Wilson v. Warden of Maryland Penitentiary

200 Md. 652 | Md. | 1952

Henderson, J.,

delivered the opinion of the Court.

This is an application for leave to appeal from the denial of a writ of habeas corpus. The applicant was convicted of larceny and sentenced by Judge Sayler on December 15, 1947, to serve five years in the Baltimore City Jail. On March 16, 1949 he was convicted by Judge France and sentenced to ten years in the Maryland Penitentiary, “to begin at expiration of sentence now serving”, for attempting to escape. Application for leave to appeal from denial of a writ of habeas corpus was denied in connection with this latter conviction. Wilson v. Warden, 198 Md. 663, 80 A. 2d 897.

The present petition is based upon the fact that on April 21, 1949 Judge Sayler, at the request of the petitioner, struck out the five-year sentence and resentenced the petitioner “to serve the balance of the aforesaid sentence in the Maryland Penitentiary”. His contention is that after striking out the sentence, Judge Sayler had no power to resentence him. This contention is based upon a false premise. Judge Sayler had no power to reduce or strike out the sentence after it became enrolled, and his action in regard thereto was a nullity. Czaplinski v. Warden, 196 Md. 654, 75 A. 2d 766. Cf. Rule 10, Criminal Rules of Practice and Procedure. Nor can the petitioner be heard to complain that the transfer from one institution to another was ordered by the court, rather than the Board of Correction, since it was done at his own request.

Application denied, with costs.