Green v. Director

Per Curiam. This is an application for leave to appeal from an order of Judge Joseph L. Carter dated January 16, 1967, recommitting Floyd Green, Jr. to Patuxent Institution after a determination by the Court, sitting in the Criminal Court of Baltimore with ² out a jury, that he was still a defective delinquent within the meaning of Maryland Code (1967 Repl. Vol.), Art. 31B, § 5. The applicant had previously been convicted of assault and assault with intent to rape and sentenced on June 25, 1963, to a term of not more than five years in the Maryland Institution for Men.

Subsequently, on October 26, 1964, the applicant was found to be a defective delinquent and was committed to Patuxent Institution. The petition for a redetermination of his status was filed on August 25, 1966. 1 In this application for leave to appeal, filed by his attorney, the applicant has only one contention: that “the failure of the trial court to grant the applicant’s motion to postpone and/or withdraw his petition in order to file said petition at some later date was erroneous.” To support this contention, it is argued that applicant requested a postponement of the hearing for a period of six months or more, or, in the event that the postponement was not granted, permission to withdraw the petition, becáuse he “felt that his chances of success would be bolstered by a change of status at the Institution.” He felt that within a ³ short period of time he would advance from the third tier to the fourth tier, a definite promotion at the Institution. After the petition for a redetermination of status was filed on August 25, 1966, an attorney was appointed on September 21st. This order was later stricken on November 30, 1966 and new counsel was appointed.

Petitioner’s new counsel filed a petition to employ a private psychiatrist on December 7, 1966, which was granted under Md. Code (1967 Repl. Vol.), Art. 31B, § 7 (b). The report of petitioner’s private psychiatrist, dated December 13, 1966, stated the impression that the petitioner was still a defective delinquent under the Maryland law. Thereafter, on December 28, 1966, petitioner made a motion to dismiss the petition without prejudice.

At this time he pleaded not a defective delinquent and took issue before Judge Carter, sitting without a jury. Both were held sub curia until January 16, 1967, when the motion to dismiss was denied and petitioner was again determined to be a defective delinquent. At the time the lower court denied the motion to dismiss, it had two psychiatric reports unfavorable to the petitioner before it. Petitioner’s private psychiatrist, besides stating the impression that he was still a defective delinquent, concluded in his report that “prognosis is guarded.” The report of Patuxent Institution, dated October 25, 1966 stated: “The present psychiatric examination failed to reveal any sign of