dissenting:
Maryland Code Article 5, § 14 (now § 12-302(c) of the Courts and Judicial Proceedings Article) affords the State an unqualified right to appeal in criminal cases “from a final order or judgment granting a motion to dismiss, or . . . dismissing any indictment. . . .” In his opinion for the Court of Special Appeals, Chief Judge Orth cogently observed that the language of the statute “means precisely what it says”; that it constituted a plain legislative mandate permitting the State a limited right to appeal from the dismissal of an indictment irrespective of the reasons motivating the dismissal and without regard to which party initiates the order of dismissal. Judge Orth said for the court:
“The dismissal is at the sound discretion of the trial court, and whether the dismissal is suggested or proposed or urged or formally moved by the
*121accused or by the State, or is accomplished by the sua sponte action of the court is not material to our jurisdiction or to the State’s right to appeal. As we have indicated, the statute flatly gives the State the right to appeal ‘from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment’, the only exception being where ‘the defendant has been tried and acquitted.’ We adhere to our expressed belief that the statute means precisely what it says.”
19 Md. App. at 494.
I, of course, recognize the principle that ordinarily a party has no standing to appeal from an order to which it consented. But there is nothing in the record in this case to even remotely suggest that the State consented to the dismissal of Lohss’ indictment. On the contrary, when Lohss’ motion to dismiss was granted by the trial judge, the State simply exercised its express right under § 14 to appeal the legality of that dismissal; that the State now candidly admits that it utilized the dismissal order as the only means to obtain appellate review of the lower court’s obviously incorrect conclusion that the search and seizure were illegal does not indicate agreement or acquiescence on the State’s part in the indictment’s dismissal.
Since the appeal was properly taken in Lohss’ case from a final judgment, all interlocutory orders, including the propriety of granting the motion to suppress the evidence, were open to review in the Court of Special Appeals under Maryland Rule 1087, which provides:
“On an appeal from a final judgment, every interlocutory order which has previously been entered in the action shall be open to review by this Court unless an appeal has theretofore been taken from such interlocutory order and has been decided on the merits by this Court.”
As Chief Judge Orth said for the court:
“It is true that the Court of Appeals and this Court *122have said that if the denial of a motion to suppress evidence is to be appealable, it must be granted by the Legislature. State v. Adams, 196 Md. 341, 351; State v. Barshack, 197 Md. 543, 545; State v. Mather, supra, at 554. But the statement was made in the frame of reference of an appeal from an interlocutory order standing alone. Although the Legislature has not responded by bestowing the right of appeal to an interlocutory order, standing alone, which grants a motion to suppress the evidence, it has evidenced its satisfaction with the present status of the law, permitting review of the interlocutory order after final judgment, by not changing it.”
19 Md. App. at 496.
The majority concludes that the State was, in any event, barred by Rule 1085 from appealing because it did not formally object to the dismissals. Beyond question, the State’s objection to the action of the trial judge in dismissing Lohss’ indictment was manifest; it was plainly the thrust of the State’s position that the indictments were not defective and that it should be permitted to proceed to trial on the merits. To conclude that the State “effectively agreed” to the destruction of its case by consenting to, or acquiescing in the dismissals, is to exalt form over substance and to strain hard to create an artificial impediment to the fair exercise of the State’s limited statutory right to appeal.
The State’s appeal from the dismissal of Sprenkle’s indictment, while resting on a foundation less firm than that involved in the Lohss case, is not fundamentally different when viewed in the context of the proceedings. In no real sense did the State consent to the dismissal of Sprenkle’s indictment, and that it initiated the motion cannot, in the circumstances of this case, be deemed the equivalent of consent or agreement to the action of the trial judge in dismissing the indictment.