Jones v. State, 1 Div. 21

Decision Date09 September 1986
Docket Number1 Div. 21
PartiesJames Hugh JONES v. STATE.
CourtAlabama Court of Criminal Appeals

Stephen K. Orso, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

This is an appeal from the denial of a petition for writ of error coram nobis.

Appellant was indicted for murder, found guilty as charged by a jury on June 24, 1982, and sentenced on July 9, 1982, to imprisonment for twenty-five years in the penitentiary. During the trial of the case and through the rendition of the jury verdict, he was represented by retained counsel, Honorable Richard D. Horne. Shortly after the guilty verdict had been returned, appellant terminated the services of Horne and retained Honorable Major Madison to represent him. Madison represented appellant at the sentencing. He also filed a motion for a new trial and represented appellant at the hearing on said motion. At the conclusion of the hearing on the motion for a new trial on July 30, 1982, the trial court denied the motion. Madison had been retained to perfect an appeal for appellant if the motion for a new trial was denied, and immediately upon the denial of the motion, Madison gave proper notice of appeal. No bond being available, appellant commenced serving his sentence on July 30, 1982, and has been in continuous confinement since that date. Because no transcript of the trial was filed in this court within the time provided by law, this court, after receiving a certificate from the circuit clerk stating that appellant was not indigent, the court reporter had not been paid, and that no transcript would be filed, dismissed the appeal on March 20, 1984. Jones v. State, 447 So.2d 871 (Ala.Cr.App.1984).

Thereafter, appellant filed the instant petition for writ of error coram nobis, contending, among other things, that he was not adequately represented by Horne during the trial of his case, and that Madison had been inadequate for failing to take the necessary measures to perfect a timely appeal to this court. He seeks a new trial or an out of time appeal. After a hearing, the trial court denied the petition, holding that appellant did receive reasonably effective assistance of counsel from Horne, and that appellant's assertions of inadequacy of representation by Madison in failing to perfect an appeal and his request for an out of time appeal were beyond the scope of coram nobis.

Challenges based on the inadequacy of counsel constitute grounds for coram nobis. Peterson v. State, 428 So.2d 201 (Ala.Cr.App.1983); Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979). The traditional relief available on coram nobis has been expanded to include a belated or out of time appeal where necessary to insure justice and fairness. Longmire v. State, 443 So.2d 1265 (Ala.1982); Brown v. State, 460 So.2d 263 (Ala.Cr.App.), cert. denied, 460 So.2d 263 (Ala.1984); Peterson v. State, supra.

It is clear from the record that appellant desired to appeal his case. He instructed his counsel, Madison, to perfect the appeal, and proper notice of appeal was made. Madison apparently ordered the transcript, but no funds were ever advanced to pay the court reporter to prepare it. The record in this case shows that nine extensions were granted for the preparation of the transcript, running from September 1982 to March 1984. During this period, appellant communicated with Madison orally and by letter numerous times. He constantly urged his counsel to see that the transcript was prepared and filed. He never abandoned his intention to appeal. The record shows that he took some action in federal court to obtain the transcript. He apparently wrote a letter to the clerk of this court on March 19, 1984, the day prior to our dismissal of his appeal, objecting to further extensions of time for preparing the transcript, and asking for permission to proceed in forma pauperis. It appears that when Madison was retained, he was paid $500 and promised an additional $1,000, which never materialized. He was also promised funds to hire an investigator, but none were forthcoming. Appellant's family tried to raise money for him, without success. Appellant was in prison and was without funds. His counsel tried unsuccessfully to "marshal" other assets of appellant. The advanced fee of $500 was obviously used up in counsel's representation at the sentencing and in investigation, preparation, and hearing on the motion for a new trial. There simply was no money to pay for the transcript, and for some reason, appellant's counsel failed to move the court for a finding of indigency and a free transcript. Based upon the record before us, it would have been proper for the trial court to grant such a motion. Counsel made no objections concerning the delay in preparation of the transcript.

The record reflects a failure of communication and misunderstanding between counsel and client. Counsel testified: "He asked me almost every...

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13 cases
  • Hill v. Jones
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 9 Abril 1996
    ...errors by counsel. See, e.g., Ex parte Dunn, 514 So.2d 1300 (Ala.1987) (failure to file briefs in support of appeal); Jones v. State, 495 So.2d 722 (Ala.Crim.App.1986) (failure to timely perfect appeal by filing transcript of trial), cert. denied, 514 So.2d 1068 (1987) 13; Dawson v. State, ......
  • K.D.D. v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 12 Marzo 2021
    ...was illegal). In addition, a request for an out-of-time appeal is properly raised in a coram nobis petition. See Jones v. State, 495 So. 2d 722, 723-24 (Ala. Crim. App. 1986) ("The traditional relief available on coram nobis has been expanded to include a belated or out of time appeal where......
  • Jones v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 14 Abril 1987
    ...however, we reversed, finding that counsel was ineffective, and ordered that appellant be granted an out-of-time appeal. Jones v. State, 495 So.2d 722 (Ala.Cr.App.1986). We also ordered appointment of counsel to represent appellant on appeal, and the filing of a complete record of the trial......
  • Johnson v. State, 6 Div. 285
    • United States
    • Alabama Court of Criminal Appeals
    • 9 Junio 1987
    ...So.2d 1270 (Ala.Crim.App.1983); Brown v. State, 460 So.2d 263 (Ala.Crim.App.), cert. denied, 460 So.2d 263 (Ala.1984); Jones v. State, 495 So.2d 722 (Ala.Crim.App.1986). II The appellant contends that Venus Robinson's identification of him should have been suppressed because the line-up ide......
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