ยถ53 The Maine Supreme Court said that advancement was necessary to comply with the "spirit" of Maine's "statutory requirement that a convict to State Prison serve the full term for which he was sentenced .... Without credit for the time [ ] served since the imposition of the second sentence although originally applicable to the erroneous sentence, the convict is then made to serve more than the full term of the only valid sentence upon which his incarceration in State Prison may be legally predicated." Green v. State, 245 A.2d 147, 149โ50 (Me. 1968), opinion supplemented by , Green v. State, 247 A.2d 117 (Me. 1968). 1. The History of Advancement
All counsel then stated that there would be no objection to an approach which would treat the case as lying within the framework of a collateral post-conviction proceeding. In Green v. State, Me., 245 A.2d 147 (1968) this Court clarified that post-conviction remedy can be available through the vehicle of statutorily prescribed post-conviction "habeas corpus", pursuant to 14 M.R.S.A. ยง 5502 et seq. (and implementing Rule 35(b) M.R.Crim.P.), even though the relief appropriately requisite to be afforded goes beyond ". . . release of the petitioner or corrections of errors of law appearing on the face of the record, . . . [and] includes relief beyond the sphere of remedial action . . ."
Mindful of the liberal construction to be given to our Act as indicated by this Court in Thoresen, supra, and that โ "it must be given such reasonable flexibility within the spirit of the statutory enactment that it may be an effective procedural vehicle for collaterally reaching all fundamental defects in the administration of criminal justice", Green v. State, 1968, Me., 245 A.2d 147, โ we rule as in Carafas, supra, that once jurisdiction has attached in our post-conviction habeas corpus court by reason of the existence, at the time of the filing of the petition, of the necessary actual or technical physical restraint required by the statute, the unconditional release from custody during the course of the proceedings and prior to final adjudication does not deprive the courts of their jurisdiction to further entertain the issue presented.
See, Berger v. State, 1951, 147 Me. 111, 83 A.2d 571; Ex parte Mullen, 1951, 146 Me. 191, 79 A.2d 173. The same would be true, if the attack be directed at the sentence upon a claim that it was imposed without authority in law, Galeo v. State, 1911, 107 Me. 474, 78 A. 867, or, we may add, in violation of Art. 1 ยง 9 of the Constitution of Maine as an excessive fine or punishment of a cruel or unusual nature. We stated in Green v. State, 1968, Me., 245 A.2d 147, our post-conviction habeas corpus "must be given such reasonable flexibility within the spirit of the statutory enactment that it may be an effective procedural vehicle for collaterally reaching all fundamental defects in the administration of criminal justice." In Higgins, supra, this Court decided, however, that declaratory judgment relief was jurisdictionally available in a case where post-conviction habeas corpus could have been maintained, on the ground that by express statutory direction a proceeding for declaratory judgment may be used even though the party has ready access to another remedy.
Section 5502 of the Maine statute provides a single comprehensive method for all collateral attacks on judgments of conviction. Mottram v. State, 263 A.2d 715, 719 (Me. 1970); Green v. State, 245 A.2d 147, 150 (Me. 1968); Nadeau v. State, 232 A.2d 82, 84 (Me. 1967). Both Section 5502 and 5507, however, bar repetitious petitions asserting matters which could reasonably have been raised in a prior petition.
Moreover, we have long held that parties may not confer jurisdiction by consent. Sevigny v. Home Builders Ass'n of Me., 429 A.2d 197, 200 (Me. 1981); Green v. State, 245 A.2d 147, 150 (Me. 1968). [ยถ 4] Walter's commitment order was issued pursuant to 34-B M.R.S.A. ยง 3864(7) (Pamph.
At the request of the Court, both parties submitted supplemental briefs addressing this issue. An effective waiver requires sufficient evidence of a voluntary and intentional relinquishment or abandonment of a known right or privilege. Green v. State, 245 A.2d 147, 149 (Me. 1968). Such evidence can include acts manifesting a waiver.
Most courts, however, have rejected the void versus voidable distinction and adopted a fundamental fairness view. See e.g. Brown v. Commissioner, 336 Mass. 718, 147 N.E.2d 782 (1958); Green v. State, 245 A.2d 147 (Me. 1968); Potter v. State, 263 N.C. 114, 139 S.E.2d 4 (1964); Jamison v. Cupp, 27 Or. App. 109, 555 P.2d 475 (1976). These courts have held the second sentence should be begin to run on the date of its imposition if the prior sentence is reversed.
The mere fact that the Porters were unaware of the technical import of the documents because they chose not to become acquainted with them is not enough to negate the written consent required by section 532. The Porters also argue that the constitutional command that waiver of one's constitutional and statutory rights must be a "free, deliberate and understanding foregoing of one's known rights" was not met. Green v. State, 245 A.2d 147, 149 (Me. 1968). This argument is inapt because the Porters offer no evidence that they did not understand their rights or that they would not have signed the documents had they been fully aware of the nature of those documents.
See 19 M.R.S.A. ยง 532. It does not confer jurisdiction on that particular probate court to grant a petition for adoption. Third, neither the parties nor a judge of a probate court can confer or waive jurisdictional requirements because "[j]urisdiction is the essential basis upon which all court powers rest." Fletcher v. Feeney, 400 A.2d 1084, 1089 (Me. 1979); cf. Green v. State, 245 A.2d 147, 150 (Me. 1968). Section 1-303(c) provides: