dissenting.
I respectfully dissent from the decision reached in this case. I agree that so long as Thoresen v. State, Me., 239 A.2d 654 (1968) retains vitality, it controls the decision in this case.
. I would overrule Thoresen and the case which expressly reaffirmed it.1
*470Though there may not be a remedy for every wrong,
“Maine and its people always endeavor to do exact justice under and according to the Constitution and the common and statutory law.” Dwyer v. State, 151 Me. 382, 394, 120 A.2d 276, 283 (1956).
The existing interpretation of 14 M.R. S.A. § 55022 (post-conviction habeas corpus) as decided by the Thoresen court neither adheres to this principle, nor does it, in my opinion, correctly interpret the statute.
The Thoresen court interpreted section 5502 as requiring "existing actual or physical restraint or a technical hold or restraint which under appropriate circumstances . could be converted to a physical restraint.” Thoresen v. State, supra at 655. Seemingly, it is the language “[a]ny person convicted of a crime and incarcerated thereunder . . . ” which the court construed as requiring this continued restraint.
A literal reading of the words of the statute does not compel the conclusion that the legislature intended to impose a requirement of continued restraint under the challenged conviction as a condition of the availability of 14 M.R.S.A. § 5502. Rather, it appears that the only threshold requirement that needs be met by a petitioner is to demonstrate a lack of mootness when the petition is brought.3
The Supreme Court of the United States has consistently recognized that “due process ” demands judicial machinery to correct a wrong in the administration of criminal justice due to a “ ‘failure to observe that fundamental fairness essential to the very concept of justice,’ ” Hysler v. Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 932, 935 (1942), quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, 180 (1941); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). To interpret section 5502 as the Thoresen court did is to eliminate the availability of the machinery to correct a failure of due process once a convicted defendant has served his sentence and is no longer under any restraint in Maine.
In ascertaining the legislature’s intention, we cannot overlook the time sequence of the development of 14 M.R.S.A. § 5502 and its relation to the ferment in the federal courts which culminated in the landmark decisions of the Supreme Court of the United States in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1973), and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). These cases made it abundantly clear that unless state courts had adequate post-conviction procedure for the protection of a person’s rights, the federal courts *471would, in effect, take over the responsibility-
In 1954 the report of the Special Committee on Habeas Corpus of the Conference of Chief Justices urged that
“State statutes should provide a postcon-viction process at least as broad in scope as existing Federal statutes under which claims of violation of constitutional right asserted by State prisoners are determined in Federal courts under the Federal habeas corpus statutes.” (emphasis added) H.R. Rep. No. 1293, 85th Cong., 2d Sess., pt. 7 et seq.
In 1958 the Burton Committee (the Committee on Post-Conviction Remedies of the American Bar Association Section on Judicial Administration) reported out a preliminary draft finding
“that the law of state post-conviction process in many states was wholly inadequate to cope with the demands now being placed upon it. In some jurisdictions prisoners were altogether precluded from direct access to the courts. [Citations omitted.] ... In many more, the procedures recognized by state law failed to provide genuine opportunities for testing constitutional issues of the most numerous and important types. The result was that prisoners often failed to obtain hearings on their allegations in the state courts. This, in turn, increased the number of petitions in state and federal courts and was generally productive of frustrations in all persons concerned with the process.” See Case v. Nebraska, 381 U.S. 336, 339, 85 S.Ct. 1486, 1488, 14 L.Ed.2d 422, 424-25 (1965).
It is inconceivable to me, in view of the activity in the federal courts and in view of the recommendations which had been made by court and bar association groups after intensive study of the problem, that the legislature intended in 1963 (when 14 M.R. S.A. § 5502 was enacted) to limit the availability of post-conviction review of convictions beyond those existing at the time of the rejuvenation of coram nobis in Dwyer v. State, supra.
In 1963 the habeas corpus post-conviction statute (14 M.R.S.A. § 5502 et seq.) was enacted exactly as it was proposed in L.D. 982 except Committee Amendment A (S-206 which changed the wording “of the 2nd paragraph of that part designated ‘Sec. 1-A’ of section 1” of the proposed act to substitute the language:
“The remedy of habeas corpus provided in sections 1-A to 1-G is not a substitute for nor does it affect any remedies which are incidental to the proceedings in the trial court, or any remedy of direct review of the sentence or conviction but, except as otherwise provided in sections 1-A to 1-G, it comprehends and takes the place of all other common law remedies which have heretofore been available for challenging the validity of a conviction and sentence and shall be used exclusively in lieu thereof: (1963 Legislative Record 1843)
for the words:
“The remedy of habeas corpus provided in sections 1-A to 1-G is not a substitute for nor does it affect any remedies which are incidental to the proceedings in the trial court, or any other review of the sentence or conviction.”
I see nothing in the language employed which could give comfort to those who might argue that the legislature intended, by such amendment, to narrow the availability of post-conviction relief. Rather, it is very plain that by specifying that the post-conviction habeas corpus statute “comprehends and takes the place of all other common law remedies which have heretofore been available for challenging the validity of a conviction and sentence,” the legislature intended there be no narrowing of the availability of remedies existing prior to the enactment of the statute. The phrase “except as otherwise provided in sections 5502 to 5508” is easily explainable as emphasizing that the post-conviction relief was not to “affect any remedies which are incidental to the proceedings in the trial court, or any remedy of direct review of the sentence or conviction.”
