Argued: October 5, 2017
Court for Anne Arundel County Case No. 02-K-15-000553
Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty,
case confronts the question of when the State may exercise
its discretion to enter a nolle prosequi to a charge(s)
against a criminal defendant. After conviction and sentencing
in the Circuit Court for Anne Arundel County for conspiracy
to violate the Controlled Dangerous Substance laws, Leonard
Simms ("Mr. Simms") appealed to the Court of
Special Appeals. Before the Court of Special Appeals heard
oral arguments, the State, in the trial court, nol prossed
the charge underlying Mr. Simms' conviction and sentence.
Subsequently, the State moved to dismiss the case pending
before the Court of Special Appeals as moot. The Court of
Special Appeals determined that the case was not moot and
held that the State lacked the authority to nol pros a charge
underlying a conviction and sentence. Ultimately, the Court
of Special Appeals reversed the judgment of the Circuit Court
based on insufficient evidence. We review the issue of
whether the State had the authority to enter a nol pros of a
charge that resulted in a conviction and sentence. We affirm
the Court of Special Appeals, holding that because the
State's authority to nol pros applies only to charges,
the State may not use its nol pros authority to alter a final
judgment, i.e. conviction and sentence.
facts, taken from the parties' agreed-upon statement of
fact, have no bearing on the procedural posture of this case
and are included only for context. On February 9, 2015,
Officer Rajcsok investigated a report of individuals who had
not paid for hotel services after ejectment from the
property. The officer found Mr. Simms, along with another
suspect, in the vicinity of the hotel. The officer positively
identified Mr. Simms and discovered what he believed to be
heroin and cocaine among the items in close proximity to
where Mr. Simms was found. Mr. Simms was arrested, and it was
later discovered that Mr. Simms had ethylone, a Schedule I
Controlled Dangerous Substance, on his person.
State charged Mr. Simms on February 10, 2015, and a grand
jury returned a seven-count indictment on March 13,
2015. Mr. Simms filed a Motion to Suppress
drugs, which the Circuit Court denied on May 27, 2015.
Thereafter, Mr. Simms pled not guilty on November 5, 2015 in
the Circuit Court for Anne Arundel County, waived his right
to a trial, and proceeded on a previously agreed-upon
statement of facts. Before reading the statement of facts
into the record, the State orally amended the seventh count
of the indictment to possession with intent to distribute
methylenedioxymethamphetamine ("MDMA"). At the
conclusion of the proceeding, the trial judge found Mr. Simms
guilty of the amended count seven on the basis that Mr. Simms
had ethylone on his person at the time of arrest. At
sentencing, the State nol prossed the remaining six charges.
Subsequently, Mr. Simms noted a timely appeal.
the conviction and sentence of Mr. Simms was pending on
appeal, but before the deadline for briefing by the State in
the Court of Special Appeals, the State entered a nol pros in
the Circuit Court of count seven, the charge on which Mr.
Simms was convicted. Subsequently, the State moved to dismiss
the case pending in the Court of Special Appeals on the basis
that the case was moot due to its abandonment of count seven.
In a reported opinion, the Court of Special Appeals reversed
the judgment of the trial court. Simms v. State, 232
Md.App. 62, 71, 155 A.3d 937, 942-43 (2017). First, the Court
of Special Appeals determined that the case was not moot
because the State lacked authority to enter a nol pros of a
charge after the defendant had been convicted of and
sentenced for that offense. Id. at 71, 155 A.3d at
942. Then, the Court of Special Appeals reversed the trial
court, holding that evidence of ethylone was insufficient to
support a conviction and sentence for conspiracy to
distribute MDMA. Id. at 71, 155 A.3d at 943.
State petitioned this Court for certiorari, which we granted
to answer the following questions:
1. As a matter of first impression, does the State have the
authority to enter a nolle prosequi on a charge after a
2. If the State does have the authority to do so, was
Simms' appeal moot because the State entered a nolle
prosequi in the circuit court as to the entire case, without
State v. Simms, 453 Md. 357, 162 A.3d 838 (2017).
Because we hold that the State does not have authority to nol
pros charges after the trial court has entered a final
judgment, we need not and do not reach the second question.
Court has never addressed directly the issue presented to us
in this case. The State urges this Court to conclude that the
State's Attorney has the authority to enter a nol pros,
even after a final judgment based on its wide discretion to
enter a nol pros. The State contends that this broad
authority is derived from the Maryland Declaration of Rights.
See Maryland Declaration of Rights, Article V,
§ 3. The State also directs us to the absence of any
limitation on the powers of the State to enter a nol pros on
appeal in the language of Maryland Rule 4-247. The State
maintains, therefore, that the Court of Special Appeals erred
in holding that the State could not enter a nol pros in this
legislature and the judiciary have both regarded the act of
entering a nolle prosequi as an act inherently tied to
charges against a criminal defendant. See Maryland
Code, Criminal Procedure § 1-101(k) (2001, 2008 Repl.
Vol., 2017 Supp.) (defining "nolle prosequi" as
"a formal entry on the record by the State that declares
the State's intention not to prosecute a charge").
We have defined entering a nolle prosequi "as an
official declaration by the State, announcing that it will
not pursue the charges in a particular charging
document." Gilmer v. State, 389 Md. 656, 659,
887 A.2d 549, 550 n.2 (2005) (internal quotations omitted).
We have previously described it as "[t]he abandonment of
the prosecution." Barrett v. State, 155 Md.
