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Abstract

In a recent case the Maine Supreme Judicial Court delineated the prerequisites for relief under Maine's post-conviction relief statute. The court declared that actual or constructive custody is necessary for relief. In Thoresen v. State, petitioner was convicted of a felony in Maine in 1959. He had been represented by retained counsel, and had elected to plead guilty to an information charging him with grand larceny. His sentence was suspended by probation and he was permitted to leave the state. Formally complying with all the regulations of his probation, he was given a total discharge in 1961. In 1967, he was indicted in California for a violation of a federal statute which makes it unlawful for one who had been convicted of a felony to transport any firearms or ammunition in interstate commerce. At first reading Thoresen's custody requirement appears reconcilable with other Maine post-conviction cases. Thoresen was not incarcerated in Maine and was not on parole or probation from a Maine conviction. Thus, in the eyes of the Maine court, he was not in custody, nor subject to a remand to custody, and did not have sufficient interests to warrant relief. The approach of the court in Thoresen, however, is inadequate. If the statute replaced the common law, it codified relief to out-of-custody petitioners; if not, the statute on its face contemplates relief to such persons. The statute can and should be interpreted to afford relief to a petitioner out of custody. Custody is not a prerequisite to relief under common law coram nobis in other jurisdictions. In federal habeas corpus proceedings the United States Supreme Court has moved away from a narrow interpretation of "custody" towards considerations of the disabilities inherent in wrongful conviction which remain with the individual after sentence has been discharged.

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