Douglas v. State

HARRELL, J.,

dissenting, in which BATTAGLIA and ADKINS, JJ., join.

I dissent. The State’s motion to dismiss these appeals, as not allowed by law, should be granted.

The Majority opinion concedes, at op. 170-71, 31 A.3d at 258-59, that neither Douglas nor Curtis are entitled to appeal *189the denials of their petitions for writs of actual innocence unless a right of appeal is granted by statute. The creation in 2010 by the Legislature of the petition for writ of actual innocence mechanism for convicted defendants in criminal cases to seek a new trial based on newly discovered evidence (which could not have been discovered in time to move for a new trial under Md. Rule 4-331) clearly did not provide for an appeal from the denial of such a petition. See Md.Code, Crim. Proc. Art., § 8-301 (2011). In fact, an effort to include a right to appeal in the new statute (House Bill 128 of 2010) failed inclusion in the final bill. We have said in an analogous context that “[w]e generally presume that the Legislature acts with full knowledge of prior and exiting law, legislation, and policy ... and obviously could have provided an appellate remedy for the denial.... ” Fuller v. State, 397 Md. 372, 393, 918 A.2d 453, 465 (2007) (citations omitted).

The Majority opinion, stepping into this void in the specific statute in play here, supplies that which the Legislature chose conspicuously not to provide, by placing the weight of the Majority’s conclusion that a right of appeal exists in these cases on the general final judgment provision of Md.Code, Cts. & Jud. Proc. Art., § 12-301 (2011). This statute cannot bear that weight. My reading of § 12-301 (like the State’s) is that, in a criminal law context, it grants a right of direct appeal from a final judgment of conviction and sentencing, whether as the result of an initial trial or a court-ordered re-trial. See Sigma Reproductive Health Ctr. v. State, 297 Md. 660, 665-66, 467 A.2d 483, 485 (1983); accord Warren v. State, 281 Md. 179, 182-88, 377 A.2d 1169, 1171-74 (1977). The distinction to be made is between the underlying criminal case and a collateral attack on a criminal judgment, such as via post-conviction petition, habeas corpus, or coram nobis. See State v. Matthews, 415 Md. 286, 308, 999 A.2d 1050, 1063 (2010) (citing Ruby v. State, 353 Md. 100, 724 A.2d 673 (1999)). The former, including denials of motions for a new trial filed under Md. Rule 4-331, are the type of final judgments for which § 12-301 of the Cts. & Jud. Proc. Art. serves as statutory authority for the availability of an appeal. The latter, now including *190petitions for writ of actual innocence, are dependent on other statutory authority, if any, for a right of appeal. As for petitions for a writ of actual innocence, none exist. The denials of the petitions in these cases are not susceptible of fitting under the umbrella of permitted appeals from statutorily-permitted interlocutory orders, nor do they fall within the collateral order doctrine.

Judge BATTAGLIA and Judge ADKINS authorize me to state that they join the views expressed in this dissent.