MARVIN MANDEL, Governor                                 241

derived from Art. 5, §§ 15, 15A, and 15B.

In subsection (a), the phrase "oath in forma
pauperis" is replaced with "petition under
oath alleging the fact of his poverty and his
inability to defray the expense of
prosecuting an appeal" for the purpose of
uniformity. It is believed that this formal
change does not affect the legislative intent
to provide for an appeal in these cases
notwithstanding a defendant's inability to
defray the cost of an appeal. It should be
noted that in death sentence cases a
sentencing judge has no power to exercise his
discretion in ascertaining a defendant's
indigency.

In subsection (c) the provisions dealing with
costs of filing a petition for writ of
certiorari are modified to provide for the
Court in which the petition is filed to make
determination of indigency. The present
procedure requires action by two courts for
an indigent, i.e., determination of indigency
in Court of Special Appeals and decision on
petition in Court of Appeals. The commission
feels that the payment of costs should be
considered by the same tribunal which
entertains a petition for writ of certiorari.
This is logical since there is no particular
reason that the Court of Special Appeals is
able to make this determination more readily
than the Court of Appeals. In addition, the
last provision in subsection (c) is modified
to fill an apparent gap which exists in the
present statute. It is unclear from the
present statute who would pay the costs of
filing the petition for a writ of certiorari
if the petition for waiver of costs is
granted and the petition for a writ of
certiorari is denied. The draft clarifes
this ambiguity by providing for payment of
costs by the State irrespective of the
Court's decision on the petition for a writ
of certiorari if the petitioner is found
indigent.

For procedure to issue a writ of certiorari,
see Md. Rules 811, 1011, and K41 to 48.

SEC. 7-104. COSTS ON APPEAL WHERE STATE OR ITS AGENCY