Sparks v. State, 6 Div. 544
| Decision Date | 24 March 1960 |
| Docket Number | 6 Div. 544 |
| Citation | 270 Ala. 488,119 So.2d 600 |
| Court | Alabama Supreme Court |
| Parties | Melvin SPARKS v. STATE of Alabama. |
Morel Montgomery, Birmingham, for petitioner.
MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., opposed.
Petitioner pleaded guilty to assault and battery in two cases and was fined five dollars and costs and sentenced to 180 days in each case. He applied for and received probation, and the probation was later revoked. He appealed from this order to the Court of Appeals. That court held that an appeal did lie from an order revoking probation, but affirmed because there were no assignments of error. Review was sought here by certiorari.
The main part of the opinion of the Court of Appeals deals with whether an appeal will lie from an order revoking probation. This point was decided in favor of petitioner.
In determining the propriety vel non of issuing a writ of certiorari to the Court of Appeals, we only pass on the grounds on which the certiorari is sought. City of Gadsden v. Elrod, 250 Ala. 148, 33 So.2d 270; Davenport-Harris Funeral Home v. Chandler, 264 Ala. 623, 88 So.2d 878; Liberty National Life Insurance Co. v. Stringfellow, 265 Ala. 561, 92 So.2d 927, and Burton v. State, 267 Ala. 354, 101 So.2d 572.
The only two grounds on which certiorari is sought in this court are:
'1st: The Court of Appeals on page 7 of said Opinion of December 15 1959 [119 So.2d on page 600], said
'This appeal is therefore not within the purview of Sec. 389, supra, dispensing with the necessity of assignments of error in appeals from judgments of convictions in criminal cases, but on the other hand, an assignment of error on the record is essential to present questions for review.
'2nd: Further the Court of Appeals said on page 8 of their opinion , viz, 'We cannot consider the questions sought to be presented by these appeals without disregarding the uniform holding in this state that, except upon an appeal from a judgment of conviction in a criminal case, an assignment of error on the record is essential to present questions for review.''
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