Duffin v. Warden of the Maryland Penitentiary

Horney, J., delivered the opinion of the Court. The applicant for leave to appeal was convicted of assault with intent to rape and sentenced on June 27, 1961, to a term of twenty years in prison. Within ninety days after imposition of sentence, the applicant, pursuant to Maryland Rule 764 b, moved for a reduction of the sentence, but before the motion was heard, he filed a direct appeal. The judgment of conviction was affirmed per curiam in Duffin v. State, 229 Md. ⁶⁸⁶ 434, 184 A. 2d 624 , on October 9, 1962, and the mandate was returned in due course to the trial court.

No further action with respect to the motion was ever taken either by the applicant or the court which tried the criminal offense. On June 4, 1963, however, the applicant, asserting that it was “impossible for him to have received the fair and impartial trial to which he was entitled under the then existing circumstances and over which he had absolutely no control,” petitioned for post conviction relief. The petition was subsequently amended by court-appointed counsel to allege: (1) that his motion to reduce sentence was timely filed; (2) that he was entitled to a hearing thereon; and (3) that a denial of such hearing would amount to a denial of due process of law. The State moved to dismiss the petition.

When the petition was heard, the hearing judge (Shook, J.) held that the petitioner (1) by filing and prosecuting a direct appeal had