State v. Jacobs

Oppenheimer, J., delivered the opinion of the Court. The State has appealed an order of the court below granting the appellee, James Jacobs, post conviction relief after a previous denial from which the appellee had filed application for leave to appeal. On January 13, 1961, Jacobs was convicted by Judge Joseph L. Carter, sitting without a jury in the Criminal Court of Baltimore, for violating the narcotics laws and for being a second offender. He was sentenced to ten years in the Maryland Penitentiary from which judgment he did not file an appeal.

Jacobs filed a petition for relief under the Uniform Post Conviction Procedure Act which was denied by Judge Dulany Foster on January 8, 1962. He filed a second petition for relief under the Act which was denied by Judge Shirley Jones on November 1, 1962. On April 30, 1963, Judge Roszel C. Thomsen, Chief Judge of the United States District Court for the District of Maryland, dismissed Jacobs’ petition for a writ of habeas corpus without prejudice. Thereafter, Jacobs’ application for writ of habeas corpus was denied by Judge John E. Raine, Jr. in the Circuit Court for Baltimore County on October 22, 1963.

A writ of certiorari was denied by the Supreme Court of the ⁵⁴⁰ United States on April 6, 1964. Jacobs v. Warden, 376 U. S. 972 (1964). Additional petitions for writs of habeas corpus were denied by Judge W. Albert Menchine on December 2, 1963 and Judge Philip H. Dorsey on July 1, 1964. Jacobs filed a third petition for post conviction relief which was denied on September 29, 1964, by Judge Anselm Sodaro.

On October 6, 1964 Jacobs filed an application for leave to appeal from this denial of post conviction relief. On December 14, 1964 while this appeal was still pending, Judge Sodaro rescinded his prior order denying post conviction relief and granted Jacobs a new trial. On December 14, 1964 an application for leave to appeal was filed by the State’s Attorney for Baltimore City. On January 11, 1966 this Court granted the State leave to appeal and transferred the case to our regular docket.

The filing by Jacobs of his application for leave to appeal from the order denying him relief under his post conviction application suspended the power of the lower court to reverse its previous decision. Gilliam v. Moog Industries, Inc., 239 Md. 107 , 210 A. 2d 390 (1965); Bullock v. Director, 231 Md. 629, 633 , 190 A. 2d 789 (1963). In Bullock , Judge Prescott said, for the Court: “An appeal to this Court from a nisi prius court does not necessarily stay all further proceedings in the trial court, nor does it strip said court of all power over the proceeding in which the appeal has been taken. The trial court may act with reference to matters not relating to the subject matter of, or affecting, the proceeding; make such orders and decrees as may be necessary for the protection and preservation of the subject matter of the appeal; and it may do anything that may be necessary for the presentation of the case in this Court, or in furtherance of the appeal.

But, when an appeal is taken, it does affect the operation or execution of the order, judgment or decree from which the appeal is taken, and any matters embraced therein. After the appeal has been perfected, this Court is vested with the exclusive power and jurisdiction over the subject matter of the proceedings, and the au ⁵⁴¹ thority and control of the lower court with reference thereto are suspended.” While, in this case, the filing of the application for leave to appeal did not mean that this Court would hear the appeal, unless the application were granted, and while in Gilliam