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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2008 September Term, 2004 _______________________________

CARL EUGENE WARNE

V.

STATE OF MARYLAND

_______________________________ Salmon, Adkins, Barbera, JJ. Opinion by Salmon, J. Filed: December 5, 2005

On July 15, 2004, Carl Warne was indicted by a Prince George's County Grand Jury for, inter alia, six crimes, i.e., manslaughter by vehicle or vessel, homicide by motor vehicle or vessel while under the influence of alcohol, homicide by motor vehicle or vessel while under the influence of alcohol or under the influence of alcohol per se, homicide by motor vehicle or vessel while impaired by alcohol, and homicide by motor vehicle or vessel while impaired by drugs.1 Warne's counsel filed a motion to dismiss the

The charges here at issue all constituted violations of sections of the Criminal Law Article of the Maryland Code (2002 Repl. Vol.). The specific sections of the Criminal Law Article alleged to have been violated by Warne were: 1. 2-209 Manslaughter by vehicle or vessel * * * (b) A person may not cause the death of another as a result of the person's driving, operating, or controlling a vehicle or vessel in a grossly negligent manner. 2-502 Homicide by motor vehicle or vessel while under the influence of alcohol (a) A person may not cause the death of another as a result of the person's negligently driving, operating, or controlling a motor vehicle or vessel while: (1) under the influence of alcohol[.] 2-503 Homicide by motor vehicle or vessel while under the influence of alcohol or under the influence of alcohol per se. (a) A person may not cause the death of another as a result of the person's negligently driving, operating, or controlling a motor vehicle or vessel while: * * * (2) under the influence of alcohol per se. 2-504 Homicide by motor vehicle or vessel while impaired by alcohol (a) A person may not cause the death of another as a result of the person's negligently driving, operating, or controlling a motor vehicle while impaired by alcohol. 2-505 Homicide by impaired by drugs motor vehicle or vessel while (continued...)

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aforementioned six charges on the ground that prosecution of him on those charges was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and by Maryland common law principles. The motions judge denied Warne's motion to dismiss based on the "Diaz exception"2 to the Fifth Amendment. In Whittlesey v. State, 326 Md. 502, 525 (1992), the scope of the Diaz exception was enunciated: [A] subsequent indictment on a second offense, otherwise barred by the Double Jeopardy Clause of the Fifth Amendment, is not barred if, at the time of prosecution for the earlier offense a reasonable prosecutor, having full knowledge of the facts which were known and in the exercise of due diligence should have been known to the police and prosecutor at that time, would not be satisfied that he or she would be able to establish the suspect's guilt beyond a reasonable doubt. Warne filed this interlocutory appeal from the court's denial of his motion to dismiss.3
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(...continued) (a) A person may not cause the death of another as a result of the person's negligently driving, operating, or controlling a motor vehicle or vessel while the person is so far impaired by a drug, a combination of drugs, or a combination of one or more drugs and alcohol that the person cannot drive, operate, or control a motor vehicle or vessel safely. 6. 2-506 Homicide by motor vehicle or vessel while impaired by a controlled dangerous substance (a) A person may not cause the death of another as a result of the person's negligently driving, operating, or controlling a motor vehicle or vessel while the person is impaired by a controlled dangerous substance[.]

Md. Code, Crim. Law (2005).
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See Diaz v. United States , 223 U.S. 442 (1912).

3 Denial of a motion to dismiss on double jeopardy grounds is immediately appealable under the collateral order doctrine. Caldwell v. State , 2005 WL 2429604 * 19 n.8 (Md. App. Oct. 4, 2005); Parrot v. State , 301 Md. 411, 424-25 (1984); Ward (continued...)

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I. On August 3, 2003, Carl Warne was driving a motor vehicle that struck an automobile operated by Ronald Raglan, Jr. At the scene

of the accident, Warne was issued a citation for negligent driving. Warne paid the fine set forth in the driving citation on August 6, 2003, at 9:53 a.m. On August 7, 2003, approximately seventeen

hours after Warne paid the traffic citation, Robert Raglan, Jr., died due to injuries resulting from the August 3, 2003, accident. Warne was indicted for the six offenses here at issue approximately eleven months after Mr. Raglan's death.4 The Fifth Amendment to the United States Constitution

provides, in pertinent part, that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb." That amendment is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969); Spencer

v. State, 97 Md. App. 734, 738 (1992). The Double Jeopardy Clause prohibits (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717

(1969). Despite the Double Jeopardy Clause's reference "to life or limb," fines are to be treated in the same way as a prison sentence

3 (...continued) v. State , 290 Md. 76, 81 n.4 (1981); Pulley v. State , 287 Md. 406, 414 (1980).

An earlier indictment charging the same crimes was nol prossed by the State's Attorney for Prince George's County.

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for double jeopardy purposes. (1990).

Gianiny v. State, 320 Md. 337, 339

Section 26-204(b)(1) of the Maryland Transportation Article of the Code of Maryland (2002 Repl. Vol.) reads: "For purposes of

this section, the person [receiving a traffic citation] may comply with the notice to appear [contained in the citation] by: (i)

Appearance in person; (ii) Appearance by counsel; or (iii) Payment of the fine, if provided for in the citation." The traffic

citation issued to Warne advised that he had the option of paying the fine mentioned in the citation without appearing in court. When a fine is paid in this manner, the defendant stands convicted of the offense. Gianiny, 320 Md. at 346.5 Thus, Warne's payment

of the citation for negligent driving was sufficient to act as a final judgment for double jeopardy purposes. When one is charged with different offenses arising out of the same transaction, the test for determining whether they are the "same offense" for double jeopardy purposes is the "required evidence" test, which is often called the "Blockburger test." Gianiny, 320 Md. at 340. That test is:

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The statutory laws of this State authorize one to appear in response to a traffic citation that provides for payment of a fine by paying the fine, with the clear understanding that such payment will constitute a conviction. * * * . . . When one has been convicted and punished for a criminal offense, he has been in jeopardy.

Gianiny , 320 Md. at 346.

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[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932). In Brown v. Ohio, 432 U.S. 161, 166 (1977), the Supreme Court held that successive prosecutions are barred by double jeopardy principles if two offenses are the same under the Blockburger test. See also Gianiny, 320 Md. at 340-41 (quoting Brown v. Ohio, 432 U.S. at 166) ("A lesser included offense, one which requires no proof beyond that which is required for conviction of the greater offense, is the same statutory offense as the greater offense under the Blockburger test. Thus, whichever is prosecuted first, `the

Fifth Amendment forbids successive prosecution . . . for a greater and lesser included offense.'"). As to the six charges here at issue (see n.1, supra), it is clear that, under the Blockburger test, negligent driving is a lesser-included offense. In Gianiny, the Court said:

Negligent driving is a lesser included offense within the greater offense of manslaughter by automobile. Although negligent driving is a violation of the Maryland Vehicle Law rather than the criminal code, it is a misdemeanor by virtue of

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