State v. Huntley

983 A.2d 160, 411 Md. 288, 2009 Md. LEXIS 838

Opinions

HARRELL, J.

Under Maryland Code, Criminal Procedure Article § 6-103(a)¹ and Maryland Rule 4-271(a)(l),² the trial in a circuit court criminal prosecution must begin no later than 180 days after the earlier of (1) the entry of the appearance of the defendant’s counsel or (2) the first appearance of the defendant before the circuit court. MD. CODE ANN. (2001, 2008 Repl.Vol.), CRIM. PROC. § 6-103(a); Md. Rule 4-271 (a)(1). We have held that the time limitation prescribed by the statute and the rule is “mandatory,” and that “dismissal of the criminal charges is the appropriate sanction where the State fails to bring the case to trial” within the 180-day period, absent “ ‘extraordinary cause’ justifying a trial postponement.” State v. Hicks, 285 Md. 310, 318, 403 A.2d 356, 360 (1979). Here, we must determine whether the Hicks sanction of dismissal for failure to comply with § 6-103(a) and Rule 4-271(a)(1) is appropriate where, after the trial court’s denial of the State’s motion to amend the dates contained in the charging document against John Wesley Huntley Jr.,³ made on the 179th day of the 180-day period, the State files a nolle prosequi⁴ of the original indictment, and subsequently re-indicts Huntley under a new charging document containing the correct dates. On this record, it was not.

(a) Trial Date in Circuit Court. (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall not be later than 180 days after the earlier of those events.

I. FACTS

On 27 August 2007, a Wicomico County grand jury indicted Huntley on charges of child sexual abuse. The original indictment alleged that the offenses took place between 1 September 2005 and 30 September 2006, based on statements from the child victim. Huntley first appeared in the Circuit Court on 6 September 2007. Therefore, to comply with the require ments of § 6-103(a) and Rule 4-271(a)(1), Huntley’s trial had to begin by 4 March 2008.

After several postponements of earlier trial dates, the Circuit Court finally set a trial date of 3 March 2008, the day before the expiration of the 180-day period. On that date, the State moved to amend the indictment to change the date of the offenses to the period of 1 April 2003 to 31 July 2005. The State claimed that it received within the prior week new information⁵ from the victim’s family that suggested the dates alleged in the original indictment were incorrect. Huntley objected to the amendment.⁶ The court denied the State’s motion.⁷ Rather than proceed to trial under the indictment containing the purported incorrect dates, the State dismissed the charges by entering a nol pros.

On 24 March 2008, three weeks later (and twenty days after the expiration of the original 180-day period), the Wicomico County grand jury re-indicted Huntley on the same charges as the original indictment, but provided as the date of the offenses the period from 1 April 2003 to 31 July 2005. In response, Huntley, pursuant to Rule 4-271, filed a motion to dismiss the second indictment. After a hearing on 17 June 2008, the motions judge granted Huntley’s motion, finding that “the purposes of the State’s nol pros in March of 2008 ... was to evade the effect of [the earlier judge’s] ruling denying the motion to amend.” The State appealed to the Court of Special Appeals. We issued a writ of certiorari, on our initiative, prior to the intermediate appellate court deciding the case. State v. Huntley, 407 Md. 275, 964 A.2d 675 (2009).⁸

II. Discussion

Ordinarily, where criminal charges are nol prossed and identical charges are refiled, the 180-day time period for commencing trial, as mandated by § 6-103(a) and Rule 4-271(a)(1), begins to run anew after the refiling. Curley v. State, 299 Md. 449, 458, 474 A.2d 502, 506 (1984); Baker v. State, 130 Md.App. 281, 288, 745 A.2d 1142, 1146 (2000) (noting that the nol pros “is a legitimate and accepted way of doing prosecutorial business”). We stated that, where there is a nol pros and refiling of charges, “the only existing prosecution or case is that begun by the new charging document,” and that it is this new prosecution for which trial must be timely commenced. Curley, 299 Md. at 460, 474 A.2d at 507.

