Smith v. State
| Citation | 565 So.2d 1285 |
| Parties | Lee SMITH v. STATE. CR 89-555. |
| Decision Date | 03 August 1990 |
| Court | Alabama Court of Criminal Appeals |
Lee Smith, pro se.
Don Siegelman, Atty. Gen., and Jean A. Therkelsen, Asst. Atty. Gen., for appellee.
This is an appeal from the denial of a petition for writ of mandamus filed in the Jefferson Circuit Court, seeking an order directing the Alabama Department of Corrections to credit the petitioner's sentence for the time he served under a prior conviction.
On October 16, 1989, the petitioner, Lee Smith, entered a guilty plea to the charge of the unlawful possession of cocaine and was sentenced by the Jefferson Circuit Court to a term of 15 years' imprisonment, with this sentence to run concurrently with a 15-year sentence Smith received in Escambia County, Florida, in 1982. At the time he entered his guilty plea, Smith was out on parole from his 1982 Florida conviction. As a result of the 1989 Alabama conviction, Smith's parole was revoked, and he was returned to the penitentiary.
In his pro se petition for writ of mandamus, Smith claims that the 15-year sentence he received in 1989 was improperly calculated because he was not given credit for the time he had previously served on his 1982 conviction. Apparently, Smith is under the impression that his second 15-year sentence will be run back to the beginning of his original 15-year sentence in Florida to enable him to resume his parole without serving any additional time under his 1989 Alabama conviction.
Mandamus is a "drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989).
Where another adequate remedy exists, mandamus cannot be used as a substitute for appeal. State v. Cannon, 369 So.2d 32, 33 (Ala.1979). "A petition for writ of habeas corpus is a proper procedure to test whether the state has properly calculated the amount of time the inmate must serve in prison." Mead v. State, 475 So.2d 645, 645 (Ala.Cr.App.1985), quoted with approval in Boutwell v. State, 488 So.2d 33, 34 (Ala.Cr.App.1986).
Because Smith clearly has another adequate remedy, his petition for writ of mandamus was properly denied.
The foregoing opinion was prepared by the Honorable...
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