Strickland v. State

• Decision Date: 28 March 1974
• Citation: 292 So.2d 450,292 Ala. 751
• Parties: In Re Charles M. STRICKLAND. v. STATE of Alabama. Ex parte STATE of Alabama ex rel ATTORNEY GENERAL SC 640
• Court: Alabama Supreme Court

Page 450

292 So.2d 450

292 Ala. 751

In Re Charles M. STRICKLAND. v. STATE of Alabama Ex parte STATE of Alabama ex rel ATTORNEY GENERAL

SC 640

Supreme Court of Alabama.

March 28, 1974.

Petition for writ of mandamus to Aubrey M. Cates, Reneau P. Almon, John C. Tyson, III, John P. DeCarlo and John O. Harris, as Judges of the Alabama Court of Criminal Appeals.

William J. Baxley, Atty. Gen., and George M. Van Tassel, Jr., Asst. Atty. Gen., for the State.

No appearance for Charles M. Strickland.

Petition denied.

MERRILL, COLEMAN, HARWOOD, BLOODWORTH and FAULKNER, JJ., concur.

HEFLIN, C.J., dissents.

MADDOX, J., with whom McCALL and JONES, JJ., join, dissents.

MADDOX, Justice (dissenting).

The Court of Criminal Appeals, apparently on a search of the record, ¹ reversed Strickland's conviction because the indictment which was certified to that court did not show that it contained an endorsement that it was "a true bill."

After the Court of Criminal Appeals reversed Strickland's conviction, the State applied for a rehearing and asked the Court of Criminal Appeals to grant a writ of certiorari to the trial court to bring up the record which would show the true facts, which the State contended would show that the indictment was properly endorsed "a true bill," but that the clerk had failed to include the endorsement of the indictment in the record. The Court of Criminal Appeals denied rehearing and refused to grant certiorari to complete the record.

The State filed a petition here styled "Petition for Mandamus" and asked this Court to direct the Court of Criminal Appeals to set aside its judgment of reversal and issue a Writ of Certiorari to Clerk of the Circuit Court to perfect the record. I would treat the petition for mandamus as a petition for certiorari and grant it.

Section 140 of the Alabama Constitution, which was in effect on the date the "Petition for Mandamus" was filed here by the State provides that this Court has the power and authority to superintend and control the Court of Criminal Appeals. Hanvey v. Thompson, 286 Ala. 614, 243 So.2d 748 (1971). Rule 39 of the Rules of Practice of this Court, 286 Ala. XXI provides that no application for writ of certiorari, or other remedial writ, seeking to review or revise an opinion or decision of the Court of Criminal Appeals will be considered unless it appears on the face of the petition that application was made to the Court of Criminal Appeals and that court decided the application adversely to the movant. The petition filed here states these jurisdictional facts. While the petition is styled a "Petition for Mandamus," the character of a pleading is determined from its essential substance, and not from its descriptive name or title. Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 260 So.2d 589 (1972); Union Springs Tel. Co. v. Green, 285 Ala. 114, 229 So.2d 503 (1969). I would treat the petition as one for certiorari seeking to review and revise the decision of the Court of Criminal Appeals, not only in reversing the judgment but in denying the State's application for rehearing and the State's application for writ of certiorari to bring up the true facts.

I realize that ordinarily it is discretionary with the Court of Criminal Appeals whether to set aside its opinion and submission and restore the cause to its docket. Saylor v. State, 42 Ala.App. 666, 177 So.2d 924; cert. den. 278 Ala. 297, 177 So.2d 926 (1965). But Saylor is distinguishable. In Saylor, the appellant failed to timely file his transcript of the evidence. The failure of the appellant to timely file the transcript was called to his attention by the State's motion to strike. Saylor did nothing until after the court granted the State's motion. He then sought certiorari to bring up an order entered in the trial court to extend the time for filing the transcript. The court said:

"Although counsel was apprised of a diminution of the record by the attorney general's brief and motion to strike, he made no attempt to * * * supply the omission before final disposition." [Emphasis added.]

Here, Strickland apparently filed nothing which called the State's attention to the omission of the endorsement "a true bill."

