Ex parte Gandy

157 So. 2d 1, 275 Ala. 575, 1963 Ala. LEXIS 381

Opinion

LIVINGSTON, Chief Justice.

Petitioner has filed in this Court an original petition styled “Application for a Writ of Habeas Corpus.”

Petitioner is confined in the state penitentiary under a conviction for robbery committed in Jefferson County, Alabama.

The Attorney0 General of the State of Alabama has filed a motion to dismiss the petition, which must be granted.

The petition shows on its face that petitioner was convicted of the crime of robbery on February 13, 1961; that he appealed, and the appeal bond was set in the amount of $10,000 (apparently he did not make bond) ; that the Court of Appeals of Alabama affirmed this judgment on January 8, 1965, and denied rehearing on January 29, 1963. He applied to this Court for writ of certiorari on February 1, 1963, and the same was denied on February 21, 1963, and motion for rehearing was denied by this Court on April 4, 1963.

The petition further shows on its face certain proceedings in the Federal District Courts instituted by petitioner; and further, a habeas corpus proceeding(s) in the Circuit Court of Montgomery County, Alabama.

The prayer of the instant petition is as follows:

“Wherefore, premises considered, petitioner prays that the respondent warden will be ordered to see that the petitioner is returned to the Jefferson County Jail, where he will be around relatives and friends who can, and will, arrange to make the excessive bond of $10,000 in this cause.”

As stated above, the motion of the Attorney General to dismiss must be granted, and for more than one reason. The question of petitioner’s making bond is now moot, and if the petition now before us is considered a petition for an original petition for habeas corpus, we have repeatedly held that such a petition cannot be granted in this Court under the circumstances of this case. Ex parte Ward Lee, 155 So.2d 296, 297¹; Ex parte Burton, ante p. 345, 155 So.2d 298; Ex parte Taylor, ante p. 346, 155 So.2d 299; Ex parte Carmack, ante p. 347, 155 So.2d 300; Ex parte Wilson, ante p. 403, 155 So.2d 507.

Petitioner did not appeal from the denial of habeas corpus in the Circuit Court of Montgomery County. An appeal lies from such order. Title 15, Sec. 369, Code of Alabama 1940.

Motion to dismiss petition granted.

Petition dismissed.

LAWSON, MERRILL and COLEMAN, JJ-, concur.

Footnotes

1

. Ante p. 343.