In Curley, we identified two exceptions to this general rule. Where (1) the purpose of the State’s nol pros, or (2) the necessary effect of its entry, is to circumvent the statute and rule governing time limits for trial, the 180-day period for trial begins with the triggering event under the initial prosecution, rather than beginning anew with the second prosecution.⁹ Id. at 459, 474 A.2d at 507. If trial does not begin then within 180-days of the first appearance of the defendant or defense counsel in the initial prosecution, the subsequent indictment must be dismissed under Hicks. See Hicks, 285 Md. at 318, 403 A.2d at 360. The remedy of dismissal is designed to implement the Legislature’s policy behind the enactment of § 6-103(a), namely, to “obtain prompt disposition of criminal charges.”¹⁰ Id. at 316, 403 A.2d at 359. Without the Curley exceptions and the Hicks dismissal remedy, the State could evade the 180-day period, whenever it desired a trial postponement beyond 180 days, by merely nol prossing the case and refiling the same charges, a tactic that would make the requirements of the statute and rule “meaningless.” Curley, 299 Md. at 461, 474 A.2d at 508.

In Curley, however, we noted that these exceptions will not apply where the prosecution acts “in good faith or so as to not ‘evade’ or ‘circumvent’ the requirements of the statute or rule setting a deadline for trial.” Id. at 459, 474 A.2d at 507. Additionally, we opined that § 6-103(a) and Rule 4-271(a)(1) “were not intended to be codifications of the constitutional speedy trial right.” Id. at 460, 474 A.2d at 507-08. Rather, “their chief purpose was to operate as a prophylactic measure ‘to further society’s interest in the prompt disposition of criminal trials by providing an impetus to remedy court congestion....’” Id. at 460, 474 A.2d at 508. This purpose “is ordinarily not violated when a prior prosecution against the defendant has been nol prossed and thus is removed from the court’s docket, and when the trial under the new prosecution is commenced within the time period prescribed by” § 6-103(a) and Rule 4-271(a)(1). Id. at 460-61, 474 A.2d at 508.

In the present case, the State contends that an analysis of its nol pros under the Curley exceptions framework, and thus, any potential Hicks dismissal sanction, is inappropriate. It maintains that, because the nol pros was designed to respond to the trial court’s denial of its motion to amend the indictment, rather than to evade or circumvent the 180-day deadline, the Curley exceptions and Hicks are not in play here. Instead, the State argues, the general rule should apply and the 180-day period should run anew from the date of Appellee’s trial counsel’s appearance under the second indictment. We agree with the State and hold that, where the State nol prosses an indictment based on the denial of its motion to amend a flawed indictment, absent bad faith or evidence of the State’s motive to delay trial, Curley and Hicks do not compel dismissal of the subsequent indictment.

Appellee relies on a number of cases, beginning with Curley, to bolster his contention that the purpose and necessary effect of the State’s nol pros in this case was to circumvent the 180-day requirement in § 6-103(a) and Rule 4-271(a)(1). Specifically, Huntley directs our attention to Ross v. State, 117 Md.App. 357, 700 A.2d 282 (1997), Alther v. State, 157 Md.App. 316, 850 A.2d 1211 (2004), and State v. Price, 385 Md. 261, 868 A.2d 252 (2005). It is clear to us, however, that his reliance on these cases is misplaced. In each case tendered, the State’s proven purpose in nol prossing the charges was to evade the trial court’s or administrative judge’s denial of the State’s motion for a continuance or postponement, or to force rescheduling of a trial date for which it was not ready to proceed.¹¹ It is distinctly those types of scenarios, where the nol pros is used as a clear stand-in for a failed continuance request, that the prophylactic analysis of Curley and the sanction of Hicks were designed to address.¹² The present case, however, does not fit within this category, and thus, we maintain that Curley and Hicks do not compel dismissal here.