I think it is the duty of the clerk of the court, not the state, to make out a full and accurate transcript of the record. Title 15, § 379, Code of Alabama, 1940. It is the duty of the appellant [in this case Strickland] to see that his appeal is perfected in accord with the law. In Graham v. State, 30 Ala.App. 179, 2 So.2d 463 (1941), the clerk failed to include in the transcript the defendant's motion for a new trial, the charges of the court and other orders and minutes of the court, as required by statute. The Court of Appeals said:

" * * * [I]t was the appellant's duty to see that the statutes, supra, are complied with, and his appeal perfected in accord with rules of the court. Powell v. State, 5 Ala.App. 150, 59 So. 328; Lampley v. State, 6 Ala.App. 23, 60 So. 415; Weldon v. State, 21 Ala.App. 357, 108 So. 270, on rehearing. In the Lampley case, supra, this court said [6 Ala.App. 23, 60 So. 416]: 'Parties to appeals, even in criminal cases, are expected to see to it--in fact, are required to see to it--that their appeals are perfected with reasonable dispatch.' "

The Court of Criminal Appeals heretofore seems to have followed the rule that if the State was put on notice before submission of the defect in the record, a certiorari to perfect the record would not issue after submission. In Sashner v. State, 46 Ala.App. 407, 243 So.2d 390 (1970), the court said:

"On November 17, 1970, we delivered our original opinion. On December 2, the Attorney General filed a motion to set aside submission, recall of opinion and for a writ of certiorari.

"The State informs us if we issue a writ of certiorari for a minute entry of March 4, 1970, that the return would show appellant was on that date arraigned with counsel.

"On June 16, 1970, the clerk certified that the record filed by the appellant contained 'a full, true and correct transcript of the records had' in the case. This transcript (the record on appeal) was filed here June 17, 1970 and the cause came on for submission on briefs July 16, 1970, the appellant's brief having been filed June 22.

"The first proposition of law in the appellant's brief was:

" 'A prisoner, accused of a felony, must be arraigned in person, and must plead in person and the record must affirmatively show the prisoner's presence at those stages of the proceedings against him as well as throughout his trial.'

"Supreme Court Rule 18 reads, in pertinent part:

" 'A certiorari to perfect or bring up a complete record may be awarded, on motion of either party, at any time before the submission of the cause, if its object be to sustain a judgment, without a showing; * * *.' (Italics added).

"We consider that the appellant's brief which led us to the Perkins opinion, supra, effectively put the State on notice of the deficiency in the record of instant concern. Accordingly, on authority of Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90; Lipscomb v. State, 37 Ala.App. 379, 68 So.2d 862; and Saylor v. State, 42 Ala.App. 666, 177 So.2d 924, we hold that the State's motion comes too late."

It is apparent to me that in Sashner, the defect in the record was brought to the State's attention in Sashner's brief. No such showing is apparent in this case. While Rule 18 of this Court contemplates that petitions to correct the record will be made prior to submission, a reading of the rule indicates that the spirit of the rule is to award certiorari liberally if a judgment will be sustained by perfecting the record. Even though the cause was submitted, I do not think the State, as appellee, should have made sure the record was complete, especially if its attention was not called to some defect in the record by the appellant.

In the past, the Court of Criminal Appeals seems to have followed the rule I suggest. The rule of that court prior to this case seems to be that certiorari will be granted if the perfection of the record would sustain the judgment and the State was not put on notice that the defect existed prior to submission. The question is whether the departure by the Court of Criminal Appeals from this procedure constitutes an abuse of discretion.

I think it does for the following reasons: (1) The State's attention apparently was not called to the error of the clerk until after submission and opinion. (2) On appeal, the State was under no duty to make sure that the record on appeal was true and correct. (3) A certified copy of the indictment filed with the State's motion to set aside the submission in the Court of Criminal Appeals shows that the indictment contained an endorsement "a true bill."

The Court of Criminal Appeals cites Smiley v. State, 11 Ala.App. 67, 65 So. 916 (1914), as authority for its reversal. In Smiley, the reporter's synopsis of the brief filed in the case by the appellant indicates that...