State v. Herring, CR-05-1201.

• Decision Date: 18 August 2006
• Docket Number: CR-05-1201.
• Citation: 950 So.2d 1219
• Parties: Ex parte State of Alabama. (In re STATE of Alabama v. Franklin E. HERRING).
• Court: Alabama Court of Criminal Appeals

950 So.2d 1219

Ex parte State of Alabama.

(In re STATE of Alabama v. Franklin E. HERRING).

CR-05-1201.

Court of Criminal Appeals of Alabama.

August 18, 2006.

Petition for Writ of Prohibition, Geneva Circuit Court (CC-04-112); Charles W. Fleming, Judge.

William H. Filmore, chief asst. district atty., Ozark, for petitioner.

Jeffery D. Hatcher, Geneva, for respondent.

PER CURIAM.

PETITION DENIED.

McMILLAN, P.J., and COBB, J., concur.

SHAW, J., concurs specially, with opinion, which BASCHAB, J., joins.

WISE, J., dissents, with opinion.

SHAW, Judge, concurring specially.

I agree with the majority's conclusion that the trial court had jurisdiction to rule on Franklin E. Herring's request for an appeal bond and, therefore, that the writ of prohibition should not issue. I write specially only to address the dissent and thereby to provide another perspective should the Alabama Supreme Court have the opportunity to review this issue.¹

Relying on the general rule that jurisdiction of one case cannot be in two courts at the same time, see the cases collected at 2 Ala. Digest 2d, Appeal and Error § 436 (1993), the dissent adopts the State's argument that a defendant's act of filing a notice of appeal, even when done concurrently with a request for an appeal bond, as specifically required by Rule 7.2(c)(2)(i), Ala. R.Crim. P., deprives the trial court of jurisdiction to rule on the request for an appeal bond. I believe that such a holding by this Court would be contrary to the plain language of Rule 7.2(c)(2) and the expression of intent set out in the committee comments to that rule.² Rule 7.2(c)(2) provides:

"(2) Any defendant who has been convicted of an offense for which the defendant has been sentenced to a term of imprisonment for twenty (20) years or less may be released on a secured appearance bond or on the defendant's personal recognizance,

"(i) Upon application for release made concurrently with the filing of a notice of appeal, or

"(ii) If the application for probation is made, upon application for release made at any time before probation has been granted or denied."

(Emphasis added.) The Committee Comments to Amendment to Rule 7.2 effective April 1, 1995, in pertinent part, state:

"Section (c) recognizes that after conviction the defendant is no longer presumed innocent and is not entitled to admission to bail as a matter of right. If a defendant's sentence is for twenty (20) years or less, the defendant can be admitted to bail, in the judge's discretion, unless the judge has reason to believe that bail will not reasonably assure that the defendant will not flee, or has reason to believe that there is a real and present danger to others posed by the defendant's being at large. Thus, Section (c) modifies Ala.Code 1975, § 12-22-170, which unconditionally allowed bail if the sentence did not exceed twenty (20) years.

"Under Rule 7.2(c)(2)(i), a convicted defendant may apply for release on an appearance bond or on the defendant's personal recognizance at the time of filing a notice of appeal. This changes former practice, whereby application for release had to be made with the filing of a notice of appeal at the time the sentence was rendered (i.e., when the sentence was pronounced); that former practice presented an unduly restrictive, unfair, and technical trap for the unwary practitioner. See Ex parte Downer, 44 Ala.App. 77, 203 So.2d 132 (1967); Ex parte Rogers, 53 Ala.App. 245, 298 So.2d 665 (1974); Ex parte Pennington, 57 Ala.App. 128, 326 So.2d 656 (1976). For `Appeal as of Right—When Taken,' see A.R.App.P., Rule 4(b). Cf. Fed.R.Crim.P., Rule 46(c).

"Rule 7.2(c)(2) allows some discretion to the trial judge in releasing the defendant on bail or on the defendant's personal recognizance. If the defendant initially files a notice of appeal when the sentence is pronounced, but elects to waive release and to begin serving the sentence, and thereafter requests that the sentence be suspended, whether to grant bail is left to the discretion of the trial court. There are no cases on this point, and there has been some question whether the trial court retains jurisdiction over the defendant, since the defendant will have already begun serving the sentence. However, it is preferable that the trial court make the release decision, since that court is more familiar with the case, the record is usually still with the trial court, and any witnesses would be more readily available to that court."

