Ellison v. State

• Citation: 55 Ala.App. 50,312 So.2d 632
• Decision Date: 22 April 1975
• Docket Number: 5 Div. 232
• Parties: Leon ELLISON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 632

312 So.2d 632

55 Ala.App. 50

Leon ELLISON v. STATE.

5 Div. 232.

Court of Criminal Appeals of Alabama.

April 22, 1975.

Rehearing Denied May 6, 1975.

Omar L. Reynolds, Clanton, for appellant.

William J. Baxley, Atty. Gen., and Charles N. Parnell, III, Asst. Atty. Gen., for the State.

TYSON, Judge.

Leon Ellison was indicted by the grand jury of Chilton County at the November 1970 Term, for the second degree burglary of Jemison Sundries, by removing therefrom radios, television sets, and other wares. County two of the indictment charged the grand larceny of a portable radio and portable television, the personal property of D. C. Jones. The trial court appointed counsel to represent the appellant, and he was arraigned in open court, with counsel, on February 9, 1971. The cause was then set for trial for March 24, 1971, and the jury found the appellant guilty of 'burglary and grand larceny,' as charged in the indictment. The trial court then entered its adjudication of guilt, and set sentence at four years imprisonment. On March 24, 1971, the appellant gave notice of appeal, and on the following day, March 25, 1971, the appellant, with the assistance of some friends, posted a $2000.00 appeal bond.

Thereafter, this cause was sent to this court as a 'record proper' appeal, and was affirmed by this court, without opinion, on August 24, 1971, 5 Div. 56. It should be here noted that there was no indication in this transcript as to the appellant's status, other than that counsel had been appointed to represent him on the trial of this cause.

Subsequently, on September 14, 1973, the appellant filed a petition for writ of error coram nobis in the Circuit Court of Chilton County, averring, among other grounds, that he was indigent and did not have counsel appointed to perfect his appeal. The court the appointed an attorney to represent the appellant, and a hearing was conducted on October 17, 1973, on this allegation. The trial court at that time, due to the fact that appellant had made appeal bond, had made no request for the court to appoint counsel, and, in fact, had attempted to employ counsel, denied the coram nobis petition. The appellant then appealed this proceeding to this court, where the same was affirmed on May 7, 1974, without opinion. Ellison v. State, 5 Div. 232.

We will not attempt to delineate here the several petitions, which may have been filed in the various courts by the petitioner, but, suffice it to here say, on November 19, 1974, the United States District Court for the Middle District of Alabama entered its order and judgment, decreeing, among other things, that the officials of the Circuit Court of Chilton County had failed to take the necessary steps to assist the petitioner in perfecting his original appeal from the judgment of that court, rendered on March 24, 1971. Thereafter, the Circuit Court of Chilton County did, on December 10, 1974, enter an order, determining that the appellant, Leon Ellison, was an indigent, that he was such at the time the original sentence, on March 24, 1971, was imposed upon him, and directed the court reporter and circuit clerk to furnish the appellant's, as an indigent, a full transcript of all original trial proceedings, and that the same be filed in this court as an appeal from the judgment rendered on March 24, 1971.

This court is now called upon to review this matter in the posture as herein out-lined.

I

We are confronted at the outset by the order of the United States District Court, which, in pertinent part, is as follows:

'ORDER, JUDGMENT AND DECREE of this Court that the petitioner's application for the writ of habeas corpus be and the same is hereby conditionally granted. It is further

'ORDERED that the State of Alabama be and it is hereby directed by take appropriate action to cause the officials of the Circuit Court of Chilton County, Alabama, to perfect the petitioner's appeal from the judgment of conviction in Case No. 11462, it effective out of time appellate consideration of his conviction and sentence is available under Alabama law, or, in the alternative, reschedule the petitioner's case for trial within four months from the date of this Order. It is further

'ORDERED that the respondent file a further return in this case within sixty days from the date of this Order reflecting the status of Chilton County Circuit Court Case No. 11462.

'Done this 18th day of November, 1974.'

It is appropriate that this court express itself on the question of its jurisdiction to hear this appeal. Appeals from convictions in criminal cases must be taken within six months from rendition of judgment. Title 15, Section 368, Code of Alabama 1940. This period may be extended for cause by appropriate motion for new trial, seasonably filed and heard. Title 15, Section 368, supra.

The appropriate manner of taking an appeal in criminal cases under the above statute is well set forth in the opinion of Mr. Justice Merrill, in Relf v. State, 267 Ala. 3, 99 So.2d 216.

