State v. Roberson, 43

• Decision Date: 01 September 1960
• Docket Number: No. 43,43
• Citation: 161 A.2d 441,222 Md. 518
• Parties: STATE of Maryland v. William D. ROBERSON. ,
• Court: Maryland Court of Appeals

Page 518

222 Md. 518

161 A.2d 441

STATE of Maryland v. William D. ROBERSON.

No. 43, Sept. Term, 1960.

Court of Appeals of Maryland.

June 9, 1960.

Joseph S. Kaufman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., William Kahler, State's Atty., and Frank P. Flury, Deputy State's Atty., Prince George's County, Upper Marlboro, on the brief), for appellant.

Thomas B. Yewell, Hyattsville (Welsh, Dyer & Lancaster, Hyattsville, on the brief), for appellee.

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

HENDERSON, Judge.

On March 7, 1960, after a hearing on a petition for post conviction relief, Judge Fletcher, in the Circuit Court for Prince George's County, ordered that the petitioner be released from the custody of officials of the Patuxent Institution, to which he had been duly committed as a defective delinquent pursuant to a finding of a jury on January 8, 1957, and an order of court, under Code (1957), Art. 31B, sec. 9(b), from which no appeal had been taken. Judge Fletcher rejected the petitioner's contention that Art. 31B is unconstitutional, but held that the misdemeanor of which the petitioner had been originally convicted upon a plea of guilty, unauthorized taking of a motor vehicle under Code (1957), Art. 27, sec. 349, was not of a type that would meet the conditions laid down in Art. 31B, sec. 6. Accordingly, the sentence of not to exceed two years in the State Reformatory having expired (cf. Caparella v. State, 214 Md. 355, 358, 135 A.2d 311), the court ordered his release. On March 22, 1960, the State's Attorney filed a 'notice of appeal', and the court passed an order staying the order of release. Counsel for the appellee filed in this Court a motion to dismiss the appeal, on the ground that there is no appeal as of right in post conviction cases, and that the 'notice of appeal' did not serve the purpose of an application for leave to appeal. We deferred ruling on the motion and advanced the case for argument in this Court upon the motion, and upon the merits.

This Court has not yet prescribed the form in which applications for leave to appeal should be drawn, under Code (1959 Cum.Supp.), Art. 27, sec. 645-I, and our practice, at least where applications have been filed by persons under confinement, has been to give effect to clear intention to seek review. Even in case of direct appeals, technical mistakes have frequently been overlooked. Sweeney v. Hagerstown Trust Co., 144 Md. 612, 622, 125 A. 522; Christy v. Hammond, 161 Md. 139, 144, 155 A. 322; Sobel v. Diatz, 88 U.S.App.D.C. 329, 189 F.2d 26, 27. Under the circumstances of this case, we are disposed to treat the notice as an application for leave to appeal, which, in effect, we granted by advancing the case for argument.

The appellee argues that an applicant for leave to appeal should state the grounds relied upon. Maryland Rule 830 a 1 provides, in part: 'In a post conviction case the applicant may, in lieu of a brief, rely on the statement in his application for leave to appeal of the reasons why the order should be reversed.' But in the instant case the points relied upon were fully set out in the petition, and discussed in the opinion of the court below and in the briefs filed in this Court. We are not disposed to grant the motion to dismiss under the circumstances.

If the question of the constitutionality of Art. 31B is properly before us on the State's appeal, it is sufficient to state that the points raised were decided, contrary to the appellee's contentions, in Eggleston v. State, 209 Md. 504, 121 A.2d 698. Cf. McElroy v. Director, 211 Md. 385, 127 A.2d 380; Palmer v. State, 215 Md. 142, 137 A.2d 119; Blizzard v. State, 218 Md. 384, 147 A.2d 227, and Cowman v. State 220 Md. 207, 212, 151 A.2d 903. In the Eggleston case we held that the statute was sufficiently certain and definite. Although it has been urged upon us that doubts have since arisen as to the wisdom of the enactment and its practicality in operation, we adhere to the view that it does not transcend constitutional limitations. In the Eggleston case we also held that the classification, as between persons who may not have been convicted, or convicted of crimes the penalty for which is more limited, was not unreasonable. Likewise, in the instant case, we find no invalid discrimination in the fact that the request for examination may originate with the State's Attorney, the defendant, the defendant's attorney, or the court, under sec. 6(b) of Art. 31B. A person committed to an institution for the insane could hardly complain that other lunatics are still at large.

The appellant contends that the court below erred in holding that the trial court did not have jurisdiction to initiate the proceeding that resulted in the appellee's commitment to Patuxent Institution. Code (1957), Art. 31B, sec. 6(a) provides that a request for examination may be made if the person in question has been convicted and sentenced for 'a crime or offense coming under one or more of the following categories: (1) A felony; (2) a misdemeanor punishable by imprisonment in the penitentiary; (3) a crime of violence; (4) a sex crime [of certain types] * * *; (5) two or more convictions for any offenses or crimes punishable by imprisonment, in a criminal court of this State.' Code (1957), Art. 27, sec. 349, creating the offense for which the appellee was convicted, provides that any person convicted of wilfully taking a motor vehicle shall 'be adjudged guilty of a misdemeanor, and shall restore the property so taken * * * and be fined * * * or be imprisoned in the county or city jail or the penitentiary, or the house of correction * * *, or be both fined and imprisoned as aforesaid, in the discretion...