Jones v. State
Decision Date | 16 March 1976 |
Docket Number | 8 Div. 775 |
Parties | Jack Ray JONES v. STATE. |
Court | Alabama Court of Criminal Appeals |
James Francis, Decatur, for appellant.
William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
This is an appeal 1 from a plea of guilty after indictment. The indictment had three counts, i.e., the Three Sisters--second degree burglary, grand larceny and buying, receiving, etc., stolen property. The defendant pled guilty to the latter two and not guilty to the burglary charge.
There was filed below both an Ireland form and in-court colloquy conducted by Hon. Newton B. Powell. The transcript reflects also a statement by the District Attorney that the State moved to nol pros the burglary count. The court accepted the nol pros; the record shows:
'You stand charged now in these indictments (see Jones (v. State), 8 Div. 776 (57 Ala.App. ---, 329 So.2d 111)) with the burglary counts being stricken * * *.'
This is sufficient to support a minute entry under Code 1940, T. 15, § 257. However, this formality does not appear in the record before us.
Instead the judgment entry recites a 'solemn plea of guilty to the offense of Burglary (without specifying the degree), Grand Larceny and Buying, etc.'
The adjudication recites 'guilty as charged in the indictment.'
The record--both transcript of the colloquy and the Ireland form--violently negate any conviction of burglary in the second degree.
'We think when the State entered a nolle prosequi of the first count in the indictment, the effect was to destroy entirely that count * * *.' Walker v. State, 61 Ala. 30.
Ordinarily a judgment entry is said to import absolute verity. Courts of record speak only through their recorded minutes, at least as far as showing substantially all that was done at the trial, which the law requires to be done. Crist v. State, 21 Ala. 137; Naro v. State, 212 Ala. 5, 101 So. 666; and Evans v. State, 215 Ala. 61, 109 So. 357. Conversely, the silence of the minutes admits of but one conclusion, that if the clerk omits mandated matters from the record then they were not done. Walker v. Commonwealth, 144 Va. 648, 131 S.E. 230(6); State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61. ('What is not disclosed by the records of courts of record does not legally exist.').
In McDonald v. Crawford, 28 Ala.App. 163, 180 So. 130, our erstwhile Court of Appeals said:
However, under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, pleas of guilty must be affirmatively established of record as knowingly, intelligently and voluntarily made in open court. Thus, Price, P.J., wrote:
'In Neal v. State, 257 Ala. 496, 59 So.2d 797, it was held that the recitals in the judgment would not have controlling effect over facts indicated by the record.
Honeycutt v. State, 47 Ala.App. 640, 259 So.2d 846.
In Twyman v. State, 293 Ala. 75, 300 So.2d 124, the majority opinion clearly recognizes the validity of the Honeycutt holding while finding that in Twyman's record, 'there (was) nothing to contradict the judgment.' Accordingly, we treat Honeycutt, supra, as having been approved by the Supreme Court of Alabama. Hence, the judgment entry is wrong as to second degree burglary.
What should this court do? In Honeycutt, supra, the whole structure was fallibly premised. Here, however, only a severable part is flawed.
Our basic statutory command is...
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