delivered the opinion of the Court.
Unlike the usual situation, in which a determination of
STATEMENT OF THE CASE
On 9 May 1967 at a bench trial in the Circuit Court for Baltimore County,1 William Edward Young was convicted of murder in the first degree and assault with intent to rape. On 12 May 1967, a life sentence was imposed on the murder conviction and a concurrent sentence of 20 years on the aggravated assault conviction. The judgments were affirmed on direct appeal. Young v. State, 4 Md. App. 286 (1968), cert. denied 251 Md. 753.
Following the penalty stage of the trial, the court ordered that Young be examined to determine if he was a defective delinquent. Upon evaluation by the Patuxent Institution Staff he was determined not to be a defective delinquent, and on 14 September 1967 the court ordered that he be transferred to the Maryland Penitentiary with full credit for time spent in Patuxent.
After several collateral attacks on the judgments entered on the substantive offenses, in the main unsuccessful,2 there was filed, on 10 June 1975 in the Circuit Court for Baltimore County, in proper person, over Young’s signature, a “Motion
In a memorandum opinion included in its order, the court referred to Code, art. 31B, § 7 (a):
“ ‘If the substance of the report (request for examination) is that the said person is not a defective delinquent, he shall be retained in custody of the Department of Correction under his originalPage 492sentence as if he had not been examined for purposes of defective delinquency.’ ”
It quoted Eggleston v. State, 209 Md. 504, 511 (1956):
“ ‘It would appear that under this sweeping language, jurisdiction, once properly obtained would continue until the purposes to be served by the examination were accomplished, regardless of the original sentence.’ (Emphasis added)”
It ruled:
“Applying the above statute and judicial language, this Court can only conclude that once the examination was completed and a determination had been made that Mr. Young was not a candidate for the Patuxent Institution, the Circuit Court for Baltimore County lost its statutory jurisdiction under Article 31B.
Therefore, this Court is persuaded that any further requests for examination should be addressed by Mr. Young to the Department of Correctional Services and not to this Court.”
On 3 September 1975 Young, in proper person, applied for leave to appeal from the order of 9 June 1975.
THE STATUS OF THE APPLICATION FOR LEA VE TO APPEAL
The Court of Special Appeals has only such jurisdiction as the General Assembly grants it.5 From its inception, it was
Code, art. 31B, § 11, provides, inter alia: “From any court order issued under the provisions of § 9, or of § 10, within thirty (30) days after the passage of the order, application may be made to the Court of Special Appeals for leave to appeal from the order.” Thus, the appellate review of a defective delinquent determination, for an indigent or non-indigent, is discretionary with this Court. Carter v. Director, 10 Md. App. 247, 250 (1970).6
Not only is the right to appeal qualified, but what may be appealed from is limited. As we have indicated, application for leave to appeal authorized by § 11 may be made only from “any court order issued under the provisions of § 9, or of § 10 . . . .” Section 9 provides for an order by the trial
REQUEST FOR EXAMINATION FOR POSSIBLE DEFECTIVE DELINQUENCY
Our holding disposes of this appeal. But we think it advisable for the guidance of the lower court in its future considerations to give our view were we to decide the case upon its merits. See Larsson v. J. C. Conley Constr. Co., 260 Md. 21 (1970); Rossen v. Novak, 259 Md. 508 (1970).
It is patent that Young, having been convicted and sentenced in a court of this State, for a crime committed after 1 January 1954, coming under one or more of the categories designated by Code, art. 31B, § 6 (a)7 was a
“The request for such an examination shall be by petition filed with the court having custody of or jurisdiction over the said person, stating therein the reasons for suspecting or supposing the presence of defective delinquency in the said person.”
Section 6 (e) prescribes, among other things, the jurisdiction of the defendant: “The court which last sentenced the defendant, whether or not the term of court in which he was sentenced has expired shall retain jurisdiction of the
We conclude that Young’s petition for examination was fully in accordance with the law above summarized. Eligible to be a defective delinquent by reason of his conviction and sentence, Young filed his request for examination of possible defective delinquency in proper form in the court having jurisdiction over him as the court which last sentenced him, within the time such requests may be made. Although it is within the discretion of the court to order an examination upon proper request,10 we think that such discretion must be soundly exercised. The judge below did not exercise this discretion.11 He found the court did not have jurisdiction to entertain the request for examination and suggested that any further requests be addressed “to the Department of
The short of it is that we think that Young’s request for an examination for possible defective delinquency was properly before the Circuit Court for Baltimore County. The court should have disposed of the request by a sound exercise of judicial discretion directed to the end of accomplishing the manifest purposes of the defective delinquency law. We observe that a request may be made “on any knowledge or suspicion of the presence of defective delinquency” in a person, § 6 (b), and that the request need state only “the reasons for suspecting or supposing the presence of defective delinquency. ...” § 6 (d). (emphasis added).
