Frank Edward Pennington, Appellee, v. C. C. Peyton, Superintendent of the Virginia State Penitentiary, Appellant, 405 F.2d 623 (4th Cir. 1969)

Frank Edward Pennington was first tried as a recidivist in March 1961 and given a one year sentence. This sentence on petitioner's motion was vacated in October of 1963 as required by Chewning v. Cunningham, 368 U.S. 443, 82 S. Ct. 498, 7 L. Ed. 2d 442 (1962). A second re-trial was subsequently invalidated. At his third trial in the Circuit Court of the City of Richmond in June of 1967 he was again convicted and sentenced to a term of two years, with six months suspended for good behavior. The district court held that under Patton v. North Carolina, 4 Cir., 381 F.2d 636, Pennington could not constitutionally be sentenced for a term longer than imposed at his first trial. A writ of habeas corpus was issued to compel his release unless lawfully re-sentenced within the limitation of Patton.

We adhere to our decision in Patton v. North Carolina, supra, and since no other question is presented on appeal we summarily affirm.

Affirmed.