text:
    DONALD PLUMMER MOLONY v. SHALOM ET BENEDICTUS et al.
    [No. 1318,
    September Term, 1979.]

      Decided June 17, 1980.

      The cause was argued before Thompson, Melvin and Wilner, JJ.

      Herbert J. Arnold and Gail R. Smith, with whom were Arnold, Beauchemin & Tingle, P.A. on the brief, for appellant.

      Thomas J. Michels, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Charles R. Goldsborough, Jr., Assistant Attorney General, on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

Md. Ann. Code art. 101, § 39 (a) provides that the failure of an employee to file his claim for workmen’s compensation benefits within two years from the date of the compensable accident "shall constitute a complete bar to any claim under [the Workmen’s Compensation law].” Appellant missed the deadline by 17 days; the accident occurred February 10, 1971, but his claim was not filed until February 27, 1973. Thus, the Workmen’s Compensation Commission and, on appeal, the Circuit Court for Montgomery County, rejected his claim.

Appellant seeks relief from this "complete bar” by interposing the provisions of § 38 of art. 101. Subsection (b) thereof requires the employer to report an accident (causing three or more days of disability) to the Workmen’s Compensation Commission within 10 days after receiving notice of it. Subsection (c) then states that where an employer has been given such notice (or otherwise has knowledge of the accident) and "fails, neglects or refuses” to file the required report, "the limitations prescribed by this article shall not begin to run against the claimant. .. until such report shall have been furnished.. ..” The employer in this case did not file the required report until the very day of the hearing on appellant’s claim, May 7, 1977. Thus, appellant contends that by reason of the employer’s dereliction the § 39 (a) statute of limitations never began to run against his claim, and that the Commission and the Court erred in concluding otherwise.

The wrinkle in the case is that appellant’s employer (appellee) is a corporate entity and at all relevant times appellant was its president and chief executive officer. It is for that reason that the lower tribunals refused to apply § 38 (c); they concluded that it was appellant’s responsibility as president and chief executive officer to see that the notice was properly and timely filed, and they declined to award him the benefit of his own failing. The basic question that we must decide is whether the court was wrong in drawing that conclusion; and, in considering that question, we are guided by the limitations of Maryland Rule 1086.

The record is somewhat sketchy with respect to the employer and the precise nature of appellant’s relationship with it. The employer, Shalom et Benedictus, is a non-profit charitable corporation chartered in Virginia. None of the basic corporate documents — charter, by-laws, trustees’ minutes — are in evidence, and our knowledge of how it operated comes primarily from the testimony of appellant given at the hearing before the Commission and in an earlier proceeding before the United States District Court.

Appellant was a social worker, a counselor who worked with difficult children referred by the juvenile court. At the request of some judges and ministers, he "formed” Shalom et Benedictus in February, 1970, although its actual incorporation took place later that summer. He was, he said, "the director of the whole operation, and specifically the welfare of the children, caring for the children and counseling them.” After incorporation, there was a four-member Board of Trustees, but its duties were never explained. Appellant, as noted, was the president and also served as one of the trustees.

At some point, appellee purchased, for $333,000, a 1200-acre fruit farm in Western Maryland, and moved its operation there from Virginia. This, of course, added a new dimension to appellee’s operation. The farm consisted of some 23,000 fruit trees, and required the efforts of 12 tenant families and up to 200 employees to manage. This was in addition to what was involved in dealing with the children referred by the courts.

Prior to appellee’s acquisition of this property, the farm operation had been managed by one Jarreda Close, and the Board of Trustees opted to retain him as general manager of the farm. Mr. Close thus became an employee of appellee, at an annual salary of $10,400. Subsequently, he was elected a vice-president of appellee, but that did not occur until after appellant’s accident.

Although the record is not as clear and precise as it could be, it appears from appellant’s testimony that Close’s responsibility was to operate the farm and handle all administrative matters pertaining to that operation, whereas his (appellant’s) function was to superintend the juvenile center and attend to all matters relating to it. He described his duties as follows:

"My job was taking care of the youngsters; accompany them to Court. Testifying in the various corporation proceedings. Finding the right psychiatrist or psychologist to work with the youngster, as that was indicated that they had proper medical care. Housing, shelter. Trying to raise money to keep going.”

and Close’s job, by way of contrast:

"Everthing concerning the farm, families, with the exception of the children Close handled everthing. He handled the tenant families. The migrant workers, the temporary workers that came in. The ordering of orchard supplies.. . . With the exception of the children, he handled all personnel.”

Appellant lived at the center and was available all the time, seven days a week. For this, he received free room and board and a salary of $400 a month. Close, on the other hand, worked only on weekdays and lived elsewhere.

There were some administrative or clerical matters of a business nature that were not handled by Close — indeed that for a time were apparently not handled by anyone. On February 8, 1971 (two days before the accident), a secretary — Mrs. Hutchinson — was hired by appellant. One of her duties was to keep a daily log "of every incident that took place on the property that concerned the children in any way whatsoever.” This log — actually a standard desk calendar — became one of the chief records of the corporation, in which both Mrs. Hutchinson and appellant recorded significant events. Some evidence of the state of affairs, in terms of handling routine business matters, appears from the entry made by appellant on February 11, 1971 (the day after the accident): "Happy day — a bookkeeper — all we have is paper bags full of bills, receipts and checks.”

Although appellant had some contact with the State Accident Fund on behalf of appellee, to the extent of requesting forms and notifying it of a change of address, he said that Close was supposed to prepare the forms for appellee, and "the only time I saw any forms, they were in Mr. Close’s office over at the warehouse which was about two or three miles from the main house.”

An overall summary of appellant’s function appears from this colloquy with the Commission:

"THE COMMISSION: Can I assume for purposes of this here, that as of the date of your alleged accident you were the Chief Administrative and/or Executive Officer of the Shalom Et Benedictus? Y ou were the President?
THE WITNESS: I was President, the Chief Executive Officer, yes, sir.
THE COMMISSION: I see. According to that, anything that was done was done under your direction or by your approval involving any administration of the corporation or administrative _?
THE WITNESS: With the exception of the farm.
THE COMMISSION: Well, there are certain things that certain people delegate.
THE WITNESS: No, this is delegated by the Board in specific action.”

Appellant’s accident, as noted, took place on February 10, 1971, while he was engaged in business relating to the juvenile center. Although once an issue in the case, we shall assume that he gave proper notice of the accident to appellee by advising Mr. Close, Mrs. Hutchinson, and at least one of the trustees of what had occurred. Within a few days, appellant began to experience severe pain which, though keeping him from doing some things, did not disable him from carrying out his overall responsibilities. Disability, in that sense, did not arise until he was hospitalized on April 29, 1971. Accordingly, the employer’s report referred to in § 38 was not required to be filed until at least May 1, 1971. See Douglas v. American Oil Co., 235 Md. 4 (1964); Walls v. Howard Co. Ass’n, Retard. Cit., 44 Md. App. 168 (1979).

Although both Mr. Close and Mrs. Hutchinson were aware of the accident, the injury, and, we presume, ultimately of the disability, they did not file the report; nor does the record show that either of them was requested or directed to do so.

In February, 1972, appellee moved from the Maryland farm back to Virginia. The Maryland property was ultimately sold. The record does not indicate whether Mr. Close moved with the operation or, if he did not, whether anyone else assumed the administrative duties previously performed by him. Appellant remained with appellee until April, 1972, when he took a leave of absence and ultimately terminated his employment.

