Ex Parte J. B. Pennington

326 So. 2d 656, 57 Ala. App. 128, 1976 Ala. Crim. App. LEXIS 1936

• Court: Court of Criminal Appeals of Alabama
• Decided: January 20, 1976
• Docket: 6 Div. 127
• Status: Published

Opinion

PER CURIAM.

This is an original application for a writ of mandamus.

Honorable Aubrey Dominick, one of the Judges of the Sixth Judicial Circuit, had on May 29, 1975, set bond on appeal to this Court at $5,000. Then on November 20, 1975 (applicant not having filed bond), Judge Dominick raised the amount to $25,000. We issued the rule nisi.

The Circuit Court rendered judgment of conviction May 8, 1975, and sentence was pronounced the same day, and the judge, with defense counsel present, advised the defendant of his right to appeal. No motion for new trial was filed. Code 1940, T. 13, § 119.

Written notice of appeal was filed on May 29, 1975. This was the only such notice. “Under Code 1940, T. 15, §§ 368 and 372, execution of a sentence under twenty years may be stayed if the appeal is taken ‘at the time of judgment rendered.’ This has been consistently construed as meaning the time at which the sentence is definitively pronounced. See Ex parte Downer, 44 Ala.App. 77, 203 So.2d 132.” —Ex parte Rogers, 53 Ala.App. 245, 298 So.2d 665.

The rule nisi, under the applicant’s own exhibit, i. e., a photo copy of the bench notes or docket sheet, was improvidently issued. Any order setting bail after delayed notice of appeal is coram non judice.

In this case no suspension of execution of sentence was within the power of the trial court after May 8, 1975.

Writ quashed: application for mandamus denied.

All the Judges concur.