Burton v. State, 6 Div. 630
| Decision Date | 17 February 1959 |
| Docket Number | 6 Div. 630 |
| Citation | 40 Ala.App. 146,109 So.2d 311 |
| Parties | Leo BURTON v. STATE. |
| Court | Alabama Court of Appeals |
J. Terry Huffstutler, Birmingham, for appellant.
John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for the State.
On 19 March 1956 this appellant, with leave of the court, withdrew his plea of not guilty, and entered a plea of guilty to manslaughter in the first degree. Pursuant to a jury's verdict judgment of guilt was entered on 11 May 1956, and appellant was sentenced to imprisonment in the penitentiary for three years.
On 21 May 1956 appellant filed a motion for a new trial, which was heard on 1 June 1956.
On 1 June 1956 the State moved to strike the motion for a new trial, and this motion was granted.
An appeal was perfected to this court, the case coming here on a record proper.
We held that it being clear that the lower court erroneously struck the motion for a new trial on the theory that the thirty day period within which to file a motion for a new trial began on the date of the verdict rather than the date of judgment, the judgment striking the motion for a new trial was reversed and the case remanded to the circuit court for a hearing on the motion for a new trial. 97 So.2d 164.
Thereafter, and on 11 October 1956 the lower court set aside its order dismissing the motion for a new trial, and set a hearing thereon for 18 October 1957.
On 15 October 1957 the appellant filed an amendment to his motion for a new trial setting forth three additional grounds of alleged error.
The motion was heard on 18 October 1957 and denied.
The original motion for a new trial filed on 21 May 1956 contained eleven grounds.
Grounds 1, 2, 3, 4, 5, 7, 8, and 9 assert in various ways that the counsel for appellant had entered into an agreement with the circuit solicitor that if appellant would withdraw his plea of not guilty and enter a plea of guilty, the appellant would be given a sentence of two years and placed on probation by the court; and that the court erred in refusing appellant the right to withdraw his plea of guilty upon the agreement being called to the court's attention.
The record fails to show that the court was informed of any agreement of any sort at any time other than by the motion for a new trial.
At the hearing on the motion for a new trial counsel for appellant testified to the effect he had agreed with the solicitor to withdraw appellant's plea of not guilty, and enter a plea of guilty, the appellant to receive a sentence of two years, and be placed on probation.
The circuit solicitor, testifying for the State, denied vehemently and such agreement.
This in and of itself merely presented a question of fact within the province of the court to resolve. Certainly we are in no position to say that the trial court abused his discretion in the conclusion reached.
Further, such grounds presented no valid basis for granting a new trial, since: 'No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby.' Circuit and Inferior Court Rules, Rule 14, Code 1940, Tit. 7 Appendix; Supreme Court Rule 22, Code 1940, Tit. 7 Appendix.
In addition the alleged agreement which counsel for appellant contends was made was beyond the power of defense counsel and the solicitor to make, in that the sentence to be imposed was within the sole province of the jury, and the matter of probation was in the sole province of the court.
Clearly the lower court did not err in denying the appellant's motion for a new trial on the above mentioned grounds.
Grounds 10 and 11 of the original motion for a new trial assert as error that the court failed to ask the defendant why the sentence of the law should not be pronounced upon him...
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Argo v. State, 6 Div. 219
...and the defendant agree shall be submitted to the judge presiding. The court is in nowise bound by such agreement. Burton v. State, 40 Ala.App. 146, 109 So.2d 311; Aaron v. State, 43 Ala.App. 449, 192 So.2d 456 (Nov. 29, 1966).2 At the coram nobis hearing held December 3, 1965, recessed to ......
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