Glisson v. State
Decision Date | 17 January 1967 |
Docket Number | 3 Div. 231 |
Parties | Jessie D. GLISSON v. STATE. |
Court | Alabama Court of Appeals |
Elno A. Smith, Jr., Montgomery, for appellant.
Richmond M. Flowers, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.
This appeal from denial of coram nobis was submitted on oral argument December 20, 1966.
We have viewed Glisson's prayer as making this in fact a habeas corpus proceeding.
In 1950 Glisson was sentenced to sixteen years imprisonment. Later, while on parole therefrom, he was convicted of grand larceny. For this he was, on March 30, 1964, sentenced to a term of thirteen months. Also, he went back to prison sometime beforehand as a parole violator.
August 15, 1966, the sixteen-year sentence was completely served.
The question sought for decision here is whether or not the 1964 sentence for thirteen months was to run concurrently with the remainder of the sixteen-year sentence.
In 1961 our Legislature allowed circuit courts to provide that one sentence run concurrently with another. However, this is not the presumed rule of interpreting sentences which appear to overlap chronologically.
The 1961 Act, No. 82, §§ 32 and 83 of T. 45, Code 1940, requires that multiple sentences shall be cumulative 'unless it is specifically ordered in the judgment entry that such sentences shall be served concurrently.'
Said § 32, before its last amendment, was construed in Luquire v. Holman, 279 Ala. 203, 183 So.2d 799, a habeas corpus appeal, as applicable to convictions from different counties twelve years apart. The court there said:
* * *'
Moreover, § 32 is in derogation of the common law hence is to be strictly construed in its strictures against concurrent sentences.
The judgment of instant concern reads:
'It is therefore considered and adjudged by the Court that the said defendant is guilty as charged in the Solicitor's complaint heretofore filed.
Judgments in Alabama can only be altered by a separate nunc pro tunc suit. In such case only record evidence can be used to make any change.
Brown v. State, 277 Ala. 353, 170 So.2d 504.
Brown, supra, was a coram nobis case wherein the State sought to circumvent Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, by evidence of custom and practice to overcome the failure of a judgment to show that Brown had been appointed counsel.
Hence, in coram nobis, we consider that parol evidence to vary the written judgment entry can only be received on an issue of fraud which would have prevented the judgment. In habeas corpus the court goes by the written mittimus of the trial court.
'A sentence is not merely a directive from which those who are to execute it may obtain information as to the extent of that duty, but, put on the official court record, it is a guarantee to the prisoner that prosecution will not again be attempted within its scope and that punishment shall not exceed its reasonably definite limits.' Ex parte Parker, 225 N.C. 369, 35 S.E.2d 169.
Moreover, the statute requires that the minutes be read and approved as the first order of business each day, which we must presume has been done. Code 1940, T. 7, § 1. Omnia praesumuntur rite et solemniter esse acta.
We think the last sentence of the judgment above quoted is specific enough to express that the judge intended the term to run with any other term which Glisson was then under judgment to obey and endure in the State penitentiary.
We have to treat the language either as meaning the sentence was to be immediately operative or else mere surplusage or nonsense. Alexander v. Posey, 32 Ala.App. 494, 27 So.2d 237.
We have pretermitted consideration of whether or not the quoted judgment complies with the requisites laid down in State v. Baker, 268 Ala. 410, 108 So.2d 361.
The judgment below is due to be reversed and one should be entered here discharging the appellant.
Reversed and rendered.
PERICE, P.J., dissents, being of the opinion that the judgment entry does not reflect the specificity required by Sec. 83, Tit. 45, Code of Alabama, 1965 Cumulative Pocket Part.
Accompanying his application for rehearin, the Attorney General has filed (without prejudice to consideration thereof) a motion to enlarge the record.
From the State's brief on rehearing, we quote in part:
The now belatedly proffered judgment entry which was never adduced in the hearing below bears date of Monday, March 30, 1964. After recital therein of a sentence 'for a term of THIRTEEN MONTHS,' there follow no words of either concurrency or cumulation.
For over one hundred years in Alabama the mittimus or writ of commitment to the penitentiary (as distinguished from the judgment containing the sentence) has been done away with. Instead, a certified copy of the sentence went along with the prisoner.
A somewhat similar modus operandi is reflected in People ex rel. Trainor v. Baker, 89 N.Y. 460:
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Reverting to § 3941 of our 1852 Code, we find:
The Penal Code of 1866, § 322, though modified to omit the register is substantially the same.
Code 1940, T. 45, § 17, provides:
And in Alston v. State, 248 Ala. 163, 26 So.2d 877, we find the court saying of this section:
'Therefore, the Indictment Record, being an official record of the Tallapoosa County Circuit Court, and identified as such by the clerk of that court, and the certified copy of the transcript of the conviction and sentence of one Edgar Alston from the office of the State Department of Corrections and Institutions of the State of Alabama being a copy of a record required by law to be kept, both of...
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...give proof. Ohio Bell Tel. Co. v. Public Utilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 and cases cited in Glisson v. State, 43 Ala.App. 700, 200 So.2d 493. The genitalia picture books are quite like those in McKinney v. State, 287 Ala. 648, 254 So.2d 714. The paperback is withi......
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Lee v. State, 3 Div. 756
...of Title 45, § 32, requiring a specific order of concurrency. Glisson v. State, 281 Ala. 187, 200 So.2d 498, reversing, 43 Ala.App. 700, 200 So.2d 493 (1967). Here there was no specific order of concurrency. This case is governed by Glisson, supra, and under the doctrine enunciated there, t......