With respect to the employer’s report, the record shows that on April 2, 1973 — about a month after appellant filed his claim — an investigator for the State Accident Fund sent the appropriate forms to Mrs. Hutchinson, in Virginia, apparently in response to an earlier telephone conversation, with instructions to "complete forms and forward three copies to me. Retain copy for your file.” The forms were duly completed and, on April 11, 1971, returned to the investigator. For whatever reason, they were never filed with the Commission, however, and still sat in the Fund’s file on the day of the hearing.

Upon this evidence, the court concluded that:

"[B]e it on the basis of his overall responsibility for the operation of the project or on the basis of his responsibility for the phase of the operation in which he was engaged at the time of the accident, we think [appellant] had a clear duty to see that Shalom et Benedictus complied with Section 38 (b) by timely reporting his accident to the Commission. Having failed to do so, he cannot now invoke Sections 38 (b) and (c) to preserve his rights as a claimant.”

We shall affirm.

Notwithstanding the somewhat special provisions pertaining to sole proprietorships, partnerships, and close corporations in the Workmen’s Compensation Law {see art. 101, § 67 (4)), the fact is that an ordinary corporation is not a self-acting or automated entity. It acts only when human beings act for it. A corporation files a report only when some responsible person prepares the report and causes it to be delivered to the Commission. In most cases, of course, a person other than the claimant has the clear responsibility to see that this is done; perhaps for that reason we are unable to find any case in the country dealing with the specific issue before us. But where the injured employee is himself responsible for seeing to it that the report is made — where, in effect, he is both the employer and claimant-employee — he cannot evade his responsibility as employer and thereby gain an unwarranted advantage as claimant-employee. As a matter of law, therefore, if appellant in fact occupied these dual roles, he is required to discharge the responsibilities of each or suffer the consequence of failing either one. Cf. Renco, Inc. v. Nunn, 474 P.2d 936 (Okl. 1970).

Whether he indeed occupied the role of employer — the causative agent for corporate action — is a question of fact, to which, as noted, the "clearly erroneous” standard of Maryland Rule 1086 applies. Upon this record, we cannot say that the court made such a clear error. Even if it was Mr. Close’s initial or primary responsibility to file the required report (and there was substantial evidence to the contrary), we do not believe that the court was clearly erroneous in its conclusion that, as president and overall superintendent of the operation, it was nevertheless appellant’s obligation to see that this was done.

Judgment affirmed; appellant to pay the costs.

      . "When an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”

      . Appellant’s injury, for which compensation was sought, arose from an automobile accident. Appellant was a passenger in one of the vehicles, and had sued the driver of the car. The transcript of his testimony given in that proceeding on May 8, 1975, was entered as an exhibit in the Workmen’s Compensation case and is therefore part of the record before the circuit court and before us.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    STATE OF MARYLAND v. CARLOS MARCUS NELSON, DONNA JO NELSON, PAMELA MICHELE ROGERS, ROBERT EARL GILLIARD, JR., CYNTHIA JO SHANE, FRANK RAWLINGS, JR., MAURICE PNIX HERNDON, MARK TERRENCE MILLINGS, CLARZELL ORLANDO DAVIS and RICKY TYRONE FIELDS
    [No. 1350,
    September Term 1979.]

      Decided June 17, 1980.

      The cause was argued before Gilbert, C. J., and MacDaniel and Weant, JJ.

      Stephen B. Caplis, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Robert C. Bonsib, Assistant State’s Attorney for Prince George’s County, on the brief, for appellant.

      Geraldine K. Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellees Robert Earl Gilliard, Jr., Cynthia Jo Shane, Mark Terrence Millings and Clarzell Orlando Davis. Alan J. Goldstein, with whom were Horowitz, Oneglia, Goldstein, Foran & Parker, P.A. on the brief, for appellees Carlos Marcus Nelson and Donna Jo Nelson. Submitted on brief by Joseph S. Casula for appellee Ricky Tyrone Fields.
   Gilbert, C. J.,

delivered the opinion of the Court.

THE PREFACE —

This is another in the series of appeals testing the breadth, width, and depth of the Maryland Wiretap and Electronic Surveillance Act. Maryland Courts and Judicial Proceedings Code Ann. (1980) §§ 10-401 to 10-412, inclusive.

Judge Albert T. Blackwell, Jr. of the Circuit Court for Prince George’s County dismissed the indictments against the ten appellees on the ground that the evidence obtained through an authorized wiretap on the telephone of Carlos Marcus Nelson exceeded the scope of the order permitting the interception and was, therefore, illegally obtained and inadmissible. Unable to separate the illegal from the legal because of the lack of clear testimony which might have allowed that separation, Judge Blackwell was compelled to dismiss the several indictments charging the appellees with diverse violations of the Controlled Dangerous Substances Laws of Maryland. Md. Ann. Code art. 27, §§ 276 to 302, inclusive (1976, 1979 Cum. Supp.).

Manifestly upset by the circuit court’s bringing an abrupt cessation to its case against appellees, the State has appealed. Courts Art. § 12-302 (c) 1. We are urged to reverse Judge Blackwell’s order and to reinstate the indictments. For the reasons hereinafter stated we decline to walk the path the State would have us tread, and we affirm the circuit court’s dismissal of the indictments in the instant case.

THE BASIS OF THE INTERCEPTION ORDER —

The State’s Attorney for Prince George’s County made application for an order permitting the electronic interception of a telephone leased to Carlos Nelson, 9544 Muirkirk Road, Apartment #T2, Laurel, Maryland. The application was based on an affidavit submitted by Corporal Raymond F. Gheen of the Prince George’s County Police Department. Corporal Gheen related in his affidavit that he had commenced investigation in September 1972 into the activities of Carlos Nelson as a result of information furnished by a confidential informant. Other confidential informants supplied additional data to Gheen. The information given to Gheen clearly indicated that Nelson was engáged in trafficking in controlled dangerous substances. Gheen’s extensive investigation led him to believe that Carlos Nelson and others were using telephone line 776-1428 in furtherance of an illegal drug distribution scheme and that telephone conversations subject to interception "were occurring on ... [that] line.”

THE ORDER PERMITTING ELECTRONIC INTERCEPTION

On June 6, 1978, a judge for the Circuit Court for Prince George’s County signed an order that allowed interception of conversations on "telephone line 776-1428 installed at 9544 Muirkirk Road, Apartment #T2.” The order provided that the police were "to intercept and record telephonic wire communications of Carlos Marcus Nelson, Robert Gilliard, Jr., and others yet unknown, dealing with the violations of the controlled dangerous substance (narcotics) laws of the State of Maryland, relating to controlled dangerous substance (narcotics), as well as conspiracy to commit the aforesaid offenses....” (Emphasis supplied.)

The application, on four occasions, refers to "controlled dangerous substances (narcotics).” The order, in six different places, is worded in exactly the same form as the application. The order also refers "to the distribution of controlled dangerous substances, and more specifically concerning: ... illicit drugs.” (Emphasis supplied.)

