Mathis v. Warden of Maryland House of Correction ( 1966 )

243 Md. 682 (1966) 221 A.2d 81

MATHIS
v.
WARDEN OF MARYLAND HOUSE OF CORRECTION

[App. No. 127, September Term, 1965.]

Court of Appeals of Maryland.

Decided June 30, 1966.

Before the entire Court.

PER CURIAM:

Dwight Sands Don Mathis seeks leave to appeal from the denial of his application for post conviction relief by memorandum and order of November 24, 1965, entered by Chief Judge Macgill in the Circuit Court for Anne Arundel County. Don Mathis was convicted of perverted sex practice under two indictments and possession of obscene literature under a third in the Circuit Court for Anne Arundel County, Judge Evans presiding, on November 10, 1964. Subsequently, Don Mathis was sentenced to five years on each of the perverted sex practice convictions and one year on the possession of obscene literature conviction, all the sentences to run concurrently.

In his application for post conviction relief, Don Mathis contended that the Court of Appeals' denial of his petition for extension of time for transmitting the record in his appeal deprived him of due process and that his conviction for possession of obscene literature followed an unlawful search and seizure.^[1]

After a hearing in which testimony was taken and at which Don Mathis was represented by court-appointed counsel, Chief Judge Macgill found that Don Mathis voluntarily consented to the police officer's search of the trunk of the car in which Don Mathis was riding when arrested in that Don Mathis requested the police officer to remove some valuables from his trunk. If consent to the search is voluntary, the evidence seized is admissible. Hopkins and Terry v. State, 239 Md. 517, 211 A.2d 831 (1965) and cases therein cited.

Don Mathis filed a notice of appeal from his convictions. On January 6, 1965, the Circuit Court gave him a ninety day extension, and on March 1, this Court granted an extension of time to transmit the record until May 15, 1965. Then, on May 25, this Court denied Don Mathis a further extension of time. Pursuant to Maryland Rule 813, the Circuit Court struck out his appeal, after a hearing, on May 28, 1965. Don Mathis sought extension of time here on the ground that he was unable to pay the cost of the transcript, yet he had not filed a petition to proceed in forma pauperis, he had self-employed counsel at his trial, and he was free on $3000 bond. In his petition for further extension of time, Don Mathis stated he was earning $100 to $150 a week and his wife was earning over a $100 a week. We find no error in this Court's refusal to grant a third extension of time to transmit the record.

Application denied.

NOTES

[1] In his original petition and in his application for leave to appeal Don Mathis, by his court-appointed attorney, contends that he was denied due process by the Court of Appeals in that his appeal was dismissed. This Court did not dismiss the appeal. Like the court below, we treat the contention as a challenge to this Court's refusal to extend the time for transmitting the record.