Simms v. Warden of Maryland Penitentiary , 234 Md. 652 ( 1964 )

234 Md. 652 (1964) 200 A.2d 149

SIMMS
v.
WARDEN OF MARYLAND PENITENTIARY

[App. No. 139, September Term, 1963.]

Court of Appeals of Maryland.

Decided May 8, 1964.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

PER CURIAM:

Applicant was tried and convicted on April 4, 1962, before Judge Carter on a charge of robbery with a deadly weapon and sentenced to twenty years in the penitentiary. He took no direct appeal. On September 10, 1963, a petition for post conviction relief was filed. From the lower court's dismissal of that petition this application for leave to appeal was filed.

In his handwritten petition Simms alleged that his detention was illegal because he was (a) arrested without a warrant and (b) not represented by counsel at his preliminary hearing. He was represented by counsel at the hearing and was himself present and testified.

Assuming that the requisite probable cause to arrest without a warrant did not exist (we cannot say whether it did or not on this record) allegation (a) is nevertheless non-meritorious because Simms did not allege that there was any evidence seized at the time of his arrest, or as a result thereof, which was used against him at the trial. Ledbetter v. Warden, 234 Md. 643.

As to contention (b) the lower court found that the guilty plea entered by Simms at his preliminary hearing was not offered into evidence nor brought out in any way at his trial, and thus applicant was not prejudiced because the preliminary hearing was not a critical stage of the proceedings against him. Lumpkin v. Director, 233 Md. 606; Arrington v. Warden, 232 Md. 672.

Application denied.