MOTION TO DISMISS

Prior to the filing of the motion to dismiss the indictments, the appellees had moved to suppress the evidence obtained through the wiretap. At a hearing on the suppression motion, Corporal Gheen testified that he sought "authorization to intercept narcotic communications.” (Emphasis supplied.) Conversations relating to other matters were also intercepted and recorded. Those other communications concerned marihuana and phencyclidine (PCP). The former is a Schedule I, Controlled Dangerous Substance, while the latter is a Schedule II Controlled Dangerous Substance. Md. Ann. Code art. 27, § 279. Neither, however, falls within the legislature’s definition of "narcotic drug” as set out in the statute. Md. Ann. Code art. 27, § 277 q provides:

" Narcotic drug’ shall mean any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and which have been found to present an extreme danger to the health and welfare of the community because of their addiction-forming and addiction-sustaining liabilities:
(i) ’Opiate’ shall mean any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under § 278 of this subheading the dextrorotatory isomer of 3-methoxy-n-methyl-morphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms; and ’opium poppy’ which shall mean the plant of the species Papaver somniferum L., except the seeds thereof, and ’poppy straw’ which shall mean all parts, except the seeds, of the opium poppy, after moving; and 'coca leaves’ which shall mean cocaine and any compound, manufacture, salt, derivative, mixture or preparation of coca leaves, except derivatives of coca leaves which do not contain cocaine, ecgonine or substances from which cocaine or ecgonine may be synthesized or made;
(ii) A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates;
(iii) A substance and any compound, manufacture, salt, derivative, or preparation thereof which is chemically identical with any of the substances referred to in clauses (i) and (ii), except that the words ’narcotic drug’ as used in this section include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecgonine.”

The distinction between a "narcotic drug” and other controlled dangerous substances is more than mere semantics. Narcotic drugs are "addiction-forming and addiction-sustaining.” Recognizing that addiction type drugs may lead to the commission of other crimes in order to satiate the self-destructive habit, the General Assembly has mandated that a conviction arising out of the manufacture, distribution, dispensing or possession "in sufficient quantity to reasonably indicate” an intent to do one of the aforementioned with respect to a "narcotic drug” listed in Schedule I or II of section 279, is a felony punishable by imprisonment for not more than 20 years, or a fine of not more than $25,000, or both. Md. Ann. Code art. 27, § 286 (b) (1) . On the other hand, a conviction for any of the same type of offenses, involving a non-narcotic substance, while still a felony, is subject to a much shorter period of incarceration and a lesser fine. Md. Ann. Code, art. 27, § 286 (b) (3) provides a penalty of not more than 5 years imprisonment, or a fine of not more than $15,000, or both.

Phencyclidine (PCP or angel dust) has been singled out for special treatment. If the controlled dangerous substance, leading to conviction under section 286 (a) is PCP, then the penalty is a sentence for not more than 10 years or a fine of not more than $20,000, or both. Md. Ann. Code art. 286 (b) (2) .

Notwithstanding the clear, definite, and precise language of the interception order that communications relative to "Controlled Dangerous Substances (narcotics),” the police proceeded to intercept all conversations pertaining to controlled dangerous substances. Under the dictates of the application for the warrant, as well as the warrant, itself, they were not permitted to do so. Having limited themselves by an unnecessarily restrictive order, the police could not unilaterally shirk the shackle they voluntarily wore. They could have, but did not, seek a new order so as to enlarge upon the type of conversation that could be intercepted.

Any reading of the order allowing the interception reveals "that the offenses for which authorization to tap was given were limited to those involving narcotics and did not encompass marihuana, PCP, and other nonnarcotic drugs.” State v. Mayes, 284 Md. 625, 634, 399 A.2d 597, 602 (1979), aff'g 39 Md. App. 635, 387 A.2d 794 (1978).

If, as in Mayes, the State desired to intercept communications concerned with marihuana and PCP, it was incumbent upon it to seek judicial authorization. It did not, and now it must abide the result. State v. Mayes, 284 Md. at 637, 399 A.2d at 604.

Judge Digges, writing for the Court in Mayes, declared:

"[W]hen there is evidence of'other crimes’ obtained from a wiretap and presented to the grand jury without prior judicial authorization, any count to which it may relate must be dismissed even though there exists independent evidence before that body to support that charge.”

He continued that:

"While the facts and circumstances of this case mandate our conclusion that the State should have punctually sought authorization to use the conversations relating to .. . [other crimes] before the grand jury and its failure to do so requires . . . the dismissal ... of the indictments, we cannot help but hope that this is the last time such action will be mandated.” Mayes, supra at 641-42; 399 A.2d at 606-07.

Mayes is dispositive of the instant case; we affirm.

Order dismissing indictments affírmed.

Costs to be paid by Prince George’s County.

      . See Smith v. Maryland, 439 U.S. 1001 (1979), aff'g, 283 Md. 156, 389 A.2d 858 (1978); State v. Mayes, 284 Md. 625, 399 A.2d 597 (1979), aff'g, 39 Md. App. 635, 387 A.2d 794 (1978); Spease v. State, 275 Md. 88, 338 A.2d 284 (1975), aff'g, 21 Md. App. 269, 319 A.2d 560 (1974); State v. Siegel, 266 Md. 256, 292 A.2d 86 (1972), aff'g, 13 Md. App. 444, 285 A.2d 671 (1971); Baldwin v. State, 45 Md. App. 378, 413 A.2d 246 (1980); Shingleton v. State, 39 Md. App. 527, 387 A.2d 1134 (1978); Poore v. State, 39 Md. App. 44, 384 A.2d 103 (1978); Calhoun v. State, 34 Md. App. 365, 367 A.2d 40 (1977); Washburn v. State, 19 Md. App. 187, 310 A.2d 176 (1973). See generally, Gilbert, A Diagnosis, Dissection and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U. Balt. L. Rev. 1979).


author: Moore, J.,

text:
    JOSEPH F. VALLARIO, JR. et ux. v. STATE ROADS COMMISSION OF THE STATE HIGHWAY ADMINISTRATION
    [No. 1351,
    September Term, 1979.]

      Decided June 17, 1980.

    The cause was argued before Moylan, Moore and Liss, JJ.

      Joseph F. Vallario, Jr., with whom were Sebert H. Keiffer, G. Richard Collins and James F. Farmer on the brief, for appellants.

      Carl Harrison Lehmann, Assistant Attorney General and Special Counsel, with whom were Stephen H. Sachs,

      Attorney General, Nolan H. Rogers, Assistant Attorney General and Chief Counsel, and Louis J. Kozlakowski, Jr., Assistant Attorney General and Special Counsel, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

On October 2, 1979, a final judgment was entered by the Circuit Court for Prince George’s County (Melbourne, J.) on a jury’s inquisition condemning appellants’ properties and awarding them $95,000.00 for each of two parcels. Two condemnation proceedings, initiated by the State Roads Commission, had been consolidated prior to trial. In Law No. 73447 appellants here and a third owner of one parcel appealed to the circuit court in banc, pursuant to Maryland Constitution, art. IV, § 22. The in banc panel affirmed the inquisition in an oral opinion by Judge Bowen. The instant appeal was taken from the judgment entered in Law No. 73446 involving a parcel owned jointly by Joseph F. and Mary T. Vallario.

The property owners contend that the condemnation proceedings were invalid' because:

1) The State Roads Commission did not "sit in judgment” of the condemnation as required under Maryland Constitution, art. Ill, § 40B;
2) The State Roads Commission did not adhere to the Administrative Procedure Act, Md. Ann. Code, art. 41, §§ 244-256 (1978); and
3) Appellants successfully rebutted the presumption of necessity for the taking, and the decision of the State Roads Commission to condemn appellants’ property was unreasonable, arbitrary, and capricious.

Although not brought to our attention by the appellee, State Roads Commission, we note that appellants petitioned the circuit court for the release of the funds paid into court by the Commission. On October 5, 1979 the circuit court ordered that $96,187.94, representing the jury’s inquisition of $95,000.00 plus interest, be released to the appellants. That same day the appellants acknowledged receipt of the funds in Law No. 73446. The docket entries reveal that a check, dated October 9, 1979 and payable to Joseph F. Vallario, Jr., and Mary T. Vallario, was personally delivered to Mr. Vallario on October 11, 1979. The face of the check reveals that it was in payment "Per Law #73446.” It is clear from the record that appellants requested and accepted the funds paid into court pursuant to the jury’s inquisition. Twenty-four days after the order for payment was signed by the trial judge, appellants noted an appeal to this Court.

