Martin v. State

• Decision Date: 19 March 1964
• Docket Number: 6 Div. 4
• Citation: 167 So.2d 912,277 Ala. 153
• Parties: Lee MARTIN v. STATE.
• Court: Alabama Supreme Court

Page 912

167 So.2d 912

277 Ala. 153

Lee MARTIN v. STATE.

6 Div. 4.

Supreme Court of Alabama.

March 19, 1964.

[277 ALA. 154] TO THE SUPREME COURT OF ALABAMA:

Under the provisions of Cole 1940, T. 13, § 88, it is provided that:

'If the judges of said court are unable to reach an unanimous conclusion, or decision, in any case or matter before them, any one of said judges may certify to the supreme court any question or questions of law as to which said judges differ, stating such questions as abstract propositions, and the supreme court shall give its opinion upon the question so certified, and the opinions thus given by the supreme court shall be given the same effect by said court of appeals as it is required to give to the decisions of said supreme court.'

There is now pending in the Court of Appeals a case on appeal from the Tuscaloosa Circuit Court styled Martin v. State of Alabama (6 Div. 4), submitted February 20, 1964.

In the circuit court the defendant, being present and attended by counsel from arraignment through verdict, was convicted of burglary in the first degree on his plea of guilty to the indictment charging him therewith.

After allocution, sentence, and judgment, the defendant gave notice of appeal to the Court of Appeals. The court suspended execution of sentence pending appeal, fixing appeal bond at $6,000.00.

No further entry has been certified in the record before us. No counsel has appeared of record in this court on Martin's behalf.

The judges of this court 'are unable to reach an unanimous conclusion' in this case because of their disagreement as to the effect of § 4 of Act No. 526 of September 16, 1963, Laws 1963, p. 1136. This section reads:

'Section 4. In all criminal cases wherein a defendant has been convicted of a serious offense in which an appeal lies directly to the Supreme Court or Court of Appeals, and if said defendant expresses his desire to appeal said conviction, the court shall cause to be entered upon its minutes a recital of notice of appeal. The court shall then ascertain and make findings in reference to the appeal concerning those items listed as 1, 2, and 3 in Section 1 of this act.

'If it appears that defendant desires to appeal and is unable financially or otherwise to obtain the assistance of counsel on appeal and defendant expresses the desire for assistance of counsel the trial court shall appoint counsel to represent and assist defendant on appeal. The presiding judge of the court to which the appeal is taken shall have authority to appoint counsel in the event the trial court fails to appoint, and in the event it becomes necessary to further provide for counsel. It shall be the duty of such counsel as an officer of the court and as a member of the Bar to represent and assist said defendant in the appeal.'

The items listed for the circuit court to find under § 1 of said Act No. 526 are:

'1. Whether or not defendant has arranged to be represented by and have the assistance of counsel.

'2. Whether or not defendant desires the assistance of counsel.

'3. Whether or not defendant is able financially or otherwise to obtain the assistance of counsel.'

The following abstract questions of law upon which the judges of this court differ in said case are hereby certified to your Honorable Court under said § 88, supra:

1) If the trial court has failed or refused to ascertain and make the findings referred to in § 4 of said Act No. 526, is this reversible error?

2) If the Presiding Judge of this court acts under § 4 of said Act, must she make the same ascertainment and findings required of the trial judge?

3) Must there appeal affirmatively of record that the appellant was questioned as to the need for counsel to prosecute an appeal?

4) Since, under Code 1940, T. 15, § 389, original appeals must be reviewed without regard to the appellant's filing or not filing a brief, where no brief or other communication comes to the court, can it be presumed that the appellant has counsel on appeal if he hired his own lawyer at nisi prius? Would your answer to this question be different if he was represented in the trial court by court appointed counsel?

For your convenience the record in this court is forwarded to you with this request.

Dated this the 21st day of February, 1964.

Respectfully submitted,

ANNIE LOLA PRICE

Presiding Judge

AUBREY M. CATES, JR.

Judge

GEORGE C. JOHNSON

Judge

Certified Question from Court of Appeals

PER CURIAM.

The Honorable Court of Appeals

Re: Your questions propounded to this Court, February 24, 1964 with reference to § 4 of Act No. 526 of September 16, 1963.

While some of your questions are not pertinent to the pending case, to each question our answer is 'No'.

All the Justices concur in the foregoing; but LIVINGSTON, C. J., and LAWSON, GOODWYN and MERRILL, JJ., think the following explanation should be made.

We think it is a matter of common knowledge that Act No. 526, approved September 16, 1963, was enacted by the Legislature to enable the courts of this state to comply with recent decisions of the Supreme Court of the United States which relate to the trial of indigent defendants, among which are Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, both decided on March 18, 1963.

In Gideon it was held that the failure of a Florida trial court to appoint counsel to represent an indigent defendant charged with a non-capital felony was a denial of due process of law. In reversing the judgment of the Supreme Court of Florida, which had affirmed Gideon's conviction, the Supreme Court of the United States overruled its ...