Opinion · Court of Appeals for the Fourth Circuit

Clifton A. Pearce v. State of North Carolina and Warden R. L. Turner

Clifton A. Pearce v. State of N.C. & Warden R. L. Turner, 397 F.2d 253 (4th Cir. 1968)

Type
Opinion
Court
Court of Appeals for the Fourth Circuit
Jurisdiction
Federal
Date
1968-10-28
Topic
general

PER CURIAM: The district court issued a writ of habeas corpus and ordered the release of petitioner for the reason that he had served the maximum term imposed on him at his original trial notwithstanding that on retrial, after successful post-conviction attack, he was sentenced to a longer term. The action was taken on the authority of our decision in Patton v. State of North Caro *254 lina, 381 F.2d 636 (4 Cir. 1967), cert. den., North Carolina v. Patton, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed. 871 (1968). In this appeal, the State of North Carolina frankly asks us to reconsider our decision in Patton in the light of cases considered therein which reached a contrary conclusion and subsequent decisions which have failed to follow it.

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Cited by
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PEARCE v. STATE OF NORTH CAROLINA,397 F.2d 253(4th Cir. 1968)
Clifton A. PEARCE, Appellee, v. STATE OF NORTH CAROLINA and Warden R.L.
Turner, Appellants.
No. 12256.
United States Court of Appeals, Fourth Circuit.
Submitted June 10, 1968.
Decided June 19, 1968.
Certiorari Granted October 28, 1968.
See 89 S.Ct. 258.
T.W. Bruton, Atty. Gen. of North Carolina, Andrew A. Vanore, Jr., and Dale Shepherd, Staff Attorneys, Office of Attorney General of North Carolina, on brief for appellants.

Larry B. Sitton, Greensboro, N.C. (Court-assigned counsel) and Smith, Moore, Smith, Schell Hunter, Greensbor, N.C., on brief for appellee.
Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.
PER CURIAM:
The district court issued a writ of habeas corpus and ordered the release of petitioner for the reason that he had served the maximum term imposed on him at his original trial notwithstanding that on retrial, after successful post-conviction attack, he was sentenced to a longer term. The action was taken on the authority of our decision in Patton v. State of North Carolina,Page 254381 F.2d 636(4 Cir. 1967), cert. den., North Carolina v. Patton,390 U.S. 905,88 S.Ct. 818,19 L.Ed. 871(1968).

In this appeal, the State of North Carolina frankly asks us to reconsider our decision inPattonin the light of cases considered therein which reached a contrary conclusion and subsequent decisions which have failed to follow it. This we decline to do; and because the issue on appeal is so narrow, we concluded to dispense with oral argument.

On the authority ofPatton,the order of the district court is

Affirmed.Page 263