Ex parte Colbert

• Decision Date: 10 March 1998
• Docket Number: CR-97-836
• Parties: Ex parte Cordell COLBERT. (In re STATE of Alabama v. Cordell COLBERT).
• Court: Alabama Court of Criminal Appeals

Page 868

717 So.2d 868

Ex parte Cordell COLBERT.

(In re STATE of Alabama v. Cordell COLBERT).

CR-97-836.

Court of Criminal Appeals of Alabama.

March 10, 1998.

On Application for Rehearing

April 9, 1998.

Certiorari Denied June 19, 1998

Alabama Supreme Court 1971287.

Roger C. Appell, Birmingham, for petitioner.

Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for respondent.

LONG, Presiding Judge.

The petitioner, Cordell Colbert, filed this petition for a writ of habeas corpus, asking us to direct the Honorable Don Hardeman, circuit judge for the Thirty-second Judicial Circuit, to set a bail in this case. The petitioner was arrested and was charged with robbery in the first degree, two counts of theft of property in the first degree, and receiving stolen property in the first degree. The petitioner was charged with driving the "getaway car" used in the commission of the offenses. The petitioner's bail was originally set at $1 million and was then reduced to $500,000 in the district court. A habeas corpus petition was filed in circuit court requesting that bail be reduced. A bail hearing was held before Judge Hardeman, and Judge Hardeman revoked the petitioner's bail. The petitioner then filed a petition for a writ of habeas corpus in this Court.

The State contends that this Court should not consider this petition because, it says, the petitioner has not availed himself of the proper remedy. Specifically, the State contends that the petitioner should have filed a direct appeal from the denial of the petition and should not have filed an original habeas corpus petition with this Court. The State cites Clay v. State, 561 So.2d 1116 (Ala.Cr.App.1990), to support its claim. ¹

In Clay this Court dismissed a habeas corpus petition that challenged a trial court's ruling on pretrial bail. (The case was ultimately dismissed by this Court on another ground.) Judge Bowen, writing for the Court, stated: "The proper method of reviewing the denial of a petition for writ of habeas corpus is by appeal and not by original petition addressed to the appellate court." 561 So.2d at 1118. The Court cited several Alabama Supreme Court decisions for that proposition. See Price v. Holman, 279 Ala. 324, 184 So.2d 835 (1966); Banks v. State, 275 Ala. 504, 156 So.2d 364 (1963); Ex parte Ruffin, 275 Ala. 519, 156 So.2d 379 (1963); Wilson v. State, 275 Ala. 402, 155 So.2d 506 (1963); Ex parte Carmack, 275 Ala. 347, 155 So.2d 300 (1963); Ex parte Burton, 275 Ala. 345, 155 So.2d 298 (1963); Ex parte Smith, 275 Ala. 344, 155 So.2d 297 (1963); and Ex parte Lee, 275 Ala. 343, 155 So.2d 296 (1963).

The petitioners in every Alabama Supreme Court case cited above had been convicted and were incarcerated in a state penitentiary when the habeas corpus petitions were filed. Also, the petitioners were either attacking their sentence or their conviction. It appears that the petitions in these cases were either appeals from prison disciplinary actions or appeals from coram nobis (now Rule 32, Ala.R.Crim.P.) proceedings. No case involved a petitioner seeking review of the denial of pretrial bail.

Amendment No. 328, § 6.03(d), Alabama Constitution of 1901, confers upon this Court the jurisdiction to consider habeas corpus petitions as original petitions. This section states:

"The court of criminal appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Said court shall have authority to issue writs of injunction, habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction; to punish for contempts by the infliction of a fine as high as one hundred dollars, and imprisonment not exceeding ten days, one or both, and to exercise such other powers as may be given to said court by law."

See also § 12-3-11, Code of Alabama 1975.

The purpose of a habeas corpus petition is defined in Black's Law Dictionary 709 (6th ed.1990), as "to [seek] release from unlawful imprisonment." Indeed, attacking the denial of pretrial bail would be a futile exercise if a party was forced to file a direct appeal and await the result of the appellate process, rather than to obtain immediate relief by filing an original habeas corpus petition with this Court. In Ex parte Lee, 275 Ala. at 344, 155 So.2d 296, the Alabama Supreme Court stated, "[t]his court in the absence of unusual circumstances will not entertain an original petition for writ of habeas corpus." Certainly, a circuit court's denial of bail in a case where bail is constitutionally required is the "unusual circumstance" envisioned in Lee. We hold that this Court will entertain original petitions for a writ of habeas corpus arising out of a circuit court's denial of, or the setting of excessive, pretrial bail. To the extent Clay holds otherwise, it is hereby overruled.

