Preston v. Warden of Md. House of Correction

• Decision Date: 11 April 1961
• Docket Number: No. 49,49
• Citation: 169 A.2d 407,225 Md. 628
• Parties: Robert L. PRESTON v. WARDEN OF the MARYLAND HOUSE OF CORRECTION. Post Conviction
• Court: Maryland Court of Appeals

Page 628

225 Md. 628

169 A.2d 407

Robert L. PRESTON v.WARDEN OF the MARYLAND HOUSE OF CORRECTION.

Post Conviction No. 49.

Court of Appeals of Maryland.

April 11, 1961.

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

HORNEY, Judge.

Robert L. Preston(the applicant) was convicted by the Circuit Court for Harford County of 'resisting an officer in making arrest' and was sentenced to ten years in the House of Correction.Either before or after or simultaneously with this conviction, he was also convicted of an 'assault on Trp.Mullin' and was sentenced to five years in the same institution, the two sentences to run concurrently.Apparently the charges of which the applicant was convicted were based on his misconduct when a trooper attempted to place him under arrest on a charge of larceny.

In the original petition for post conviction relief, the applicant claimed only that 'resisting arrest doesn't carry the penalty which I have been given,' but in his amended petition, the applicant abandoned the original contention and alleged (i) that he was convicted of a crime--resisting arrest--which does not exist in this State and (ii) that his convictions for resisting arrest and for assault amounted to double jeopardy in that he was convicted twice on the same set of facts.In his application for leave to appeal, the applicant also alleged for the first time (iii) that the relief prayed for should have been granted because the State failed to file an answer to the petition for relief within the time limited by the statute.

The first...