Gunter v. State

338 So. 2d 6, 1976 Ala. Crim. App. LEXIS 1751

• Court: Court of Criminal Appeals of Alabama
• Decided: October 5, 1976
• Docket: 3 Div. 571
• Status: Published

Opinion

PER CURIAM.

This is an appeal from the Circuit Court of Escambia County from a judgment dismissing appellant’s petition for a writ of habeas corpus.

April 12, 1976 appellant filed a petition for a writ of habeas corpus in the Circuit Court of Escambia County against the Warden of Holman Prison where appellant avers he is an inmate.

He avers in his petition that he is not now held in unlawful custody, and in violation of the laws and Constitution of the United States, but that on January 17, 1977 he will be.

The state filed a motion to dismiss appellant’s petition because it appears from the facts stated in said petition that the appellant is confined under a lawful sentence, and is not now unlawfully detained.

We hold that the trial court did not err in dismissing appellant’s petition for a writ of habeas corpus because it appears on the face of the petition that he is not unlawfully detained.

Code of Alabama, Title 15, Sec. 8 reads as follows:

“The judge or justice to whom the application is made must grant the same without delay; unless it appears from the petition itself, or from the documents thereunto annexed, that the person imprisoned or restrained is not, under the provisions of this chapter, entitled to the benefit of the writ . . . ”

Cooper v. Wiman, Warden, Kilby Prison, 273 Ala. 699, 145 So.2d 216; Ex parte Rockholt, 271 Ala. 68, 122 So.2d 162; Magee v. State, 42 Ala.App. 71, 152 So.2d 443; Cazalas v. State, 42 Ala.App. 72, 152 So.2d 444; Phillips v. State, 40 Ala.App. 698, 122 So.2d 551.

There being no other rulings of the trial court complained of in appellant’s brief, we have examined carefully the entire record, and find from such examination that there is no error in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.