This is also the position taken by appellees in defending the court’s action.

We think that the court, in all good faith, gave too limited a reading to what the Court of Appeals said in State v. Hicks; and, as a result, it gave an interpretation to Rule 746a that is unnecessary and incorrect.

Although the dissent in Hicks viewed the requirements of Rule 746a primarily from the perspective of the defendant — as an extension of his Constitutional right to a speedy trial — the majority looked upon it more from a societal point of view, as a device to alleviate the problems caused to the criminal justice system by delays in initially scheduling cases for trial and by the inappropriate postponing of scheduled trial dates. See the discussion at pp. 316-318 of 285 Md. Both aspects are, of course, important; the point we make is that the Rule was not intended solely to confer new rights upon defendants, but also to hold their feet to the fire. As the Constitutional balancing test under Barker v. Wingo, 407 U.S. 514 (1972), implies, and as this very case so clearly indicates, delays in trial are not always and exclusively attributable to prosecutorial laxity. The problem (or part of the problem) is often picking a date suitable to the defense; and that problem obviously increases in complexity when there are multiple defendants.

That aspect of the problem was recognized by the Court of Appeals in its per curiam Opinion on the State’s motion for reconsideration in Hicks. See 285 Md. 334. It set forth two circumstances under which dismissal of the indictment was regarded as an inappropriate sanction for noncompliance with the mandatory requirement. The second of these, said the Court at p. 335,

"is where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of Rule 746. It would, in our judgment, be entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation. ” (Emphasis supplied.)

The court below, and appellees here, seize upon the term "expressly consents,” and most particularly upon the adverb "expressly,” as somehow implying or embodying the requirement that the consenter understand that the date he consents to is outside the 180-day period. That is not what the Court of Appeals said, however; and we do not think that is what it meant.

Defense counsel presumably can count to 180 as well as prosecutors; they know when they entered their appearances — when the clock began to tick — and they can figure out when the time under the Rule expires. These were not inexperienced counsel; according to the record, both attorneys had extensive background in the trial of criminal cases and were well aware of both the Rule and the interpretation given to it in Hicks. They both agreed to the June 9 date because it was convenient to them and, in the absence of any contrary indication, we assume was acceptable to their clients. It is not necessary for the clerk in the criminal assignment office to inform defense counsel with each telephone call of that which it is their job to know. Nor does it detract in the least from the reality of their consent to a particular trial date, or from the "expressness” of it, that they may be unaware that the date to which they agree is, in fact, beyond the 180-day period. To require dismissal of an indictment in such a case would be tantamount to doing precisely what the Court said was inappropriate — permitting "the defendant to gain advantage from a violation of the rule when he [ through counsel] was a party to that violation.”

We are not unaware of the recent decision in Logan and Banks v. State, 289 Md. 460, 425 A.2d 632 (1981), in which the Court of Appeals concluded that a waiver of the right of prompt presentment before a district court commissioner, to be effective, had to be knowing and intelligent, i.e., a so-called Johnson v. Zerbst waiver. We see a significant distinction, however. The rights accorded by MDR 723 are personal to the accused and can only be waived by him. They are solely for his benefit and have no significant function other than to preserve underlying Constitutional rights that are also personal to him and can only be waived by him. As Hicks makes clear, the 180-day requirement is not entirely for the accused’s benefit, and can be waived by counsel. We are not aware of any analogous situation in which the Johnson v. Zerbst criterion has been applied to tactical decisions made by counsel, especially when those decisions are made as much for his convenience as for that of his client.

Judgments dismissing indictments reversed; cases remanded to Circuit Court for Prince George’s County for further proceedings; appellees to pay the costs.

      . Perry and Casalino denied that Armstrong had proposed any earlier dates.

      . Respectful as we are, and must be, of the conclusions of fact and law reached by the trial court (see Maryland Rule 1086), we simply cannot accept the proposition that Mr. Casalino’s response to Ms. Armstrong did not amount, in fact or in law, to an express consent to the June 9 trial date. Ms. Armstrong was not calling out of idle curiosity as to Casalino’s June work schedule, but to arrange a specific trial date for this case. It is the height of sophistry to suggest, in that context, that Casalino’s response that his calendar was clear on June 9 did not amount to a consent to that date. This is especially so in light of his ensuing statement, "Fine, set it in.” No protest was made either during the conversation with Ms. Armstrong or after receipt of the written notice about the June 9 date. Indeed, it seems apparent that he had no problem with that date until he was apprised by Judge Chasanow that the 180 days had already lapsed.


author: Orth, J.,

text:
    STATE OF MARYLAND v. TODD RICARDO MINES a/k/a Richard Stephenson
    [No. 949,
    September Term, 1980.]

