Opinion
[H.C. No. 15, September Term, 1957.]
Decided October 28, 1957.
HABEAS CORPUS — Premature Where Valid Sentences Not Yet Served. Where there was no substantial question as to the validity of sentences which petitioner had not yet served, his petition for a writ of habeas corpus was, accordingly, premature. pp. 612-613
APPEAL — Lies from Denial of Motion to Correct Sentences. In this case petitioner for a writ of habeas corpus wrote the trial Judge requesting the correction of allegedly illegal sentences, and the Judge's reply stated that in his opinion the sentences were not illegal and denied the request. Assuming this to be the equivalent of a motion for a correction of sentence and an order denying it, the denial would be appealable, and in the instant case there was no appeal entered therefrom. p. 613
J.E.B.
Decided October 28, 1957.
Habeas corpus proceeding by Robert Roberts against the Warden of the Maryland Penitentiary. From a refusal of the writ, petitioner applied for leave to appeal.
Application denied, with costs.
Reporter's Note: Certiorari denied, Supreme Court of United States, March 3, 1958.
Before BRUNE, C.J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.
This case involves a second petition for a writ of habeas corpus filed by this petitioner. He seeks to raise questions which were presented on his previous application upon which leave to appeal was granted. Judge Byrnes, sitting in the Baltimore City Court, denied the present petition by a short opinion and order in which he stated: "In his petition for Writ of Habeas Corpus, petitioner states that `the vital question is whether the Court had authority to pronounce the 20 year sentences without regard to the maximum requirement and the particular counts.' This question was included in a previous Habeas Corpus petition heard by Judge John T. Tucker, and was decided against petitioner. The Court of Appeals, in Roberts v. Warden [ 206 Md. 246, 111 A.2d 597], held that the petition for Writ of Habeas Corpus upon the grounds stated was premature, and dismissed the appeal."
We agree with the views expressed by Judge Byrnes. The appellant has not yet served the sentences as to the validity of which there appears to be no substantial question. This application is, accordingly, premature as was his first one.
We note that the petitioner wrote a letter to the Judge who had imposed the sentences in the Criminal Court of Baltimore, under which he is now confined, requesting a correction of what the petitioner claimed to be an illegal sentence. The Judge replied to the petitioner, stating that in his opinion the sentences imposed were not illegal and denying the request. Assuming that the petitioner's correspondence with the Judge could be considered as the equivalent of a Motion for a Correction of Sentence, and the Judge's reply as an order denying that Motion, in accordance with the possible procedure outlined in the concluding paragraph of our opinion in this petitioner's former appeal, Roberts v. Warden, 206 Md. at 255, we note he has not entered an appeal from such denial which, as was pointed out in the previous case, would be appealable. On the contrary, he has filed a second petition for a writ of habeas corpus which, as we have said, is premature. Accordingly, the application is denied.
Application denied, with costs.