636, 638, 142 A. 96, 97 (1928). Md. Rule 4-247 provides the
parameters for the State's authority to enter a nol pros:
(a) Disposition by nolle prosequi. The State's Attorney
may terminate a prosecution on a charge and dismiss the
charge by entering a nolle prosequi on the record in open
court. The defendant need not be present in court when the
nolle prosequi is entered, but if neither the defendant nor
the defendant's attorney is present, the clerk shall send
notice to the defendant, if the defendant's whereabouts
are known, and to the defendant's attorney of record.
Notice shall not be sent if either the defendant or the
defendant's attorney was present in court when the nolle
prosequi was entered. If notice is required, the clerk may
send one notice that lists all of the charges that were
(b) Effect of nolle prosequi. When a nolle prosequi has been
entered on a charge, any conditions of pretrial release on
that charge are terminated, and any bail bond posted for the
defendant on that charge shall be released. The clerk shall
take the action necessary to recall or revoke any outstanding
warrant or detainer that could lead to the arrest or
detention of the defendant because of that charge.
recognize that the language of Rule 4-247 does not explicitly
preclude the State from entering a nol pros on charges at the
appellate stage or after final judgment has been reached.
Indeed, the Rule is silent on when a charge can no longer be
nol prossed. Importantly, Rule 4-247 presupposes the
existence of charges that the State may cease prosecuting.
For example, the language suggests that "entering a
nolle prosequi" has the effect of "terminat[ing] a
prosecution on a charge." Rule 4-247(a) also states that
"[e]ntering a nolle prosequi" results in
"dismiss[al of] the charge." Subsection (b) of the
Rule again refers to a "charge, " supporting the
relationship between nol prossing and charges.
considering the effect of its entry for a defendant, a nol
pros "has the effect of a nonsuit."
Calvert's Lessee v. Eden, 2 H. & McH. 279,
317 (1789). The effect of a nonsuit means that "the
accused remains subject to be proceeded against by another
indictment for the same offence." State v.
Morgan, 33 Md. 44, 46 (1870). In Barrett, the
Court explained that "[t]he abandonment of the
prosecution [by entry of a nol pros] cancels that indictment
and restores [the defendant] to his original position."
155 Md. at 638, 142 A. at 97; see State v. Moulden,
292 Md. 666, 673, 441 A.2d 699, 702-03 (1982) ("Although
a stet permits an accused to be proceeded against at a later
date under the same charging document, a nolle prosequi does
not. The nol pros of a charging document or of a count is
'a final disposition' of the charging document or
count[.]") (citing Barrett v. State, 155 Md.
636, 142 A. 96 (1928)). Based upon that same reasoning, due
to the finality of entering a nol pros on the disposition of
a charge, we denied the State the authority to withdraw its
entry of a nol pros. Hooper v. State, 293 Md. 162,
171, 443 A.2d 86, 91 (1982) ("To permit the State to
withdraw a nolle prosequi, or have a nol prossed indictment
reinstated, would be flatly inconsistent with the nature of a
nolle prosequi under Maryland law.").
v. State is the first instance in which we dealt with
the possible implications of a nol pros for the State as to
whether it may continue prosecuting a defendant after the
entry of a nol pros. 175 Md. 352, 2 A.2d 430 (1938). In
Friend, because the nol pros was ineffective, the
defendant was placed in double jeopardy. Id. at 355,
2 A.2d at 432 ("The trial and conviction of the
appellant, therefore, was valid in law . . . and a second
trial for this same offense would be in violation of the
common law and of our constitutional prohibition with respect
to placing a person in double jeopardy as to the same
crime."). This Court in Boone v. State refined
the previous explanation of the consequences of nol prossing
by explaining that a nol pros functions as an acquittal if
jeopardy has attached. 3 Md.App. 11, 25-26, 237 A.2d 787, 797
(1968) ("The effect of the entry of a nolle
prosequi is not inconsistent with this common law
meaning. If entered without the consent of the defendant
after trial has begun, jeopardy attaches because it operates
as an acquittal.") (italics in original). In Blondes
v. State, the Court then elaborated that "[o]n the
other hand, where a nolle prosequi is entered before jeopardy
attaches, the State is only precluded from prosecuting the
defendant further under that indictment, but the defendant
may be proceeded against for the same offense by another
indictment or information." 273 Md. 435, 443-44, 330
A.2d 169, 173 (1975) (citing Barrett v. State, 155
Md. 636, 142 A. 96 (1928)); see Gilmer, 389 Md. at
671-72, 887 A.2d at 557-58 (explicating the temporal
significance of the attachment of jeopardy to the
consequences of the entry of a nol pros for a defendant). In
Bynum v. State, we clarified "that the double
jeopardy prohibition, though barring subsequent prosecution
for offenses charged in counts dismissed by a nolle prosequi
entered without the consent of the accused after jeopardy has
attached, has no application in the context of the same
prosecution which continues on other counts." 277 Md.
703, 709, 357 A.2d 339, 342 (1976).
Ward v. State, we summarized the development of our
nol pros jurisprudence. This Court explained that entry of a
nol pros after jeopardy had attached does not uniquely invoke
double jeopardy principles, but that the principles of double
jeopardy did not change when applied in circumstances
involving the entry of a nol pros. 290 Md. 76, 97, 427 A.2d
1008, 1020 (1981) ("[T]he Court in Bynum was
merely stating the general rule that the entry of an
uncontested nolle prosequi, after jeopardy attaches,
ordinarily precludes a subsequent prosecution for the
offense. This ...