Ex parte Byrd

154 So. 2d 42, 275 Ala. 285, 1963 Ala. LEXIS 617

• Court: Supreme Court of Alabama
• Decided: May 30, 1963
• Docket: 2 Div. 444
• Status: Published

Opinion

MERRILL, Justice.

Petitioner Byrd, sentenced to the penitentiary for life under a conviction for murder in the first degree, has filed a petition for writ of certiorari to the Circuit Court of Choctaw County to review the records “of the original trial had in April, 1957, and of the hearing had in said Circuit Court on February 18, 1963, on error coram nobis which was * * * denied on March 2, 1963.”

The Attorney General has filed a motion to dismiss the petition. The motion must be granted for at least three reasons:

1. Certiorari does not lie when the remedy of appeal is available, and that remedy is available. Ex parte Keene, ante, p. 197, 153 So.2d 631 and cases there cited.

2. Petitioner has an appeal from the action in the error coram nobis proceedirig' pending in this court at present, the appeal having been filed April 25, 1963.

3. The petition for writ of certiorari to review the original judgment of conviction was not timely. Ex parte Jordan, 41 Ala.App. 590, 143 So.2d 670, cert. denied 273 Ala. 709, 142 So.2d 672, cert. denied 371 U.S. 895, 83 S.Ct. 194, 9 L.Ed.2d 127.

Petition dismissed.

LIVINGSTON, C. J., and SIMPSON ■and PIARWOOD, JJ., concur.