We do not mean to suggest that this Court will entertain original habeas corpus petitions based on prison disciplinary actions. Review of these petitions will continue to be by direct appeal to this Court from the trial court's denial of the petition.

Here, the petitioner filed a habeas corpus petition in the trial court, the trial court denied that petition and revoked bail, and an original petition was filed with this Court. This petition is properly before this Court and will be reviewed on its merits. See Cooper.

This Court has stated:

"In Alabama, an accused upon arrest and before conviction, is entitled to bail as an absolute right provided he has sufficient sureties. Bail may only be denied in capital offenses, when the proof is evident or the presumption great."

Daniels v. State, 597 So.2d 1383, 1384 (Ala.Cr.App.), on remand, 597 So.2d 1384 (Ala.Cr.App.1991), quoting, Sprinkle v. State, 368 So.2d 554, 559 (Ala.Cr.App.1978), writ quashed, 368 So.2d 565 (Ala.1979). See also Trammell v. State, 284 Ala. 31, 221 So.2d 390 (Ala.1969) and Art. I, § 16, Alabama Constitution of 1901 Art. I, § 16, Alabama Constitution of 1901, provides that every person charged with a noncapital offense has the constitutional right to pretrial bail. However, the amount of bail is discretionary, to be set by the court. Rule 7.2(b), Ala.R.Crim.P., contains a schedule of recommended ranges of bail to serve as a general guide for courts in setting bail. The recommended range of bail for a Class A felony, such as robbery in the first degree, is $3,000 to $30,000; for Class B felonies, such as theft of property in the first degree and receiving stolen property in the first degree, the range is $2,000 to $20,000. See Rule 7.2(b), Ala.R.Crim.P.

Furthermore, the following factors enumerated in Rule 7.2(a), Ala.R.Crim.P., may be taken into account in setting bail at a greater amount then that recommended by the bail schedule.

"(1) The age, background and family ties, relationships and circumstances of the defendant.

"(2) The defendant's reputation, character, and health.

"(3) The defendant's prior criminal record, including prior releases on recognizance or on secured appearance bonds, and other pending cases.

"(4) The identity of responsible members of the community who will vouch for the defendant's reliability.

"(5) Violence or lack of violence in the alleged commission of the offense.

"(6) The nature of the offense charged, the apparent probability of conviction, and the likely sentence, insofar as these factors are relevant to the risk of nonappearance.

"(7) The type of weapon used, e.g., knife, pistol, shotgun, sawed-off shotgun.

"(8) Threats made against victims and/or witnesses.

"(9) The value of property taken during the alleged commission of the offense.

"(10) Whether the property allegedly taken was recovered or not; damage or lack of damage to property allegedly taken.

"(11) Residence of the defendant, including consideration of real property ownership, and length of residence in his or her place of domicile.

"(12) In cases where the defendant is charged with a drug offense, evidence of selling or pusher activity should indicate a substantial increase in the amount of bond.

"(13) Consideration of the defendant's employment status and history, the location of defendant's employment, e.g., whether employed in the county where the alleged offense occurred, and the defendant's financial condition.

"(14) Any enhancement statutes related to the charged offense."

Another method of calculating pretrial bail was approved in Wade v. State, 42 Ala.App. 400, 166 So.2d 739 (1964), and referred to recently in Brown v. State, 615 So.2d 1306 (Ala.Cr.App.1993). This method, called the "rough rule of thumb," provides that bail be calculated at a rate of $1,000 per year of the maximum potential sentence. Wade. Here, the appellant faces up to life imprisonment or 99 years for conviction of a Class A felony and up to 20 years' imprisonment for each conviction of a Class B felony. If the appellant is convicted of all counts and is sentenced to consecutive maximum sentences, then he faces a potential prison sentence of 159 years. The "rough rule of thumb" calculation would provide for bail in the amount of $159,000.

We recognize that the trial court in this case expressed concerns about the petitioner's being released from custody. The trial court, when revoking bail stated:

"I find that under these circumstances ... [the petitioner] is a hazard to the community, and I deny any bond at all. The reason being is that, as I understand it, he was under a charge of murder until March of this year, last year, and within a matter of a few months after being released from that charge he is involved in an armed bank robbery and has a weapon on his person. Given the nature of this charge and the possible sentence, and considering the likelihood of conviction...