      Decided March 3, 1981.

      The cause was argued before Wilner and MacDANiEL, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Richard B. Rosenblatt, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Richard S. Basile, Assistant State’s Attorney for Prince George’s County, on the brief, for appellant.

      Terrell N. Roberts, III, for appellee.
   Orth, J.,

delivered the opinion of the Court.

It once was that a delay in bringing an accused to trial was governed solely by the guarantees of a speedy trial set out in the Sixth Amendment to the Constitution of the United States and Article 21 of the Maryland Declaration of Rights. A delay of constitutional dimension triggered the "difficult and sensitive balancing process” of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), and when that test showed that the constitutional guarantees were offended, the appropriate sanction was the dismissal of the charges. See Jones v. State, 279 Md. 1, 367 A.2d 1 (1976), cert. denied, 431 U.S. 915 (1977). It is true that the matter of trial delay was also the subject of legislative enactment and judicial rule. Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 591 provided that a trial date shall be set which shall not be later than six months from the date of arraignment of the accused or the appointment or appearance of counsel for him which ever first occurs. The date established for trial could not be postponed except by the administrative judge of the court upon extraordinary cause shown. § 591 (a). The Court of Appeals was authorized to establish rules to implement the statute. § 591 (b). The Court of Appeals responded by adopting Rule 740 of the Maryland Rules of Procedure which provided that the date of trial and postponements shall be governed by the statute. We held, however, that the provisions of the statute were intended by the Legislature to be directory and not mandatory because it had not explicitly provided the extreme sanction of dismissal of an indictment for administrative noncompliance. Young v. State, 15 Md. App. 707, 292 A.2d 137 (1972). And, of course, it followed that Rule 740 was directory and not mandatory, as there was no sanction provided by the implementing rule. State v. Hunter, 16 Md. App. 306, 312-313, 295 A.2d 779 (1972). We said in Young: "The ultimate prejudice to an individual defendant, sufficient to call for the final sanction of dismissing an indictment, is still measured, however, against the standards of the [constitutional] speedy trial provisions. . . . Non-compliance with Section 591 is unquestionably a factor, but only a single factor, to be considered in the interplay of all the factors that go to resolve the question of whether a defendant has been denied his right to a speedy trial.” 15 Md. App. at 710-711. The Court of Appeals adopted our view that the provisions of § 591 were directory and not mandatory and our interpretation of the consequences flowing therefrom by summarily approving our Young opinion. Young v. State, 266 Md. 438, 294 A.2d 467 (1972).

In the 1977 revision of the Maryland Rules of Procedure pertaining to Criminal Causes the matter of trial dates appeared in Rule 746. The rule departed from the statute as to the period within which a trial must be had and as to when that period commenced. Rule 746 provided:

"a. General Provision.
Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel).
b. Change of Trial Date.
Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.”

The substantial reduction of the time period within which criminal trials were to be scheduled caused no real consternation among prosecutors and others responsible for assigning cases for trial. The new Rule 746, like its predecessor Rule 740 and the statute, was interpreted as being only directory. The result was almost wholesale violations of its provisions. The desirable goal of a more prompt hearing and resolution of criminal charges than is dictated by constitutional speedy trial guarantees was being seriously eroded, and the intention of the Court of Appeals to put teeth in a new regulation governing the assignment of criminal cases for trial was being subverted. Apparently, this would prevail as long as under Young § 591 and Rule 746 were accorded directory rather than mandatory force.

The Court of Appeals cleared the waters. In State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979), it overruled Young, held that the 120-day trial date requirement of Rule 746 was mandatory, absent extraordinary cause, and declared that dismissal is ordinarily the appropriate sanction for violation of the trial date requirement. Id. at 318. The Court denied motions for reconsideration filed by the State and by Hicks, but issued a per curiam opinion on the State’s motion. Id. at 334-338. It expressly adhered to its view with respect to Young, the trial date requirement, and the sanction. Id. at 334-335. It explicated, however, its position regarding the sanction, noting two circumstances under which dismissal was not appropriate. The first was a violation of that provision of the rule which requires that the act of setting the trial date be done within 30 days. The second "is where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of Rule 746.” Id. at 335. The Court explained: "It would, in our judgment, be entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a party to that violation.” Id.

