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

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US Court of Appeals for the Fourth Circuit - 405 F.2d 623 (4th Cir. 1969) January 8, 1969

A. James Kauffman, Richmond, Va., for appellee.

Reno S. Harp, III, Asst. Atty. Gen., for appellant.

Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.


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.