As noted earlier, § 6-103(a) and Rule 4-271(a)(1) are “designed to obtain prompt disposition of criminal charges.” Hicks, 285 Md. at 316, 403 A.2d at 359. Where the State fails to try a defendant -within the 180-day limit, absent a finding of good cause by the trial or administrative judge, the Hicks sanction of dismissal is appropriate. See Price, 385 Md. at 278, 868 A.2d at 262 (noting that “the mechanism of the Hicks Rule serves as a means of protecting society’s interest in the efficient administration of justice” and that the objective of the statute and rule is to “eliminate excessive scheduling delays and unjustifiable postponements”). W(hen the State seeks to try a case beyond the 180-day deadline through the strategic use of a nol pros, its actions equally are subject to the analysis discussed in Curley. See Curley, 299 Md. at 460, 474 A.2d at 508 (noting that the “chief purpose” of the statute and rule “was to operate as a prophylactic measure ‘to further society’s interest in the prompt disposition of criminal trials by providing an impetus to remedy court congestion----’ ”).

Where the State instead is prepared to try the case on the trial date, pending approval of its motion to amend the flawed indictment, that motion is denied, and the State nol prosses the indictment in order to re-indict later on corrected charges, the significant concern of the statute, the rule, Hicks, and Curley regarding the “prompt disposition of charges” and the elimination of “excessive scheduling delays” is absent. In such a situation, the State has no obvious or secret motive to delay prosecution of the defendant beyond 180 days and there is no ruling by the trial court regarding its calendar that the State may be said to be circumventing. See Jules v. State, 171 Md.App. 458, 476, 910 A.2d 553, 563 (2006) (noting that the Curley analysis is inappropriate in a denial of a motion to amend case because there is no ruling by the trial court controlling the court’s calendar which the State may seek to circumvent). In fact, the State presumably stands prepared to bring the defendant to trial on that day, so long as its motion to amend the indictment is granted. Where the amendment is denied, there is no trial to be postponed or continued, and the State’s nol pros and re-indictment under corrected charges brings a new prosecution for which a new 180-day period begins.

This type of situation differs significantly from those presented in the cases relied on by Appellee because, here, the State could not try Huntley on the charges as they were stated in the charging document due to the incorrect breadth of the dates. In the continuance cases pointed to by Huntley, the State essentially nol prossed in an effort to extend the time period it had in which to prosecute each defendant, often in order to gather additional evidence or complete laboratory testing, purposes for which the statute and the rule were designed to foreclose. In the instance of a denied motion to amend the indictment, at least where the original indictment is legitimately flawed due to reasons assumedly beyond the control of the State, the State has no choice but to nol pros the indictment and re-indict Huntley with a fresh set of charges. In such a case, the State cannot be seen as circumventing the trial court’s scheduling power or extending the 180-day period in which to prosecute the defendant (the main concerns underlying the relevant portions of the Hicks and Curley decisions) because it is impossible, under the circumstances, for the State to prosecute the defendant under the unamended indictment. As such, the nol pros is not amenable to the Curley two-pronged exceptions analysis.¹³

Here, it appears that the State may have been prepared to try the case on the 179th day of the 180-day period and, in fact, would have begun trial that day had its motion to amend the charging document been granted.¹⁴ There is no sugges tion that the State utilized the nol pros with any motive in mind other than to correct the dates on the charging documents and bring Huntley to trial. The State was not refused a continuance, and it did not seek to evade any scheduling orders of the court due to missing evidence. Denying the State the right to try Appellee based solely on the trial court’s determination that it would not allow amendment of the charging documents, particularly where the trial court appeared to understand that the State planned to nol pros and re-indict if its motion was denied, would punish unfairly the State in this case. Rather, because the concerns of the statute, the rule, Hicks, and Curley against trial delay and State manipulation of trial scheduling through the use of a nol pros are not implicated, the general rule would apply that, where a nol pros is entered and charges are refiled subsequently, the 180-day period for trial begins anew with the second indictment. We therefore hold that the Hicks sanction of dismissal, and the concurrent exceptions analysis of Curley, do not apply here where the State’s nol pros is entered based on a denial of its motion to amend an indictment. As such, the motions judge erred, on the record before it, in granting Appellee’s motion to dismiss the second indictment based on Hicks, Curley, § 6-103(a) and Rule 4—271(a)(1).