In the case now before us, petitioner claims he was denied counsel to represent *472him in the proceedings which resulted in his conviction in Maine. If he were able to prove that allegation of his petition for habeas corpus, he would have established that he had been deprived of one of the most important personal rights guaranteed by the Constitution. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
The conviction, he says, had serious and continues to have serious consequences to him beyond the consequences that he was imprisoned in Maine.4
The result which the majority has reached in this case, as admittedly mandated by Thoresen, is that Maine denies petitioner the opportunity to come into Maine, as he has, and demonstrate, if he can, that he was deprived of the constitutionally guaranteed right to counsel because he was not at the time of bringing his petition for habeas corpus (post-conviction) under any “existing actual or physical restraint or a technical hold or restraint which under appropriate circumstances . . . could be converted to a physical restraint.” Thoresen, supra at 655.
To revert again to the governing philosophy of the State of Maine as described in Dwyer, supra:
“Maine takes pride in attempting to carry out the old maxim that ‘for every wrong there is a remedy.’ ” 151 Me. at 395, 120 A.2d at 283.
I am now satisfied that when the requirement of existing actual or physical restraint was imposed by Thoresen, the habeas corpus post-conviction statute (14 M.R.S.A. § 5502) was misconstrued.
The statute by its own terms “comprehends and takes the place of all other common law remedies which have heretofore been available . . . .” The common law writ of habeas corpus and a statutory form of the common law writ of error cor-am nobis5 existed at the time 14 M.R.S.A. § 5502 was adopted. While it is true that continued incarceration, or its equivalent, was a prerequisite to the issuance of a common law writ of habeas corpus, such a requirement did not exist and in fact would have frustrated the function of a writ of error coram nobis. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). Since 14 M.R.S.A. § 5502 acts as a substitute for not only a common law writ of habeas corpus but also a writ of error coram nobis, there is no indication that the legislature intended to eliminate a remedy which existed prior to the enactment of the statute.6
Given the state of the law at the time 14 M.R.S.A. § 5502 was adopted and the language of the statute itself, there is nothing I can find which suggests that the legislature intended to require “existing actual or physical restraint or a technical hold” as a prerequisite to the relief made available under section 5502.
For these reasons, I respectfully dissent.
. Staples v. State, Me., 274 A.2d 715 (1971). I am aware that I joined the opinion of the court in Staples. I am now satisfied I should not have done so. When they found themselves in a similar situation, Justices Emery and White-house wrote:
“The undersigned Justices, EMERY and WHITEHOUSE, concurred in the refusal to answer in the later case [Removal and Appointment of County Attorneys], 85 Me. 545 [27 A. 454], but wider research, and more mature consideration, have now convinced them that they were then in error.” Opinion of the Justices, 95 Me. 564, 579, 51 A. 224 (1901).
Former Justice Jackson wrote in McGrath v. Kristensen, 340 U.S. 162, 178, 71 S.Ct. 224, 95 L.Ed. 173 (1950) when he found himself in a position similar to mine:
*470“My own error, however, can furnish no ground for its being adopted by this Court . . . . [A]n escape . . . was taken by Lord Westbury, who, it is said, rebuffed a barrister’s reliance upon an earlier opinion of his Lordship: ‘I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.’ If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.”
Perhaps I can more succinctly describe my present circumstances by quoting from Andrews v. Styrap, 26 L.T. 704, 706 (1872):
“The matter does not appear to me now as it appears to have appeared to me then.”
. 14 M.R.S.A. § 5502 reads in pertinent part: “Any person convicted of a crime and incarcerated thereunder including any person committed as a juvenile offender, or released on probation, or paroled from a sentence thereof, or fined, . . . may institute a petition for a writ of habeas corpus . . .”
. In describing those persons to whom the remedy of 14 M.R.S.A. § 5502 is available, the statute includes a person “fined." It does not require that the person fined shall not have paid the fine. See Briggs v. State, 152 Me. 180, 126 A.2d 563 (1956) (Williamson and Webber, JJ., concurring specially) and in which, although asserting that they would regard the payment of a fine as rendering “moot” an attack on the validity of the conviction, they further acknowledge
“. . . when and if an outstanding criminal record is shown to handicap a person, he will not be precluded from testing its legality solely on the ground that the case is moot. At that point the case will not be closed. It will again have life in relation to another case or transaction. We are not here considering other reasons, such as limitations of time, which might prohibit the use of a writ of error.” Id., 152 Me. at 187, 126 A.2d at 566.
. Petitioner claims the conviction in Maine resulted in an enhancement of the sentence received in another state upon conviction of a crime in that state.
. An examination of P.L. 1961, c. 131, reveals that the statute merely codified the common law writ of error coram nobis. See Mottram v. State, 160 Me. 145, 200 A.2d 210 (1964); Duncan v. Robbins, 159 Me. 339, 193 A.2d 362 (1963).
.Relief in the nature of error coram nobis is recognized and exists in the federal courts. Gajewski v. United States, 368 F.2d 533 (8th Cir. 1966); United States v. National Dairy Products Corp., 313 F.Supp. 534 (W.D.Mo.1970).