Ex parte Miller, 2 Div. 143

Decision Date01 April 1975
Docket Number2 Div. 143
PartiesEx parte McBride MILLER.
CourtAlabama Court of Criminal Appeals

McBride Miller, pro se.

No brief from the State.

CATES, Presiding Judge.

This is an original petition asking us to order the Board of Corrections to credit the petitioner with four months spent in the Pickens County jail before his conviction in two felony cases wherein judgment was rendered March, 1972.

From the petition it appears that petitioner anticipates that he will not be considered by the Pardon and Parole Board for parole at as early a date as he might if the credit had appeared on the mittimuses from the sentencing court.

The offense (robbery) for which Miller says he is serving time carries a minimum sentence of ten years. Hence, as the law stood in 1972 at his sentencing no jail time credit was allowable on a minimum penitentiary term. Recent Act No. 58, March 10, 1975 was not retroactive.

Miller made no effort to seek relief in a circuit court. Habeas corpus is not available until the prisoner is entitled to Immediate release. Phillips v. State, 40 Ala.App. 698, 122 So.2d 551--adhering to McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. See also Magee v. State,42 Ala.App. 71, 152 So.2d 443.

Under Amendment No. 328 this court is appellate only--with writ jurisdiction auxiliary to matters in which it has appellate jurisdiction and in superintendence and control thereof.

Our basic business in the Court of Criminal Appeals involves appeals, writs of error and writs of error coram nobis. All else, e.g., injunction, habeas corpus, bail, extradition, mandamus, and prohibition revolve around the first category. Indeed, Amendment 328, § 603(c) denies in express terms original jurisdiction except in aid of appellate jurisdiction. 1

This petition is

Denied.

TYSON and BOOKOUT, JJ., concur.

HARRIS and DeCARLO, JJ., not participating.

1 Any controversy over the future length of a sentence (after conviction and appeal barred by time) is between the prisoner and, either or both, the Board of Corrections and/or the Pardon and Parole Board. Before the prisoner becomes entitled to immediate release (as by way of habeas corpus) the only conceivable remedy would seem to be a civil action for a declaratory judgment. Under Act No. 58, supra, the clerk of the sentencing court (or the sheriff, in case of an escape) would seem to be an indispensable party. Such litigation could not be reviewed in this court, §...

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6 cases
  • Jackson v. State of Ala., s. 75--1186
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 30 de abril de 1976
    ...that request for pre-sentence credit is not a proper subject of collateral attack by a writ of error coram nobis. Ex Parte Miller, 1972, 54 Ala.App. 590, 310 So.2d 890; Bailey v. State, supra. Under these circumstances the exhaustion requirements of Title 28, U.S.C. Section 2254(b) need not......
  • McConico v. ALABAMA DEPT. OF CORRECTIONS
    • United States
    • Alabama Court of Criminal Appeals
    • 30 de abril de 2004
    ...an inmate was entitled to immediate release. See, e.g., Aaron v. State, 497 So.2d 603 (Ala.Crim.App.1986) (citing Ex parte Miller, 54 Ala.App. 590, 591, 310 So.2d 890 (1975)). In 1980, however, the Alabama Supreme Court held that a petition for writ of habeas corpus was the proper method by......
  • Austin v. Alabama Dept. of Corrections, CR-06-0505.
    • United States
    • Alabama Court of Criminal Appeals
    • 27 de abril de 2007
    ...an inmate was entitled to immediate release. See, e.g., Aaron v. State, 497 So.2d 603 (Ala. Crim.App.1986) (citing Ex parte Miller, 54 Ala.App. 590, 591, 310 So.2d 890 (1975)). In 1980, however, the Alabama Supreme Court held that a petition for writ of habeas corpus was the proper method b......
  • Washington v. State, 5 Div. 594
    • United States
    • Alabama Court of Criminal Appeals
    • 6 de outubro de 1981
    ...the petitioner is presently restrained of his liberty illegally and is due immediate release on issuance of the writ. Ex parte Miller, 54 Ala.App. 590, 310 So.2d 890 (1975); Tunstill v. State, 41 Ala.App. 516, 138 So.2d 267 Because the federal district courts use the writ of habeas corpus f......
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