The Court also settled in its per curiam opinion the question of the application of its rulings:

"[0]ur holdings in the instant case will be entirely prospective, applying only to future criminal prosecutions and only to those pending cases where, as of our mandate in this case, there have been no appearances of counsel or first appearances of defendants pursuant to Rule 723.” Id. at 338.

The mandate issued 25 July 1979.

Hicks disturbed a number of prosecutors and assignment officers, bothered more than a few judges, and was a matter of concern to some members of the General Assembly. The main basis of complaint of those charged with the adjudication and enforcement of the criminal laws seemed to be a sincere doubt that it was practicably possible to comply with the requirement that criminal cases be tried at the circuit court level within 120 days of the appointment or waiver of counsel or after the appearance of the defendant under Rule 723. In any event, Rule 746 was thereafter twice amended in substance upon the recommendation of the Standing Committee on Rules of Practice and Procedure. Effective 16 November 1979 the time for trial requirement was increased by substituting"180” for "120” in § (a). Effective 3 July 1980 "good cause” was substituted for "extraordinary cause” in § (b). In both instances the Court found that an emergency existed with reference to the proposed changes. The order adopting the changes specified that they "shall apply to all proceedings ... commenced [after the effective date] and, so far as practicable, to all proceedings then pending.. . .”

Section 591 of Art. 27 was also amended, effective 1 July 1980. Acts 1980, ch. 378 substituted "180 days” for "six months” and "good cause” for "extraordinary cause.” But the statute still provides that the date on which the 180 day period within which trial shall be set is the date of the arraignment of the accused or the appearance or appointment of counsel, whichever occurs first.

Todd Ricardo Mines, also known as Richard Stephenson, was placed into the middle of all of this by an indictment filed in the Circuit Court for Prince George’s County on 27 June 1979 charging him with grand larceny and related offenses. The court dismissed the indictment "with prejudice” by its order of 13 June 1980. The reasons for the court’s action, as stated in the order, were that Mines "has been denied his right to a trial within 180 days pursuant to Rule 746 .. .” and that "dismissal of the indictment is the appropriate sanction in this case. . ..” The State appealed. The question is whether the trial court erred in dismissing the indictment.

It is evident from the record and undisputed by the parties that Mines appeared before the Circuit Court for Prince George’s County pursuant to Rule 723 on 19 July 1979. Appearance of counsel had not then been entered, and the docket entries on that date read that he waived his right to counsel. So Rule 746 was triggered on 19 July 1979. This was six days before the Hicks mandate was issued. Therefore, the Hicks holdings are not applicable to Mines’ case. Mines recognizes this. He urges us, however, to apply the Hicks' rulings regardless, under the rationale of McClain v. State, 288 Md. 456, 419 A.2d 369 (1980). The relevant question in McClain was whether Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978), which held that statements obtained in violation of Maryland District Rule 709 were not admissible in evidence, was applicable to a case tried before the Johnson decision but reached for appellate review after that decision. McClain had raised the issue before the trial court, and the view of the Court of Appeals was that it would be unjust and unfair in such circumstances for McClain not to have the benefit of that holding. It held that Johnson was applicable to McClain’s case. 288 Md. at 470. But the Court cautioned: "Our holding here is not to be interpreted as being applicable to any case other than one arising under similar facts and circumstances.” Id. Mines’ case does not arise under facts and circumstances similar to McClain’s case. Furthermore, the Court in Hicks, as we have seen, unequivocally settled the question of retroactivity. McClain provides no basis for us to depart therefrom. In short, the Hicks holdings do not apply to Mines’ case because Mines appeared before the court pursuant to Rule 723 before the Hicks mandate issued.

Of course, that Rule 746 is inapplicable to Mines’ case in a mandatory posture does not mean that it does not apply at all. It is still applicable, although only as directory. So we apply it to see if there has been noncompliance which would serve, not necessarily to compel dismissal of the indictment as it would were Hicks applicable, but as a factor to be considered in the determination whether Mines has been denied his constitutional right to a speedy trial.

When Mines appeared before the court pursuant to Rule 723, the period within which he had to be tried was 120 days. The one hundred and twentieth day from 19 July 1979, the date on which Rule 746 was triggered, was 16 November 1979. See Md. Rule 8. That was also the effective date of the amendment tp Rule 746 which increased by 60 days the period within which the accused must be tried. In light of the pronouncement in the order adopting the change in the rule that "so far as practicable” the change "shall apply ... to all proceedings then pending ..we think the change applied to extend the time within which Mines could be tried another 60 days, or 180 days from 19 July 1979. We see no compelling reason why it was not "practicable” to apply the change to Mines’ case in the circumstances, especially since the period within which he was to be tried under the former rule had not expired when the change took effect and the 120 day designation was merely directory in any event.

