Appeal from the Circuit Court for Baltimore City. Wanda K Heard, Barry G. Williams, Judges.
Argued by: Robert Taylor, Jr. (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellant.
Argued by: Amy E. Brennan (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore MD for Appellee.
Eyler, Deborah S., Zarnoch, Sharer, J. Frederick (Retired, Specially Assigned), JJ.
[218 Md.App. 673] Sharer, J.
In these consolidated appeals, the State challenges related decisions by the Circuit Court for Baltimore City to dismiss two indictments charging Devin Ferguson, appellee, with handgun offenses.
In August 2011, the State indicted Ferguson on three firearms charges, including two counts of possessing a firearm after having been convicted of a disqualifying crime. When the parties appeared for trial in February 2012, Ferguson complained that the indictment failed to identify his predicate conviction and contained other ambiguities, but trial was postponed for lack of a courtroom. In the interim before the rescheduled trial date, Ferguson filed a motion to dismiss the indictment, and the State, " out of an abundance of caution," obtained a superseding indictment charging him with the same offenses, specifying the predicate conviction, and eliminating the ambiguities about which Ferguson complained. We shall refer to the original indictment as the 2011 Indictment and the superseding indictment as the 2012 Indictment.
When the parties appeared on the rescheduled trial date, the prosecutor advised that the State was prepared either to proceed on the 2011 Indictment, to amend that indictment, or to nol pros the original indictment and proceed on the 2012 Indictment. The circuit court disapproved of the State having filed the superseding indictment without notifying either the court or defense counsel until the parties appeared for trial. [218 Md.App. 674] The court ruled that the 2011 Indictment was defective and dismissed it " with prejudice." The State appeals that judgment, in No. 576, Sept. Term 2012.
Ferguson thereafter moved to dismiss the 2012 Indictment on the ground that dismissal of the 2011 Indictment " with prejudice" precludes the State from proceeding on the 2012 Indictment. The court granted the motion. The State appeals that judgment, in No. 2184, Sept. Term 2012.
These consolidated appeals collectively present the following questions:
1. Did the court err in dismissing the 2011 [I]ndictment against Ferguson " with prejudice" ?
2. Did the court err in dismissing the superseding 2012 [I]ndictment against Ferguson?
We answer both questions " yes," agreeing with the State that the circuit court erred in dismissing the original 2011 Indictment " with prejudice" and in dismissing the superseding 2012 Indictment on the basis of that erroneous ruling.
FACTS AND LEGAL PROCEEDINGS
When Ferguson was arrested on August 2, 2011, he was allegedly in possession of a handgun. On August 30, 2011, a Baltimore City grand jury indicted him on three charges:
Count 1: possessing a regulated firearm after having been convicted of a disqualifying crime of violence or drug crime, in violation of Md. Code, § 5-133(c) of the Public Safety Article;
Count 2: wearing, carrying, or transporting a handgun, in violation of Md. Code, § 4-203 of the Criminal Law Article (" Crim." ); and
Count 3: possessing, owning, carrying, or transporting a firearm after having
been convicted of a felony, in violation of Crim. § 5-622(b).
This 2011 Indictment, filed in Case No. 11242001, was scheduled for trial on February 17, 2012.
[218 Md.App. 675] On that date, before jury selection began, defense counsel complained that Counts 1 and 3 of the 2011 Indictment failed to identify the predicate disqualifying conviction. The prosecutor acknowledged the omission but argued that the indictment was not defective because of it and informed the court that Ferguson's disqualifying conviction was for possession of a controlled dangerous substance with intent to distribute. Although both sides were prepared for trial, no court was available, and trial was postponed until April 6, 2012. Explaining that it did not have time to conduct a full hearing on Ferguson's oral motion to dismiss Counts 1 and 3, the court advised defense counsel to file a written motion, which was likely to be heard on the rescheduled trial date.
Defense counsel did so on February 27, 2012. Instead of filing a written response to that motion, as would have been appropriate, the State obtained, on March 30, 2012, a superseding indictment that identified the predicate conviction and clarified other language.
When the parties appeared on April 6, 2012, defense counsel complained that he had not been served with the new indictment and had only learned of its existence the previous day at 4:30 p.m., when he received an email with an attachment that he could not open. Defense counsel again asked the court to dismiss Counts 1 and 3 of the 2011 Indictment and to send the case out for trial on Count 2.
The prosecutor explained that she did not file an opposition because, based on the court's earlier remarks, her impression was that " you were going to let the trial court decide that issue." She maintained that the original 2011 Indictment was not defective and that the 2012 Indictment had been filed " in an abundance of caution" after defense counsel challenged the 2011 Indictment. She advised that Ferguson was scheduled to be arraigned on the 2012 Indictment on May 16, 2012. In light of defense counsel's complaints, the prosecutor suggested that Ferguson had a choice between (1) proceeding to trial that day, either on the original 2011 Indictment or an amended version of it substantially in the form of the 2012 Indictment; [218 Md.App. 676] and (2) awaiting arraignment on the 2012 Indictment, then proceeding to trial in that case.
The court inquired whether the State would enter a nolle prosequi on Count 2, and defense counsel inquired whether Ferguson would be released from custody if all of the charges in the first case were either dismissed or nol prossed. The prosecutor responded that if trial did not proceed that day on all counts of the 2011 Indictment, the State would nol pros any remaining counts and continue to hold Ferguson under the 2012 Indictment, which was linked to the same tracking number as the original indictment. Defense counsel insisted that it would be " completely unfair" to " step back into arraignment court on this," in light of the fact that Ferguson would remain incarcerated, the defense had six witnesses prepared to testify that day, and the case had already been postponed beyond the Hicks deadline.
At that point, the court inquired why the State had obtained the superseding indictment, pointing out that the omission of the predicate conviction in the original indictment should have been corrected " way before" the rescheduled trial date. The Assistant State's Attorney reiterated that the State believed that the original indictment was ...