Burkett v. Warden of Maryland House of Correction

Hammond, J., delivered the opinion of the Court. Judge Joseph Carter of the Supreme Bench of Baltimore denied the petition of Floyd Calvin Burkett for a writ of habeas corpus, and he seeks leave to appeal. The sole basis urged for the writ was that the sentence Burkett had been given for a crime committed while on parole ran concurrently with the unexpired portion of the sentence from which he was on parole, and that therefore the total time he had been sentenced to serve had expired. Judge Carter decided that the second sentence was consecutive but, assuming the contrary, held that the application for the writ was premature because Burkett’s time would not expire for several months, even if the sentences ran concurrently. ⁶⁰⁵ Judge Carter’s decision was handed down on March 6, 1957.

Even if Burkett is right in his contention that his second sentence was concurrent with the unexpired portion of the first, he was not entitled to discharge from the House of Correction where he is restrained, the record shows, until May 29, 1957, giving him the benefit of every credit to which he would be entitled. (In 1955 he received two separate one year consecutive sentences for other crimes). Therefore, Judge Carter was right in holding the application to be premature. Roberts v. Warden, 206 Md. 246 , and the petition for leave to appeal must be denied.

We are impelled, however, to say that we think Burkett is right in his contention that he was entitled to be discharged on May 29, 1957. Code, 1956 Supp., Art. 41, Sec. 101, provides as follows: “Whenever any paroled prisoner shall be convicted of any