Ex parte Sykes
Decision Date | 28 June 1968 |
Docket Number | 1 Div. 352 |
Citation | 213 So.2d 413,44 Ala.App. 473 |
Parties | Ex parte David F. SYKES. |
Court | Alabama Court of Appeals |
David F. Sykes, pro se.
MacDonald Gallion, Atty. Gen., for the State.
Sykes, a prisoner in the Mobile County jail, wants a writ of mandamus issued to 'Respondent,' i.e., the State of Alabama.
His petition avers as follows:
'Basis of Petition
'It is the position of Petitioner that the Respondent Court below is dilatory in its duties and should be compelled under the mandate of this Honrable Court to accord immediate and prompt adjudication of a petition for the great constitutional right to this motion.
'Conclusion
'Wherefore, Petitioner respectfully asks this Honorable Court to compel the Court below as respondent herein to instanter adjudicate the Motion for Withdrawal of Plea of Guilty, heretofore filed in this cause.'
In Shellnut v. State, 43 Ala.App. 298, 189 So.2d 587 ( ), this court noted, per Price, P.J.:
Shellnut, however, because it is an exception, illustrates the general rule which is:
-- Bricken, P.J., in * * *'Smith v. State, 32 Ala.App. 206, 23 So.2d 515.
The time for a motion for leave to withdraw a plea of guilty expires as provided in Code 1940, T. 13, § 119. Woodard v. State, 42 Ala.App. 552, 171 So.2d 462.
Nothing is alleged which would take Sykes's case from the influence of the Smith rule quoted above. Nothing appears to show whether or not the judgment which might have been entered in the Mobile Circuit Court is still within the breast of the court, i.e., for thirty days from rendition. § 119, supra.
Both these reasons support denial of mandamus. In State ex rel. Holcombe v. Stone, 232 Ala. 16, 166 So. 602, we find:
'* * * to entitle one to the extraordinary writ of mandamus there must be (a) a clear legal right in the petitioner to the order sought, (b) there must be an imperative duty upon the respondent in the petition for mandamus to perform his duty, and which he has refused to do, (c) there must not be any other adequate remedy open to petitioner, and (d) the jurisdiction of the court must be duly invoked by proper petition. * * *'
Here Sykes tells us nothing that puts his cause in the categorical imperative. Nothing tells us his motion is to be preferred over all other matters pending before the seven judges of the trial bench; nor as to its rank on the docket.
We cannot for obvious reasons take judicial notice of the condition of, nor the standing of cases on, the docket of a trial court. Ex parte Clark, 42 Ala.App. 562, 171 So.2d 473.
Moreover, mandamus is not a substitute for an appeal. Ex parte Roberson, 43 Ala.App. 354, 190 So.2d 566. Until we are confronted...
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Ex parte Rush
...to do so, (c) a lack of another adequate remedy, and (d) the jurisdiction of the court must be properly invoked. Ex parte Sykes, 44 Ala.App. 473, 213 So.2d 413 (1968). Martin v. Loeb and Company, 349 So.2d 9 at 10 (Ala.1977). Here, we are of the opinion that defendant meets all four require......
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Ex parte Bozeman
...to do so, (c) a lack of another adequate remedy, and (d) the jurisdiction of the court must be properly invoked. Ex parte Sykes, 44 Ala.App. 473, 213 So.2d 413 (1968). Martin v. Loeb and Company, 349 So.2d 9 at 10 More recently, this court stated: Mandamus is a proper means of review to det......
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Shepard v. State
...Essex v. State, 45 Ala.App. 141, 227 So.2d 138 (1959); Harris v. State, 44 Ala.App. 632, 218 So.2d 285 (1969); Ex parte Sykes, 44 Ala.App. 473, 213 So.2d 413 (1968); Hamilton v. State, 43 Ala.App. 192, 186 So.2d 108 (1966); Ex parte R. H. Byrd Contracting Company, 26 Ala.App. 171, 156 So. 5......
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