Foster v. State

Citation45 Ala.App. 323,229 So.2d 913
Decision Date19 August 1969
Docket Number7 Div. 832
PartiesWilliam Walter FOSTER v. STATE.
CourtAlabama Court of Appeals

James F. Hinton, Gadsden, for appellant.

MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

ALMON, Judge.

In Foster v. State, 44 Ala.App. 139, 204 So.2d 148, the submission was set aside and the cause was remanded to the Etowah County Circuit Court for certification of the court reporter's transcript of evidence on appellant's motion to dismiss the indictment. The supplemental transcript was filed in this court on July 2, 1968, and the cause resubmitted on September 5, 1968.

While on parole, appellant was arrested on April 26, 1962, for robbery and sent to Kilby Prison as a parole violator. On September 14, 1962, the Grand Jury of Etowah County returned the instant indictment against appellant for robbery. On June 9, 1965, he filed a motion to dismiss the indictment alleging denial of his constitutional right to a speedy trial. § 6, Alabama Constitution.

After a hearing, this motion was denied on July 29, 1965. Appellant was tried, found guilty and on October 6, 1965, sentenced to fifteen years in the State penitentiary. From this judgment he appeals, insisting that the trial court erred in denying his motion to dismiss the indictment.

At the speedy trial hearing, M. S. Dean, Records Clerk for the State Board of Corrections, testified that appellant had been incarcerated since May 15, 1962, and that on September 20, 1962, he received a letter from Sheriff Colvard enclosing a certified copy of the writ of arrest on indictment and asking that a detainer be placed against appellant. Mr. Dean further testified that the following memo was given to appellant in Kilby Prison on September 24, 1962:

Kilby Prison

'Memo

Date 9/24/62

'TO: William Foster #66596

'FROM: Marlin C. Barton, Classification Officer

'RE: Detainer

'This is to inform you that detainer has been placed against you for the offense of robbery, by Mr. Dewey V. Colvard, Sheriff Etowah County, Gadsden, Ala.

'cc: Inst. File

File.'

Appellant testified that he was never served with the indictment and did not know of its existence until his attorney informed him by letter dated July 3, 1965. He further testified that he received the above memo and on October 15, 1962, he mailed a letter addressed to Mr. Charles Wright, Circuit Solicitor of Etowah County. He testified that he wrote the letter with a pen and made a pencil draft, that he had lost the pencil draft but, some two years after he had written the letter, he got an inmate to type a copy of the pencil draft. He was not permitted to introduce the typewritten copy of the pencil draft but the court allowed him to testify to the contents of the alleged letter as follows:

'Q. Do you have an independent recollection of what you said in your letter of October the 15th to the Solicitor of this Judicial Circuit?

'A. I asked if I had been indicted and if so, what date had been set for my trial; that was the substance of the letter.'

The Honorable Charles Wright, who was Circuit Solicitor in Etowah County during the Fall of 1962, testified that he had no recollection of receiving any correspondence from appellant and that it was the practice in his office to keep a file on each defendant and to file all correspondence relating to a case in the particular defendant's file. He further testified that when he vacated the office of Circuit Solicitor or District Attorney, he left all his files intact in his office.

The Honorable William Rayburn, the present District Attorney and successor to Mr. Wright, testified that he had made a search of his office and had not found any correspondence from appellant.

Mrs. Deloris Pritchard, Deputy Clerk of the Circuit Court of Etowah County for eleven years, testified that the writ of arrest on indictment was issued on September 18, 1962, and given to the sheriff; that this writ was not returned to the clerk's office until June 9, 1965, when the case was first docketed; that the record did not show service of the...

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7 cases
  • Mayberry v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 5, 1971
    ...1940, T. 13, § 207. Mayberry at no time made a demand for a speedy trial until his motion to dismiss. However, under Foster v. State, 45 Ala.App. 323, 229 So.2d 913, and Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158, there can be no waiver of the right to a speedy tria......
  • Smith v. State, 5 Div. 581
    • United States
    • Alabama Court of Criminal Appeals
    • November 24, 1981
    ...of time that is considered to be per se reasonable, we conclude that this time span is "presumptively prejudicial," Foster v. State, 45 Ala.App. 323, 229 So.2d 913, cert. denied, 285 Ala. 754, 229 So.2d 915 (1969), and mandates an investigation of the remaining Barker Reason for Delay Appel......
  • McCallum v. State, 7 Div. 872
    • United States
    • Alabama Court of Criminal Appeals
    • November 24, 1981
    ...years. We believe that this time span may be considered as long enough to be deemed "presumptively prejudicial," Foster v. State, 45 Ala.App. 323, 229 So.2d 913, cert. denied, 285 Ala. 754, 229 So.2d 915 (1969), and merits our review of the other Barker No formal hearing was apparently held......
  • Balasco v. State
    • United States
    • Alabama Court of Criminal Appeals
    • January 29, 1974
    ...1967, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed. 1; Smith v. Hooey, 1969, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Foster v. State, 45 Ala.App. 323, 229 So.2d 913; and Sellers v. State, 48 Ala.App. 178, 263 So.2d 156. All expressions and conclusions as to a delay that would impair the right of......
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