State v. Green
| Decision Date | 04 March 1983 |
| Citation | 436 So.2d 803 |
| Parties | Ex parte: State of Alabama (Re: Ex parte: State of Alabama, Ex rel. Charles A. Graddick, Attorney General, and James H. Evans, District Attorney (In Re: STATE of Alabama v. Barbara GREEN)). 81-661. |
| Court | Alabama Supreme Court |
Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for petitioner.
L. Wayne Collier, Montgomery, for respondent.
We granted certiorari to determine the propriety of the action of the Court of Criminal Appeals in denying the State's petition for writs of mandamus and prohibition. This case presents a novel issue and its history requires a somewhat detailed consideration of the facts.
The defendant, Barbara Green, was convicted in Montgomery County Circuit Court on November 16, 1978, of violating the Alabama Uniform Controlled Substances Act. Shortly thereafter, on December 1, 1978, the circuit court entered an order sentencing the defendant to three years' imprisonment and, in addition, denying her probation. The defendant made bond and was free while her sentence was appealed to the Court of Criminal Appeals. That court, on July 29, 1980, 389 So.2d 537, affirmed the defendant's conviction and sentence, and this Court denied the defendant's petition for a writ of certiorari in that case on October 31, 1980, 389 So.2d 541.
On November 13, 1980, in the Court of Criminal Appeals, the defendant moved for a stay of the judgment in order to remain free on bond while she sought review by the United States Supreme Court. The Court of Criminal Appeals granted that stay only until December 31, 1980, unless it received "proof of the filing of said petition in the United States Supreme Court." Then, on December 31, 1980, there was filed in the Court of Criminal Appeals, a copy, or what purported to be a copy, of a petition for a writ of certiorari in the United States Supreme Court, and on the basis of that copy the Court of Criminal Appeals continued its stay of the judgment of sentence, and the defendant remained free on bond.
Actually, the petition for the writ of certiorari was never filed in the United States Supreme Court. This was learned on February 5, 1982, whereupon the Court of Criminal Appeals issued its certificate of judgment to the Circuit Court of Montgomery County. On February 16, 1982, the circuit court directed the defendant to surrender in order to begin serving her sentence. Instead of surrendering, however, the defendant moved in circuit court for a delay in the execution and reconsideration of her sentence imposed on December 1, 1978. The circuit court granted this petition, delayed execution of the sentence on several occasions and reconsidered the sentence. At that point, on April 6, 1982, the State of Alabama petitioned the Court of Criminal Appeals for writs of mandamus and prohibition to require the respondent circuit court judge to set aside his orders delaying the execution of and reconsideration of the sentence. It appears that on April 9, 1982, the circuit court suspended the sentence and placed the defendant on probation with certain conditions. One condition required her to serve six months at Tutwiler Prison for women. In due course the State's petition was denied, and its subsequent application for rehearing was overruled, hence this petition to us.
A recapitulation of the events and their dates may be helpful:
1978
----
November 16 Defendant convicted in circuit
court
December 1 Order of circuit court sentencing
defendant to three years'
imprisonment and denying
probation
1979
----
February 28 Motion for new trial denied
March 14 Motion for reconsideration
denied
1980
----
July 29 Court of Criminal Appeals
affirmed conviction.
October 31 Supreme Court of Alabama
denied defendant's petition for a
writ of certiorari.
November 13 Defendant's motion for stay of
judgment filed in Court of Criminal
Appeals; stay granted.
December 31 Copy of purported petition for
writ of certiorari in United
States Supreme Court filed in
Court of Criminal Appeals,
whereupon stay of judgment of
sentence was continued in
effect.
1982
----
February 5 Court of Criminal Appeals'
certificate of judgment issued to
Circuit Court of Montgomery
County.
February 16 Circuit Court ordered defendant
to surrender.
February 19 Defendant's motion to reconsider
sentence filed.
April 9 Sentence suspended and probation
granted.
At bottom there are two basic legal questions presented:
(1) Whether the circuit court has jurisdiction to reconsider a sentence which has been affirmed on appeal, and
(2) Whether the circuit court has jurisdiction to reconsider a denial of probation long after such a denial has been entered.
We answer the first inquiry in the negative and the second inquiry in the affirmative.
In answer to the first question, we take note of Code of 1975, § 15-17-5, the thirty-day statutory period allowed for filing a motion for new trial, and § 12-22-133, which specifically deals with the jurisdiction retained by the circuit court when a conviction has been appealed, viz.:
"Where an appeal is taken from the judgment of any ... circuit court in criminal cases, the trial court retains jurisdiction for the purpose of granting a motion for a new trial and also retains jurisdiction for the purpose of enforcing its judgment where the appeal is dismissed before the judgment of the appellate court is entered."
In Jones v. State, 55 Ala.App. 466, 316 So.2d 713 (1975), the defendant gave a timely notice of appeal without having made a motion for a new trial. However, after more than three months had elapsed, he withdrew his notice of appeal and applied for probation. After more than four months had expired since the judgment of conviction, the trial court denied probation but ordered the sentence reduced. On appeal to the Court of Criminal Appeals, that court held that, there having been no motion for a new trial filed within thirty days from the judgment of conviction, the trial court had lost all jurisdiction at the time it attempted to reduce the sentence. To the same effect is the holding in Cooks v. State, 55 Ala.App. 538, 317 So.2d 506 (1975), in which, on remand after appeal, the trial court had purported to reduce the term of a sentence nearly two years after it had been imposed. The Court of Criminal Appeals held that the trial court was without jurisdiction to reduce the sentence because the request for the reduction was not made within thirty days of sentencing or by the date when the...
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Little v. State, CR-93-1658
...court loses jurisdiction to reconsider sentencing upon denial of a defendant's motion for a new trial. (C. 67.) See, State v. Green, 436 So.2d 803, 805 (Ala.1983). Rule 24.4, Ala.R.Crim.P. The trial court properly denied both the motion for a judgment of acquittal and the motion seeking sus......
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State v. Herring, CR-05-1201.
...Alabama Supreme Court has stated that probation may be granted at any time before the execution of a sentence has begun. See State v. Green, 436 So.2d 803 (Ala.1983). See also United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 Based on my reading of Rule 7.2, Ala.R.Crim.P., i......
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Mosley v. State, CR–13–0613.
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