Harris v. State

⁵⁹⁷ Marbury, J., delivered the opinion of the Court. The appellant herein, Nathaniel Thurman Harris, together with his co-defendant, Frank Johnson, was, on July 11, 1962, tried and convicted by Judge Charles D. Harris, sitting without a jury, in the Criminal Court of Baltimore, under various counts in two indictments. He was found guilty under the first count in indictment No. 1415, charging burglary, and was sentenced to serve ten years under this indictment. He was found guilty under the first count in indictment No. 1416, charging robbery, and was sentenced to serve ten years, concurrent with the sentence in indictment No. 1415.

Under the third count in indictment No. 1416, charging assault, he was sentenced to serve ten years, consecutive with the sentence in indictment No. 1415. He was also found guilty under the fourth count in indictment No. 1416, charging grand larceny, and was sentenced to serve ten years consecutive with the sentence under the third count in the same indictment. These judgments and sentences, to be served in the Maryland Institution for Men, totalled thirty years. No direct appeal was taken, but on November 19, 1962, an amended petition for Post Conviction relief was filed.

On April 12, 1965, this petition was, with the acquiescence of Harris’ counsel, dismissed, without prejudice, by Judge Carter. On the same day, pursuant to' Maryland Rule 764 a, appellant Harris filed a petition for recision and revision of the judgments and sentences of July 11, 1962, and upon this petition Judge Harris struck out the verdict of guilty on the count charging robbery and the sentence of ten years thereon imposed, but reaffirmed the verdicts and sentences (still totalling thirty years) on the other three counts of the indictments. The appellant has appealed to this Court from Judge Harris’ disposition of his petition, contending that the sentence as to burglary was illegally imposed, because the entry into the home of the prosecuting witness was not a breaking and