Ex parte Merkes, 1 Div. 227

CourtAlabama Court of Appeals
Writing for the CourtCATES
Citation43 Ala.App. 640,198 So.2d 789
Docket Number1 Div. 227
Decision Date14 March 1967
PartiesEx parte Donald V. MERKES.

Page 789

198 So.2d 789
43 Ala.App. 640
Ex parte Donald V. MERKES.
1 Div. 227.
Court of Appeals of Alabama.
March 14, 1967.
Rehearing Denied April 4, 1967.

Donald V. Merkes, pro se.

MacDonald Gallion, Atty. Gen., for the State.

CATES, Judge.

On February 3, 1967, Merkes filed here a petition to get us to make the Baldwin Circuit Court hear Merkes on a 'petition for a correction or modification of the [43 Ala.App. 641] judgment rendered in Circuit Court Case No. 4147, as filed on date of May 20, 1966.'

Merkes says that March 24, 1965, he was sent to the penitentiary for fourteen years for robbery. September 7, 1965, the court on coram nobis undid the March judgment because a jury had not set the punishment.

On September 27, 1965, he was again tried and convicted. This time he was given eleven years. Nothing is said about his not having a jury to say what this sentence should be.

Now Merkes wants credit for the time he served on the fourteen year term, that is six months and three days. He did not make any request for change of sentence until May 20, 1966.

I.

First, Merkes did not make this request to the trial court in time. Since it is a one county circuit, Code 1940, T. 13, § 119, ends the power of the Baldwin Circuit Court over its judgments thirty days after rendition. This time limit cannot be changed. Boutwell v. State, 279 Ala. 176, 183 So.2d 774.

Page 790

II.

Second, after the time in which the trial judge can set aside judgment has gone by, there is no State court action in which to make the claim on which Merkes is trying to have the circuit court now act.

In Aaron v. State, 43 Ala.App. 450, 192 So.2d 456, an appeal from denial of habeas corpus, we went into the holdings in Hill v. Holman, D.C., 255 F.Supp. 924, and Patton v. State of North Carolina, D.C., 256 F.Supp. 225. We there said:

'Moreover, we do not think that Alabama affords, after motion for new trial wherein the trial judge's power over judgment is kept alive, any post conviction remedy to assert that a sentence is invalid because of a claim of excessiveness if the second sentence does not go beyond the statutory limit. Isbell v. State, 42 Ala.App. 498, 169 So.2d 27. Our Supreme Court has failed to adopt any general rule that our remedy of coram nobis automatically assimilates all rights imposed on state trials by the Fourteenth Amendment. See Wilson, Federal Habeas Corpus and the State Court Criminal Defendant, 19 Vand.L.Rev. 741.

'It is equally available to...

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8 practice notes
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...such credit.6 Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala.App. 450, 192 So.2d 456; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789.7 And respondent Rice, upon being resentenced, was given no credit at all for th two and one-half years he had already spent......
  • Rice v. Simpson, Civ. A. No. 2583-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • September 26, 1967
    ...Criminal Defendant, 19 Vand.L.Rev. 741.' "And, again, the same Judge, speaking for the same court, in March 1967 in Ex Parte Merkes, 43 Ala.App. 640, 198 So.2d 789, reiterated the above-quoted statement from the Aaron case and stated further, `We see no reason to go into what should be the ......
  • Cooks v. State, 5 Div. 239
    • United States
    • Alabama Court of Criminal Appeals
    • June 17, 1975
    ...when the trial court finally denied appellant's motion for new trial. Title 13, Section 119, Code of Alabama 1940; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789 (1967), cert. den. 281 Ala. 722, 198 So.2d 790; Essex v. State, 45 Ala.App. 141, 227 So.2d 138 Appellant contends that the trial......
  • Jones v. Hale, Civ. A. No. 4723-67-P.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • December 29, 1967
    ...F.Supp. 116 (M.D. Ala. 1967); Merkes v. Simpson et al. Civil Action No. 2597-N, U.S.D.C.MD. Ala., September 26, 1967; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789 (1967), cert. denied 281 Ala. ___, 198 So.2d 790 (1967); Aaron v. State, 43 Ala.App. 450, 192 So.2d 456 In his petition, peti......
  • Request a trial to view additional results
8 cases
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...such credit.6 Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala.App. 450, 192 So.2d 456; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789.7 And respondent Rice, upon being resentenced, was given no credit at all for th two and one-half years he had already spent......
  • Rice v. Simpson, Civ. A. No. 2583-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • September 26, 1967
    ...Criminal Defendant, 19 Vand.L.Rev. 741.' "And, again, the same Judge, speaking for the same court, in March 1967 in Ex Parte Merkes, 43 Ala.App. 640, 198 So.2d 789, reiterated the above-quoted statement from the Aaron case and stated further, `We see no reason to go into what should be the ......
  • Cooks v. State, 5 Div. 239
    • United States
    • Alabama Court of Criminal Appeals
    • June 17, 1975
    ...when the trial court finally denied appellant's motion for new trial. Title 13, Section 119, Code of Alabama 1940; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789 (1967), cert. den. 281 Ala. 722, 198 So.2d 790; Essex v. State, 45 Ala.App. 141, 227 So.2d 138 Appellant contends that the trial......
  • Jones v. Hale, Civ. A. No. 4723-67-P.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • December 29, 1967
    ...F.Supp. 116 (M.D. Ala. 1967); Merkes v. Simpson et al. Civil Action No. 2597-N, U.S.D.C.MD. Ala., September 26, 1967; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789 (1967), cert. denied 281 Ala. ___, 198 So.2d 790 (1967); Aaron v. State, 43 Ala.App. 450, 192 So.2d 456 In his petition, peti......
  • Request a trial to view additional results

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