JOSEPH MOBUARY v. STATE OF MARYLAND
Court of Appeals, Bell, Filed Oct. 24, 2013
http://www.mdcourts.gov/opinions/coa/2013/27a11.pdf
De Novo Appeal: Abuse of discretion to deny motion to reimpose a dismissed de novo appeal when incarcerated defendant provided information explaining his involuntary absence from court on the assigned date
Short version: Defendant was convicted in District Court, appealed to Circuit Court, failed to appear on court date. State and Defense attorneys told judge that according to a correctional officer, defendant refused to be transported. Appeal dismissed. Defendant called defense counsel the same day and said that he didn’t refuse, he just wasn’t transported and still wanted to appeal. Motion to reimpose appeal filed, denied by judge.
Held: Reversed.
After 11 pages of rehashing the State and Defense positions (turns out the State was pro-dismissal and the Defense was con)…
Notes from the case:
De Novo Appeal- Citing Stone, when a defendant fails to appear at the designated time and place, and there is nothing before the court to justify the defendant’s absence, it is proper to presume that the defendant has withdrawn the appeal
De Novo Appeal- However, the right to be present at a trial de novo cannot be considered waived by non-appearance, that is, withdrawn, when the trial court has information that the appellant’s failure to appear was neither wilful nor voluntary.
De Novo Appeal- The trial court must “prudently take[] investigatory measures before finding a waiver of the right to be present at trial”
De Novo Appeal- CoA declined to decide whether uncorroborated statement by State and Defense attorneys that unidentified correctional officer stated that defendant refused to be transported for trial was sufficient investigation of willful absence
De Novo Appeal- MD Rule 7-112(f), not Rule 4-345, is applicable to reinstatement of dismissed de novo appeals
De Novo Appeal- MD Rule 7-112(f) states that a dismissed appeal may be reinstated on motion filed within 30 days for good cause shown
De Novo Appeal- Phone call made by defendant to defense counsel stating that he did not refuse to be transported, letter stating the same, and motion filed provided good cause for at least an evidentiary hearing to determine credibility
De Novo Appeal- Court’s citation of Rule 4-345 instead of Rule 7-112 in denying motion demonstrated improper application of law and warranted reversal