Beard v. Warden of Maryland Penitentiary

Hammond, J., delivered the opinion of the Court. This is an application for leave to appeal from a denial of a writ of habeas corpus by Judge Michaelson of the Circuit Court for Anne Arundel County. Petitioner was con ⁶⁶⁰ victed of a violation of the narcotics law and sentenced on December 17, 1952, to fifteen years as a third offender, as prescribed by Code, 1951, Art. 27, Sec. 369, enacted as Chapter 466 of the Acts of 1951. In his petition to the Circuit Court the applicant based his right to relief on two grounds.

First, he says that he is being illegally confined because his sentence was based on a law that is unconstitutional because ex post facto. Second, he alleges that while incarcerated in the Maryland Penitentiary, he filed his appeal from judgment and sentence on December 23, 1952, which was within the then prescribed period of ten days, but the appeal “was not permitted to leave the institution until on or about January 14, 1953” — two weeks after the time for appeal had expired. Apparently because the appeal was received late, the record never came to this Court. It has been held, as Judge Michaelson held on the first point, that a statute imposing a greater punishment on a previously convicted defendant does not create a new offense but only an added penalty, is prospective in operation, not retrospective, and is constitutional.

Maguire v. State, 47 Md. 485 ; Hall v. State, 121 Md. 577 ; Gryger v. Burke, 334 U. S. 728 , 92 L. Ed. 1683 . We find it unnecessary to decide the point. In Superintendent v. Calman, 203 Md. 414 , we reiterated previous decisions that the judgment of a court of general jurisdiction, which has power to decide constitutional questions and questions of its own jurisdiction, is not a nullity, and that habeas corpus is not an available remedy when the judgment was not a nullity and direct appeal is or was available. Here the applicant had the right of appeal from a judgment that was not a nullity.

If he