Opinion
[App. No. 58, September Term, 1962.]
Decided June 4, 1963.
POST CONVICTION PROCEDURE ACT — Contentions Which Could Have Been Raised On First Application For Relief Could Not Later Be Raised On Second Application — Denial Of Second Application Was Correct — Application For Leave To Appeal Was Not Timely As To Denial Of First Application Where Not Filed Within Thirty Days. p. 653
H.C.
Decided June 4, 1963.
Herbert Smallwood, Alias Herbert Mason, instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application denied.
Before the full Court.
The applicant has filed two applications for relief under the Post Conviction Procedure Act. The first petition was denied by Judge Dorsey after a hearing at which the applicant was represented by counsel. Seven contentions were pressed and all of them were considered in Judge Dorsey's opinion and order filed on March 14, 1962, and all were rejected.
On August 16, 1962, the second application was filed. It raised or sought to raise several contentions which had been presented and rejected on the first application. It also raised or sought to raise several other contentions. All of these additional contentions could have been raised on the first application, and no reason is shown in the lengthy second application why they could not reasonably have been raised on the first application. On motion of the State's Attorney, Judge Dorsey denied them for that reason, and did so without a hearing and without appointing counsel. His opinion and order dismissing the second application was filed on October 4, 1962. The present application for leave to appeal is dated October 31, 1962, and refers only to the second application and its denial. Judge Dorsey's action on the second application was correct. Code (1962 Cum. Supp.), Art. 27, Sec. 645 H.
The application for leave to appeal dated October 31 and actually filed November 1, 1962, obviously would not be timely as regards the denial of the first application, if it was intended to be applicable thereto. The time for filing an application for leave to appeal is within thirty days from the passage of the order sought to be appealed from. Md. Rule BK46 a (and see Code (1962 Cum. Supp.), Art. 27, § 645 I). Even if the application for leave to appeal had been timely as to the first application, and if it was intended to apply to it, we think that it should have been denied for the reasons set forth in Judge Dorsey's opinion of March 14, 1962, for dismissing the first petition.
Application denied.