The primary issue lớn be decided in this appeal by the State, is whether the Circuit Court for Anne Arundel County properly concluded that the instant prosecutions were barred by the doctrine of double jeopardy.

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We conclude that they were not và that the trial court erred. Accordingly, we reverse.

Initially, let us isolate the size of jeopardy we are dealing with in order that our discussion not wander into lớn other areas of double jeopardy law having no application to lớn the factual scenario presented herein. We are concerned here with multi-count charging documents, an Indictment & an Information, each charging the same offenses & a nolle prosequi entered by the State as lớn one of the charging documents after the jury had been selected & sworn. At first blush it may appear that we are involved with basic double jeopardy law where the prohibition is against instituting a new jeopardy after the termination of an earlier one. Espousing that theory, the defendants herein maintain that the dismissal by the State of the Informations operated as an acquittal và the Indictments constitute a new jeopardy. That species of double jeopardy, however, does not arise until there has been a verdict of either acquittal or conviction and it is more appropriately termed former jeopardy. It has no application to the single trial situation where, as here, the dismissal of certain charges does not preclude the continuation of the trial on other charges that for some purposes may qualify as "the same offense." Single trial, multi-count charges are concerned with simultaneous jeopardy & the underlying purpose thereof is to avoid multiple punishment. With that brief isolation of the jeopardy lớn be addressed in this case, we proceed khổng lồ a discussion of the facts and the applicable law.

R. Gilbert và C. Moylan, Maryl& Criminal Law: Practice and Procedure (1983), at 439-440 state: When a defendant is on trial under a multi-count indictment and two or more of the counts qualify as "the same offense" within the contemplation of the double jeopardy law, the defendant, is the strictest sense, is in double jeopardy. This, however, is not remotely within the prohibition of the double jeopardy law . . . Even after trial has begun & jeopardy has attached on a multi-count indictment or upon multiple indictments, the striking out of one count because it is duplicitous does not prsự kiện the trial from proceeding on an identical count (no longer duplicitous when it stands alone). Even after trial has begun và jeopardy has attached, a directed verdict of acquittal on a greater inclusive offense, such as assault with intent lớn murder, will not prsự kiện the trial from continuing on a lesser included offense, such as simple assault, even though the two offenses qualify as "the same offense" within the contemplation of the double jeopardy law.

The facts giving rise to lớn the present appeals are as follows: Richard Jefferson Garner và William Frank Hayghe, the appellees in these consolidated appeals, were each charged by Criminal Information with twelve counts of sexual offenses, including rape. Preliminarily, The Court dismissed seven of the twelve counts against Hayghe on his motion alleging that the State had not presented evidence as to lớn the challenged counts at an earlier preliminary hearing in the District Court. The State then prepared indictments containing ten counts setting forth the exact same charges that were contained in the informations. The indictments returned by the Grvà Jury ranged from first degree rape to simple assault.

The cases were consolidated for trial under the four charging documents (one information và one indictment charging each defendant). After a jury was selected and sworn the trial judge said:

"Okay, it looks lượt thích there"s some bookkeeping work perhaps with all of the cases here. They look lượt thích duplicate charges."

The State agreed indicating that "it was due lớn a clerical error" and the State then entered a nolle prosequi as to the criminal informations in their entirety stating that it would proceed on the indictments. Counsel for each defendant then moved for dismissal alleging that further prosecution was barred by double jeopardy. In tư vấn of the motions, counsel cited Blondes v. State, 273 Md. 435, 330 A.2d 169 (1975). Following argument the Court dismissed all charges relating lớn Garner and five sầu of the ten allegations against Hayghe. The State appealed the dismissals as to lớn each defendant; Hayghe appealed the refusal of his motion to dismiss his indictment in its entirety.

