Phillips v. Warden of Md. House of Correction

• Decision Date: 23 January 1958
• Docket Number: No. 58,58
• Citation: 215 Md. 632,137 A.2d 713
• Court: Maryland Court of Appeals
• Parties: Allen E. PHILLIPS v. WARDEN OF THE MARYLAND HOUSE OF CORRECTION. Application

Page 632

215 Md. 632

137 A.2d 713

Allen E. PHILLIPS v. WARDEN OF THE MARYLAND HOUSE OF CORRECTION.

Application No. 58.

Court of Appeals of Maryland.

Jan. 23, 1958.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

Phillips, the applicant for leave to appeal from a denial of habeas corpus by Judge Raine of the Circuit Court for Baltimore County was on June 17, 1953, sentenced by the Criminal Court of Baltimore to eighteen months for violation of probation. On July 10, 1953, he was sentenced in the same court to serve an additional two years for assaults, by virtue of three concurrent sentences of two years' each, which were to run consecutively to the eighteen-month sentence. On March 28, 1955, the applicant was paroled, but on November 30, 1956, he was returned to prison for violation of parole without credit for time spent at liberty. On December 12, 1956, he received a new sentence of two years for attempted larceny, to be served concurrently with the sentence which had been interrupted by parole and which he was then serving. On January 10, 1957, applicant was awarded in the Baltimore City Traffic Court three sentences, one for six months and two for one year, which were to run concurrently with each other. The magistrate, however, did not state whether they were to be concurrent with or consecutive to the sentences that the applicant was then serving.

Phillips makes these points: (1) that time during which he was at liberty under parole supervision should have been credited against his sentence because Code, 1957 Supp., Art. 41, sec. 91H, which empowers the Board of Parole and Probation to deny credit against the sentence for time spent under parole supervision, is unconstitutional; (2) that the violation of parole for which he was returned to prison occurred after the expiration of the sentences from which he was paroled (if time spent on parole were credited against the sentences); (3) that the sentence imposed on December 12, 1956, was invalid as it was imposed to be served concurrently with sentences which had expired (if time spent on parole were credited against the sentences); (4) that the sentences imposed on January 10, 1957, are not to be served consecutively to previous sentences but concurrently therewith.

The constitutionality of Code, 1957, Supp., Art. 41, Sec. 91H, was considered and upheld in Hall v. Warden, 211 Md. 661, 663, 128 A.2d 280. Accordingly, failure of the Board to exercise...