(dissenting) :
I do not see any constitutional infirmity here.
Ruckle challenged his original conviction. In that proceeding under Maryland’s Post-Conviction Procedure Act, *339he had no other hope of reward than a new trial. Ruckle, however, misunderstood the situation and mistakenly thought that a favorable outcome of the proceeding would produce his release. He, therefore, refused to plead when he was rearraigned, stating in most unequivocal language that he never had wanted a new trial, never had sought one, and stoutly objected to it. Indeed, he had clearly stated in his post conviction proceeding that he wanted no new trial.
Ruckle had been sentenced to thirty-five years imprisonment on charges of kidnapping and armed robbery. He could have gotten a good deal more. He may well have thought, with justification, that he did not want to risk a new trial and the possibility of a larger sentence. When he was told he was not entitled to release, I think he should have had the option to have the original sentence reimposed or to stand trial. The court gave him the choice. When he refused to exercise the option, however, I see no fault of constitutional dimension in having the court exercise it for him either way.
Ruckle’s original conviction was not void. Because of trial error it was voidable, but Ruckle, himself, could have claimed the protection of the earlier judgment and prevented any possible retrial by abandoning his collateral attack upon it at any time before the collateral proceeding was finally determined. After the event, when it developed that he would not have prosecuted the proceeding in the first place if he had realized its consequence, I see no constitutional wrong done him when the court relieves him of it.
It stands reiteration that Ruckle in the post conviction proceeding clearly stated that he did not want a new trial. He had not asked for the relief granted him in the post conviction proceeding, and he undertook to overturn the order vacating the original conviction. Leave to appeal, however, was denied.1 *Ruckle was then brought in for rearraignment, where he renewed his protestations against a new trial.
The Maryland Court of Appeals took this to be an abandonment of his post conviction attack upon the original judgment.2 Coupled with his insistence in the post conviction proceeding that he did not want a new trial, that construction of what Ruckle did seems abundantly justified. The Court of Appeals of Maryland said:
“ * * * But there is authority for the proposition that after a seasonable abandonment, or attempt to abandon, a motion for a new trial, a new trial may not be forced upon a defendant, People v. McGrath, 202 N.Y. 445, 96 N.E. 92. We think the appellant’s refusal to accept the only remedy then available was, in effect, a withdrawal of his original application for post conviction relief. The holding that he was not entitled to release had become the law of the case. His only available choice was between a new trial or a return to the status quo. Refusal to accept the former was tantamount to a selection of the latter. It was implicit in the order striking out the judgments and sentences and granting a new trial on each charge that it was conditional upon the acceptance of a new trial. The action of the trial judge in reinstating the judgments and sentences was merely a recognition of the conditional nature of the order.”
Thus as a matter of state law, as declared by the Court of Appeals of Maryland, the Supreme Bench of Baltimore City, which had imposed the original judgment of conviction and which later had conditionally vacated that judgment, had the power to reinstate the original judgment of conviction and the verdicts upon which it was based. That is what it did, and the original judgment of con*340viction as thus reinstated, of course, supports the new sentence. Thus, while Maryland might have found as a matter of state law that there was no conviction to support the new sentence, we have no right to say so, and if the original judgment was validly reinstated as a matter of state law, there is no basis for a contention that the state law thus applied is in conflict with the Fourteenth Amendment to the Federal Constitution.
Thus reinstatement of the original judgment of conviction and reimposition of the original sentence was an alternative open at the time of rearraignment under state law, and state law thus applied is not constitutionally invalid.
Even now Ruckle’s willingness to submit to a new trial as the only alternative to service of the sentences previously imposed upon him is far from unequivocal. His distinguished court-appointed counsel have explained to him that if he prevails in this action, he need not consent to a retrial, and the majority holds that he need not, and that, upon a retrial, he can plead double jeopardy for whatever that plea may be worth. Ruckle instructed them to proceed with the appeal after having been told by his attorneys that the appeal should be abandoned if he preferred to avoid the risk of a heavier sentence which would be incurred by him in the event of a conviction following a new trial. His instructions to proceed, however, were conditioned upon his continued freedom to object to a new trial and his right to plead double jeopardy. It thus appears that now, as from the outset, Ruckle is misguided by a misplaced faith in the magic of a plea of double jeopardy, which appears from this point of view to be wholly futile and hopeless. He appears to be saying still, as he said at the time he was called for rearraignment, “I don’t want a new trial and never have wanted one * *
However, the present situation is largely irrelevant. We should look to the situation as presented to the court at the time Ruckle was brought before it for rearraignment, when, from all that then appeared, a new trial was the last thing Ruckle wanted.
Does the Constitution of the United States require a state court to force a prisoner to accept a retrial at the risk of a sentence greater than that imposed upon him after the first trial? I think not.
. Ruckle v. Warden, 220 Md. 683, 155 A.2d 69.
. Ruckle v. Maryland, 230 Md. 580, 187 A. 2d 836.