Before trial, the Court had dismissed seven of the twelve charges in the criminal information against Hayghe, including: (3) assault with intent lớn rape; (4) First Degree Sexual Offense; (5) Second Degree Sexual Offense; (6) Assault with Intent lớn Commit a Sexual Offense; (9) Third Degree Sexual Offense; (11) Perverted Sex Practices; (12) Attempted Perverted Sex Practices. At trial, the Court dismissed: (1) Rape; (2) Second Degree Rape; (8) Fourth Degree Sexual Offense; (9) Assault & Battery; (10) Assault. The perverted sex charges were not repeated in the indictments, thereby reducing the charges to lớn ten. Hayghe was to st& trial on the five sầu charges the Court had dismissed before trial, namely: (3) Assault With Intent lớn Rape; (4) First Degree Sexual Offense; (5) Second Degree Sexual Offense; (6) Assault With Intent lớn Commit a Sexual Offense; và (7) Third Degree Sexual Offense.

The trial judge, lượt thích defense counsel, relied upon language in Blondes in arriving at his double jeopardy preclusion of further proceedings. We think the trial court"s statement that "Blondes has never been overruled, that is still the law in the State of Maryland" attributes more khổng lồ the decision in that case than the Court of Appeals intended. The holding in Blondes related lớn when jeopardy attaches. The fallacy in the trial court"s reasoning is its conclusion that because jeopardy attached the proceedings cannot continue following a nolle prosequi by the State. The facts in Blondes are markedly similar to those facts we are concerned with in the case before us. In Blondes, as here, the defendant was indicted on several counts and the State then filed an Information containing language identical khổng lồ the counts in the indictment. After jeopardy had attached at a court trial, the prosecutor, as here, entered a nolle prosequi lớn the two counts in the indictment. The Court of Appeals held that jeopardy attached to lớn Blondes prior to the entry of the nolle prosequi.

What the trial court in the present case overlooks in its double jeopardy finding is the limitation placed on Blondes by later cases including Ward v. State, 290 Md. 76, 427 A.2d 1008 (1981) Bynum v. State, 277 Md. 703, 357 A.2d 339 (1976) và Ball v. State, 57 Md. App. 338, 470 A.2d 361 (1984), cert. denied, 300 Md. 88, 475 A.2d 1200 (1985). As we have sầu said, the issue decided in Blondes was at what juncture jeopardy attached in a non-jury trial. Although that determination resulted in a dismissal of the charges, the case did not determine what is or is not double jeopardy under the facts of the case. The Court of Appeals made the distinction in Ward, stating:

"The defendant Blondes then filed a petition for a writ of certiorari raising the question of when jeopardy attaches in a nonjury trial. The petition presented no issue concerning the effect of the nolle prosequi if jeopardy had attached and the State filed no cross petition challenging the position of the Court of Special Appeals on this issue. After this Court granted certiorari, both the State & the defendant in their briefs & oral arguments proceeded upon the assumption, that if jeopardy had attached when the nolle prosequi was presented, then the nolle prosequi was equivalent to lớn an acquittal và the trial should not have proceeded on the same offense under the information. This Court in its opinion accepted the parties" assumption without any detailed examination & agreed that "the critical question in this case is whether jeopardy had attached khổng lồ Blondes at the time the nolle prosequi was entered. Consequently the only disputed issue in Blondes which this Court resolved and the holding of the case, related khổng lồ when jeopardy attaches in a nonjury trial." 290 Md. at 99-100, 427 A.2d 1008.

The Court went on to say that any assumption that the nolle prosequi operated as an acquittal precluding the continuation of the trial for the same offenses on different charges, represented an inaccurate or overbroad view of nolle prosequi and double jeopardy principles. Finally, in a footnote, the Court questioned the result, not the holding, in Blondes stating that the issue of jeopardy in a prosecution involving two separate charging documents alleging identical offenses is viewed as an open question.

In Ward, supra, two different counts of the indictment charged the same offense. At trial, after jeopardy had attached, the State entered a nolle prosequi without the defendant"s consent as to one of the counts & the defendant was convicted on the remaining count. Appellant succeeded in obtaining a reversal và a new trial. The issue on appeal was whether the trial could proceed in light of the earlier nolle pros. After reviewing the history of nolle prosequi, the Court of Appeals concluded that:

"There is nothing inherent in the nature of a nolle prosequi which causes its entry to lớn operate as an acquittal of the underlying offense."