We shall, sua sponte, dismiss the appeal. The "general rule” is that "an appellant cannot take the inconsistent position of accepting the benefits of a judgment and then challenge its validity on appeal.” Shapiro v. Maryland-National Capital Park and Planning Commission, 235 Md. 420, 424, 201 A.2d 804, 805 (1963). Moreover, "the general rule usually has been applied in condemnation appeals. . ..” Id. at 425, 201 A.2d at 805. See Acting Director, Department of Forests and Parks v. Walker, 271 Md. 711, 716-17, 319 A.2d 806, 809-810 (1974) (reaffirming the Shapiro rule and applying it to dismiss an appeal by the condemnor). This defect in the appeal may be recognized by the Court on its own motion. Suburban Development Corp. v. Perryman, 281 Md. 168, 377 A.2d 1164 (1977). In Perryman, the Court of Appeals, upon its own review of the record, ordered this Court to dismiss the appeal because "Perryman has, by his own action in accepting payment of the $586.25 under the circuit court decree, effectively forfeited his right to appellate review.” Id. at 171, 377 A.2d at 1165. The Court pointed out that the rule is "well-established.” Id.

' The Maryland rule on the waiver of the right to appellate review by the acceptance of payment on a final judgment and its applicability to condemnation proceedings has been recognized by the commentators. Nichols states:

"It is undoubtedly the law that an owner of land taken by virtue of eminent domain proceedings who has accepted and been paid the award of damages cannot afterwards contest the validity of the taking, either directly or collaterally, or seek to recover or retain possession of his land, no matter how fundamental- the defect in the proceedings may be.”

6A Nichols, The Law of Eminent Domain § 28.321, p. 28-112 (3d. ed. 1979). Courts in other states that have confronted this problem have generally followed the same rule. See, e.g., Duffey v. School District No. 1 of Washington County, 200 Neb. 702, 265 N.W.2d 212 (1978) (basing the rule on an estoppel theory); R. V. Welch Assocs. v. State Highway Department, 114 Ga. App. 482, 151 S.E.2d 830 (1966) (holding that appeal after property owner accepted condemnation award presents only moot questions); Swan Boulevard Development Corp. v. Cybulski, 14 Wis. 2d 169, 109 N.W.2d 671 (1961) (applying the rule of Nichols).

The Supreme Court of Texas had before it a similar situation in State v. Jackson, 388 S.W.2d 924 (Tex. 1965). In recognizing the general rule, the court pointed out:

"After an award has been made, and the money deposited in the registry of the Court and the landowner has withdrawn the same, he cannot thereafter contend that the taking was unlawful. In legal contemplation, he has consented to such taking and will not be permitted to retain his compensation and at the same time assert that the condemning authority had no right to take his property under the eminent domain power.” (Emphasis added.)

Id. at 925. A comparable approach to this issue was taken by the Supreme Court in Winslow v. Baltimore & Ohio Railroad Co., 208 U.S. 59 (1908), a condemnation case arising from the District of Columbia. The Court ruled that appellants had waived their objections to the proceeding by accepting the sum awarded for the land. Id. at 62-63. See also Smart v. Texas Power and Light Co., 525 F.2d 1209 (5th Cir.), cert. denied, 429 U.S. 826 (1976) (the rule of waiver by acceptance of award is not unconstitutional).

One exception to the rule was recognized in Shapiro where the Court entertained the appeal because the appellant did not raise "any other question except the fairness or correctness of the amount of the award... .” Shapiro v. Maryland-National Capital Park and Planning Commission, supra, 235 Md. at 425, 201 A.2d at 806. In the instant case appellants do not challenge the amount of the award allowed by the jury’s inquisition; they contest only the underlying validity of the condemnation proceedings, having been paid and having accepted the amount awarded by the jury.

Appellants, by accepting the compensation awarded by the jury for the taking of their property, have implicitly acknowledged that the Commission had the right to condemn the property upon payment of the proper award. They now have their money and the Commission has its property. Viewed in this posture, there is little that an appeal could do to undo what has been done. In this sense the rule has practical underpinnings. Of course, where the only issue on appeal is the amount of the award, a new trial on the issue of damages is possible and may be accomplished without any disruption to the condemnor’s possession of the property. Thus, a party who contests only the amount of the award may withdraw the money from the court pending the outcome of that issue on appeal. Should the award be reduced as a result of the appeal the party would, of course, be required to refund the difference to the condemning authority. Cf. Md. Transp. Code Ann., § 8-337 (1977) (property owner may withdraw money that Commission pays into court prior to the jury’s inquisition if he agrees to return any excess over the final award allowed by the jury).

Since appellants have accepted the benefits of the condemnation award and since they do not challenge the amount of the award, they have effectively waived their right to appellate review. We must dismiss their appeal as not allowed by law.

Appeal dismissed; costs to be paid by appellants.


author: Moylan, J.,

text:
    JOHN ALAN LANGWORTHY v. STATE OF MARYLAND
    [No. 848,
    September Term, 1977.]

      Decided July 9, 1980.

    The cause was argued before Moylan, Melvin and Couch, JJ.

      Thomas J. Saunders, Assistant Public Defender, with whom was Michael S. Elder, Assigned Public Defender, on the brief, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Richard Arnold, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Virtually every judge in southern Maryland has, upon some hearing, trial or motion, lavished attention upon John Alan Langworthy. The Department of Health and Mental Hygiene and the Office of the Public Defender have both lavished untold resources upon John Alan Langworthy. Nothing has remotely satisfied John Alan Langworthy.

The appellant, John Alan Langworthy, was indicted by the Grand Jury for Prince George’s County on October 30, 1974, for rape, assault with intent to rape and assault and battery. Upon his ultimate trial before Judge William H. McCullough, sitting without a jury, on July 28, 1977, the appellant was found not guilty by reason of insanity and committed to the Department of Health and Mental Hygiene. In his initial appeal to this Court, the appellant contended:

1) That he had been denied his constitutional right to a speedy trial;

2) That he was erroneously found competent to stand trial; and

3) That for a wide variety of pro se contentions, he had been denied appropriate relief.

In Langworthy v. State, 39 Md. App. 559, 387 A.2d 634, this Court held that the appellant had no right to appeal from an acquittal and that the verdict of not guilty by reason of insanity was an acquittal. In Langworthy v. State, 284 Md. 588, 399 A.2d 578, the Court of Appeals reversed that holding by this Court and determined that, under the circumstances here prevailing, the appellant was entitled to an appeal. Judge Orth there reasoned that the determination that the appellant was literally guilty of having committed the offense in question but was excused from the penal sanction by reason of his lack of criminal responsibility did subject him nonetheless to detention with the Department of Health and Mental Hygiene for purposes of examination, evaluation and possible confinement. If error inhered somehow in the trial process, Judge Orth reasoned, the appellant might upon appropriate appellate review be entitled to total exculpation and freedom and he should, therefore, be permitted to seek review toward that end. Accordingly, the case was remanded to this Court for consideration of the appellant’s original contentions.

Only one of them — the speedy trial issue — concerns us. The appellant has expressly abandoned his second contention dealing with Judge McCullough’s finding of April 22, 1977, to the effect that he was then competent to stand trial. The third contention, actually a set of contentions, was simply a broad fusillade of bald assertions not supported by factual predicate or legal argument and transparently empty of merit. Under Md. Rule 1031 c 4 and 5, we give no further consideration to this "grab bag” of unharnessed accusations.

