Wynn v. State

¶1Concurring Opinion by

¶2which BATTAGLIA, and GREENE, JJ., join.

¶3I agree with the result in this case, but I believe that some additional explanation is required.

¶4I concur entirely with the Court’s holding that a Maryland trial court has no conferred or inherent authority to dismiss a criminal case merely because a prosecutor has violated some provision of a scheduling order issued by the court.1 To hold otherwise would empower judges to control the prosecution of criminal cases by the simple device of placing arbitrary and largely unreviewable requirements in scheduling orders — requirements that, in some instances, may be incapable of satisfaction by the State. This case illustrates that very problem. To dismiss an indictment because the prosecutor did not file a “line” within the time specified by the judge, even though the prosecutor acted reasonably and expeditiously to advance a retrial — which was the whole purpose of the order — is at least arbitrary and likely capricious as well.

¶5The solution to prosecutorial foot-dragging or arbitrariness was provided in Daff v. State, 317 Md. 678, 566 A.2d 120 (1989). On the morning of trial, the prosecutor, faced with the fact that witnesses that he had failed to summon were not in court and being denied a postponement, announced that he would neither proceed with the case nor enter a nolle prose*445qui. The trial court thereupon entered a verdict of not guilty. The State then filed a new criminal information charging the defendant with the same offenses. The trial court dismissed the information on double jeopardy grounds, and, when the Court of Special Appeals reversed that ruling on the ground that jeopardy had not attached, this Court, unanimously, reversed the intermediate appellate court and affirmed the trial court’s ruling. In addressing the State’s argument that a court has no authority either to dismiss a criminal case or enter a verdict of not guilty in that situation, we said:

“If the trial judge had no authority to dismiss the action for lack of prosecution, acceptance of the State’s position would lead to the rather extraordinary result that the State could always secure a postponement simply by refusing to proceed. The court, in this situation, cannot force the State to enter a nolle prosequi. If the court is similarly without authority to dismiss the case for lack of prosecution, and, as the State maintains, cannot enter a binding verdict of acquittal, the State would be able to cause an impasse that would necessarily result in a delay until such time as the State felt it was ready to proceed. That result would be untenable. The court has authority to control its docket, and it may force the State to proceed to trial or to enter a nolle prosequi when the case is called for trial on a regularly assigned trial date. Failure of the State to produce any evidence at the trial will necessarily result, as it did here, in an acquittal.”

¶6(Emphasis added). See also Farrell v. State, 364 Md. 499, 774 A.2d 387 (2001).

¶7Therein lies the manner in which a court may properly control its docket. The judge in this case, in conformance with trial assignment procedures applicable in the Circuit Court for Montgomery County, could have set, or directed the setting of, a date for the retrial. Had he done so, the retrial would no doubt have proceeded and we would not be faced with this appeal. Had the prosecutor sought and been denied a postponement and then petulantly (or impetulantly) refused to proceed, the court could, and, indeed, would have been *446required to, enter a verdict of not guilty based on insufficiency of evidence. When a case is properly called for trial, the State is put to the burden of producing legally sufficient evidence to convict, and if it fails to produce such evidence, for whatever reason, acquittal is mandated.

¶8I can well appreciate a court’s need to know in advance whether a prosecutor intends to proceed with a new trial— there are always other cases pending and trial schedules need to be prepared in advance — and I have no problem with the court, in a scheduling order, insisting that the prosecutor inform the court within a reasonable time and by a certain date whether the State intends to proceed. If the prosecutor fails to comply with such an order, the court can simply set the case in for trial on a date it chooses and deal with the prosecutor’s dereliction in other ways. A formal or informal remonstrance, a complaint to the State’s Attorney if it is an assistant who has been derelict, or even, if the violation is deliberate or particularly egregious, a complaint to the Attorney Grievance Commission, should suffice. In the most serious cases, resort to the contempt rules may be appropriate. Dismissal of the case is not required to maintain either the dignity or the efficiency of the court.