Opinion
[H.C. No. 101, September Term, 1957.]
Decided April 1, 1958.
HABEAS CORPUS — Not Available Until Entire Legal Portion of Confinement Served — Whether Sentences Consecutive or Concurrent. In this habeas corpus proceeding petitioner had been sentenced to an eighteen-month term for a criminal offense (the second sentence), to run consecutively with a two-year sentence (the first sentence), previously imposed. After serving less than a year he escaped, and, after he was apprehended, he was convicted of another offense (the third sentence), and sentenced to one year to run "Consecutive[ly] with sentence [he is] now serving * * *". He claimed that the second sentence was to run concurrently with the first sentence, but the Court found this contention to be at odds with the facts and not entitled to favorable consideration. Whether the third sentence was to run consecutively after the first sentence and concurrently with the second sentence, or consecutively after the expiration of both prior sentences, it clearly did not begin to run from the date of its imposition (as petitioner claimed), since not even the first sentence had expired by that time. And since he had not yet completed serving the time imposed for the second sentence, he had no standing to sue for habeas corpus, which is not available until the entire legal portion of a petitioner's confinement has been served. pp. 645-646
J.E.B.
Decided April 1, 1958.
Habeas corpus proceeding by Robert H. Fincher, alias James W. Brown, against the Warden of the Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied, with costs.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
This is an application for leave to appeal from the denial of a writ of habeas corpus by Judge George Henderson of the Circuit Court for Allegany County. The applicant, James W. Brown, alias Robert H. Fincher, was convicted on February 7, 1955, of the crime of larceny and sentenced to a term of two years in the Maryland House of Correction, the sentence to start from the time of his apprehension, January 16, 1955. On February 10, 1955, he was convicted of another offense (violation of probation by deserting and failing to support his wife), and was sentenced to eighteen months in the Maryland House of Correction, the sentence to run consecutively with the one received by him three days before. On August 1, 1955, the applicant escaped from the House of Correction, and was not apprehended until June 18, 1956, when he was arrested upon suspicion of larceny. On July 6, 1956, he was tried for and convicted of larceny, and sentenced to "One (1) year in the Md. House of Correction. Consecutive with sentence now serving in Md. House of Correction". Each of the three convictions mentioned above occurred in the Criminal Court of Baltimore.
Petitioner contends that the sentence of eighteen months imposed on February 10, 1955, was to run concurrently with the two-year sentence received by him three days earlier. This contention is at odds with the facts and therefore is not entitled to favorable consideration. He also states: "To the Petitioner's knowledge the (1) year sentence received July 6-1956 began as of that day and date an[d] is to run concurrently with the other sentence". Although it is not clear from the docket entry (quoted above) whether the third sentence was to run consecutively after the first sentence and concurrently with the second, or whether it was to run consecutively after the expiration of both the first and second sentences, it is quite clear that it was not to begin running on July 6, 1956, since not even the first sentence had expired on that date. It is also clear that regardless of the time when the third sentence begins or ends, the petitioner has not yet completed serving time for the second sentence (eighteen months) and therefore has no standing presently to sue for habeas corpus. This remedy is not available until the entire legal portion of an applicant's confinement has been served. Hunter v. Warden, 198 Md. 655, 80 A.2d 611; Roberts v. Warden, 206 Md. 246, 254, 111 A.2d 597. The detention of the petitioner has not of this date been illegal. If it should become so at some time in the future (regarding which we here express no opinion), that will be the proper time for the petitioner to seek relief.
Application denied, with costs.