One year after the decision in Blondes, the Court of Appeals held, in Bynum, that the nolle prosequi entered as to one count did not operate as an acquittal of the underlying offense so as to preclude continuation of the trial on another count even where the two offenses are the same under the required evidence demo of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Bynum, lượt thích the present case, involved simultaneous jeopardy. A multicount indictment charged both armed robbery và robbery. At the conclusion of the trial the State entered a nolle prosequi to lớn simple robbery electing lớn proceed on armed robbery. The defendant argued that robbery, a lesser included offense of armed robbery, is the same offense for double jeopardy purposes and, therefore, the nolle pros precluded further prosecution on double jeopardy principles. Rejecting the defendant"s argument, the Court stated: "It is evident that where, as here, the defendant is subjected to but one prosecution, trial và jury verdict, there exists none of the evils which the double jeopardy prohibition is intended khổng lồ prevent. Appellant has neither been harrassed by multiple prosecutions, nor has he been subjected khổng lồ the increased probability of conviction attendant upon repeated trials. In short, appellant was but once placed in jeopardy."

Accord: United States v. Klein, 247 F.2d 908 (2d Cir.), cert. denied 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1957).

The general rule, that a nolle prosequi of one count after jeopardy attaches has no bearing on other counts charging that same offense, is applicable to cases charging the identical offense. United States v. McDaniel, 538 F.2d 408 (D.C. 1976); Barsock v. United States, 177 F.2d 141 (9th Cir. 1949); People v. Horowitz, 131 Cal.App.Supp. 791, 19 Phường.2d 874 (Calif. 1933); Shafer v. United States, 179 F.2d 929 (9th Cir. 1950).

The courts have consistently held, as we have sầu pointed out, that the double jeopardy principle is clearly inapplicable to multiple counts under the same indictment. Decisions so holding demonstrate that the purpose of the double jeopardy clause is khổng lồ require the government in a single proceeding lớn press its case against an individual for an alleged offense. In that sense, trial of related counts arising from the same factual situation complements rather than offends the double jeopardy principle.

In the case before us, Garner & Hayghe have appeared before the court in a single trial situation. They have sầu not been faced with separate prosecutions where, as here, two documents charge, in identical language the commission of but one series of offenses. We find little to distinguish between: 1) permitting a trial to continue where a lesser included offense is nol prossed ( Bynum); 2) permitting the trial to lớn continue where one of two counts charging the same offense is nol prossed ( Ward); & 3) permitting the trial khổng lồ continue where, as here, the State dismisses one of two charging documents and elects khổng lồ proceed on the remaining document which is identical to lớn the one abandoned.

We note that in Blondes the State proceeded to trial on both charging documents, refusing to lớn inform the defendant whether it was proceeding on the indictment, khổng lồ which a defense had been asserted, or on the Information. In the case sub judice, the Court suggested that some "bookkeeping" take place to eliminate a duplication of charges. The State then elected to proceed on the indictments và dismissed the other charging document. This election in no conceivable way caused any prejudice lớn either of the two defendants. The trial could và should have proceeded on the indictments.

The nolle prosequi unquestionably barred any further prosecution under the particular document or counts thereof that the State dismissed; it went no further. It did not constitute an acquittal of the underlying offenses và, therefore, it did not preclude the trial from continuing under the separate charging document. See Ward, supra, <290 Md.> at p. 84, 427 A.2d 1008. A plea of former jeopardy, being a plea in bar to lớn further prosecution, poses the question: "What prosecution has preceded the present trial?" The answer is obvious — none. Garner và Hayghe have sầu not been acquitted, autrefois acquit, nor have they been convicted, autrefois convict.

In sum, the prohibition against multiple prosecutions and multiple punishments, proscribed by the Double Jeopardy Clause through the Fifth và Fourteenth Amendments to lớn the Constitution of the United States, as well as by the common law, has no application to a single trial, multicount charging document. Where the State has obtained more than one charging document & makes an election to nolle pros one mix of charges and proceed on the other, it may bởi so without incurring the risk of dismissal. It matters not whether the dismissal of one is requested by the defendant, suggested by the Court, or done by election of the State. The defendant under such circumstances has been placed in jeopardy but once. The defendants herein have sầu not endured one completed trial let alone been twice placed in jeopardy.

In view of our reversal of the trial court"s dismissal of the indictments, we deem it unnecessary khổng lồ address the remaining issues raised.



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