Gilmer v. State

Dissenting Opinion by

HARRELL, Judge.

I dissent. The Majority opinion errs when it declares ambiguous the use of “dismissal” in § 6-218(b)(2) based only on consideration of that word in isolation. Though it pays lip service to considering the need to “construe the statute as a whole” (Maj. op. at 663, 887 A.2d at 553), the Majority opinion thereafter confines its analysis to (b)(2) and fails to give meaningful consideration to the place “dismissal” occupies within the complete structure of the Legislature’s scheme in the larger statutory sub-section of which (b)(2) is but a part. See Johnson v. Mayor & City Council, 387 Md. 1, 11-12, 874 A.2d 439, 446 (2005) (“the commonsensical approach to interpreting statutes includes a review of the general statutory scheme in which the statute in question is found,” citing to Frost v. State, 336 Md. 125, 137-38, 647 A.2d 106, 112 (1994)); Forbes v. Harleysville Mutual, 322 Md. 689, 697-99, 589 A.2d 944, 947-48 (1991) (stating that we do not read statutory language “in insolation or out of context [but construe it] in light of the Legislature’s general purpose and in the context of the statute as a whole.”). When considered in the clear hierarchy established within the totality of § 6-218(b), the claimed ambiguity in (b)(2) disappears.

Section 6-218(b) of the Criminal Procedure Article provides in relevant part:

§ 6-218. Credit against sentence for time
* * * * *
(b) (1) A defendant who is convicted and sentenced shall receive credit against and a reduction of the term of a definite or life sentence, or the minimum and maximum terms of an indeterminate sentence, for all time *679spent in the custody of a correctional facility, hospital, facility for persons with mental disorders, or other unit because of:
(i) The charge for which the sentence is imposed; or
(ii) The conduct on Which the charge is based.
(2) If a defendant is in custody because of a charge that results in a dismissal or acquittal, the time that would have been accredited if a sentence had been imposed shall be credited against any sentence that is based on a charge for which a warrant or commitment was filed during that custody.
(3) In a, case other than a case described in paragraph (2) of this subsection, the sentencing court may apply credit against a sentence for time spent in custody for another charge or crime.

(Emphasis added).

It is clear to me from this language that the Legislature intended that trial judges are obliged to grant credit against time served where the relevant charge was disposed of by literal dismissal or acquittal only. In all other cases and by whatever the descriptive name given for the particular disposition, other than by dismissal or acquittal, discretion was granted to judges whether to grant such credit. The only situation in which an ambiguity in the intent of the Legislature might arise would be where a trial court labels a disposition, other than dismissal or acquittal, with a description that constitutes a novelty or gibberish not previously recognized by statute, rule, or common law. Then, and only then, would the functional equivalency type of analysis engaged in here by the Majority be merited. See State v. Glass, 386 Md. 401, 410, 872 A.2d 729, 734 (2005) (a court’s analysis “must be undertaken from a commonsensical rather than a technical ] perspective, always seeking to avoid giving the statute a strained interpretation.”) (citations omitted).

The Court of Special Appeals was correct in this case, in my view, when it said:

*680Our decision is in accord with the plain language of § 6-218(b). Subsection (b)(2) uses the terms dismissal and acquittal, not nolle prosequi. We are bound to give these terms their ordinarily understood meaning. See Gillespie v. State, 370 Md. 219, 222, 804 A.2d 426 (2002). Certainly, the General Assembly could have mandated that credit be given for time served on charges that result in a nolle prosequi. That the legislature chose not to do so when it enacted the credit provision thirty years ago, see 1974 Maryland Laws, Ch. 735 § 1, and has taken no steps since then to mandate credit for incarceration on charges that are not prossed in the ordinary course (as opposed to part of a plea bargain), reflects the legislative will to limit the applicability of that subsection. Any effort on our part to overread the statute would be to venture impermissibly into territory that is under the exclusive control of the General Assembly. See Price v. State, 378 Md. 378, 388, 835 A.2d 1221 (2003) (“ ‘[w]e cannot assume authority to read into the Act what the Legislature apparently deliberately left out’ ”) (citation omitted).

In sum, like the stet discussed in Roberts, [v. State, 56 Md.App. 562, 468 A.2d 410 (1983) ] a nolle prosequi entered before trial and not tied to a plea bargain comes within the purview, not of § 6 — 218(b)(2), but of subsection (b)(3), because it is “a case other than a case described in paragraph (2) of this subsection.” In that instance, subsection (b)(3) gives the court discretion to “apply credit against a sentence for time spent in custody for another charge or crime.”

Here, the sentencing court exercised its discretion not to award appellant credit for the time he was incarcerated on the nol prossed charged. Appellant suggests no abuse of discretion in this regard, and we find none. We shall not disturb that sentencing decision.

Gilmer v. State, 161 Md.App. 21, 31, 866 A.2d 918, 924 (2005).

To reason as this Court’s Majority does, in my view, is to render § 6-218(b)(3) surplusage. See Montgomery County v. Buckman, 333 Md. 516, 524, 636 A.2d 448, 452 (1994) (we read the statute so that “no word, phrase, clause or sentence is *681rendered surplusage or meaningless.”). Section 6-218(b)(3) is intended to operate as a catchall default provision for any disposition other than a literal dismissal or acquittal. To construe, through forced elaboration, a nolle prosequi entered outside of a plea agreement as the functional equivalent of a “dismissal” under (b)(2) is to deprive (b)(3) of its intended significance.

Accordingly, I would affirm the judgments of the Court of Special Appeals and the Circuit Court for Baltimore City.