Woods v. State

• Decision Date: 08 June 1979
• Citation: 371 So.2d 944
• Parties: In re John WOODS v. STATE of Alabama. Ex parte John Woods. 78-41.
• Court: Alabama Supreme Court

Page 944

371 So.2d 944

In re John WOODS v. STATE of Alabama.

Ex parte John Woods.

78-41.

Supreme Court of Alabama.

June 8, 1979.

James B. McNeill, Jr., of Sikes, Kelly, Edwards & Bryant, Selma, for petitioner.

William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen. and Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, respondent.

TORBERT, Chief Justice.

Petitioner, John Woods, was convicted in the Dallas County Circuit Court of possession of marijuana and was sentenced to eight years in the penitentiary. The Court of Criminal Appeals affirmed the conviction without opinion. We granted certiorari to review whether the trial court erred in failing to make the record affirmatively show that petitioner had understandingly and voluntarily entered his guilty plea in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

However, there is a jurisdictional defect in this case which precludes us from examining this question. On December 9, 1977, petitioner signed an Ireland form and entered a plea of guilty; he was sentenced to eight years in the penitentiary. At this time, he applied for probation, and his sentence was suspended "pending receipt of post-sentence investigation report." The trial court held a hearing on the application on March 3, 1978, at which time it denied probation. Petitioner gave notice of appeal the same day.

Rule 4(b) of the ARAP provides that an appeal must be filed "within 42 days (six weeks) after the entry of the sentence appealed from." Although Rule 4(b) provides that a "timely motion in arrest of judgment or for a new trial" will toll the running of the appeal period, no such motion was made in this case. A request for probation following sentencing does not extend the time for appeal from a judgment of conviction. Turner v. State, 365 So.2d 335 (Ala.Cr.App.1978).

Timely filing of notice of appeal is a jurisdictional requisite, and the appeal must be dismissed for lack of jurisdiction if notice of appeal was not timely filed. ARAP 2(a). In this case, notice of appeal was filed eighty-four days after the "entry of the sentence appealed from"; therefore, the Court of Criminal Appeals did not have jurisdiction of the case. Accordingly, this court has no jurisdiction to consider the case on writ of certiorari.

Petitioner contends that this case is distinguishable from Turner v. State, supra, since here the trial court suspended the sentence...