Even with respect to the speedy trial issue, our focus is thankfully narrowed. The appellant was arrested on October 20, 1974; he was tried on July 29, 1977, 33 months later. Self-evidently, this is enough to trigger a speedy-trial analysis under the four factors set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). When we undertake that four-factored analysis, the length of delay of 33 months is very significant. With respect to "demand-waiver,” the appellant made numerous motions to dismiss the indictment against him on the grounds that he had been denied his right to a speedy trial. His actions were frequently inconsistent with his pleadings in this regard, as will he more fully discussed hereinafter, but his motions were more than sufficient to alert everybody to the fact that "speedy trial” was unmistakably an issue in this case. With respect to prejudice, the appellant did not affirmatively establish nor did the State affirmatively negate any actual prejudice, but the presumptive prejudice arising from a delay of 33 months is substantial in and of itself. This entire case rises or falls upon our consideration of the single factor of reason for the delay or fault.

Our holding, without a minute parsing day-by-day of this thousand-day triennium, is that virtually the entire period of delay is attributable to the appellant. This attribution to him breaks down into two parts, which will be considered separately. A large part of the delay was caused affirmatively by him. Another significant period of delay — that involved first in the evaluation of his competency and then the deferral of the trial during his period of incompetency — was exclusively for his benefit.

With respect to the first basic source of delay, we observe that this record is choked with scores of variegated pleadings, hundreds upon hundreds of tightly-scripted pages of pro se letters, and a number of agonizing suspensions of this litigation while the defendant called "time out” to pursue interlocutory appeals to this Court or to seek redress in the federal courts. It would be an exercise in futility to inventory them all. In essence, the appellant was a loose cannon upon the trial deck, and his chaotic lurchings made the orderly passage of his case impossible. Every constituent element of the criminal justice system extended itself commendably to move this case forward but was continuously frustrated by the appellant’s strewing of procedural obstacles in the path, compounded by his obstreperous and truculent disruptiveness at every turn.

The crime in this case occurred on October 19, 1974. The appellant was arrested on October 20. He was indicted on October 30. He was arraigned on November 7. The Office of the Public Defender entered an appearance on his behalf on November 13. On November 21, a trial date was set for a jury trial on January 21, 1975. Meanwhile, on December 2, 1974 the appellant posted bond and was released. When the case came on for trial on January 21, 1975 the appellant failed to appear. The bond was forfeited, and a bench warrant was issued for his arrest. On February 13, the case was stetted, but the bench warrant remained in effect. On April 1, the appellant was turned in by his bail bondsman, and on April 3, the case was taken from the stet docket and reopened. On April 10, defense counsel refiled his appearance. During all of this period of time, no fault of any sort lies remotely at the doorstep of the State. Any delay was directly attributable to the appellant’s absconding.

On April 30, 1975, a notice was sent to counsel setting a new trial date of July 22. In the meantime, the appellant had on April 22 filed a motion to dismiss the indictment for lack of a speedy trial and filed an additional motion to have his bail bond, which had been forfeited, reinstated. A hearing was held on this latter motion on May 8, and the motion was denied. On that same occasion, however, the defense filed a motion to require the rape victim to undergo a psychiatric examination. On that same day, the appellant’s counsel filed a motion to strike his appearance, averring that the "defendant has lost confidence in petitioner’s representation of him; that petitioner does not feel that he can represent defendant in the manner defendant wishes.” In the course of the proceedings that day, the court came to the conclusion that the appellant might not be competent to stand trial. Out of the appellant’s presence, a discussion took place between the judge and counsel concerning the advisability of a competency examination. When the appellant learned of this, he filed a motion on May 14 in opposition to such examination on the grounds that he had not had the opportunity to be heard on this question and that there was no evidence to suggest that he was incompetent.

On May 15, the appellant filed a motion alleging that his counsel was incompetent. On May 20, the judge refused to permit defense counsel to withdraw from the case, and he set a hearing date of May 26 for all pending motions. Ail motions were denied on that date.

On June 3, 1975, the appellant filed, pro se, an appeal to this Court from these various denials. On July 3, he filed with the Court a letter excoriating the Office of the Public Defender for its "totally absurd, misrepresentative and inaccurate letter” indicating that the appeal was premature. By way of vindicating that judgment, however, this Court dismissed the appeal as premature by its order of July 11, 1975. In the meantime, the entire record in the case had been transmitted to this Court on July 10.

On June 20, the appellant moved to dismiss the indictment for lack of a speedy trial. On that same day, he moved to have the case transferred to federal court. He had earlier, on June 4, petitioned for a writ of habeas corpus. On that same June 4, he had written the Public Defender accusing him of "an appalling, scandalous sham and mockery of justice” and threatened "to expose the corruption of your office in open court.” On June 24, he also petitioned, pro se, to have his case removed from Prince George’s County to Anne Arundel County. On that same June 24, he asked for a continuance with respect to the July 22 trial date. On June 25, he petitioned for the right to represent himself.

After this Court dismissed the appeal as premature on July 11, the appellant’s original counsel was permitted to withdraw his appearance on July 14, and substitute counsel from the Public Defender’s Office was assigned to represent him. As the trial date of July 22 approached, the appellant filed additional motions to suppress evidence and to have a Psychological Stress Evaluation Test performed upon him. Raising various and sundry other points, he had filed with the trial court a lengthy letter on July 4, a second lengthy letter on July 5, and two additional letters on July 9. Three more letters were filed on July 17. Although numerous other communications clogged the process, these were the more prominent occurrences as Judge McCullough approached the trial date of July 22,1975. In court on that day, a hearing was held on all pending motions and those motions were denied. To that point, we have no difficulty in concluding that whatever delay there had been (and it was not yet inordinate) was attributable to the battles between the appellant and his own counsel; to the ill-advised, pro se filing of a premature appeal; to the unauthorized disappearance of the appellant for 10 weeks with its attendant "ripple effect” upon the rescheduling process; and to the absolute inundating of the trial court with every conceivable variety of motion known to the "jailhouse bar.”

At the July 22 hearing, the second basic source of delay in this case first appeared. The appellant appeared wearing a blindfold at his own insistence and informed the court that he was going to represent himself. Following a harangue about the conspiracy afoot among various judges and other public officials to deny him his rights, the court expressed its sua sponte concern about his competency to stand trial and ordered him referred to the Clifton T. Perkins State Hospital for an evaluation in that regard. The referral order also mentioned the fact that the appellant had in 1973 been committed to a mental hospital in Massachusetts following a judicial determination that he had been mentally ill at the time of a previous rape allegedly committed by him. The appellant strongly opposed the competency evaluation on the grounds that it would violate his religious beliefs and that "it is obvious that I am competent to stand trial.”

On October 5, Perkins notified the court that, in the opinion of the Perkins staff, the appellant was competent to stand trial. The appellant takes umbrage at the last 45 days of this 75-day period, charging that it was in excess of the 30 days permitted Perkins to report back to the court. The appellant certainly did not help to expedite his diagnosis in view of his July 22 letter to Judge McCullough indicating that he would "very politely refuse to cooperate with an involuntary mental competency exam.” At the more fundamental level, we are guided by the reasoning of Judge Lowe in Wilson v. State, 44 Md. App. 1, 11, 408 A.2d 102:

"This delay — almost 3 months — resulted from appellant’s entry of pleas of not guilty by reason of insanity in both cases. The insanity defense necessitated a psychiatric evaluation which took 2 months to complete. This is not part of an ordinary trial and was initiated for appellant’s benefit. It can hardly be weighed against the State. Appellant’s reliance on State v.Hiken, 43 Md. App. 259 (1979), is misplaced. Although this Court held that appellants should not be penalized for delays caused by technical defenses, we did not hold that the State should bear the brunt. The month delay between filing of the report and the scheduling of a trial date is also reasonable. The system is not expected to respond to such defense oriented deferrals with immediacy, rather only expeditiously.”

