DocketNumber: [App. No. 137, September Term, 1965.]
Citation Numbers: 222 A.2d 835, 243 Md. 717
Judges: Barnes, Hammond, HornEy, Marbury, McWilliams
Filed Date: 10/3/1966
Status: Precedential
Modified Date: 8/28/2023
Court of Appeals of Maryland.
Before HAMMOND, C.J., and HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.
PER CURIAM:
On 12 August 1964 applicant was convicted, for the second time, of robbery with a deadly weapon. He was sentenced to twenty years in the Maryland Penitentiary. No appeal was taken from that conviction. The details of his first conviction will be found in Kelly v. Warden, Maryland Penitentiary, 230 F. Supp. 551 (D. Md. 1964); Kelly v. Warden, 229 Md. 642, 184 A.2d 622 (1962).
On 26 October 1965, Kelly filed his present post conviction petition in which he raised three contentions, all of which were found to be without merit by Judge Cullen below. We also find them to be without merit.
Applicant claims he is entitled to the benefit of our decision in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). His conviction having become final well before Schowgurow, he does not come within the ambit of that case. Sturgis v. Warden, 241 Md. 728, 217 A.2d 341 (1966).
In addition, applicant claims that Judge Harris (who presided at his non-jury trial) was biased and that his [Kelly's] conviction resulted from the use of the fruits of an illegal arrest. The Post Conviction Procedure provided by Code, Art. 27, §§ 645A-645J (1957, Cum. Supp. 1965) is not a substitute for an appeal or a means of obtaining a belated appeal. Montgomery v. Director of Patuxent Institution, 235 Md. 672, 202 A.2d 758 (1964). These allegations of error "could have been made on direct appeal" but Kelly took no appeal. There arises, therefore, a "rebuttable presumption that * * * [Kelly] intelligently *719 and knowingly" waived such allegation. Code, Art. 27, § 645A (1957, Cum. Supp. 1965). Applicant has made no showing that he was denied a right of appeal or any other facts which might rebut the presumption.
Application denied.
Sturgis v. Warden of the Maryland Penitentiary , 241 Md. 728 ( 1966 )
Montgomery v. Director , 235 Md. 672 ( 1964 )
Schowgurow v. State , 240 Md. 121 ( 1965 )
Kelly v. Warden, Maryland Penitentiary , 230 F. Supp. 551 ( 1964 )
Wilson v. State , 284 Md. 664 ( 1979 )
Oken v. State , 343 Md. 256 ( 1996 )
State v. Matthews , 415 Md. 286 ( 2010 )
State v. Adams , 406 Md. 240 ( 2008 )
McElroy v. State , 329 Md. 136 ( 1993 )
Taylor v. State , 236 Md. App. 397 ( 2018 )
Anglin v. Director, Patuxent Institution , 1 Md. App. 564 ( 1967 )
Prokopis v. State , 49 Md. App. 531 ( 1981 )
Cirincione v. State , 119 Md. App. 471 ( 1998 )
Calhoun-El v. State , 231 Md. App. 285 ( 2016 )