Opinion
[P.C. No. 29, September Term, 1959.]
Decided October 21, 1959. Certiorari denied, 364 U.S. 851.
POST CONVICTION PROCEDURE ACT — Petitioner Not Present at Every Stage of His Trial — Entitled to New Trial, But Not to Immediate and Final Release. The petitioner in this post conviction proceeding had dismissed his appeal from his original conviction, but his co-defendant was awarded a new trial on appeal because his "absolute right to be present at every stage of his trial" had been denied. The court below, upon the petition in the instant case, for the same reason also granted the petitioner a new trial, but declined to order his immediate and final release from custody, as the petitioner claimed the court should have done. This Court agreed with the conclusion reached by the court below. p. 684
J.E.B.
Decided October 21, 1959.
Morris Ruckle instituted a proceeding under the Post Conviction Procedure Act, and from a denial of the relief sought, he applied for leave to appeal.
Application denied.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Morris Ruckle (Ruckle), the applicant for leave to appeal, together with Charles E. Midgett (Midgett), had appealed his conviction for the robbery and kidnapping of a police officer [ Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958)]. Ruckle subsequently dismissed his appeal before it was heard by this Court. On May 13, 1959, Judge Tucker, upon the petition of Ruckle for post conviction relief, set aside the judgment and sentence of the Criminal Court of Baltimore and granted the petitioner a new trial on the ground that he — as we had held with respect to Midgett — had been denied his "absolute right to be present at every stage of his trial from the time the jury is impaneled until it reaches a verdict or is discharged." However, the petitioner below and applicant here contends that because he had dismissed his appeal from the invalid judgment and sentence, he was entitled to immediate and final release from custody and that granting him a new trial was not sufficient.
Judge Tucker noted that the court had authority to enter an appropriate order with respect to the judgment or sentence [Code (1958 Supp.), Art. 27, sec. 645G] and decided that Ruckle was entitled to a new trial, which was the same relief as Midgett had been granted by this Court, but not the preferred status Ruckle contended he was entitled to.
We agree with the conclusion reached by the court below.
Application denied.