Opinion
[App. No. 9, September Term, 1962.]
Decided October 31, 1962.
POST CONVICTION PROCEDURE ACT — Claim Of Conviction For Offense Not Charged In Count — Remand For Further Consideration Of Point. The petitioner for post conviction relief in this case, claiming that the second count of his indictment charged rape rather than assault with intent to rape, contended that his conviction upon this count was illegal and unconstitutional, being for an offense not charged therein. In denying relief the court below decided that the record was contrary to the petitioner's claim that he was found guilty of assault with intent to rape. However, since the docket entries showed that the petitioner had been convicted of this latter offense, and since the second count was at least ambiguous in form, this Court remanded the case, without affirmance or reversal, for further consideration of the point. pp. 607-608
J.E.B.
Decided October 31, 1962.
Frank Bowie instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Leave to appeal granted, and case remanded without affirmance or reversal for further proceedings.
Before the full Court.
In this application for leave to appeal from a denial of post conviction relief, the only point raised by the petitioner that is worthy of discussion is his claim that the second count of the indictment, upon which he was convicted, charged rape rather than assault with intent to rape. Since he was acquitted on the first count charging rape, he invokes the rule against double jeopardy, as well as contending that the conviction on the second count was illegal and unconstitutional, being for an offense not charged therein. The point as to double jeopardy was finally litigated in Bowie v. Warden, 201 Md. 648, although Chief Judge Markell, for this Court, remarked that the indictment was not in the record. Cf. Plater v. Warden, 220 Md. 673.
On the point of illegal sentence Judge Manley, in the court below, stated that "the statement by the petitioner that he was found guilty of assault with intent to rape is contrary to the record." Yet the docket entries show that he was convicted of assault with intent to rape, and the second count was at least ambiguous in form. Under the circumstances we are constrained to remand the case for further consideration of that point by Judge Manley, without affirmance or reversal. We intimate no opinion as to whether the point was finally litigated in Bowie v. Warden, supra, or whether a defect in the indictment could be reviewed in this proceeding.
Leave to appeal granted and case remanded without affirmance or reversal for further proceedings.