McKinney v. State
Decision Date | 21 July 1989 |
Docket Number | 8 Div. 969 |
Citation | 549 So.2d 166 |
Parties | Jimmy Burns McKINNEY v. STATE. |
Court | Alabama Court of Criminal Appeals |
Bryce U. Graham, Jr., Tuscumbia, for appellant.
Don Siegelman, Atty. Gen., and Mary Ellen Forehand, Asst. Atty. Gen., for appellee.
The issue presented in this case is whether the trial court had jurisdiction to retry the defendant following this Court's reversal of his conviction and granting of a new trial but before a final judgment had been rendered and while the case was still pending on appeal.
The significant facts are set forth in chronological order:
October -- Jimmy Burns McKinney, the appellant, fired a shotgun that
1983 caused the death of one person and injured another.
February -- McKinney pleaded guilty and was convicted of attempted murder
1984 and murder. He was given concurrent sentences of ten years'
and life imprisonment. He did not appeal.
unaltered and in full force and effect." McKinney appealed
this ruling.
March 11, -- The Attorney General filed an application for rehearing.
1986
April 22, -- The application for rehearing was overruled. McKinney's retrial
1986 began.
April 23, -- McKinney was convicted for murder.
1986
May 6, -- The Attorney General filed a petition for writ of certiorari to
1986 the Alabama Supreme Court seeking review of this court's
opinion in McKinney v. State, 511 So.2d 218.
dismissal or nol pros," which the trial court denied.
June 26, -- The Alabama Supreme Court affirmed the holding of this Court.
1987 McKinney v. State, 511 So.2d 220 (Ala.1987).
July 27, -- The trial court held a hearing on a petition for writ of habeas
1987 corpus filed July 17, 1987, wherein McKinney argued the issue
of jurisdiction.
August 13, -- The trial court denied the habeas corpus petition.
October -- McKinney was sentenced to life imprisonment for murder and
23, 1987 filed notice of appeal.
Foster v. Greer & Sons, Inc., 446 So.2d 605, 608 (Ala.1984) 1 (citations to authority omitted); Sunshine Homes, Inc. v. Newton, 443 So.2d 921, 924 (Ala.1983). Lewis v. Martin, 210 Ala. 401, 409, 98 So. 635 (1923); Ex parte Pugh, 441 So.2d 126, 127 (Ala.1983). "The basic principle is that a case should not be pending in a lower and an appellate court at the same time." Walker v. Alabama Public Service Commission, 292 Ala. 548, 552, 297 So.2d 370 (1974). 2
The only exceptions to this rule, with regard to criminal cases, are found in Ala.Code 1975, § 12-22-133:
"Where an appeal is taken from the judgment of any municipal, district, or circuit court in criminal cases, the trial court retains jurisdiction for the purpose of granting a motion for a new trial and also retains jurisdiction for the purpose of enforcing its judgment where the appeal is dismissed before the judgment of the appellate court is entered."
Cf. Ex parte Andrews, 520 So.2d 507, 510 (Ala.1987) ( ).
Obviously, the appeal was not dismissed. Here, the appeal was from the denial of a petition for writ of error coram nobis and there was no motion for new trial. See Osborn v. Riley, 331 So.2d 268, 271 (Ala.1976). "In the absence of express statutory provisions, when an appeal is taken and perfected from the judgment of any court to a higher court, the jurisdiction vests at once in the higher court and such appeal divests the court from which it is taken of all jurisdiction." Green v. State, 21 Ala.App. 201, 203, 106 So. 683 (1925). See Pratte v. State, 465 So.2d 483, 484 (Ala.Cr.App.1985) (). See also State v. Williams, 19 Ala.App. 597, 99 So. 660 (1923) ( ); De Bardeleben v. State, 16 Ala.App. 367, 369, 77 So. 979 (1918) (same); Ex parte Alabama State Bar, 285 Ala. 191, 194, 230 So.2d 519 (1970) () Brown v. State, 250 Ala. 444, 447, 35 So.2d 518 (1948) ().
"The general rule is that an appeal ..., when duly perfected, divests the trial court of jurisdiction of the cause and transfers such jurisdiction to the appellate court where it remains until the appellate proceeding terminates and the trial court retains jurisdiction." 4 Am.Jur.2d Appeal and Error § 352 (1962). See State ex rel. Attorney General v. Brewer, 19 Ala.App. 330, 331, 97 So. 777, cert. denied, 210 Ala. 229, 97 So. 778 (1923) (...
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Payne v. State
...in the amended petition. The general rule is that jurisdiction of one case cannot be in two courts at the same time. McKinney v. State, 549 So.2d 166 (Ala.Cr.App.1989). Jurisdiction of this cause at the time Payne filed his amended Rule 32 petition rested with this Court. Therefore, the mat......
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Payne v. State
...in the amended petition. The general rule is that jurisdiction of one case cannot be in two courts at the same time. McKinney v. State, 549 So.2d 166 (Ala.Cr.App. 1989). Jurisdiction of this cause at the time Payne filed his amended Rule 32 petition rested with this Court. Therefore, the ma......
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State v. Herring, CR-05-1201.
...rule is an application of the general rule that jurisdiction of a case can be in only one court at a time. See, e.g., McKinney v. State, 549 So.2d 166 (Ala. Crim.App.1989); Reeves v. State, 419 So.2d 217 (Ala.1982); Osborn v. Riley, 331 So.2d 268 (Ala.1976); Reynolds v. Colonial Bank, 874 S......
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EX PARTE RD
...is effectively abandoned, dismissed, or decided."'" Gordon v. State, 710 So.2d 943, 945 (Ala. Cr.App.1998), quoting McKinney v. State, 549 So.2d 166, 167-68 (Ala.Cr.App.1989), quoting, in turn, Lewis v. Martin, 210 Ala. 401, 409, 98 So. 635 (1923). All proceedings in the circuit court are s......