Strait v. Warden , 2 Md. App. 605 ( 1967 )

Pür Curiam.

This is an application for leave to appeal from an Order of May 10, 1967, of Judge John E. Raine, Jr., presiding in the Circuit Court for Baltimore County, dismissing the Applicant’s third petition under the Uniform Post Conviction Procedure Act. There was no Memorandum, accompanying the Order, giving the reasons for the action taken upon the petition. The trial judge merely appended his signature to an Order which was incorporated as a part of the State’s Motion to Dismiss.

Md. Rule BK 45 b provides that the Order of the lower court “shall include or be accompanied by a short memorandum of the grounds of the petition, the questions, including specifically the federal and State rights involved, and the reasons for the action taken thereon.” The Rule is equally applicable to a first or, as in this instance, a third petition.

The practice followed by the trial judge in this instance was not, in our opinion, in compliance with the Rule. It is evident, however, that he intended to adopt as his reasons for the Order, those assigned by the State in its Motion, namely, “that all issues sought to be raised by this Application could reasonably have been raised in one of the aforesaid prior petitions.” Since the Applicant made no showing of special circumstances to excuse his failure to raise the issues or to rebut the presumption that he intelligently and knowingly failed to do so, we agree that the petition was properly dismissed. Code, Art. 27, Sec. 645A (c) ; Bagley v. Warden, 1 Md. App. 154. Under the circumstances, we deem it unnecessary to remand for compliance with the Rule.

Application denied.