Application for leave to appeal dismissed.
1.
Hereinafter “court” shall mean the Circuit Court for Baltimore County unless otherwise indicated.
2.
On 24 June 1970 Young attacked the judgments by way of a petition under post conviction procedures. Relief was denied by order of the court issued 30 March 1971, and application for leave to appeal therefrom was denied by this Court. Young v. Warden, No. 37, September Term, 1971, filed 8 September 1971, unreported. On 6 April 1971 he filed another petition under the Uniform Post Conviction Procedure Act, and on 7 May 1971 the petition was dismissed by order of the court. On 6 October 1971 he petitioned for the issuance of a writ of habeas corpus. On 18 November 1971, the court refused to issue the writ, and on 27 January 1972 we dismissed an application for leave to appeal therefrom. On 4 March 1974 he filed another post conviction petition. On 8 March 1974 the court found that Young was entitled to the relief therein prayed, and, in furtherance thereof, directed the Clerk of the court to issue an amended commitment so that the sentence imposed in each of the murder case and the assault case commenced as of 20 October 1966.
3.
The motion was accompanied by a “Motion for Leave to Proceed in Forma Pauperis and Request for Assignment of Counsel”, supported by affidavit.
4.
It seems that a similar motion had been filed in the court by Young on 9 October 1973. He alleges that he received no response thereon. On 13 December 1974 he filed a “Petition for Writ of Mandamus” in this Court, and we denied it on 17 December for lack of jurisdiction. He sought a writ of certiorari by the Court of Appeals from our denial, and on 29 January 1975 that Court declined to issue it. There followed the Motion stamped as received in the Circuit Court for Baltimore County on 10 June 1975. Patently, in light of the date of the order denying it, the court had it in its possession before it was formally entered in the court records.
5.
By amendment to art. IV, §§ 1 and 14A of the Constitution of Maryland, proposed by Acts 1966, c. 10 and ratified 8 November 1966, there were included in the Judicial power of this State “such intermediate courts of appeal, as shall be provided by law by the General Assembly...”, leaving details to be established by statute. By Acts 1966, c. 11, codified as art. 26, § 130, now Courts Art. § 1-401, the General Assembly created an intermediate court of appeal to be known as the “Court of Special Appeals.” The history of its creation is traced in 1 Maryland Appellate Reports, pages V — LXXIX. Its jurisdiction at first was in the main confined to criminal cases from the circuit courts and the Criminal Court of Baltimore where the sentence was other than death. The General Assembly gradually expanded the jurisdiction, however, so that today it embraces virtually all direct *493appeals from the circuit courts of the counties and the Supreme Bench of Baltimore City. Courts Art. § 12-308. See Acts 1970, c. 99, § 2; Acts 1972, c. 361, § 2 and e. 392, § 2; Acts 1973, c. 56, § 2. For exceptions see Courts Art. § 12-307.
6.
The limitations on the absolute right of appeal are not constitutionally offensive. Director v. Daniels, 243 Md. 16 (1966); Rice v. Director, 238 Md. 137 (1965); Walker v. Director, 6 Md. App. 206.
Courts Art. § 12-202 provides: “No review by way of certiorari may be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted:... (2) Leave to prosecute an appeal in a defective delinquent proceeding;....”
Code, art. 31B, § 11 further provides: “The application for leave to appeal shall be in such form as the Court of Appeals may, by its rules, prescribe.” Maryland Rule 1094, § a deals with the application — how it is to be made and the time for the filing of it, subsection 1; the content of it, subsection 2; what the record shall contain, subsection 3; the service of the application, subsection 4. Section b authorizes this Court to require additional information, including any portion of the stenographic transcript of the trial. Section c spells out the procedure if leave to appeal is granted.
7.
Five categories are set out:
“(1) a felony; (2) a misdemeanor punishable by imprisonment inPage 495the penitentiary; (3) a crime of violence; (4) a sex crime involving: (a) physical force or violence, (b) disparity of age between an adult and a person under eighteen years of age, or (c) a sexual act of an uncontrolled and/or repetitive nature; (5) two or more convictions for any offenses or crimes punishable by imprisonment, in a criminal court of this State.”
8.
Request may be made also by “the Department of Correction or by the State’s attorney or assistant State’s attorney who prosecuted the person for a crime or offense specified hereinabove in this section, or any knowledge or suspicion of the presence of defective delinquency in such person,” and by such person’s attorney in his behalf. The court may order the examination on its own initiative. Art. 31B, § 6 (b).
9.
It seems that amendment is required to reflect the status of the District Court of Maryland.
10.
As we above indicated § 6 (b) states: “Whenever a request for examination comes from any such source the court may order such person to be examined by the institution for defective delinquents to ascertain if he or she is a defective delinquent.” (emphasis added)
11.
The court had the statutory jurisdiction and duty to entertain the request but the grant of it was within its sound discretion.