Messelt v. State
| Citation | 351 So.2d 627 |
| Decision Date | 01 February 1977 |
| Docket Number | 8 Div. 883 |
| Parties | Jack MESSELT v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Albert C. Bowen, Jr., Birmingham, for appellant.
William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
This is an appeal from a judgment denying appellant's petition for writ of error coram nobis.
In 1975 appellant was convicted in each of three separate cases of a violation of the Alabama Uniform Controlled Substances Act. Code 1940, 1971 Cumulative Pocket Part, Tit. 22, § 258. He was sentenced to a total of twenty-seven years imprisonment in the three cases.
His retained counsel promptly gave notice of an appeal in each case. Over a course of several months, extensions were granted for the completion of the transcript of the proceedings in each case, which extended until February 21, 1976. On February 26, 1976, the Madison County Circuit Clerk filed a certificate with this Court that the time for filing the court reporter's transcript in each of the three cases had expired and that the transcript had not been filed. On March 4, 1976, this Court issued an order dismissing the appeal in each case.
On April 29, 1976, post-conviction relief was sought by a petition then filed in the trial court, which there culminated in the judgment of the trial court of June 2, 1976, from which this appeal was taken by notice within two days after the judgment. The record reached this Court on July 7 accompanied by a certificate of the Clerk of the trial court dated July 6, 1976. A brief was filed by appellant on July 23, by appellee on August 20, and the case was orally argued and submitted on October 8, 1976.
The allegations and supporting affidavits of the petition, as well as the testimony on the hearing, contained charges of grave misconduct on the part of the retained counsel of defendant in the three cases mentioned in connection with his obligation to prosecute the appeals to this Court. The retained counsel for defendant in those cases, that is, the counsel acting for him on the trial and on appeal in each of the cases, is not the counsel who filed the petition for writ of error coram nobis, represented petitioner on the hearing and now represents him on appeal.
According to the undisputed evidence on the hearing, petitioner's former counsel abandoned the appeal and each of the criminal cases against him without notice to defendant of such abandonment. The evidence further shows that prior to dismissal of the appeals in the cases, the court reporter, at the request of defendant's then counsel, had prepared transcripts of the proceedings in the cases, but had not delivered them by reason of the failure of said counsel to pay for the same in accordance with his obligation. The evidence is also to the effect that between the second and third trials of defendant, defendant's then counsel proposed to defendant that defendant obtain a purchaser for two tons of marijuana to be sold by a friend of the attorney and that by doing so he would compensate defendant's attorney for his services and the cost of the appeals. According to defendant, defendant made no commitment in this respect until he had discussed the matter with one of defendant's friends who had let him have money to pay for his appeal bonds and had conferred with the Federal Drug Agency in Birmingham; he was encouraged by representatives of the Federal Drug Agency in Birmingham to work with them in an effort to apprehend defendant's attorney and the unnamed friend or friends of defendant's attorney in illegal conduct in connection with the sale of marijuana; thereafter, in liaison with representatives of the Federal Drug Agency, he notified his attorney that he was acting as a go-between for the sale of the marijuana; there were operations along this line for some time, but they finally failed, apparently by reason of the proposed seller's wariness. According to the testimony of defendant, his then attorney assured him time and again that his appeal in each case was being prosecuted, that "he had the transcripts" and this assurance continued even beyond the date of the dismissal of the appeals.
The evidence at the hearing also shows without dispute that defendant was impecunious from the time of his first conviction and that he met the standard of indigency requisite for a free transcript of the proceedings in each case. No formal action was taken by his former attorney to obtain a free transcript, but such attorney did discuss the matter of defendant's indigency with the trial judge and indicated the possibility of his filing a motion to declare defendant an indigent. The petition for writ of error was captioned in the alternative as a Petition for Leave to Appeal in Forma Pauperis and contained positive averments of petitioner's indigency at all times pertinent to his appeals.
Neither defendant's...
To continue reading
Request your trial
-
Hill v. Jones
...Brutley v. State, 358 So.2d 527 (Ala.Crim.App.1978) (failure to timely file transcript of trial with appellate court); Messelt v. State, 351 So.2d 627 (Ala.Crim.App.1977) (failure to timely file transcript of trial with appellate court). As these cases indicate, Alabama courts reviewed clai......
-
Messelt v. State of Ala., s. 78-2282
...counsel to represent Petitioner on appeal in each of the three cases and to process the appeals In forma pauperis. Messelt v. State, 351 So.2d 627 (Cr.App.Ala.1977). The Alabama Court of Criminal Appeals reversed the conviction in No. 74-777. Messelt v. State, 351 So.2d 630 (Cr.App.Ala.1977......
-
Goolsby v. State
...Albert v. State, 274 Ala. 579, 150 So.2d 198 (1962). There is not here involved the matter of any "out-of-time appeal". Messelt v. State, 351 So.2d 627 (Ala.Cr.App. 1977); Ellison, The record presents this court with a veritable Gordian's Knot. In order that we may adequately review this ca......
-
Messelt v. State
...in no way injuriously affected the rights of defendant. As to (3), appellant relies upon what was determined in Messelt v. State, Ala.Cr.App., 351 So.2d 627 (1977), wherein, on appeal by this appellant from a denial of his petition for a writ of error coram nobis, we remanded the cause with......