We are immediately concerned with the fact that there was here no motion for new trial filed, thus, strictly speaking, the original appeal should have been perfected within six months from rendition of judgment of conviction, March 24, 1971. Relf v. State, supra. However, there was here a 'record proper' appeal perfected in this court, on June 23, 1971, and affirmed by this court, without opinion, on August 24, 1971.

Mr. Justice Goodwin, in City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606, in discussing the question of appellate jurisdiction, stated:

'We must consider, ex mero motu, questions of jurisdiction; and where a judgment appealed from is void for want of jurisdiction we have no alternative but to dismiss the appeal. Alabama Public Service Commission v. McGill, 260 Ala. 361, 362, 71 So.2d 12; Mitchell v. Hammond, 252 Ala. 81, 84, 39 So.2d 582; Craig v. Root, 247 Ala. 479, 484, 25 So.2d 147; Freeman v. Swan, 22 Ala. 106, 115; Carter v. Hinkle, 13 Ala. 529, 533; Wyatt v. Judge, 7 Port. 37, 38--40; 5 C.J.S. Appeal and Error §§ 1477, 1480, pp. 740, 747. From the early case of Wyatt v. Judge, (7 Porter 37) supra, is the following:

"* * * (W)e think the record shows that he Circuit court had no jurisdiction of the case. * * * It may perhaps be thought, that inasmuch as this objection was not expressly made in the Circuit court, it should not be regarded here. We understand the law to be otherwise. It was the duty of the Circuit court mero motu to have repudiated the appeal * * * and it is certainly our duty to do what that court should have done. * * * (T)he want of jurisdiction was allowable in the appellate court, though no made below. * * * (W)ant of jurisdiction of the subject matter was determined not to be aided by a plea to the merits. And the true doctrine is, that consent, whether express or implied, cannot give jurisdiction. * * *"

Several of our very early Alabama cases have considered the opinion above quoted, in Wyatt et al. v. Judge et al., 7 Porter 37.

Thompson v. Lea, 28 Ala. 453, observes:

'The element in the jurisdiction over a case which cannot be supplied by consent, is the jurisdiction over the subjectmatter; and the reason why that cannot be given by consent is, that it must be conferred by the law. It is the authority of he court, and can be derived alone from the law. Whatever pertains merely to the bringing of the case under the operation of that jurisdiction, may be waived (Authorities cited). . . .'

In Crabtree et al. v. Cliatt, 22 Ala. 181, the court stated:

'It has been further held, both here and elsewhere, that if the want of jurisdiction appears by the judgment, or on the face of the proceedings, the party injured need not be put to his plea to the jurisdiction, but the appellate court will look to it mero motu, and declare the judgment coram non judice, and void (Authorities cited) . . ..'

See also State et rel. Savray v. Caroline, 20 Ala. 19.

Moreover, the absence of jurisdiction may not be supplied by the presence of the State's attorney on hearing the motion for new trial, or by his consent that the trial court act. State ex rel. Attorney General v. Brewer, 19 Ala.App. 330, 97 So. 777, cert. denied, 210 Ala. 229, 97 So. 778.

Moreover, as noted by Mr. Justice Harwood, then Harwood, Presiding Judge, of the former Court of Appeals, in Heath v. Hall, 39 Ala.App. 623, 106 So.2d 38:

'We can only act within our jurisdiction conferred by law, and that jurisdiction cannot be enlarged by the consent of the partis. Ex parte Alabama Textile Products Corp., 242 Ala. 609, 7 So.2d 303, 141 A.L.R. 87. Nor by another court.'

Most recently, this court, speaking through Presiding Judge Cates, in Essix v. Birmingham, 54 Ala.App. 348, 308 So.2d 259, stated:

'Appeals are statutory. As was said in State v. Bibby, 47 Ala.App. 240, 252 So.2d 662:

"Furthermore, there is no inherent or inalienable right of appeal. Appeals (aside from the altogether different 'appeals of felony') were unknown to the Common Law at the time of the migration of our forebears. Hence, it has become a familiar saw among legal writers to say that appeals are solely the creatures of statute. * * *"

We therefore hold and determine that there is no such creation as an out-of-time original direct appeal under our present Alabama practice. Hines v. State, 48 Ala.App. 297, 264 So.2d 218; Mitchell v. State, 54 Ala.App. 203, 306 So.2d 296, cert. denied, 293 Ala. 767, 306 So.2d 298.

II

We are thus confronted with the subsequent order of the trial judge, determining that the appellant was in fact an indigent at the time of his original judgment of conviction, and therefore appointed an attorney to perfect this appeal, and directed that the complete transcript of the trial be filed in this court.

As previously noted, the appellant had filed a petition for writ of error coram nobis in the Circuit Court of Chilton County, averring his indigency at the time of his original judgment of...