Cheatham v. State, 6 Div. 788

• Decision Date: 01 March 1983
• Docket Number: 6 Div. 788
• Citation: 431 So.2d 1350
• Parties: Levoin CHEATHAM v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 1350

431 So.2d 1350

Levoin CHEATHAM v. STATE of Alabama.

6 Div. 788.

Court of Criminal Appeals of Alabama.

March 1, 1983.

Rehearing Denied March 29, 1983.

Certiorari Denied May 27, 1983

Alabama Supreme Court 82-662.

George W. Andrews, III, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Levoin Cheatham was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama, 1975. The appellant was found "guilty as charged in the indictment" and sentenced to 25 years in the penitentiary.

Billy Pickelmayer testified that on November 24, 1979, he was the owner of Bob Hall's Auto Parts in Birmingham. On that day, at approximately 5:00 p.m., he was in his office, along with six other people, (whom he identified as a nephew named Sidney Johnston, an employee named Arthur White, two of Mr. White's brothers and their girl friends) when three black males entered the office and told them this is a robbery.

Pickelmayer was standing behind a counter and as he attempted to walk around the counter, he was struck on the head with a pistol by one of the men. The two struggled and the man again struck Pickelmayer over the head and told everyone to lie down.

The same man, who was behind the counter with Pickelmayer, then took two billfolds out of Pickelmayer's pockets, one billfold contained company money and the other contained personal money. The total amount of money contained in the two billfolds was approximately $1800. Pickelmayer was then told to open the cash register and the man took money out of it. He then took Pickelmayer's .38 Colt pistol, serial number 126458 from a drawer next to the cash register. Pickelmayer identified State's Exhibit No. 1 for identification as his gun that was taken during the robbery.

After the three men left, the police were called and Pickelmayer was taken to the hospital for treatment of the injuries he incurred during the robbery.

Pickelmayer identified the appellant as the man who hit him and stated he was positive the appellant was one of the three men who robbed him on that day.

On December 1, 1979, William Lee Bowlin of the Nashville Police Department was dispatched to the B & B liquor store in Nashville. When he arrived there, he saw three men standing in the store and placed them under arrest. He identified those three men as Milton Seymour, Malverick Player and the appellant.

A search was conducted of the store and one of the other officers, Valerie Jean Meese, found a .38 Colt pistol, serial number 126458, on a shelf approximately three to seven feet from where the appellant was standing. No one in the store claimed ownership of the gun. Both Bowlin and Meese identified State's Exhibit No. 1 as the gun that was found and Bowlin testified the gun had remained in his custody from that time until he brought it to court.

A later search of the appellant's person was conducted and two loaded .38 shells were found in his pocket.

Sergeant J.C. Farrell testified he made several visits to Pickelmayer concerning the robbery. Although the testimonies of Pickelmayer and Farrell differ concerning during which visit Pickelmayer made his identification and whether he identified Player or Seymour, the evidence is clear that Pickelmayer gave a description of the men to Farrell and positively identified the appellant from a group of photographs.

I

The appellant contends the State failed to bring him to trial within the 180 day period prescribed under the Mandatory Disposition of Detainers Act (§§ 15-9-80 -88, Code of Alabama (Supp.1978) and therefore the indictment against him should have been dismissed.

The applicable section of the Act, Art. III(a), reads as follows:

"Article III

"(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decision of the state parole agency relating to the prisoner."

The relevant events concerning the appellant's contention are set out as follows:

August, 1980--Appellant was indicted on the present charge by the Grand Jury in Jefferson County. At that time, he was confined in the penal system of the state of Tennessee.

April 15, 1981--Appellant had two cases pending against him in Jefferson County, Alabama. He signed consent forms pursuant to the requirements of the Mandatory Disposition of Detainer's Act. This was the triggering event which started the running of the 180 day period.

August 13, 1981--Appellant was transported to Jefferson County, Alabama.

August 17, 1981--Both of appellant's cases were set for trial this week. A continuance was granted by mutual consent of both parties and the trial was reset for the week of September 14, 1981.

September 14, 1981--Neither of the appellant's cases were reached this week and were carried over until the week of September 21, 1981.

September 21, 1981--Continuances were granted in both cases. One of the cases (not the one at bar) had to be continued due to the illness of a witness. The second case (the one at issue) was continued because it was the higher numbered case and the state was not prepared to try it because there were out-of-state witnesses who had not been contacted since the lower numbered case was to be tried first. The cases were then reset for the week of November 16, 1981.

October 13, 1981--180 day period from April 15, 1981 ended.

October 26, 1981--Appellant filed a pro se motion to dismiss the indictment because the 180 day period expired.

November 17, 1981--Lower numbered case was tried.

December 1, 1981--The instant case went to trial.

The total period from April 15, 1981, (when the appellant signed the consent forms) until December 1, 1981, (the date of the appellant's trial) was 229 days, 49 days in excess of the 180 day period.

Both parties agreed to the continuance granted on August 17, 1981, until September 14, 1981. This had the effect to toll the period for 28 days. The time period from September 14, 1981, until December 1, 1981, is the time period which is in contention. The only issue is whether the continuance was reasonable and necessary and granted for good cause. See Alabama Code, § 15-9-81, Art. III(a) (Supp.1978). See also United States v. Ford, 550 F.2d 732 (U.S.C.A., 2d Cir.1977).

During the hearing on the appellant's motion to dismiss, the trial judge stated:

"THE COURT: No, no; but I think that from the evidence presented to me, it's obviously the intention of the parties counsel was to try the lowest numbered case on September 21st. I don't find it unreasonable for Judge Nice to continue this case rather than him just--all right, we can't try the first case, we'll try the second case in about, however, short a notice.

"I am going to find that there has been continuances granted by the Court for good cause shown which will toll the running of the time so as to cause this trial to commence within the requirements of this statute, consequently, Mr. Gwin, I overrule your motion and give you an exception for the record." (R. 123-124).

It has been the policy of this court to uphold a finding of the trial judge unless it appears that his decision is manifestly wrong. We do not intend to deviate from this course at this time. There are no guidelines which set out what constitutes reasonable and necessary grounds for a continuance. Therefore, we must leave that to...