We also find persuasive in this regard the concurring opinion of Judge O’Donnell in Smith v. State, 276 Md. 521, 537-539, 350 A.2d 628. See also Baldwin v. Warden, 243 Md. 326, 328-329, 221 A.2d 73; Ricon v. Garrison, 517 F.2d 628 (4th Cir. 1975).

Even from the confines of Clifton T. Perkins, the paper barrage continued unabated. On August 14, the appellant notified the court of his motion to remove his case to the United States District Court. On August 19, he requested a postponement of his trial that had tentatively been set for September 18, thereby belying his current contention that the extra days at Perkins denied him a speedy trial. Indeed, in the course of this letter, he affirmatively requested that he "should remain at Clifton T. Perkins Medical Center” rather than be returned "to the unconstitutional hell-hole” of the Prince George’s County Detention Center.

Following the receipt of the report on competency, a trial date was set for November 19. On November 18, a pretrial hearing was held at which six of the appellant’s motions were denied, including his motion to dismiss his second assigned counsel. Rulings on three other motions were deferred until the time of trial. One motion, not here pertinent, was granted. More significantly, a joint motion by both the appellant and the State to postpone the trial scheduled for November 19 was granted. A new trial date was set for January 12, 1976. To this point, virtually every day of delay has been at the request of the appellant, caused by the appellant, or for the benefit of the appellant, notwithstanding his repeated claims that he had been denied a speedy trial.

The delay entered an entirely new phase on January 12. On that day, over the appellant’s objections, defense counsel wisely entered the ultimately prevailing plea of not guilty by reason of insanity. Defense counsel also alleged, over appellant’s objection, that the appellant was not competent to assist in his own defense. Judge McCullough referred the appellant to Perkins for evaluations on both issues. Within the required 60 days on this occasion pertinent, Perkins reported that the appellant was both insane at the time of the offense and incompetent to stand trial. The Perkins examination revealed a four-year history of psychotic disorganization; "persecutory, paranoid and grandiose delusions”; the belief by the appellant that he was the victim of a plot to murder him and a further belief that he had "a divine mission to accomplish.” He was further diagnosed as dangerous. By court order of April 1, he was committed to the Department of Health and Mental Hygiene until such time as it determined him to be competent to stand trial. In the meantime, the appellant had filed another pro se motion to continue the January 12 trial date and to dismiss his counsel.

As to the propriety of defense counsel’s urging of incompetency over the appellant’s express and vigorous objections, we are guided both by inherent logic and the reasoning of Judge Scanlan for this Court in White v. State, 17 Md. App. 58, 63, 299 A.2d 873:

"Instances will arise where an obviously incompetent defendant attempts to withdraw an insanity plea which his counsel previously had entered in his behalf. ... In such a case, it would be the duty of trial counsel and the responsibility of the court to prevent the improvident withdrawal of the insanity plea. The basic question is one of fundamental fairness, i.e., of insuring that a mentally incompetent defendant is not convicted for a crime he committed at a time when he lacked the requisite mental competency.”

Judge Melvin spoke to a similar effect in Riggleman v. State, 33 Md. App. 344, 350-351, 364 A.2d 1159:

"[0]nce an insanity plea is filed, both trial counsel and the court have a responsibility to see that it is not improvidently withdrawn, even at the request of an accused.”

It was 14 months after the January 12,1976 referral — on March 11, 1977 — that Perkins deemed the appellant again competent to stand trial, albeit not without reservation. As is required by Art. 59, § 23, Judge McCullough scheduled a competency hearing for April 22. At that hearing, the judge ruled that the appellant was competent beyond a reasonable doubt.

It is the appellant’s spurious but clever argument with respect to this 15-month period between the January 12, 1976 referral to Perkins and the April 22, 1977, finding of competency that calls for some analysis of first impression. Before turning to it, however, we will chronicle the waning phases of this 33-month epoch. On April 22, 1977, Judge McCullough could not move forward with an immediate trial on the merits but stayed the proceedings pending the final determination as to the appellant’s request for removal to the United States District Court. After the federal court declined to assume jurisdiction over the case, Judge McCullough ordered on May 18 that the trial be set for July 12. Following the appellant’s unsuccessful efforts on July 12 to dismiss his lawyer and then to have himself appointed as co-counsel, the trial was continued until July 28 because of the unavailability of a sufficient number of jurors. This final 16-day delay was by no means the fault of the appellant. The verdicts on the merits were rendered by Judge McCullough on July 29.

It is the appellant’s prime contention, on the speedy trial issue, that the 15-month period spent at Perkins 1) while his competency was being evaluated and 2) while he was deemed incompetent should be charged against the State. He reasons that his confinement was illegal and denied him due process of law. Part of his argument in this regard is that the determination of incompetency was made over his objection. As a simple exercise in logic, this contention falls of its own weight. One found to be incompetent is, ipso facto, incompetent to object to that finding of incompetency. The Supreme Court so observed in Pate v. Robinson, 383 U.S. 375, 384, 86 S. Ct. 836, 15 L. Ed. 2d 815, 821 (1966), "[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive’ his right to have the court determine his capacity to stand trial.” The law is clear, moreover, that the issue of incompetency may be raised by defense counsel even over the objection of the defendant (as it was in this case), by the prosecutor or by the court sua sponte. Art. 59, § 23; White v. State, supra; Riggleman v. State, supra. The very same body of case law makes the cognate point that any delay occasioned by either the evaluation of incompetency or confinement of an incompetent pending his return to competency is not chargeable against the State for speedy trial purposes. The American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial (Approved Draft, 1968) recommends in § 2.3 (a), in pertinent part:

"2.3 Excluded periods.
The following periods should be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on competency and the period during which he is incompetent to stand trial . . . .”

Citing these ABA standards, Hodges v. United States, 408 F.2d 543 (8th Cir. 1969), per Judge Blackmun (now Justice Blackmun of the Supreme Court), pointed out that, "With Hodges’ competency appropriately in question, any deferment of the trial for the 88-day Springfield period is no part of an unreasonable delay.” 408 F.2d at 548. In United States v. Pate, 351 F.2d 910 (7th Cir. 1965), the court dealt with a defendant’s contention that a five-year detention in a mental hospital had deprived him of his right to a speedy trial. The court held otherwise, at 351 F.2d 912:

"The petitioner had been adjudicated insane. Delay in trial until he was adjudicated sane was not unreasonable delay. There was no violation of his Constitutional right to a speedy trial.”

Cf. Germany v. Hudspeth, 209 F.2d 15, 19 (10th Cir. 1954).

The Texas Court of Criminal Appeals held to a similar effect in Grayless v. State, 567 S.W.2d 216, 220 (1978):

"Soon after his arrest appellant was transferred to Villa Rosa mental hospital, where he spent five months undergoing examination and treatment. Delays encountered in bringing a defendant to trial who claims to be incompetent or who is temporarily incompetent ordinarily do not infringe on the right to a speedy trial.”

