Twyman v. State
| Decision Date | 11 December 1973 |
| Docket Number | 7 Div. 256 |
| Parties | Willie Lee TWYMAN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Buying, receiving, etc., stolen personal property: sentence, three years in the penitentiary. Code 1940, T. 14, § 338.
A majority of the Court considering that the instant record fails to show compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, as applied in Honeycutt v. State, 47 Ala.App. 640, 259 So.2d 846 and Walcott v. State, 288 Ala. 546, 263 So.2d 178, the judgment below is reversed and the cause remanded.
Reversed and remanded.
How can a trial court show compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274?
Compliance rests, if good in this appeal, on a plea of guilty. That plea in turn rests on the appellant's signature to a written statement appended to another written statement signed by the judge. The latter statement is in narrative rather than in question and answer form. Judgment occurred June 1, 1973.
There is, however, in the record no court reporter's transcription of any colloquy between the bench and the accused. See Walcott v. State, 288 Ala. 546, 263 So.2d 178; Honeycutt v. State, 47 Ala.App. 640, 259 So.2d 846; Congo v. State, 49 Ala.App. 166, 269 So.2d 182, cert. den 1973, 414 U.S. 974, 94 S.Ct. 263, 38 L.Ed.2d 217; McGullion v. State, 49 Ala.App. 248, 270 So.2d 680; Irby v. State, 49 Ala.App. 263, 270 So.2d 693; Askew v. State, 49 Ala.App. 444, 272 So.2d 916 and Allen v. State, 50 Ala.App. 310, 278 So.2d 758.
Some of our earlier opinions as to the way of reflecting compliance with Boykin, supra, are not clear. For example, in Hawkins v. State, 49 Ala.App. 26, 268 So.2d 492, cited Ireland v. State, 47 Ala.App. 65, 250 So.2d 602, as showing an acceptable alternate. However, Ireland was before us on coram nobis, a proceeding wherein the convict has the burden of proof. Since Hawkins, supra, Ireland, supra, has been cited at least twice.
In Holsenback v. State, 49 Ala.App. 392, 272 So.2d 600, the Ireland questionaire was an added reason for affirmance. Adams v. State, 49 Ala.App. 749, 268 So.2d 487, was a companion case to that of Holsenback in that both defendants pled guilty at the same time.
The record in this latter case shows, in addition to Adam's receiving a written explanation of the various Boykin details, that the court reporter transcribed a viva voce colloquy between the judge and the defendant. We quote:
'THEREUPON, the defendant being present in open court, represented by counsel, the following proceedings were had in open court, all in due form of law:
'THE COURT: I understand that you want to change your plea?
'THE COURT: So you have any questions?
'THE COURT: Would you like any information from the court?
'THE COURT: The court finds that in these two cases (Judge is speaking to both defendants) that you have freely and voluntarily entered your plea of guilt. * * *'
In the case sub judice there is no transcription of the colloquy between the judge and the defendant except that the minute entry reads in part:
'On this the 1st. day of June 1973, comes the State of Alabama by its District Attorney and comes also the defendant in his own proper person and by his attorney, Otis R. Burton, Jr. and the defendant being arraigned in open court, for answer to the indictment pleads and says that he is guilty in manner and form as charged therein.
'Before accepting defendant's plea of guilt, the defendant being called before the court accopmanied (sic) by his counsel, and the defendant, his counsel and the court having then and there executed 'Court's Exhibit A' which said exhibit is hereby incorporated herein and made a part hereof as if fully set forth at length herein, and defendant now stating to the Court that he has read said exhibit or has said exhibit read to him by his counsel and that his counsel has fully explained to him the contents of said exhibit and that he fully understands same and has no questions about same, the court finds that the defendant is represented by competent counsel and that defendant has a full understanding of his plea of guilt, and is intelligently and voluntarily entering his plea of guilt with a full understanding of the nature of the charge and the consequences of his plea.'
In a court of record, those required acts which the record fails to show as having been done are conclusively deemed not to have been done. A minute entry is a skeletonized statement written up by the clerk of court proceedings. In Crist v. State, 21 Ala. 137, we find:
* * *'
A plea of guilty, is an in-court confession. Like other oral pleas it must be made personally in open court, at least in felony cases.
I see no reason for disregarding the clerk's certificate in favor of a court reporter's. That the explanation (Exhibit A) was not in question and answer form finds no criticism in Boykin v. Alabama, supra. The Supreme Court noted (395 U.S. p. 239, 89 S.Ct. p. 1710), 'So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.'
What Boykin basically requires...
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Jarman v. State, 3 Div. 314
...appellant or his attorney as to their understanding of the written instrument and execution thereof as was the case in Twyman v. State, 53 Ala.App. 351, 300 So.2d 121, reversed, 293 Ala. 75, 300 So.2d As in Cornelius, supra, this record is completely devoid of any colloquy between the trial......
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Browning v. State, 8 Div. 402
...enters a guilty plea after being informed of his rights, his conviction pursuant to the guilty plea is not improper. Twyman v. State, 53 Ala.App. 351, 300 So.2d 124. Also, a guilty plea that is voluntarily and understandingly made waives all nonjurisdictional defects. Knowles v. State, 280 ......