dissenting.
I agree with the Court that Green was entitled to a timely determination by the Criminal Court of Baltimore of his motion to dismiss the indictments for alleged failure to provide counsel to represent him at the preliminary hearing. I do not agree, however, that the lower court’s failure to rule on the motion requires that Green be afforded a new trial if, in fact, he waived counsel at the preliminary hearing. Nor do I agree with the Court that the indictments against Green must be dismissed if it is determined upon remand that he was denied counsel at the preliminary hearing. Neither disposition of the appeal is appropriate and this is so without regard to whether Green waived or was denied counsel at the preliminary hearing. In either event, the court’s failure to rule on the motion was harmless error in the particular circumstances of this case.
The basic purpose of the preliminary hearing in Maryland is to determine whether the accused should be held for action of the Grand Jury or charged by the State’s Attorney on information. Arrington v. Warden, 232 Md. 672, 195 A.2d 38 (1963); Kochel v. State, 10 Md. App. 11, 267 A.2d 755 (1970). While there is no constitutional right to a preliminary hearing, if the accused is entitled by law to such a hearing, it is deemed a critical stage of the criminal proceeding at which counsel must be appointed on behalf of an indigent accused, unless waived. Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Crawford v. State, 282 Md. 210, 383 A.2d *6991097 (1978). Under Maryland law, both by rule and statute, an accused is entitled to a preliminary hearing only if he is charged with a felony which is not within the jurisdiction of the District Court. Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 592; MDR 727 a.
As the record discloses, Green was caught redhanded stealing personal property from various offices at Johns Hopkins University. Although the statement of charges filed in the District Court is not contained in the record, it is evident that Green was charged with multiple larcenies up to $500, storehouse breaking with intent to steal goods over $100 or to commit a felony (Art. 27, § 32), storehouse breaking with intent to steal goods under $100 (Art. 27, § 342), and breaking into a storehouse and stealing over $5 (Art. 27, § 33). While all of the larceny offenses were within the jurisdiction of the District Court, Green was entitled to a preliminary hearing on the §§ 32 and 83 storehouse breaking charges, which were felonies beyond the District Court’s jurisdiction. See Code (1974), §§ 4-801 and 4-302 of the Courts and Judicial Proceedings Article. As to these offenses, the sole issue at the preliminary hearing was whether there was probable cause to hold Green for action of the Grand Jury or for charging upon criminal information. Upon concluding that probable cause existed, the District Court referred all the pending charges to the Criminal Court of Baltimore as required by § 4-3G2(e). As a result, Green was indicted by the Grand Jury in three six-count indictments, which included felony and misdemeanor counts for storehouse breaking (Art. 27, §§ 32, 33 and 342), as well as larceny offenses, both felonies and misdemeanors, and receiving counts.
On the second day of the trial, Green moved to dismiss the indictments on grounds of duplicity. The State announced at that time that it would abandon all counts of the indictments except the larceny and receiving counts. Green was convicted of three misdemeanor counts of larceny of goods under the value of $100, and was sentenced to three consecutive eighteen-month prison terms.
Assuming Green was denied counsel at the preliminary hearing, Coleman v. Alabama, supra, nevertheless recognizes *700that a violation of the accused’s right to counsel does not require automatic reversal. The standard to be applied is whether the denial of counsel was harmless error beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
In considering whether Green’s claimed lack of counsel at the preliminary hearing was harmless beyond a reasonable doubt, it is essential to examine the fundamental reasons why the Supreme Court found sixth amendment protection applicable to a preliminary hearing. In this regard, we observed in Crawford v. State, supra, 282 Md. at 221:
“In Coleman, the Supreme Court recognized the importance of cross-examination at the preliminary hearing. It said that a skilled cross-examination of the State’s witnesses could expose fatal weaknesses in the prosecution’s case and result in the refusal of the judicial officer to hold the accused for trial; it also observed that cross-examination at the preliminary hearing could provide a vital impeachment tool for use at the trial. ...”
In this case, the importance of cross-examination at the preliminary hearing was obviated by the State’s abandonment of the felony charges (storehouse breaking, §§ 32, 33), which had originally entitled Green to a preliminary hearing. The effect of the State's action was tantamount to an acquittal on the abandoned counts. See Blondes v. State, 273 Md. 435, 330 A.2d 169 (1975); Greathouse v. State, 5 Md. App. 675, 685-86, 249 A.2d 207, cert. denied, 253 Md. 734 (1969); Stocker v. State, 4 Md. App. 275, 279, 242 A.2d 588, cert. denied, 251 Md. 752 (1968), cert. denied, 395 U.S. 982, 89 S. Ct. 2142, 23 L. Ed. 2d 770 (1969). But see, United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978); Commonwealth v. Lewis, 548 S.W.2d 509 (Ky. 1977).
Because Green was acquitted of the only offenses for which he was entitled to a preliminary hearing, the lower court’s failure to rule on the motion to dismiss the indictments for lack of counsel at the preliminary hearing was manifestly *701harmless beyond a reasonable doubt. It could not be otherwise because the sole purpose of a preliminary hearing is to determine the existence of probable cause to hold the accused for prosecution.
As to the larceny charges upon which Green was convicted, and as to which he was never entitled to a preliminary hearing, his convictions for these offenses in any event render moot the argument that a lawyer would have obtained a finding of no probable cause at the preliminary hearing. Moses v. Helgemoe, 562 F.2d 62, 64 (1st Cir. 1976); State v. Canaday, 117 Ariz. 572, 574 P.2d 60, 63-64 (1977); Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364, 366 (1976). See also United States v. Roach, 590 F.2d 181 (5th Cir. 1979); Schnepp v. Hocker, 429 F.2d 1096 (9th Cir. 1970).
Finally, it makes no sense to grant Green a new trial to enable him to demonstrate that he was denied counsel at the preliminary hearing to which he was entitled by law for the storehouse breaking offenses because, even if he was, his acquittal upon those charges makes any further inquiry into the matter wholly academic. Nor does it make any sense to vacate the larceny convictions, which were never implicated in the preliminary hearing process, and dismiss those counts of the indictments as a sanction for a violation of Green’s right to counsel at the preliminary hearing on other charges upon which he was ultimately acquitted.
I would therefore affirm the larceny convictions.