In State v. Warren, 224 Kan. 454, 580 P.2d 1336, 1338 (1978), the Supreme Court of Kansas made a similar finding and in the course thereof analogized the competency determination to the insanity determination:

"[T]he time between the filing of a motion for a psychiatric examination and the date on which the psychiatrist’s report is received are properly chargeable against the defendant. Although Powell [State v. Powell, 215 Kan. 624, 527 P.2d 1063 (1974)] involved a psychiatric examination in connection with a proposed insanity defense and not an examination to determine competency, the principle is the same.”

See also In re Severns, 330 P.2d 752 (Okla. Crim. App. 1958).

The cases are legion in holding that once an accused has been determined to be incompetent, the deferral of his trial pending a return to competency does not offend any right to a speedy trial under the Sixth Amendment. Howard v. United States, 261 F.2d 729 (5th Cir. 1958); Commonwealth v. Bruno, 435 Pa. 200, 255 A.2d 519, 522 (1969) ("Appellant also submits that his commitment to Farview State Hospital for an indefinite period violates his constitutional right to a 'speedy trial.’ All the authorities our research has uncovered indicate that the federal constitutional guarantee of a speedy criminal trial does not require that an incompetent accused be tried.”); People v. Cole, 66 Ill. App. 3d 210, 383 N.E.2d 613, 614 (1978) ("[T]he time period during which an accused must be tried tolls during the period when he is unfit to stand trial.”); State v. Violett, 111 N.W.2d 598, 603 (S.D. 1961) ("Unless there was more delay than was reasonably attributable to mental incompetency to stand trial, the delay was consistent with the ordinary processes of justice and would not entitle accused to discharge.”).

The appellant, however, adds a wrinkle not present in these other determinations. He claims that the special reason why his particular confinement during the period of his alleged incompetency must be held against the State for speedy trial purposes is that the determination made by Judge McCullough in that regard on April 1, 1976 offended due process of law. He argues that a hearing was not conducted as is required by Art. 59, § 23, that he was not permitted to be present and to contest that finding, and that he was not proved to be incompetent beyond a reasonable doubt. What the appellant manages to do in this argument is to take all of the safeguards designed to protect an incompetent from standing trial and turn them upside down.

With respect to the necessity for a hearing, all competent and responsible parties were agreed that the appellant was incompetent and no such adversary hearing was required. It was defense counsel who raised the issue of the appellant’s incompetency. The trial judge agreed that that was probably the case. The prosecutor was perfectly acquiescent in such a determination. The report from Clifton T. Perkins was unequivocal that the appellant was incompetent. The only person who now claims that he should have been permitted to contest the finding of incompetency is the one person who, by virtue of that incompetency, was ineligible to participate in or contribute to an adjudication in any way.

We hold, moreover, that the hearing required by Art. 59, § 23, once competency is a genuine issue in the case, is a hearing at which the trial judge must be satisfied beyond a reasonable doubt that the defendant is competent before the defendant may be required to go forward and stand trial. Colbert v. State, 18 Md. App. 632, 308 A.2d 726; Rozzell v. State, 5 Md. App. 167, 245 A.2d 917; Strawderman v. State, 4 Md. App. 689, 244 A.2d 888. This is the thing that was done by Judge McCullough on April 22, 1977, when he found beyond a reasonable doubt that the appellant was competent and when he required the trial process to resume its movement. Such a requirement by no means suggests, by necessary implication, the converse requirement of such a hearing or such a burden of proof before trial is deferred on the grounds that a defendant is incompetent. Due process protects an incompetent defendant from being forced to the trial table, not from being withheld from the trial table. The Supreme Court pointed out in Pate v. Robinson, supra, at 383 U.S. 378, that, "The conviction of an accused person while he is legally incompetent violates due process.” As Judge Horney pointed out for the Court of Appeals in Hamilton v. State, 225 Md. 302, 307, 170 A.2d 192, "The basic purpose of these code sections ... is and has always been paternalistic in nature.” The federal cases as well point out that such statutes are designed to protect defendants, where competency is in doubt, from having to stand trial, not vice versa. United States v. Miller, 131 F. Supp. 88 (D. Vt. 1955); United States v. Muncaster, 345 F. Supp. 970 (M.D. Ala. 1972).

The thrust of all of the case law is that the deferral of trial and even the hospitalization of the defendant until there has been an appropriate determination that such defendant is, indeed, competent is not punishment or penal sanction of any sort but is solely for the benefit of the defendant. The requirement of a hearing meeting due process standards before there can be a finding of competency, the allocation of the burden of proof to the State to show competency and the quantifying of that burden at the "beyond the reasonable doubt” level all reveal the unmistakable tilt of the law toward a finding of incompetency rather than of competency, when in doubt. The State, as a self-evident truism, cannot be required to prove competency beyond a reasonable doubt before a trial may proceed and also to prove incompetency beyond a reasonable doubt before trial may be deferred. Thus, the failure to persuade the hearing judge beyond a reasonable doubt that a defendant is competent, the legal failure of proof in that regard or the procedural failure to conduct a proper hearing in that regard all result in a continued state of presumptive incompetency. All doubts and ambiguities are, as a matter of law, resolved in favor of incompetency. If the hearing judge is simply not persuaded one way or the other by equivocal evidence, even if he is persuaded by a preponderance of evidence that a defendant is competent or, yet more, he is persuaded clearly and convincingly that a defendant is competent, he must still find the defendant incompetent absent persuasion beyond a reasonable doubt in the other direction. In summary, all of the safeguards shielding a possibly incompetent defendant from the trial process cannot be turned around the other way without, by that very process, destroying those interests which those safeguards were designed to protect.

Upon our assessment that even the lengthy delay in this case was in major measure either caused by the appellant himself or occasioned by provisions of our law intended to benefit the appellant, we find no denial of his Sixth Amendment right to a speedy trial.

Judgment affirmed; costs to be paid by appellant.

      . We do note, however, that a plea of not guilty by reason of insanity was not filed on the appellant’s behalf until January 12,1976, almost 15 months into the period of delay. It was then done over the appellant’s objection and by the second generation of defense counsel. In view of the subsequent verdict of guilty upon the merits but not guilty by reason of insanity, it appears, ironically, that the appellant, rather than being prejudiced, benefited immensely from this delay. In view of our disposition of the case upon our consideration of the "reason for delay or fault” factor, however, it is unnecessary to explore further this interesting but immaterial phenomenon.

      . We will not quibble with the appellant over the fact that the July 22 order did not direct that the appellant be delivered to Perkins until July 28. Six days more or less are not critical.

      . In any event, the excess 45 days or 39 days (as the case may be) is inconsequential in looking at the total picture.

      . Before abandoning his second contention, the appellant attempted to make the State assume such a mission impossible. Even as he was maintaining on this contention that he should not have suffered a trial deferral because of the inadequate establishment of incompetency, he urged under his second contention that he was improperly forced to trial because of the inadequate establishment of competency.


author: Mason, J.,

text:
    GERRY POTTER’S STORE FIXTURES, INC. v. ZEV COHEN t/a Naturally Good Yogurt Shop
    [No. 702,
    September Term, 1979.]

      Decided July 9, 1980.

      The cause was submitted on briefs to Morton, Mason and Wilner, JJ.
    Submitted by Melvin L. Schneider for appellant.
    Submitted by Paul T. Stein for appellee.
   Mason, J.,

delivered the opinion of the Court.

In this case we are asked to decide whether the trial court erred in determining that the written contract between appellant, Gerry Potter’s Store Fixtures, Inc. (Potter) and appellee, Zev Cohen, t/a Naturally Good Yogurt Shop (Cohen) was illegal and unenforceable because Potter held himself out as an architect, used the designation of architect, and practiced architecture in violation of Article 43, section 515 of the Maryland Code (1957, 1980 Repl. Vol.) which provides:

"It is hereby declared that in order to safeguard life, health, public safety and property and to promote the public welfare by requiring that only properly qualified persons shall hold themselves out as architects or be permitted to use the designation of'architect’ or be permitted to practice architecture in the State of Maryland, such persons shall be compelled to submit evidence that they are qualified to practice architecture and shall be registered as hereinafter provided.”

