Opinion
No. 99, September Term, 1971.
Decided October 20, 1971.
PRELIMINARY HEARINGS — Dismissal Of Indictment For Failure To Hold Preliminary Hearing After A Grand Jury Indictment Has Been Returned Is Improper — Basic Purpose Of Preliminary Hearing To Determine Whether To Hold Accused For Action Of Grand Jury — Preliminary Hearing Not Required In Maryland. pp. 204-205
APPEAL — Right Of State To Appeal — State's Right Of Appeal From Judgment Granting Motion To Dismiss Indictment Not Limited To Cases Where Dismissal Was Based On The Legal Sufficiency Of Indictment — Code (1957 Ed.), Art. 5, Sec. 14. p. 205
Appeal from the Circuit Court for Prince George's County (BOWIE, J.).
Larry Lamont Simms was indicted on charges of homicide and armed robbery after being incarcerated on said charges. A motion to dismiss indictment for failure to hold a preliminary hearing was granted after giving the State an opportunity to hold a preliminary hearing. The State appeals.
Order dismissing indictment reversed; indictment reinstated and case remanded for trial; appellee to pay costs.
Note: Certiorari denied, Court of Appeals of Maryland, November 15, 1971.
The cause was argued before MURPHY, C.J., and ORTH and MOYLAN, JJ.
James F. Truitt, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, and Edmond B. O'Connell, Assistant State's Attorney for Prince George's County, on the brief for appellant.
William R. Kearney for appellee.
On January 13, 1971 appellee Simms was incarcerated on charges of homicide and armed robbery. At a hearing held on January 15, 1971 before the People's Court for Prince George's County, the date of January 21, 1971 was set for appellee's preliminary hearing. On that date, the State requested a continuance to secure the attendance of a witness. The continuance was granted until January 28, 1971. On that date the State requested a further postponement on the ground that one of its witnesses was ill. The postponement was again granted to February 4, 1971, apparently on representations made by the prosecutor that the Grand Jury would not meet before that date and appellee would be afforded a preliminary hearing. The Grand Jury did, however, meet on February 2, 1971 and appellant was indicted for the offenses. On February 4 appellee was arraigned, at which time he moved to dismiss the indictment for failure to hold a preliminary hearing. A hearing was held on February 23, 1971 on the appellee's motion to dismiss, at the conclusion of which the court indicated that it would grant the motion unless the State afforded the appellee a preliminary hearing within thirty days. The preliminary hearing not being afforded within this period, the court granted appellee's motion to dismiss on April 5 and ordered the appellee released. The State promptly appealed.
The basic purpose of the preliminary hearing is to determine whether to hold the accused for the action of the Grand Jury. Kochel v. State, 10 Md. App. 11, and cases cited at page 13. And we have consistently held that a preliminary hearing is not required in Maryland, and that the Supreme Court's decision in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, does not compel a contrary holding. See Gerstein v. State, 10 Md. App. 322; Billings v. State, 10 Md. App. 31; Clemons v. State, 9 Md. App. 127; Coleman v. State, 8 Md. App. 65. As no proper purpose would be served by holding a preliminary hearing after a Grand Jury indictment has been returned, dismissal of the indictment for failure to hold such hearing is obviously improper.
Appellee claims that even if the court erred in dismissing the indictment, the State had no right to appeal. We disagree. In State v. Hunter, 10 Md. App. 300, we held that Maryland Code, Article 5, § 14, granting the State a right to appeal from a judgment granting a motion to dismiss meant precisely what it said and was not limited to cases where the dismissal was based on the legal insufficiency of the indictment. Appellee claims that the Court of Appeals of Maryland overruled our Hunter decision in an opinion filed on May 12, 1971. That opinion was, however, withdrawn by the Court of Appeals on July 1, 1971, Hunter v. State, 263 Md. 17, 278 A.2d 608, so that unless and until changed our decision in Hunter remains controlling.
Order dismissing indictment reversed; indictment reinstated and case remanded for trial; appellee to pay costs. Mandate to issue forthwith.