Jeffries v. State1/29/1997
ne of the post-trial remedies. It is by no means, however, a never-failing panacea, available whenever and however outraged justice may beckon. It is designed to correct some, but not all, flaws that may have marred a trial. It is limited, moreover, by rigid filing deadlines and other formal constraints. (Emphasis supplied).
If framed as a Motion for a New Trial, apparently based on non-preserved chagrin at a jury instruction and even that only by way of long-delayed afterthought, the appellant's complaint would have failed to meet the ten-day filing deadline of Rule 4-331(a) by over six-and-a-half months. What the appellant seeks to do, therefore, is to conceal the functional equivalent of a Motion for a New Trial inside the Trojan Horse of a Motion to Dismiss and thereby to insinuate into the citadel of post-verdict review an argument that, undisguised and on its own, could never have made it past the first sentry post of the filing deadline. We must look to the propriety of such a stratagem.
1. Was This Really A Motion to Dismiss Under Rule 4-252(d)?
A Motion to Dismiss (or to do anything else to) a conviction for a non-existent crime is, by definition, a post-verdict motion. Until there is first a verdict, there self-evidently can be no conviction to dismiss. The post-verdict relief provided by Maryland law, for the legal insufficiency of the evidence produced at trial or for some other trial error (such as an erroneous jury instruction, perhaps), is a Motion for New Trial. Its contours are spelled out by Rule 4-331. The appellant, however, openly pursuing that proper form of relief, would have had no way around the foreclosing effect of Rule 4-331(a):
On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial. (Emphasis supplied).
Except for the special case of newly discovered evidence, the ten-day filing deadline is an absolute. As Love v. State, 95 Md. App. 420, 427-28, 621 A.2d 910 (1993) pointed out:
Awarding a new trial is tightly circumscribed by the timeliness requirement that the Motion be filed "within ten days after a verdict." . . . Trial judges, moreover, are not empowered to overlook the filing deadline. State v. Tull, 240 Md. 49, 52, 212 A.2d 729 (1965); Giles v. State, 231 Md. 387, 388, 190 A.2d 627 (1963); Ware v. State, 3 Md. App. 62, 65-66, 237 A.2d 526 (1968).
The appellant's attempted solution was to transmute his request for post-verdict relief, essentially based on an allegedly erroneous jury instruction to which he had not objected, into some other procedural entity that would not be time-barred. Could he turn a Motion for New Trial into something else by calling it something else? He came tantalizingly close to doing so. He got the trial judge, for instance, to consider the merits of a question that should not even have been entertained.
By emphasizing the words "Motion to Dismiss" and whispering, sotto voce, their predicate, "a conviction," the appellant almost succeeded in concocting not a post-verdict motion at all, governed by Rule 4-331, but a very different kind of motion, governed by Rule 4-252 and immune to filing deadlines. Almost all motions, other than post-verdict and post-trial motions, must be filed well before the commencement of a trial. Rule 4-252(b). An exemption from that mandatory filing deadline is provided by subsection (d), which provides, in pertinent part:
A motion asserting failure of the charging document . . . to charge an offense may be raised and determined at any time.
In his memorandum in support of his ostensible "Motion to Dismiss," it is Rule 4-252(d) t
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