Opinion
No. 36, September Term, 1969.
Decided January 9, 1970.
POST CONVICTION PROCEDURE — Hearings — Appointment Of Counsel. Rules BK42 and BK44 affirmatively require a hearing upon every first petition filed under the Post Conviction Procedure Act and that counsel be appointed where it appears that the petitioner is indigent. p. 396
Application for leave to appeal from the Circuit Court for Dorchester County (TRAVERS, J.).
Earl R. Franklin instituted a proceeding under the Uniform Post Conviction Procedure Act, and, from a denial of relief, he applied for leave to appeal.
Application granted; case remanded for further proceedings in accordance with opinion.
Before MURPHY, C.J., and ANDERSON, MORTON, and ORTH, JJ.
Earl R. Franklin pro se.
Francis B. Burch, Attorney General, and Richard M. Matthews, Assistant State's Attorney for Dorchester County, for respondent.
This is an application for leave to appeal from a denial of Post Conviction relief by Judge William W. Travers sitting in the Circuit Court for Dorchester County.
Sometime prior to the filing of this petition, the applicant had apparently sought relief by filing a petition for a writ of habeas corpus at which time counsel was appointed and a hearing thereon was held by Judge Daniel T. Prettyman who denied the petition. The present petition, however, appears to be his first petition under the Uniform Post Conviction Procedure Act. We have consistently held that Md. Rules BK42 and BK44 affirmatively require a hearing upon every first petition filed under the Act and further require that counsel be appointed where it appears that the petitioner is indigent. Yopps v. Warden, 1 Md. App. 537; Taylor v. Director, 1 Md. App. 23. It appears from the record before us that no hearing was held on the applicant's petition nor was he represented by counsel. Accordingly, the case will be remanded to afford the applicant a hearing and, in the event he is determined to be an indigent, counsel should be appointed to represent him.
Application for leave to appeal granted and case remanded for further proceedings in accordance with this opinion.