Pace v. State, 7 Div. 653

• Decision Date: 27 March 1979
• Docket Number: 7 Div. 653
• Citation: 369 So.2d 1281
• Parties: Ernest Calvin PACE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1281

369 So.2d 1281

Ernest Calvin PACE v. STATE.

7 Div. 653.

Court of Criminal Appeals of Alabama.

March 27, 1979.

Rehearing Denied April 17, 1979.

Charles Centerfit Hart, Gadsden, for appellant.

Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.

ON REHEARING

BOWEN, Judge.

In 1970 Pace's appeal of his conviction for robbery was dismissed when he escaped from the penitentiary pending his appeal. Pace v. State, 45 Ala.App. 390, 231 So.2d 166 (1970). Three years later Pace filed a petition for writ of error coram nobis claiming that he was imprisoned in the city jail of Scottsboro, Alabama, on June 29, 1968, at which time the alleged robbery occurred for which he stands convicted. The trial court dismissed this petition on motion of the State without a hearing. On appeal from that dismissal, this court reversed and remanded finding that Pace was entitled to an evidentiary hearing. Pace v. State, 357 So.2d 384 (Ala.Cr.App.), cert. denied, 357 So.2d 386 (Ala.1978).

Such a hearing was held and Pace was represented by experienced and able counsel. After hearing all the testimony and reviewing the evidence the court found that Pace "has failed to establish facts to warrant setting aside his judgment of conviction" and denied the petition for writ of error coram nobis. This denial was affirmed without published opinion by this court on March 27, 1979. This opinion is in response to Pace's motion under Rule 39(k), Alabama Rules of Appellate Procedure, in his application for rehearing.

The robbery was committed on July 29, 1968. In support of his contention that he was in the Scottsboro City Jail at this time Pace presented a number of exhibits.

1. A federal detainer from the United States Marshal's Office in Birmingham, Alabama, issued June 28, 1968, directed to the Scottsboro City Police stating that Pace "is reported to be in your custody".

2. A Jackson County arrest warrant showing that Pace was arrested on July 2, 1968, and committed to jail. On the face of the warrant is typed "Booked in City Jail, 6/24/68 (1) Carrying Concealed Weapon; (2) Suspicion of Federal Parole Violation".

The trial court found that other than this notation, "there is no record indicating petitioner to have been in jail in June of 1968". Considering all the evidence the court found that this notation was "an unauthorized alteration of a copy of the original warrant".

3. A writ of arrest from Jackson County showing that Pace was in jail on July 19, 1968.

4. A letter from the Circuit Clerk of Jackson County dated December 30, 1976, certifying credit for presentence jail time of 7 months and 27 days.

A. The records of a federal writ of habeas corpus filed by Pace including the "Recommendation of the Magistrate" which states, "While on parole, on June 24, 1968, the petitioner was arrested in Scottsboro, Alabama, on a charge of carrying a concealed weapon. He was then under investigation by state authorities for two armed robberies. A detainer as a federal parole violator was lodged against the petitioner with the Scottsboro City Police Department by the United States Marshal for the Northern District of Alabama."

B. Documents from the United States Parole Commission. These records show that Pace was arrested on July 2, 1968, in Scottsboro for robbery and that a detainer was placed with the Jackson County Sheriff for Pace on July 25, 1968.

At his hearing, Pace called the Chief of the Scottsboro City Police who testified that on July 2, 1968, Pace was brought into the City Jail and also transferred to the County Jail that same date. The Chief further stated that:

"If Mr. Pace had been confined in the Scottsboro City Jail prior to this date here Or any other time after that then there would have been a docket sheet in his file, and the only one that we have in his file is July 2, 1968." (Emphasis added)

The Jackson County Sheriff confirmed that Pace was placed in the county jail on July 2, 1968, and charged with armed robbery and grand larceny. He stated that to the best of his knowledge and recollection Pace was not in the county jail on June 29, 1968.

In conclusion the record supports the finding of the lower court that there was no record presented which shows that Pace was incarcerated on June 29, 1968, as alleged.

In a coram nobis proceeding the petitioner bears the burden of submitting clear, full, and satisfactory proof. "This burden extends beyond a mere balancing of probabilities to clearly and convincingly satisfy the court . . . ." Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979). The record supports the trial judge's conclusion that "the petitioner has failed to establish facts to warrant setting aside the judgment of conviction". The evidence in this case is neither clear nor convincing that Pace was in jail on June 29, 1968.

II

At the coram nobis hearing the trial court refused to allow Pace to present evidence concerning his court-appointed trial counsel's alleged ineffective representation at his original trial. In his petition Pace charged that trial counsel, Hubert H. (Hub) Wright, was reluctant and negligent in representing him. These allegations apparently stem from the fact that during co-defendant Duncan's trial the indictment was amended with Duncan's consent.

In Duncan's trial, Wright introduced a record from the probate office showing that the grocery store robbed was actually Savette's Food Store and not Savette's Food Store, Inc. as charged in both the indictment against Pace and the one against Duncan. In Pace's trial all the evidence was that the name of the corporation was Savette's Food Store, Inc.

At neither Pace's nor Duncan's trial was the existence of any corporation denied by sworn plea as required by Section 12-21-201, Code of Alabama 1975, which was then effective as Title 15, Section 315, Code of Alabama 1940. Without such a plea evidence disputing the existence of an alleged corporation is inadmissible. Dennis v. State, 16 Ala.App. 115, 75 So. 707 (1917).

Additionally Wright did move "to exclude the evidence and discharge the defendant on the ground that there is a fatal variance between the pleading and proof" after Jim Livingston, the store manager, testified that he did not know whether the stolen money belonged to "Charles Todd or the corporation". After repeated examination by both sides on this matter, Livingston finally testified that he was mistaken when he made this statement, that Todd was an officer of the corporation, and that the money belonged to the corporation. Under these circumstances the trial judge properly overruled defense counsel's motion to exclude. Also I do not think that the failure to properly contest the existence of the corporation which "owned" the money which was stolen in the grocery store robbery amounts to incompetence of counsel.

We have read Pace's...