The one hundred and eightieth day from 19 July 1979 fell on 15 January 1980. In the meantime Mines came before the court on 7 January 1980, withdrew his plea of not guilty and entered a plea of guilty to petit larceny charged in the second count of the indictment. We gather from a transcript of the proceedings that this was pursuant to a plea bargain. The court made the necessary examination of the accused. Mines affirmatively stated that he was pleading guilty because he was guilty and for no other reason. The court found that the plea was "freely, voluntarily, and understandably entered.” It instructed the Clerk to so show and also to show that Mines had withdrawn his plea of not guilty and entered a plea of guilty to count 2. The court accepted the plea. The adjudication phase of the trial was completed, but disposition was postponed until 20 February pending receipt of a pre-sentence investigation report. The sentencing date was subsequently changed to 28 February. On that date, the guilty plea was stricken. It seemed that during the pre-sentence investigation Mines had indicated that he was not guilty of the offense. After inquiry concerning the facts, the court thought that the evidence of guilt was not so overwhelming as to justify the acceptance of an "Alford plea.” See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). The court observed that Mines’ plea had been entered as "a straight guilty plea”; Mines had not professed innocence or protested his guilt at that time. The case was continued. On 11 March 1980 the assignment office scheduled it for trial on 18 April. For reasons not pertinent at this point, it was not tried as scheduled, and a new trial date of 13 June was set. On that date, upon hearing, the court granted a motion filed by Mines to dismiss the indictment.

On 7 January 1980, when the court accepted the plea of guilty entered by Mines, the case was "tried” within the contemplation of Rule 746. A plea of guilty, properly entered and effectively accepted, is a conviction; nothing remains but to determine punishment. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709 (1969). Thus, the adjudication phase of Mines’ case was completed on 7 January 1980. All that remained to be done was to impose punishment, and sentencing was postponed only so a pre-sentence investigation report would be available. Furthermore, the trial took place within the time required by the rule; 180 days from 19 July 1.979 did not expire until 15 January 1980. So on 7 January 1980 there had been no violation of the rule; its requirements had been satisfied. But when the guilty plea was stricken, the period within which trial was permitted by the rule had expired. The question is what effect the rule had on the case after the guilty plea had been stricken.

The fact of the matter is that Rule 746 and Art. 27, § 591 do not cover this situation. The striking of the guilty plea here may be likened to the grant of a new trial by a trial court or a remand for a new trial by an appellate court. Neither the rule nor the statute prescribes within what period the trial shall be had in such circumstances; it is the first bringing of an accused to trial that is contemplated by both of them.

We can envision several ways in which the rule could be construed consistently with its general rationale so as to govern the situation before us. But we have no power either to enact legislation or to adopt rules of procedure relating to the trial courts; that is the prerogative of the General Assembly and the Court of Appeals respectively. For us to select one of the possible alternatives of which we can conceive, no matter how logical, reasonable and preferable it may seem, would be judicial legislating in the guise of judicial construction in order to effect our preference. This we may not do. We have no power to rewrite or to amend the rule.

The Court of Appeals, and this Court, following its lead, have repeatedly reminded "all hands” that the Maryland Rules of Practice and Procedure are "precise rubrics 'established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.’ ” Isen v. Phoenix Assurance Co., 259 Md. 564, 570, 270 A.2d 476 (1970), quoting, Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128 (1960). See State v. Diggs, 24 Md. App. 681, 682, 332 A.2d 283 (1975). No matter whether the Rule 746 rubric is read precisely or casually, it is apparent that its requirements were satisfied with respect to Mines’ case because the case was tried within the designated period. It would seem, therefore, that the provisions of the rule were no longer relevant to Mines’ case, and that they were not revived upon the striking of the guilty plea since the rule is silent with regard to a further trial. We need not decide, however, whether the provisions were revived. Assuming that they were, the best construction that Mines could hope for consistent with justice, common sense and sound reason, would be that the 180 day period in which to effect trial would start to run again from the date of the striking of his plea, namely 28 February 1980. The trial date set, 13 June 1980, fell within this period. Consequently, whether the rule be deemed to be dead, once and for all, as far as Mines’ case was concerned, on 7 January 1980 upon his first trial, or whether it be considered as resurrected on the striking of the plea, its provisions, in either event, were not relevant to indicate that there was an undue delay in scheduling the trial for 13 June 1980.

