397 F2d 253 Pearce v. State of North Carolina R L

397 F.2d 253

Clifton A. PEARCE, Appellee,
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.


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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, 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. This we decline to do; and because the issue on appeal is so narrow, we concluded to dispense with oral argument.


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