Opinion
No. 34, September Term, 1967.
Decided November 15, 1967.
POST CONVICTION PROCEDURE — Hearing Must Be Held Before Judge Other Than Original Trial Judge Unless Petitioner Consents. A hearing under a petition for post conviction relief must be held before a judge other than the original trial judge unless the petitioner consents. Rule BK44 c. p. 421 Decided November 15, 1967.
Application for leave to appeal from the Circuit Court for Prince George's County (MELOY, J.).
Alton Leroy Hamilton instituted a second proceeding under the Uniform Post Conviction Procedure Act, and, from a denial of relief, he applied for leave to appeal.
Application for leave to appeal granted and case remanded for further proceedings in accordance with the opinion.
Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
This is an application for leave to appeal from a denial of relief under the provision of the Uniform Post Conviction Procedure Act. Hamilton was convicted of murder in the second degree on January 16, 1964, in the Circuit Court for Prince George's County by a jury, Judges J. Dudley Digges and William B. Bowie presiding. Hamilton filed a petition for relief on November 4, 1965 and counsel was appointed. After a full and impartial hearing, relief was denied on June 15, 1966 by Judge Samuel W.H. Meloy. Application for leave to appeal from his first petition was denied by this court in an unreported opinion, #31, Initial Term, filed February 9, 1967.
On March 13, 1967, Hamilton's second petition was denied by Judge J. Dudley Digges of the Circuit Court for Prince George's County without a hearing.
In his application for leave to appeal, Hamilton complains that Judge Digges, who denied his second petition for relief, was also one of the two judges who presided at his trial. Maryland Rule BK 44c requires that a hearing under a petition for relief under the Uniform Post Conviction Procedure Act be held before a judge other than the original trial judge unless the petitioner consents, Taylor v. Director, 1 Md. App. 23. We think the spirit of the rule requires that, if a hearing be denied it should be done by a judge other than the original trial judge.
Application for leave to appeal granted and case remanded for further proceedings in accordance with this opinion.