There is no doubt as to why the trial court granted the motion to dismiss the indictment. At the hearing on the motion to dismiss the judge said: "[W]hile all the requirements necessary to grant a dismissal on a motion for speedy trial may not have been shown [,] under Rule 746,1 frankly see no alternative under the law as we see it and feel it is.” Shortly thereafter he declared that "in view of the Hicks decision, in view of this rule [746] I’m going to grant the dismissal.” And at the conclusion of his remarks on the matter, J after observing that "it’s things like this that certainly do reflect adversely upon the Court system and criminal justice,” he asserted: "But because of Rule 746 and the Hicks case I see no alternative.” The order itself, as we have indicated, expressly stated in dismissing the indictment with prejudice that it appeared to the court "that the defendant has been denied his right to a trial within 180 days pursuant to Rule 746 of the Maryland Rules of Procedure . . .” and that it further appeared to the court "that dismissal of the indictment is the appropriate sanction in this case....” Before the order of dismissal was signed, defense counsel wrote the judge:

"My recollection of your decision was that you granted my motion to dismiss on the basis of a denial of my client’s right to a speedy trial. I argued that Rule 746 had set a guideline; I did not argue that it was mandatory to dismiss on that basis.”

Counsel objected to the State’s proposed order and enclosed his own proposed order. The judge replied through his law clerk that the motion had been granted "not for [the denial of] a speedy trial, but for a violation of Rule 746.” The clerk noted that the judge "suggested an appeal in hopes that this matter could be cleared up above.” It is plain that the trial court dismissed the indictment on the basis that Rule 746 applied in this case, that it had been violated, that the Hicks holdings controlled its application and that, therefore, the dismissal of the indictment was mandatory.

In the light of our findings, the trial court was wrong. We have found, contrary to the rulings of the trial court, that under the "entirely prospective” formula adopted by the Court of Appeals for its holdings in Hicks, those holdings were not applicable to the case at hand, and we have concluded that there was effective compliance with Rule 746 so that there was no violation of its provisions calling for dismissal of the indictment. We vacate the order dismissing the indictment, and remand the case for further proceedings.

In the ususual circumstances of this case, the fact that Mines was brought to trial on 7 January 1980, within 180 days of his appearance in court pursuant to Rule 746, is not in itself dispositive of whether he was denied a speedy trial in the constitutional sense. The verdict of guilty of petty larceny reached upon the completion of the adjudicative phase of the trial on 7 January 1980 was stricken. Although several trial dates were thereafter set, Mines was never tried again, the case finally being disposed of below by grant of the motion to dismiss the indictment. The court below did not reach the constitutional speedy trial issue which was before it. We remand so it may decide that issue upon receipt of such additional evidence as it may deem advisable. See Squire v. State, 280 Md. 132, 134, 368 A.2d 1019 (1977).

Order of 13 June 1980 dismissing the indictment vacated; case remanded for further proceedings; costs to be paid by appellee.

      . Thu record discloses that there were two motions to dismiss the indictment before the court. The first was filed on 5 November 1979 before the expiration of 120 days from Mines’ appearance in court pursuant to Rule 723. This motion was based on Rule 746 and State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979). Mines seemed to be protesting the continuance of the original trial date of 3 October 1979 to 20 November 1979.
      The second motion, filed 26 May 1980, claimed a denial of a speedy trial on constitutional grounds. Mines had filed a line demanding a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution on 23 November 1979.

      . At the hearing, after discussing the delay in the frame of reference of Rule 746, the judge observed: "I would frankly relish an appeal on it and would like to see the question further clarified.” The judge’s last comment at the hearing was: "I don’t usually invite an appeal, but I invite one in this case.”

      . Mines, pointing to Md. Rule 1085, suggests that the State is precluded on appeal from challenging the trial court’s application of State v. Hicks, supra, and Rule 746 because it did not specifically protest below. Mines says: "The point is that the State could have raised its contentions to the lower court and possibly have persuaded the lower court to change its ruling.” The notion that we may not consider the matter of the application of Hicks and Rule 746 to Mines’ case is frivolous. The issue was plainly tried and decided by the trial court and served as the basis of the order from which the appeal was taken.

        . The numerous trial dates set from time to time never culminated in trial for a variety of reasons. The trial judge referred to the case "as a bureaucratic can of worms, and in some respects holds the whole system of jurisprudence up to ridicule.”
      We caution that nothing in this opinion is to be construed as any initimation whether or not Mines was denied a speedy trial in the constitutional context.