Section 516 (b) defines the term "architect” as a person registered by the Maryland Architectural Registration Board for the practice of architecture, and section (e) defines the term "practice of architecture” as follows:

"[A]ny service or creative work the performance of which requires architectural education, training and experience in such services as consultation, investigation, evaluation, planning, architectural design and preparation of related documents, coordination of services furnished by structural, civil, mechanical, electrical engineers and other consultants in connection with the construction of any building or integral part or parts thereof or any addition or alteration thereto.”

We think it clear that section 515 proscribes any person not registered by the Maryland Architectural Registration Board for the practice of architecture in this State from holding himself out as an architect, using the designation of architect, or practicing architecture. The criminal sanction for engaging in the practice of architecture without a license is a fine not exceeding $3,000.00 or imprisonment of not more than one year, or both. Section 526, Article 43.

The statute does not speak to the validity or enforceability of a contract entered into by an unregistered person. However, in Snodgrass v. Immler, 232 Md. 416 (1963) this question was specifically answered. There Snodgrass held himself out as an architect and performed architectural services for Immler who knew he was unregistered. In denying Snodgrass from recovering under the contract for architectural services, the Court of Appeals quoted the following from Goldsmith v. Mfrs.’ Liability I. Co., 132 Md. 283, 286 (1918):

" '* * * a contract entered into by an unlicensed person engaged in a trade, business or profession, required to be licensed, and made in the course of such trade, business or profession, can not be enforced by such person, if it appears that the license required by the statute is, in whole or in part, for the protection of the public, and to prevent improper persons from engaging in such trade, business or profession.’ ”

Id. at 421-422.

The Court also quoted with approval from the case of Kirschner v. Klavik, 186 A.2d 227 (1962) where the Municipal Court of Appeals for the District of Columbia in a case denying a claim for architectural services by an unregistered architect, said:

"'Generally, a contract made in violation of a Maryland statute designed for police or regulatory purposes is void and confers no rights upon the wrongdoer. Neither can the wrongdoer sue in quasi-contract for the value of his services or for the value of the benefits conferred upon the other party. This is true even where, as was shown here, the appellants entered into the contract with appellee knowing he was not duly licensed under the local statute as an architect.* * * ’ ”

Id. at 423.

Authorities in most jurisdictions have reached the same conclusion.

See Sweet, Legal Aspects of Architecture, Engineering and the Construction Process, section 31.07 (1970); see also Harry Berenter, Inc. v. Berman, 258 Md. 290 (1970) where the Court of Appeals denied enforcement of a mechanics lien for work done and materials furnished because the contractor was not licensed pursuant to the Maryland Home Improvement Law, Code (1957), Article 56, §§ 245-269.

In this case, Potter, a licensed contractor in Prince George’s County, entered into a written agreement with Cohen to convert a clothing store into a yogurt shop. Prior to signing the contract, Potter prepared certain lay-out drawings to clarify for Cohen the placement of fixtures, color scheme and type of materials, and to use in procuring the required building and other permits. The contract price for the renovation was $10,000. Cohen paid Potter $7,600, but refused to pay the $2,400 balance. Potter then brought suit for the remainder of the contract price.

According to the testimony of Potter, he has known Cohen for approximately five years and had performed several jobs for him. Although he took architectural drawing, mechanical drawing and drafting in high school, he did not hold himself out as an architect and Cohen knew he was not an architect. Moreover, the work done for Cohen did not require the services of an architect, nor did he charge Cohen for the drawings he prepared. Potter admitted that in preparing the contract on a standard printed form, he typed his initials "GWP” on that part of the contract designated for the name of the architect. He did not explain, nor was he asked to explain, the reason he typed his initials on that part of the contract.

In granting Cohen’s motion to dismiss after Potter had presented his case, the court said:

"However, with respect to the motion to dismiss on the ground that the plaintiff has held himself out to be an architect, the Court is in great sympathy with the Plaintiffs actions in this matter and feels that the drawings made undoubtedly were for the procurement of certain licenses, depicting the type of materials, the color schemes and quality of materials. The damaging evidence however is the fact that by the Plaintiffs own admission and on his contract prepared by him, he has classified himself as an architect and as the architect’s initials 'GWP’ being George W. Potter under the classification of an architect, and when he holds himself out to be an architect and actually prepares services and creative work with respect to this particular job, he was in fact an architect and I’ll have to grant the motion to dismiss. The statute is very harsh and provides nothing even for quantum meruit remuneration.
"The motion to dismiss except for judgment for Plaintiff in the amount of $650 is granted.”

Although the trial court apparently found that Potter held himself out as an architect, used the designation of architect and engaged in the practice of architecture, the undisputed evidence shows that Potter was not an architect, did not hold himself out as an architect, and did not induce Cohen by conduct or any other means to believe he was an architect. Moreover, we do not believe the work performed by Potter in remodeling and converting a clothing store into a yogurt shop is the type of service or creative work requiring architectural education, training and experience as contemplated by the statute. The work and services contracted for and performed by Potter were more akin to that of a building contractor than that of an architect. Further, even if we assume that some of the work incidental to the performance of the contract was architectural in nature, section 520 of Article 43 exempts from registration as an architect "those persons customarily engaged in contract work who perform the administration of construction contracts, but no person shall use the designation 'architect’ unless licensed in accordance with the provisions of this subtitle.”

Having determined that Potter did not hold himself out as an architect and the work and services performed did not amount to the practice of architecture, we turn to what we consider the critical issue — did Potter use the designation of architect in violation of the statute?

We think it clear that under a literal interpretation of the statute, when Potter typed his initials in a space provided in the contract for the name of the architect, he used the designation of architect. We do not believe, however, that the use of the term "architect” under the facts and circumstances of this case is a sufficient basis, standing alone, to preclude Potter from recovering under the contract for the work and services performed. There is no evidence that Potter used the term "architect” as part of his business name or title or that he represented himself to the public as an architect.

The evident purpose of the statute is to protect the public from misrepresentation and fraud. There was no misrepresentation or fraud here. In Schloss v. Davis, 213 Md. 119 (1957), the Court of Appeals said:

"It is the general rule that recovery will be denied if a contract is illegal in purpose or made by a person lacking the legal qualifications to contract. F.S. Bowen Elec. Co. v. Foley, 72 S.E.2d 388 (Va.). Cf. Goldsmith v. Mfgrs’ Liability I. Co., 132 Md. 283. See also Note 118 A.L.R. 676. But there is a recognized exception in cases where a denial of recovery would impose a penalty out of all proportion to the public good, particularly where the violation is not of a serious nature and merely incidental to the performance of the contract.” (Other citations omitted.) Id. at 125.

We think the violation here falls within the ambit of the above exception. Accordingly, we reverse.

Judgment reversed.

Costs to be paid by appellee.

      . "(1) Take old Store.
      (2) Construct the new store supplying the tile floors, new partitions, new ceiling, all paint and wall coverings, all lighting and electric for single phase equipment, and the counters and back counters of plastic laminat construction. Also the mirrors and roll up grill at the front of store.
      (3) Installing of equipment is included but the equipment is not.”

      . Potter also brought suit and was awarded a judgment in the amount of $650 for work done on a "corndog” machine pursuant to an oral agreement. This judgment is not an issue on appeal.