State v. Bibby
Decision Date | 17 August 1971 |
Docket Number | 7 Div. 108 |
Citation | 252 So.2d 662,47 Ala.App. 240 |
Parties | STATE v. Joseph E. BIBBY, alias. |
Court | Alabama Court of Criminal Appeals |
William J. Baxley, Atty. Gen., and J. Victor Price, Jr., Asst. Atty. Gen., for the State.
Simmons, Torbert & Cardwell, and William D. Hudson, Gadsden, for defendant.
Purported appeal from a judgment (rara avis-mirabile dictu) granting a new trial after a hearing on a coram nobis petition. The appellee has moved us to dismiss because the law makes no provision for appeals in such cases by the State.
The State resists the motion to dismiss citing State v. Willis, 42 Ala.App. 414, 166 So.2d 917. Whatever might be said of the Willis opinion (from which the writer dissented) it is patent that therein no motion to dismiss was presented to this court.
We consider the appellee's motion to dismiss is well taken. Our writ of error coram nobis, was resurrected from limbo per Gardner, C.J.'s going to Florida. In this posture we consider it proper to advert to Lamb v. State, 91 Fla. 396, 107 So. 535, where we find:
'The security of the state's judgment of conviction lies in the faith that the trial court will not grant a writ of error coram nobis except upon a proper and sufficient showing of essential facts duly made by competent legal and adequate evidence and by testimony under the oaths of the defendant and of counsel who are responsible to the court for the propriety of their action. * * *'
Ex parte Wilson, 275 Ala. 439, 155 So.2d 611 denied review by way of writ of error 1 to a circuit court which had refused relief by way of coram nobis. Citing Brown v. State, 250 Ala. 444, 35 So.2d 518 our Supreme Court described coram nobis--even though to reexamine a criminal judgment--as a new civil suit.
Also cited is Allen v. State, 42 Ala.App. 9, 150 So.2d 399 wherein we held that, unlike other civil appeals, a review of denial of coram nobis did not require assignments of error or briefs. Treating coram nobis solely as a civil proceeding, then appeals from either the granting or the denial of the writ logically should be appealable under Code 1940, T. 7, §§ 754, 766, 767 if taken within the six months conferred by T. 7, § 788.
However, the life of the Law has not been logic but experience. For if coram nobis were a simon pure civil proceeding its consequent appeals would go to the Court of Civil Appeals. Also assignments of error would be mandatory.
We allow an appeal from a judgment which Denies coram nobis because such judgment is finally dispositive of all litigation (except for habeas corpus where jurisdiction has been exceeded) after a judgment of conviction has become final. A judgment, Granting coram nobis is only interlocutory in that it merely restores the indictment to the docket for a new trial. See T. 7, § 754, supra; Broyles v. Maddox, 43 Ala. 357.
The Supreme Court of Georgia in State v. Jones, 7 Ga. 422, where a writ of error (sought by the State to revise the quashal of an indictment) was dismissed on motion, said:
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...Judge Cates, in Essix v. Birmingham, 54 Ala.App. 348, 308 So.2d 259, stated: 'Appeals are statutory. As was said in State v. Bibby, 47 Ala.App. 240, 252 So.2d 662: "Furthermore, there is no inherent or inalienable right of appeal. Appeals (aside from the altogether different 'appeals of fel......
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...for habeas corpus where jurisdiction has been exceeded) after a judgment of conviction has become final." State v. Bibby, 47 Ala.App. 240, 242, 252 So.2d 662, 663-64 (1971) (emphasis added; other emphasis omitted). "Where there is no final judgment a purported appeal is due to be dismissed,......