Ballou v. State, 7 Div. 622

• Citation: 365 So.2d 352
• Decision Date: 19 December 1978
• Docket Number: 7 Div. 622
• Parties: Ivan BALLOU, Alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 352

365 So.2d 352

Ivan BALLOU, Alias v. STATE.

7 Div. 622.

Court of Criminal Appeals of Alabama.

Dec. 19, 1978.

William D. Hudson, Gadsden, for appellant.

William J. Baxley, Atty. Gen., for the State.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was charged with burglary in one count of a two-count indictment and with grand larceny in the other count. His appointed counsel, who has faithfully represented him here and in the trial court, filed a petition, subscribed and verified by defendant, that defendant-petitioner be treated as a youthful offender. The petition was granted pursuant to Ala.Code 1975, § 15-19-1. At the conclusion of the State's evidence on the trial of defendant as a youthful offender, defendant moved for an exclusion of the evidence as to each count. The court granted the motion as to the burglary court but denied it as to the larceny count. Thereupon the defendant proceeded with his evidence, which consisted of his own testimony.

The record before us is in two parts: (1) the certified "record on appeal," including "the clerk's record and the reporter's transcript," which "record on appeal" was filed in this Court on September 7, 1978, and (2) a certified copy of purported corrections of the trial court's judgment and entry of judgment on arraignment and its judgment and entry of judgment on its final determination of the case, which, as a supplement to the record, was filed in this Court on October 26, 1978.

Neither in the bench notes of the trial judge nor in the clerk's entries of orders of the trial court as shown by the "record on appeal" filed in this Court on September 7, 1978, is there a recital of any plea by defendant. Furthermore, such record on appeal, as shown by the trial judge's bench notes and the clerk's record of the formal judgment, shows that defendant was found guilty of grand larceny and was sentenced to three years in the custody of the Director of the Department of Corrections.

In the supplement to the record on appeal, it is shown, by revisions made by the trial judge in his bench notes and revisions (captioned partly as "corrected" or "amended" items) in the records of the clerk's office of the formalized orders and judgment of the trial court, that defendant pleaded not guilty. By the revision in the bench notes it is shown that defendant was found guilty as a youthful offender; by the revision in the records of the clerk's office, it is shown that he was adjudged a youthful offender. By both revisions it is shown that he was "committed to three years in the custody of the Director of the Department of Corrections."

Appellant urges that the judgment must be reversed by reason of failure of the record to show that defendant either pleaded to the charge against him or that he refused or neglected to plead and that a plea of not guilty was entered for him. He relies upon the proposition that in the absence of a recordation of any arraignment or joinder in issue, the judgment must be reversed on appeal. Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90, cert. denied 258 Ala. 579, 64 So.2d 102 (1953); Rorex v. State, 44 Ala.App. 112, 203 So.2d 294 (1967); Newsome v. State, 49 Ala.App. 248, 270 So.2d 680 (1972). In response to appellant's contention, appellee argues the applicability of Rule 10(f) of the Alabama Rules of Appellate Procedure as follows "If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court."

This Court has not been called upon in this case to take any action under said Rule 10(f). We are not informed, except by vague references in briefs of parties, as to "any difference" that arose "as to whether the record truly discloses what occurred." The supplemental record shows that the corrections were made on September 13, 1978, as to which the parties seem to be in agreement. However, appellant complains that he was given no notice of any attempt by appellee to have the record corrected, and states:

"Neither Ballou nor his trial counsel have any recollection of ever pleading to the indictment in this case, yet they had no opportunity to get their recollections on record because the amendment to the docket sheet and judgment order was done without notice or hearing."

Without questioning in any way the correctness of the statements made in the briefs of the parties, there is no issue now before us as to whether the record on appeal as supplemented is correct, and we can only conclude in this posture of the case that it is. We must decide any reviewable question by what the record on appeal now shows, not by what it previously showed. The present record reveals an appropriate arraignment, the interposition by defendant of a plea of not guilty and a judgment that is not now subject to the infirmity of the judgments reversed in Huddleston v. State, and other cases, Supra. We do not understand that the trial court by making the particular correction was merely purporting to do what it should have done by appropriate arraignment procedure, but that by the correction the trial court is in effect candidly stating that defendant did in fact plead not guilty, but that such fact was "omitted from the record by error or accident" and that in the respect under consideration the record now "truly discloses what occurred in the trial court."

The other indicated correction of the record is of a somewhat different nature, and we doubt the applicability thereto of Rule 10(f) ARAP. As we construe such indicated correction, it was to do that which the trial court should have done at the time it found defendant guilty, that is, it should have "adjudged" him "a youthful offender" and committed him "to the custody of the Board of Corrections." Ala.Code 1975, § 15-19-6. Appellant does not complain of the language of the judgment in this particular as the record now stands. As to this particular part of the judgment, if no correction had been made, we would have remanded the case for the rendition of the appropriate judgment as required by the Youthful Offender Act. Such an error of the trial court would not be a basis for a reversal of the judgment.

Appellant insists that at the time the State closed its case against defendant, there was no evidence that defendant was a youthful offender in the transgression charged against him of grand larceny. This position is not well taken, for the evidence at that time showed that there had been a larceny as charged in the indictment, of property sufficient in value to constitute grand larceny, particularly an "Admiral colored television." There is strong and convincing evidence that such television set, a bedroom suite, a lamp and a coffee table were all stolen from the house of William E. Barnes on July 18, 1977. A witness testified that at the time such items were unquestionably stolen and removed from the Barnes' home, she saw defendant coming out of the house with something that looked "like he had something like a television or a record player." She...