There is no direct suggestion in this case of any misconduct or ulterior motive to delay behind the State’s entry of the nol pros. See Curley, 299 Md. at 459, 474 A.2d at 507 (noting that the purpose and necessary effect exceptions will not apply where “the prosecution [is] acting in ‘good faith’ or so as to not ‘evade’ or ‘circumvent’ the requirements of the statute or rule setting a deadline for trial”). There is no evidence that the State intentionally sought a flawed indictment originally in the hopes of nol prossing it and, in that way, evading the 180-day requirement. Had there been evidence of such bad faith on the part of the State in its entry of a nol pros against Huntley, application of the Curley exceptions test to its actions and imposition of a Hicks dismissal may have been appropriate. Absent bad faith, however, the general rule applies and the State’s entry of nol pros and subsequent re-indictment of the defendant on the same charges generally restarts the 180-day period.

The record does evince some disagreement as to whether the State should have discovered the incorrect breadth of the dates in the initial indictment before in fact it did, an issue that goes to the question of whether the State entered its nol pros here in good faith. At no point did the Circuit Court squarely confront this issue, and, as an appellate court, we may not engage in fact-finding on this point. Thus, we shall remand the case so that the Circuit Court may determine whether the State in fact exercised good faith when it entered the nol pros of the initial indictment. If it is so found, the reindictment should not be dismissed by reason of Hicks, Curley, or the pertinent rules.

III. CONCLUSION

We hold that the Curley two-pronged exceptions test, and the concurrent Hicks sanction of dismissal, are inapplicable where the State’s nol pros follows a denial of its motion to amend an indictment, at least where bad faith on the part of the State to delay is not shown. This Court designed the Curley exceptions in order to prevent the State from using its nol pros power to evade the 180-day deadline and delay trial of a defendant’s case beyond 180 days. Where the State’s nol pros instead is used to remedy a genuinely flawed indictment, the concerns of Curley are not present. The severe sanction of a Hicks dismissal is reserved for situations where the State seeks to circumvent the strictures of § 6-103(a) and Rule 4r-271(a)(1) and unjustifiably delay a defendant’s trial beyond 180-days. This is not such a case on the record as it exists presently.¹⁵

JUDGMENT OF THE CIRCUIT COURT OF WICOMICO COUNTY VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY WICOMICO COUNTY.

BELL, C.J., and GREENE, J., Dissent.

Footnotes

1

. Section 6-103(a) provides:

(a) Requirements for setting date. — (1) The date for trial of a criminal matter in the circuit court shall be set within 30 days after the earlier of:

(1) the appearance of counsel; or

(ii) the first appearance of the defendant before the circuit court, as provided in the Maryland Rules.

(2) The trial date may not be later than 180 days after the earlier of those events.

2

. Rule 4-271(a)(l) provides:

3

. Such a motion is brought under Md. Rule 4-204, which states:

“On motion of a party or on its own initiative, the court at any time before verdict may permit a charging document to be amended except that if the amendment changes the character of the offense charged, the consent of the parties is required. If amendment of a charging document reasonably so requires, the court shall grant the defendant an extension of time or continuance.”

4

. A nolle prosequi, or nol pros, is an action taken by the State to dismiss pending charges when it determines that it does not intend to prosecute the defendant under a particular indictment. Ward. v. State, 290 Md. 76, 83, 427 A.2d 1008, 1012 (1981). We have observed that "[t]he entry of a nolle prosequi is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent upon the defendant's consent.” Id. It is well settled that "while a nolle prosequi discharges the defendant on the charging document or count which was nolle pressed, and while it is a bar to any further prosecution under that charging document or count, a nolle prosequi is not an acquittal or pardon of the underlying offense and does not preclude a prosecution for the same offense under a different charging document or different count.” Id. at 84, 427 A.2d at 1012-13 (emphasis in original).

