Terry v. Warden, Md. Penitentiary

• Decision Date: 25 July 1966
• Docket Number: No. 120,120
• Citation: 221 A.2d 691,243 Md. 610
• Parties: Ernest R. TERRY v. WARDEN, MARYLAND PENITENTIARY. Post Conviction
• Court: Maryland Court of Appeals

Page 610

243 Md. 610

221 A.2d 691

Ernest R. TERRY v. WARDEN, MARYLAND PENITENTIARY.

Post Conviction No. 120.

Court of Appeals of Maryland.

July 25, 1966.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

MARBURY, Judge.

Petitioner Ernest R. Terry was convicted of robbery with a deadly weapon by Judge Harold Grady, sitting without a jury, in the Criminal Court of Baltimore, and was sentenced to serve ten years in the Maryland Penitentiary. We affirmed that conviction on July 16, 1965, in Hopkins and Terry v. State, 239 Md. 517, 211 A.2d 831. On September 20, 1965, Terry filed his first petition under the Uniform Post Conviction Procedure Act and relief was denied by Judge Dulany Foster on November 5, 1965. No application for leave to appeal was taken from this denial, but on November 16, 1965, the petitioner filed the present petition in which he reiterated all the allegations raised in the first petition but added an allegation that his indictment and conviction based thereon were void due to the decision of this Court in Schowgurow v. State, 240 Md. 121, 213 A.2d 475, wherein it was held that the provisions of Article 36 of the Maryland Declaration of Rights, which required that grand and petit jurors evidence a belief in the existence of God, were in violation of the Fourteenth Amendment of the Federal Constitution. In his order dismissing the petition, Judge Anselm Sodaro ruled that the judgment in Terry's case became final as of July 16, 1965, and that the Schowgurow decision afforded Terry no basis for Post Conviction relief because the language in that case was explicit in reference to its application only to cases which were not final as of the date of that decision-October 11, 1965. For the reasons stated below we do not think that the judgment and sentence in Terry's case was final as of the date of the Schowgurow decision and thus leave to appeal must be granted.

In the case of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the issue before the Supreme Court was whether the principle (as to exclusion in state courts of illegally seized evidence) enunciated in Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applied to state court convictions which had become final before rendition of the Mapp decision. In course of an opinion in which it was held that the principle did not apply retrospectively, Justice Clark, speaking for the seven member majority of the Court, defined the word 'final' in this manner: 'By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio.' (381 U.S. 618, 622, 85 S.Ct. 1731, 1734, fn. 5). See also Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, at p. 1777, 16 L.Ed.2d 882 decided June 20, 1966, where a similar definition of the word 'final' was recognized in the body of the opinion. Thus the Supreme Court has defined finality as denoting the point of time when the courts are powerless to provide a remedy for the defendant on direct review, and that was precisely the sense in which the word 'final' was used in Schowgurow when,...