Ex parte Richardson
Decision Date | 09 May 1961 |
Docket Number | 3 Div. 72 |
Parties | Ex parte Henry Wayne RICHARDSON. |
Court | Alabama Court of Appeals |
Henry Wayne Richardson, pro se.
MacDonald Gallion, Atty. Gen., and Dwight W. Bradley, Asst. Atty. Gen., for the State.
This is a petition in an original action seeking relief in multiple aspects. These aspects appear to be:
(a) An application for leave to allow Richardson, who is now in Kilby Prison, to seek a writ of error coram nobis in the Circuit Court of Cleburne County or in the Circuit Court of Montgomery County;
(b) An appeal from the dismissal of an application for habeas corpus by the Circuit Court of Montgomery County;
(c) A petition for a writ of error to the Circuit Court of Motgomery County for dismissing the same application for habeas corpus referred to in (b); and
(d) A petition for a writ of error to the Circuit Court of Cleburne County with respect to a proceeding whereunder that court undertook to amend nunc pro tunc the entry of the judgment under which the warden of Kilby Prison justified his detention of Richardson.
The Attorney General has moved us to dismiss Richardson's petition, assigning as grounds:
(1) That this court, not having reviewed the original judgment of conviction in the Cleburne Circuit Court, is without authority to order that court to entertain an application by Richardson to that court for coram nobis;
(2) That Richardson's petition is defective for failing to allege that an appeal or other review was taken by him to the Court of Appeals of Alabama; and
(3) Grounds 3-10, inclusive, are virtually verbatim (with the same cases cited) as appear in grounds 1-8, inclusive, quoted in Judge Price's opinion in Ex parte Fuller, 40 Ala.App. 197, 116 So.2d 395.
There is no need of, or efficacy in, applying to us for leave to proceed in the Cleburne Circuit Court with respect to the original trial, because no appeal or other review of the judgment was taken to this court. Ex parte Williams, 255 Ala. 648, 53 So.2d 334; Ex parte Thomas, 270 Ala. 411, 118 So.2d 738 ( ).
Review of the Circuit Court of Montgomery County in habeas corpus proceedings had in that court to look into Richardson's detention in prison can only come to us by an appeal as provided in Code 1940, T. 15, § 369, as amended.
The writ of error to the Montgomery Circuit Court will not lie under T. 15, §§ 383-388, because the writ is available only to review judgments in criminal cases. Habeas corpus proceedings (which seek a writ essentially civil) seem to be excluded from § 383 et seq. Ex parte Smotherman, 140 Ala. 168, 37 So. 376; see also discussion in Tillman v. Walters, 214 Ala. 71, 108 So. 62.
As to the aspect of Richardson's petition in (d) above, we consider the motion of the Attorney General is not well taken. The pertinent provisions of the petition pray:
Attached to this petition marked Exhibit 'A' is what purports to be a copy 1 from the Circuit Court of Cleburne County of an 'Order Allowing Amendment of Judgment Nunc Pro Tunc' in a cause captioned 'State of Alabama v. Henry Wayne Richardson No. 930.' The entry contained in this exhibit recites:
'The State of Alabama on the 14th day of July, 1960, duly filed in the above-styled cause its application to amend nunc pro tunc the judgment rendered in said cause on the 5th day of June, 1958, and notice in writing of said application and the date set for the hearing thereof having been given the attorney for the defendant by serving same upon him ten days before this hearing, and the application to amend said judgment nunc pro tunc now coming on to be heard in open Court, and the attorneys for the parties being present, and sufficient record evidence having been submitted to the court in support of the State's motion, the Court is of the opinion that the application to amend said judgment nunc pro tunc should be granted. It is, therefore,
'Considered, ordered and adjudged that the judgment in the above-styled cause is hereby amended nunc pro tunc to read as follows:
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...need not be present, Stone v. United States, 9 Cir., 358 F.2d 503; Caster v. United States, 5 Cir., 319 F.2d 850, 852; Ex parte Richardson, 41 Ala. App. 285, 130 So.2d 245. In situations such as the resentence in the instant case where the sentence is mandatory rather than discretionary, th......
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Williams v. State
...in this case there is 'record evidence' to support a nunc pro tunc amendment of the judgment entry, with notice. See Ex parte Richardson, 41 Ala.App. 285, 130 So.2d 245. The two cases cited by appellant, Perry, supra, and Davis, supra, concerned verdicts where joint indictees were jointly t......