5

. Specifically, the Assistant State’s Attorney told the Circuit Court at the motions hearing that:

the State came into information late last week regarding the place, the place of offense, regarding rental time periods, those were cross referenced with other information that the victim gave regarding where she lived at the time of the offense, a different place than where the offense occurred. Comparing those two timeframes, the State has determined that the offenses, in fact, occurred between April 1, 2003 and July 31, 2005.

6

. Huntley's counsel stated:

Well, I think, well, actually what happened, Your Honor, was that due to the Defendant’s witnesses the State became aware that these allegations could not have occurred during the timeframe that [the State] alleged. So now they have figured up another timeframe, and I’ve had zero time to look into that or to determine any kind of defense for this man.

7

. During the hearing on the State’s motion, the State made the Circuit Court aware of its intention to enter a nol pros if its motion were denied:

Court: So if your motion is denied, your intention would be?

State’s Attorney: The State would be nol prossing, Your Honor.

Court: All right.

8

. The sole issue framed by the State in its brief is: "When the State is forced to dismiss a defective indictment and seek a new indictment, does the Hicks period begin again when the new indictment is issued?”

9

. The Dissenting Opinion chooses to analyze the State's nol pros of the initial indictment against Huntley under the two-pronged test announced in Curley, concluding that the purpose and necessary effect of the entry of nol pros was to circumvent the 180-day requirement prescribed by § 6-103(a) and Rule 4 — 271(a)(1). Thus, the Dissenting Opinion maintains, the Circuit Court applied appropriately the Hicks sanction of dismissal. As we shall discuss infra, an analysis under the two-pronged Curley test is inappropriate where, as here, the State’s nol pros is based on a denial of its motion to amend a flawed indictment, absent a showing of bad faith or intent to delay by the State. The Dissenting Opinion proceeds down the wrong analytical path.

Even assuming arguendo that the Dissenting Opinion's analytical path were a correct choice, its conclusion that the State’s nol pros in this case had the necessary effect or purpose of circumventing § 6-103(a) and Rule 4-271(a)(l) is flawed fatally. Regarding the "necessary effect” prong of the Curley test, this Court has noted that a nol pros has the necessary effect of an attempt to circumvent the requirements of § 6-103(a) and Rule 4 — 271(a)(l) only "when the alternative to the nol pros would be a dismissal of the case for failure to commence trial within 180 days____Otherwise, under the teaching of the Curley case, it does not.” State v. Brown, 341 Md. 609, 618, 672 A.2d 602, 607 (1996). As the Dissenting Opinion admits, instead of nol prossing the indictment, the State had the option of bringing the matter to the attention of the administrative judge or his or her designee to seek an extension of the 180-day requirement. Where such alternatives to nol pros are available to the State, the entry of nol pros does not have the "necessary effect" of circumventing § 6-103(a) and Rule 4-271(a)(l). As to the "purpose” prong of Curley, the Court of Special Appeals has observed that the State must be circumventing a ruling by an administrative judge (or his or her designee) which exercises control over the court's calendar, thus implicating the requirement of good cause for an extension of the 180-day requirement. Jules v. State, 171 Md.App. 458, 475-78, 910 A.2d 553, 563-64 (2006). In the instant case, the Circuit Court denied the State’s motion to amend the flawed indictment. Although the Dissenting Opinion may be correct in its assertion that the State entered its nol pros in an attempt to circumvent the authority and decision of the Circuit Court, this record does not support that it sought to circumvent a ruling exercising control over the court's calendar, and, therefore, the "purpose” prong is not satisfied.

10

. In Hicks, we noted that the Legislature’s enactment of § 6-103(a) “manifested [its] recognition of the detrimental effects to our justice system which result from excessive delay in scheduling criminal cases for trial and in postponing scheduled trials for inadequate reasons.” Hicks, 285 Md. at 316, 403 A.2d at 359.

