Cook v. State
| Decision Date | 01 October 1976 |
| Citation | 333 So.2d 858 |
| Parties | In re Jerry COOK v. STATE of Alabama. Ex parte Jerry Cook. SC 1834. |
| Court | Alabama Supreme Court |
Certiorari to Court of Criminal Appeals.
Michael E. Sparkman, Hartselle, for petitioner.
None for the State.
Jacob Walker, Jr., Opelika, Richard H. Gill, Roland M. Nachman, Montgomery, Robert B. Harwood, Jr., Tuscaloosa, J. Edward Thornton, Mobile, Amicus Curiae.
Petition of Jerry Cook for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cook v. State, 57 Ala.App. ----, 333 So.2d 855 [1976].
The writ is denied on the merits. Although the petition does not state that an application for rehearing was filed in the Court of Criminal Appeals and "the date of the order overruling the application for rehearing" as required by Rule 39(d)(2), A.R.A.P., the petition does follow Form 22, Appendix 1, A.R.A.P., which Rule 50 states is sufficient.
On the other hand, Rule 39(b) requires that the petition be filed with the Clerk of the Supreme Court "within 14 days (2 weeks) after the decision of the court of appeals on the application for rehearing." We cannot tell from examining the petition whether it was timely filed or not.
Form 22, Appendix 1, A.R.A.P., should contain the following averment at the end of paragraph 1:
[date]
WRIT DENIED, ORIGINAL OPINION WITHDRAWN AND CORRECTED.
All the Justices concur.
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Showers v. State
... ... Rule 39(k), ARAP. In light of the fact that there was no objection, the Court of Criminal Appeals should have ruled in accordance with its holding in Cook v. State, 333 So.2d 855 (Ala.Crim.App.), cert. denied, 333 So.2d 858 (Ala.1976), which presented facts somewhat similar to those involved in this case. In Cook the court held: ... Appellant claims the trial court committed reversible error in making inquiry as to how the jury stood ... ...
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Byrd v. State, 6 Div. 776
... ... It is unclear whether the delay between the defendant's arrest and his indictment was "made necessary by the law itself." Cook v. State, 333 So.2d 855, 858 (Ala.Cr.App.), cert. denied, 333 So.2d 858 (Ala.1976). The delays due to the several continuances are also unexplained. Assuming ... their occurrence rests with the State, mere inaction on its part is weighed less heavily against it than deliberate prosecutorial ... ...
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Davis v. State
... ... A defendant cannot claim his constitutional rights have been denied where the delay is caused by him, or where delays are made necessary by the law itself, or occasioned by want of time to try the case. Cook v. State, Ala.Cr.App., 333 So.2d 855; certiorari denied, 333 So.2d 858 ... In the present case the interval between indictment and the date of trial was less than six months, and appellant filed a motion to dismiss less than four months after indictment in December 1978. Appellant ... ...
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Smith v. State, 5 Div. 581
... ... Reason for Delay ... Appellant was duly indicted at the first scheduled grand jury term following his preliminary hearing. This preindictment delay of seven months was not inordinate and must be considered as a delay "made necessary by the law itself." Cook v. State, 333 So.2d 855 (Ala.Cr.App.), cert. denied, 333 So.2d 858 (Ala.1976). The State claims that the delay between the date of the indictment, February 6, 1979, and May 1979, when appellant was incarcerated in the Georgia penitentiary and was available to Alabama process, must be blamed on the ... ...