Opinion
No. 49, September Term, 1968.
Decided September 13, 1968.
POST CONVICTION PROCEDURE — Application For Leave To Appeal Denied — Allegations Of Error Were Not Finally Litigated. In denying applicant's application for leave to appeal from an order denying relief prayed in his second petition, the Court of Special Appeals noted that the allegations of error were not finally litigated by the lower court's decision on the merits under his first petition, since there had been no application for leave to appeal therefrom. Code (1957), Art. 27, § 645A(b). p. 79
Decided September 13, 1968.
Application for leave to appeal from the Criminal Court of Baltimore (PERROTT, J.).
Charles Angus Allen instituted a second proceeding under the Uniform Post Conviction Procedure Act, and, from a denial of relief, he applied for leave to appeal.
Application denied.
Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
The application of Charles Angus Allen for leave to appeal from an order of Judge James A. Perrott, presiding in the Criminal Court of Baltimore, denying relief prayed in his second petition under the Uniform Post Conviction Procedure Act is denied for the reasons set forth in the memorandum of Judge Perrott accompanying the order.
We note, however, that by the provisions of Md. Code (1967 Repl. Vol.) Art. 27, § 645A(b) an allegation of error is deemed to be finally litigated "when the Court of Appeals or Court of Special Appeals has rendered a decision on the merits thereof, either on direct appeal or upon any consideration of an application for leave to appeal filed pursuant to § 645-I of this sub-title; or when a court of original jurisdiction, after a full and fair hearing, has rendered a decision on the merits thereof upon a petition for a writ of habeas corpus or a writ of coram nobis, unless said decision upon the merits is clearly erroneous." Thus, the allegations of error here were not finally litigated by the decision on the merits thereof by the Criminal Court of Baltimore under the first petition under U.P.C.P.A., there being no application for leave to appeal therefrom.
Application denied.