11

. In Curley, the trial court granted the defendant's motion for a continuance, but failed to set a new trial date. Curley, 299 Md. at 452-53, 474 A.2d at 503-04. On the final day of the 180-day period, the State filed a motion for a continuance that was denied. Id. at 453, 474 A.2d at 504. In response, the State nol pressed the charges against Curley and re-indicted him on the identical charges three months later. Id. On Curley’s appeal from the denial of his motion to dismiss the second indictment, we held that "the necessary effect of the nol pros was an attempt to evade the dismissal resulting from the failure to try the case within 180 days" because the nol pros was entered on the final day for trial and, due to the absence in court of the defendant, his counsel, and his witnesses (no new trial date having been set earlier, as noted supra), the trial could not be held within the 180-day period. Id. at 462-63, 474 A.2d at 509.

In Ross, the State requested a continuance on the date set for trial because it had not received the laboratory analysis of drugs allegedly found in Ross' possession. Ross, 117 Md.App. at 361, 700 A.2d at 284. The administrative judge denied the motion, finding no good cause for a continuance and noting that the case could not be put back into the docket before the Hicks period expired. Id. As a result, the State nol pressed the charges and re-indicted Ross. Id. Analyzing the case under Curley, the Court of Special Appeals found that the State's nol pros of Ross’ initial indictment had been entered to circumvent the 180-day limit. Id. at 370, 700 A.2d at 289. In doing so, the court emphasized that the trial court explicitly denied the State’s motion for postponement for a lack of good cause. Id.

In Alther, one week prior to the scheduled trial date, the trial court denied the State's motion to consolidate the charges against Alther to include a first-degree rape charge that the State previously had eliminated. Alther, 157 Md.App. at 319-20, 850 A.2d at 1213. The trial court indicated that there would be no postponement of trial. Id. On the trial date, the State nol pressed the charges and later re-indicted Alther under a new charging document that included all of the charges. Id. at 320, 850 A.2d at 1214. The Court of Special Appeals found that the State’s nol pros effectively circumvented the trial court’s denial of the consolidation motion, noting that "when a scheduling decision has been rendered by the circuit court, and the nol pros is entered as a means of circumventing that decision, the nol pros will have the purpose or necessary effect of evading the 180-day rule.” Id. at 335, 850 A.2d at 1222.

In Price, the State requested a continuance because of the unavailability of DNA test results that it needed for trial. Price, 385 Md. at 265, 868 A.2d at 254. The administrative judge denied the State's request and the State nol pressed the charges, re-indicting Price on the same charges five weeks later. Id. at 266, 868 A.2d at 255. On appeal, we found that the entry of nol pros had the purpose of circumventing the 180-day period because the State’s clear intention in entering the nol pros was to evade the scheduled trial date and avoid the expiration of the 180-day period. Id. at 278-79, 868 A.2d at 262-63. We noted specifically that the intended objectives ol the statute and the rule "are to afford reasonably prompt trials, and eliminate excessive scheduling delays and unjustifiable postponements.” Id. at 278, 868 A.2d at 262.

12

. This Court, and the Court of Special Appeals, have used the Curley test to decide a number of other cases dealing with attempted circumvention of the 180-day period by the State through the use of a nol pros. In State v. Brown, 341 Md. 609, 672 A.2d 602 (1996), we applied the Curley two-pronged analysis where the State nol pressed the charges against Brown 43 days before the expiration of the 180-day deadline because it had not received yet the results of certain DNA testing necessary to comply with Brown’s discovery motion and for the State’s trial preparation. Id. at 612, 672 A.2d at 604. We found that Brown’s subsequent re-indictment on the identical charges, following completion of the DNA testing, did not require dismissal because the necessary effect of the nol pros was not to circumvent the 180-day requirement because the State had alternatives to the nol pros, namely, to expedite the testing or to proceed without the DNA evidence. Id. at 620, 672 A.2d at 607-08.

