Allen v. State
Decision Date | 08 August 2003 |
Citation | 883 So.2d 737 |
Parties | Elizabeth Ann ALLEN v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
Derek Quinn, Birmingham, for appellant.
Submitted on appellant's brief only.
Alabama Supreme Court 1030194.
On January 27, 2003, the appellant, Elizabeth Ann Allen, pleaded guilty to possession of a controlled substance and was sentenced to two years in the penitentiary. She applied for probation and the trial court set the matter for a hearing on March 21, 2003. On that same date the trial court denied Allen's request for probation. On April 15, 2003, Allen filed a notice of appeal. The notice of appeal was filed more than 42 days after the date of Allen's sentencing, and our records showed that no postjudgment motions had been filed; therefore, we issued an order directing Allen to show cause why the appeal should not be dismissed.1 The case is before this Court on Allen's response to our order.
Allen argues that the time for filing the notice of appeal in her case cannot be measured from January 27, 2003, the date of her sentencing, because her sentence was suspended on that date pending the preparation of her probation report and her sentence was not final until the trial court officially denied her request for probation on March 21, 2003.
The transcript of the guilty plea hearing reflects the following:
(R. 8.)
Rule 4(b)(1), Ala.R.App.P., states, in part:
(Emphasis added.)
According to Rule 4(b), Ala.R.Crim.P., a notice of appeal in a criminal case must be filed within 42 days from the date of sentencing or within 42 days from the denial or denial by operation of law of a motion in arrest of judgment, a motion for a new trial, or a motion for a judgment of acquittal.
Here, the record shows that Allen was sentenced on January 27, 2003, and that she applied for probation. Allen's notice of appeal was not filed until April 15, 2003. A request for probation is not the equivalent of the motions recognized in Rule 4, Ala.R.App.P., as tolling the time for filing a notice of appeal. This very issue was addressed by the Alabama Supreme Court in Woods v. State, 371 So.2d 944 (Ala.1979). The Court in Woods stated:
since here the trial court suspended the sentence until receipt of the post-sentence investigation report from the probation officer. Petitioner argues that since the sentence was temporarily suspended, it was temporarily inoperative and was not sufficient to support an appeal until the trial court allowed execution of the sentence. We disagree.
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