Rushing v. State, 6 Div. 675
| Decision Date | 16 June 1959 |
| Docket Number | 6 Div. 675 |
| Citation | 40 Ala.App. 361,113 So.2d 527 |
| Parties | Starling Henry RUSHING v. STATE. |
| Court | Alabama Court of Appeals |
St. John & St. John, Cullman, for appellant.
MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
This appellant has attempted this appeal from a judgment finding him guilty of manslaughter in the first degree.
The Attorney General has filed a motion to dismiss this appeal because not perfected within the time required by law.
Appellant was tried and adjudged guilty on 2 April 1958.
On 21 April 1958 the appellant filed a motion for a new trial.
No orders pertaining to this motion for a new trial appear in the record until 4 November 1958, when it was overruled.
On that date, 4 November 1958, the appellant gave notice of appeal.
The motion for a new trial filed on 21 April 1958 became discontinued, and functus officio upon the expiration of 30 days from the date of its filing, there being no order keeping it in fieri. The order of 4 November 1958 purporting to overrule the motion for a new trial was therefore a nullity, and of no effect.
An appeal from a conviction of crime in a circuit court must be taken within six months after judgment is rendered, unless of course the court below retains jurisdiction by virtue of a motion for a new trial seasonably filed, and kept alive by timely continuances within each 30 day period, in which event the appeal may be taken from such ruling within six months. See Section 368, Title 15, Code of Alabama 1940; Clark v. State, 38 Ala.App. 480, 87 So.2d 669; McVey v. State, 38 Ala.App. 327, 82 So.2d 926; Relf v. State, 267 Ala. 3, 99 So.2d 216.
The motion for a new trial filed in this case having been discontinued, and thereby rendered functus officio, the date for reckoning the time within which this appeal must have been taken is within six months of the date of judgment of conviction, that is, within six months from 2 April 1958. The attempted appeal was not taken until 4 November 1958. Obviously the effort was too late.
The motion of the Attorney General is well taken, and is hereby granted.
Appeal dismissed.
On Application for Writ of Certiorari to Correct Record.
Appellant has forwarded to this court an application for a rehearing in this case.
At the same time appellant also forwarded an application for a writ of certiorari for the purpose of correcting the record heretofore filed.
The application for rehearing, not being accompanied by a brief, was not received or filed in this court. Supreme Court Rule 34, Code 1940, Tit. 7 Appendix.
The application for a writ of certiorari to correct the record, in view of the procedural history of this appeal, comes too late.
The record was filed in this court on 25 March 1959.
No briefs in appellant's behalf have ever been filed.
On 20 May 1959 the Attorney General filed a motion to strike the transcript of the evidence because not filed with the clerk below within the time required by law, and to strike the entire record because it was filed late in this court.
This motion was accompanied by a certificate that a copy was mailed, properly stamped and addressed to appellant's counsel on 20 May 1959.
On 21 May 1959 this appeal was submitted in this court on the motion to strike, and on its merits.
On 16 June 1959 we rendered our opinion granting the Attorney General's motion to strike. No reply to the Attorney General's motion had been filed in this court up to this time.
The burden was upon the appellant to file a correct record in the first place. When alleged defects were pointed out in the Attorney General's motion filed on 20 May 1959, no effort was made by appellant or his counsel to correct same up to the time of our decision on 16 June 1959.
Having studied this record, as filed by the appellant, in light of the Attorney General's uncontroverted motion to strike, we concluded the motion was well taken and granted same with an opinion. Under these conditions, and in this aspect, we think the appellant's petition for a writ of certiorari to correct this record comes too late. See ...
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Stubbs v. State
...to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Cr.App.1977), cert. denied, 347 So.2d 1384 (Ala.1977); Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959)." Robinson v. State, 444 So.2d 884, 885 However, irrespective of whether the appellant's claim was properly preserved, ......
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...Henry v. Jackson, 279 Ala. 225, 184 So.2d 133 (1966); Hopkins v. State, 51 Ala.App. 510, 286 So.2d 920 (1973); Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959). See also, Flanagan v. Henderson, supra. The Attorney General had knowledge of the deficiency whether or not his awareness w......
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Shadle v. State
...the charge in the transcript. This may well be true, but the burden to file a correct record is on the appellant. Rushing v. State, 40 Ala.App. 361, 113 So.2d 527. If the transcript is incorrect, the proper mode of correction is by a writ of certiorari, not by an ex parte statement in the b......
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