In Baker v. State, 130 Md.App. 281, 745 A.2d 1142 (2000), the State nol pressed the charges against Baker because it could not provide, before the date set for trial, the 20 days notice to defense counsel required for admission of certain of its hearsay evidence. Id. at 296, 745 A.2d at 1150. The Court of Special Appeals applied the Curley analysis and found that, because the State had alternatives to nol prossing the case, the necessary effect of the nol pros had not been to circumvent the 180-day rule. Id. at 302, 745 A.2d at 1153. That court noted that the "candid reason for entering the nol pros on the scheduled trial date was that the State was not yet ready to proceed to trial ... and was in desperate need of postponement." Id. at 294, 745 A.2d at 1149.

In State v. Akopian, 155 Md.App. 123, 841 A.2d 893 (2004), the intermediate appellate court applied the Curley test where the State, following denial of its request for a continuance because its key police witness was unavailable, nol prossed the charges against Akopian and re-indicted him. Id. at 126-28, 841 A.2d at 894-96. The intermediate court found that the State’s nol pros neither had the purpose nor the necessary effect of circumventing the 180-day rule because it had been vigorous in its effort to bring the second prosecution within the original 180-day period. Id. at 140-41, 841 A.2d at 903.

In Wheeler v. State, 165 Md.App. 210, 885 A.2d 351 (2005), following the denial of its motion for a continuance, the State nol prossed the charges against Wheeler because it could not obtain DNA evidence necessary for its case prior to the expiration of the 180-day period. Id. at 216, 885 A.2d at 354-55. The Court of Special Appeals found that this action had the necessary effect of circumventing the Hicks rule because the State’s nol pros essentially evaded the trial court’s determination that there was no good cause to postpone the case and that trial should proceed as scheduled. Id. at 232, 885 A.2d at 364.

13

. State v. Glenn, 299 Md. 464, 474 A.2d 509 (1984), the companion case to Curley, applied the Curley two-pronged exceptions test to an entry of nol pros based on a flawed indictment. In Glenn, the State voluntarily nol prossed its original indictment, which failed to allege that the defendants "knowingly” committed the crime charged, because it believed that the defense would object to any amendment. Id. at 465, 474 A.2d at 510. The State re-indicted Glenn under a corrected charging document and Glenn moved to dismiss the second indictment as violative of Hicks. Id. at 466, 474 A.2d at 510. We analyzed the State's nol pros under the relevant Curley paradigm.

Although similar to the instant case, Glenn is distinguishable and does not undermine our conclusion that the Curley exceptions analysis is inappropriate where a nol pros is entered based on a flawed charging document. In Glenn, there was no denial of a motion to amend the indictment. Thus, the State made a unilateral, unforced decision that its indictment was flawed and that a nol pros was necessary and appropriate. Here, the trial court denied the State’s motion to amend the dates in the indictment, leaving the State with an indictment containing allegations that it could not prove. Denial of the amendment created a situation essentially where trial could not proceed. Additionally, in Glenn, the flaw contained in the indictment resulted from culpable error on behalf of the State, namely, failure to include an essential element of the charge. Here, the flaw in the indictment, the incorrect dates, stemmed from the child victim’s initial incorrect recollection of when the incidents happened. Upon being presented by the victim’s parents with new information, the State immediately attempted to remedy the indictment, but its motion to amend was denied. We believe that such distinctions explain why a Curley exceptions analysis was appropriate in Glenn, but inapplicable to the present case.

14

. This is not to say that it would have been an abuse of discretion on the part of the trial court were it to have granted Huntley a continuance (had the trial proceeded on 3 March 2008 based on an amended indictment) because of his complaint that the late change in the dates of the offenses left his counsel with no time to investigate or marshal a defense based on the new dates.

15

. We express no opinion as to whether the nol pros and subsequent re-indictment of Huntley violated his constitutional speedy trial rights. That issue was not presented to us in this case. Section 6-103(a) and Rule 4-271(a)(1) were not intended to codify the constitutional right to a speedy trial. Instead, that statute and rule merely act as a prophylactic remedy for unjustifiable trial delay by the trial court or the State.