Groce v. State

• Citation: 267 So.2d 499,48 Ala.App. 709
• Decision Date: 03 October 1972
• Docket Number: 6 Div. 361
• Court: Alabama Court of Criminal Appeals
• Parties: John W. GROCE v. STATE.

Page 499

267 So.2d 499

48 Ala.App. 709

John W. GROCE v. STATE.

6 Div. 361.

Court of Criminal Appeals of Alabama.

Oct. 3, 1972.

Calvin M. Howard, Birmingham, for appellant.

No brief from State.

HARRIS, Judge.

Appellant filed a petition for writ of error coram nobis in the Circuit Court of the Tenth Judicial Circuit of Alabama on March 9, 1971, seeking to overthrow his conviction for robbery in that court on September 27, 1967, in which his punishment was fixed at ninety-nine years in the penitentiary. On July 21, 1971, on petitioner's request for a court-appointed lawyer, Calvin Howard was appointed to represent him. A hearing was held on July 28, 1971, and on the 5th day of August, 1971, a decree was rendered denying the relief sought, dismissing the petition and remanding custody of petitioner to the Department of Corrections and Institutions. He is in this court with a free transcript and the attorney who represented him in the proceeding below has filed a brief.

In assignments of error, appellant contends, inter alia, (1) he was denied the right to counsel at a lineup, (2) denied the right to counsel at the preliminary hearing, (3) denied the right to have a material witness testify in his behalf, (4) not informed of his right to file a motion for a new trial, (5) not informed of his right to appeal the conviction in forma pauperis, (6) the evidence was insufficient to support the judgment (of conviction) and sentence, and (7) he was denied his rights under both the Federal and State constitutions.

The office of the 'writ of error coram nobis', under Alabama law, is to bring to the attention of the court for correction an error of fact, one not appearing on the face of the record, unknown to the court or party affected, and which, if known in time, would have prevented the judgment challenged, and serves as a motion for a new trial on the ground of newly discovered evidence. The writ is not intended to relieve a party from his own negligence, and cannot serve as a substitute for an appeal, nor to enable a defendant to question the merits of the case for which he stands convicted. Smith v. Hixon, D.C., 149 F.Supp. 283; Mathis v. State, 281 Ala. 424, 203 So.2d 442; Thomas v. State, 280 Ala. 109, 190 So.2d 542; Butler v. State, 279 Ala. 311, 184 So.2d 823.

Following the trial of this case in the court below, the distinguished trial judge made a finding of fact and order that is so thorough and cogent that we think it well to set it forth here:

'This matter is before the Court on petitioner's petition for Writ of Error Coram Nobis heretofore filed in this Court on March 9, 1971.

'The record in this case affirmatively reflects that petitioner was indicted on February 10, 1967 for Robbery and the case was docketed February 14, 1967, and was originally set for arraignment on March 3, 1967, and was thereafter passed from time to time to give defendant an opportunity to employ counsel of his own choice. On May 26, 1967, the defendant in open court and represented and accompanied by his employed counsel, whom he had chosen, Honorable John Golden, was duly arraigned and entered a plea of not guilty, at which time the case was set for trial for September 25, 1967. On September 26, 1967, the trial was begun and on September 27, 1967, the jury returned a verdict finding the defendant guilty of Robbery and fixing his punishment at ninety-nine years imprisonment in the penitentiary. The jury was polled and each juror stated that this was his verdict whereupon, after allocutus, the defendant was sentenced in accordance with the jury verdict.

'This coram nobis petition was filed March 9, 1971, and on July 21, 1971, on petitioner's request for court-appointed counsel, the Honorable Calvin Howard, Attorney, was appointed to represent petitioner and hearing was set for the week of July 26, 1971, and was duly held on July 28, 1971.

'In his petition, the petitioner alleges that after his arrest on this charge, he was placed in a lineup without counsel or the offer of counsel and that he was denied the right of counsel at preliminary hearing. He further contends that 'a material witness was excluded from testifying at the time of petitioner's trial contrary to the 6th and 14th Amendments to the United States Constitution.' The petitioner further contends that his counsel failed to advise him of his right to appeal in forma pauperis, that the evidence was insufficient to support the judgment and sentence and that he was deprived of his liberty without due process of law contrary to the 14th Amendment of the United States Constitution.

'Petition testified, under oath, that he was arrested in December of 1966 in the early morning hours, around 1:30 or 2:00 a.m. and that within a day or two of his arrest he was placed in a lineup without counsel and without having any rights thereto explained to him; that his preliminary hearing was held without his being represented by counsel or one being furnished or offered to him; that on his trial in this case he was represented by Mr. John Golden, Attorney. He testified that he wanted one Johnny Smith to testify as a witness; that Smith was with him when he was arrested and had, at the time of this trial, already pleaded guilty and had been sentenced to ten years in the penitentiary and had gone to the penitentiary to serve his time. He testified that Smith had told him...