Longmire v. State
Decision Date | 10 December 1982 |
Citation | 443 So.2d 1265 |
Parties | Ex parte State of Alabama (Re: James LONGMIRE v. STATE of Alabama). 81-309. |
Court | Alabama Supreme Court |
Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for petitioner.
Raymond Johnson, Montgomery, for respondent.
Petitioner James Longmire seeks a new trial. The Court must consider whether to affirm the decision of the Court of Criminal Appeals, 443 So.2d 1263, or whether Longmire is entitled, by virtue of a writ of error coram nobis granted by the trial court, to a new trial of the charge against him, or, alternatively, an appeal. We recite the following facts of this case as presented by the Court of Criminal Appeals in its earlier decision.
The trial court set aside its order of May 5, denied a new trial, and ordered a further hearing on the petition. In its order of June 29, 1981, the court found as follows:
The order of the court was entered as follows:
On appeal to the Court of Criminal Appeals, both parties briefed the merits; the State did not move to dismiss the appeal. In dismissing the appeal, the Court of Criminal Appeals concluded by holding:
This Court has traditionally ruled that Ex parte Rudolph, 276 Ala. 392, 393, 162 So.2d 486 (1964). In Ex parte Vaughn, 395 So.2d 95 (Ala.1979), the Court further indicated the purpose served by this extraordinary writ as follows:
Id. at 96. This is consistent with the generally recognized reason for a court to grant a writ of error coram nobis. See generally 18 Am.Jur.2d Coram Nobis §§ 2, 3 (1965).
While the Court has emphasized that this writ is not intended to provide appellate review where the complaining party has not sought an appeal and the time to appeal has long since expired, Thomas v. State, 280 Ala. 109, 110, 190 So.2d 542 (1966), the trial court's findings with regard to Longmire's petition for writ of error coram nobis is cause for this Court to re-examine its traditional application in this instance.
An appeal is deemed "perfected" if the defendant, upon rendition of judgment, expresses a desire to appeal. Ex parte Loyd, 275 Ala. 416, 421, 155 So.2d 519 (1963); See also Goolsby v. State, 374 So.2d 927, 929 (Ala.Cr.App.1978). Rule 3(a)(2) of the Alabama Rules of Appellate Procedure provides that notice of appeal may be made in either of the following two ways:
The findings made by the trial court indicate that although petitioner expressed his desire to appeal to his attorney, through no fault of his own, an appeal was never entered on his behalf. The use of a writ of error coram nobis to challenge the inadequacy of legal counsel where there would otherwise be no remedy has been previously recognized by the Court of Criminal Appeals, to-wit:
Summers v. State, 366 So.2d 336, 341 (Ala.Cr.App.1978). Irrespective of the fact that petitioner was not apprised that he, as an indigent, was entitled to a free trial transcript and appointed counsel for purposes of an appeal, there was a showing that he was aware that he could appeal his conviction and that he expressed his desire to appeal to his court-appointed attorney. See Heflin v. State, 278 Ala. 106, 108, 176 So.2d 37 (1965).
In reviewing several Alabama cases, the Fifth Circuit Court of Appeals has made the following pronouncements which we believe apply to the circumstances of this case.
In Horsley v. Simpson, 400 F.2d 708 (1968), the Fifth Circuit stated:
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