(Emphasis added.)³

Rule 7.2(c)(2)(i) states that a defendant should file an application for release concurrently with the filing of the notice of appeal. The rule also clearly contemplates that the trial court will have a reasonable amount of time to rule on the bond request and to hold a hearing if one is needed, so that it may consider the relevant factors discussed in Rule 7.2(a). Here, Herring moved for an order fixing bond on appeal concurrently with the filing of his notice of appeal, as required by Rule 7.2(c)(2)(i). As I read Rule 7.2(c)(2), the trial court had the authority to rule on that motion. In my view, a contrary holding would eliminate any field of operation for Rule 7.2(c)(2)(i) in a case like this one where no request for probation was made, because it would effectively preclude the trial court from ruling on a bond request filed concurrently with the notice of appeal.

Rule 7.2(c)(2)(ii), Ala. R.Crim. P., does state that a judge may entertain a request for an appeal bond if the request is made "at any time before probation has been granted or denied." The dissent concludes that in a case where probation is not requested, because probation may only be granted before the execution of a sentence has begun,⁴ a request for an appeal bond may also only be granted before the execution of a sentence has begun. However, Rule 7.2(c)(2)(ii) requires only that a bond request be made before the trial court has ruled on a request for probation, i.e., before the execution of a sentence has begun. The rule does not specify or imply any time period within which the circuit court must dispose of a request for an appeal bond. Furthermore, as the dissent implicitly acknowledges, Rule 7.2(c)(2)(ii) contemplates that, because an application for probation following sentencing does not toll the time requirements of Rule 4(b), Ala. R.App. P., for filing the notice of appeal, see, e.g., Ex parte Gamble, 413 So.2d 404 (Ala.Crim.App.1982); and Woods v. State, 371 So.2d 944 (Ala.1979), a motion for an appeal bond may be filed with the circuit court after the notice of appeal is filed, provided the motion is filed before the application for probation is ruled on.

Therefore, both Rule 7.2(c)(2)(i) and (ii) contemplate that, even though a case may be in an appealable posture, and, in fact, a notice of appeal may have been filed, the trial court will retain limited jurisdiction to dispose of a motion for an appeal bond. This is consistent with the general rule, which has been stated many times, that when an appeal is taken the trial court can do nothing with respect to any matter or question that is involved in the appeal and that may be adjudged by the appellate court; however, as an exception to the general rule, it is also recognized that the trial court may proceed in matters entirely collateral to that part of the case which has been taken up by the appeal. This statement of the rule is an application of the general rule that jurisdiction of a case can be in only one court at a time. See, e.g., McKinney v. State, 549 So.2d 166 (Ala. Crim.App.1989); Reeves v. State, 419 So.2d 217 (Ala.1982); Osborn v. Riley, 331 So.2d 268 (Ala.1976); Reynolds v. Colonial Bank, 874 So.2d 497 (Ala.2003). When it approved Rule 7.2, the Alabama Supreme Court was certainly aware of the jurisdictional implications of the filing of a notice of appeal. The logical effect of Rule 7.2(c)(2), I think, is that the trial court retains limited jurisdiction to rule on a collateral request for an appeal bond subsequent to the filing of a notice of appeal. Therefore, to me, Rule 7.2(c)(2) is consistent with the general rule that jurisdiction of a case can be in only one court at a time. It concerns me that failing to treat a motion for an appeal bond as a collateral matter over which the trial court retains limited jurisdiction after the case is appealed would have the unintended consequence of either shifting the responsibility for appeal bond determinations to this Court (something which this Court is ill-equipped to handle) or requiring this Court to remand certain cases to the trial courts for rulings on motions to set, or revoke, appeal bonds. As the committee comments to Rule 7.2 note, it is preferable that the trial courts make the decision whether to release the defendant pending appeal. I believe that this Court's interpretation of Rule 7.2 is consistent with the Alabama Supreme Court's admonition in Rule 1.2, Ala. R.Crim. P., that the Rules of Criminal Procedure "shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare."

BASCHAB, J., concurs.

WISE, Judge (dissenting).

I respectfully dissent from this Court's denial of the State's petition for a writ of prohibition directing Judge Charles W. Fleming to set aside his order allowing Franklin E. Herring to be released on bond pending the outcome of his appeal to this Court.

In June 2005, Herring was convicted of manslaughter; he was sentenced in August 2005 to 11 years in the state penitentiary. On August 24, 2005, Herring filed a timely motion for a new trial. The motion was deemed denied by operation of law on October 3, 2005.⁵ See Rule 24.4, Ala R.Crim.P. Herring filed a timely notice of appeal on November 1, 2005. Filed concurrently with the notice of appeal was a request that Herring be released on bond during the pendency...