Ex parte Davis

• Decision Date: 20 January 1959
• Docket Number: 4 Div. 385
• Citation: 110 So.2d 302,40 Ala.App. 164
• Parties: Ex parte John DAVIS. John DAVIS v. W. G. HARDWICK, as Special Judge, Circuit Court, Houston County.
• Court: Alabama Court of Appeals

Page 302

110 So.2d 302

40 Ala.App. 164

Ex parte John DAVIS John DAVIS v. W. G. HARDWICK, as Special Judge, Circuit Court, Houston County.

4 Div. 385.

Court of Appeals of Alabama.

Jan. 20, 1959.

Rehearing Denied Feb. 24, 1959.

J. Hubert Farmer, Dothan, for petitioner.

John Patterson, Atty. Gen., and Jerry L. Coe, Asst. Atty. Gen., for respondent.

HARWOOD, Presiding Judge.

This proceeding was originally assigned to Judge Cates. The writer being unable to agree with the conclusions reached by Judge Cates has prepared the following opinion, with which Judge Price concurs. The opinion of the writer therefore becomes the opinion of the court.

The pleading and facts forming the basis of the order or judgment of the lower court have been fully set forth in Judge Cates' opinion, and we will not again repeat them.

As we interpret the doctrine of Smith v. Pelham, 252 Ala. 415, 41 So.2d 570, it simply held that the power of the trial court to suspend sentence and grant probation was not limited to any particular time after pronouncement of sentence, but continued until its execution was actually commenced, and the Supreme Court determining that sentence had not commenced, it was held that it was the right of the convict to have her application for suspension of sentence and probation entertained, heard and determined by the respondent judge, and the peremptory writ was ordered, the respondent judge having refused entirely to act on the petition for suspension and probation.

In the present litigation we are considering an entirely different question, that is, whether there is any duty to entertain an application for a rehearing after petitioner's original application for suspension of sentence and probation has been heard, determined, and denied, or more accurately put, whether a positive right to such rehearing can spring from the lower court's denial of an application for a rehearing, even though such denial be based on the erroneous ground that the court did not have jurisdiction to entertain the application for rehearing of the order entered pursuant to the hearing on the original petition for probation.

In Armstrong v. O'Neal, 176 Ala. 611, 58 So. 268, 270, our Supreme Court, through Sayre, J., wrote:

'Where the application is for mandamus, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondent to perform the act required.' See also Cloe v. State, 209 Ala. 544, 96 So. 704; Ex parte Jones, 26 Ala.App. 414, 161 So. 266; Ex parte Bryant, 38 Ala.App. 127, 78 So.2d 821, and many other authorities stating the above principle to be found in 14 Ala.Dig., Mandamus, k10, et seq.

Nowhere in Chapter 2 of Title 42 (Sections 19-26), containing all of the statutory provisions relative to probation, is there any provision for a rehearing after an original petition for suspension of sentence and probation has been entertained and determined.

Ordinarily, in the absence of a statute so providing, there is no inherent right to a rehearing. It follows therefore that no duty devolves upon a court to entertain such an application in the absence of such statutory provision.

This petitioner therefore had no clear legal right to apply for a rehearing of the adverse judgment upon his petition for probation.

There not only was no imperative duty upon the respondent to entertain the application, there was no duty whatsoever upon him to do so.

We think that the court below had the inherent power to entertain the rehearing, assuming the necessary jurisdictional facts existed, had it so desired.

However, we do not think that the act of the respondent in granting the State's motion to strike the petition for rehearing, even though granted on an erroneous ground, can be deemed to have created a clear legal right, or to have created an imperative duty on the part of the respondent to entertain the application for rehearing. Such right and duty can exist only by force of statute.

Such right and duty being a necessary requirement to the proper issuance of a peremptory writ of mandamus, and being entirely absent, the petition is denied.

Mandamus denied.

CATES, Judge (dissenting).

Davis has asked us to award a writ of mandamus to command the respondent to set aside an order which he made in the Houston Circuit Court September 30, 1958, which reads:

'There being before the Court motion by defendant for a rehearing on Defendant's application for probation and the motion on the part of the Solicitor to strike the same, and the Court having heard the arguments and upon consideration of the same the Court finds:

'That it is without authority to grant a rehearing of Defendant's application for that the defendant commenced the execution of his sentence when the application for probation was denied and the sentence was ordered executed. On the happening of this event, this Court lost jurisdiction of this cause, therefore,

'It is ordered, adjudged, and decreed that the motion by the Solicitor to strike the motion by defendant for rehearing of defendant's application for probation be, and the same is hereby granted and said motion is stricken.' (Italics added.)

At the time the petition was presented to us, we entertained some doubt as to the propriety of the broad relief sought, inasmuch as the petitioner not only asked to have us set aside the order of September 30, 1958, but also that we require the respondent to reinstate the cause for further consideration.

The Attorney General, appearing for the respondent, has filed, first, a motion to strike the petition for mandamus and to quash the rule nisi; and, second, an answer (a) admitting the allegations of facts in the first six paragraphs of the petition, (b) denying the allegation of fact and the correctness of the conclusions of law in paragraphs seven and eight of Davis's petition for mandamus, which read:

'7. That petitioner has not begun serving said three year penitentiary sentence as so affirmed by said Court of Appeals of Alabama; but that he is in the custody of the Sheriff of Houston County, Alabama, being presently incarcerated in the Houston County jail.

'8. Petitioner further alleges that in the light of the above and foregoing allegations of this petition, and considering the broad and humanitarian aims and purposes of the Probation Law of the State of Alabama, as well as the inherent power and authority of the Circuit Court of Houston County, Alabama, the Hon. W. G. Hardwick, special Judge as aforesaid had jurisdiction of petitioner for the purpose of said Probation Law at the time petitioner filed his said application for a rehearing, at the time said Circuit Solicitor filed the motion on the part of the State of Alabama to strike petitioner's said motion, and at the time said order was made whereby the motion of said Circuit Solicitor was granted and petitioner's motion was stricken; and that said order so striking petitioner's said motion was without foundation or justification in law.'

and (c) an affirmative allegation that the circuit court 'is without jurisdiction to entertain an application for probation after the defendant has commenced the execution of his sentence and did so on the date his original application for probation was denied,' and that 'petitioner is not entitled to a rehearing on application for probation.' (Italics supplied.)

In brief Davis says, inter alia:

'The Attorney General has misconstrued petitioner's...