Lapesarde v. State

Court of Criminal Appeals of Alabama

Lapesarde v. State

312 So. 2d 60, 54 Ala. App. 654, 1975 Ala. Crim. App. LEXIS 1611

CourtCourt of Criminal Appeals of Alabama

DecidedMarch 18, 1975

Docket5 Div. 257

StatusPublished

Cited by4 cases

This text of 312 So. 2d 60 (Lapesarde v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lapesarde v. State, 312 So. 2d 60, 54 Ala. App. 654, 1975 Ala. Crim. App. LEXIS 1611 (Ala. Ct. App. 1975).

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Opinion

CATES, Presiding Judge.

Grand Larceny: sentence, ten years imprisonment. The conviction came upon a plea of guilty.

I

The appellant plead guilty with a full Boykin colloquy as required under Cooper v. State, 53 Ala.App. 36, 297 So.2d 169. After conviction the trial judge pronounced sentence of ten years.

Thereupon appellant asked for suspension- of sentence under probation. The cause was postponed until May 20, 1974.

On this latter date appellant seems to have anticipated that the probation officer would give an unfavorable recommendation or perhaps he perceived upon the judge a saturnine cast of countenance. At all events, through counsel, he sought to cancel his former plea.

As grounds his lawyer advanced the notion that he, albeit mistakenly, had thought that the District Attorney would have recommended (or at least not contested) probation. No doubt this was a bona fide belief, though not reciprocal.

Probation is the ultimate and sole responsibility of the trial judge. Each judge has his own idiosyncracies and modus operandi. While we are sure that suggestions properly put on appropriate occasions are welcome, nevertheless when the Areopagitic rhetoric dies and the die of Fate must be cast the lonely seat of decision be *656 longs to no one but the judge. This, in probation, is under the constitutional amendment and its corollary statute. Const.1901, Amendment No. 38; Code 1940, T. 42, §§ 19-26, inch

Furthermore, agreements between counsel must be in writing.

“No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby.” Sup.Ct. Rule 20 & Rule 14 Cir.Ct.Rules 1

From the foregoing we believe it is demonstrable that the judgment denying the withdrawal of the guilty plea must be

Affirmed.

All the Judges concur.

1

. See Appendix II ABCP last comment B, as to Rules of Practice in the Circuit, etc. — being superseded in Civil cases only.

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CATES, Presiding Judge.

Grand Larceny: sentence, ten years imprisonment. The conviction came upon a plea of guilty.

I

The appellant plead guilty with a full Boykin colloquy as required under Cooper v. State, 53 Ala.App. 36, 297 So.2d 169. After conviction the trial judge pronounced sentence of ten years.

Thereupon appellant asked for suspension- of sentence under probation. The cause was postponed until May 20, 1974.

On this latter date appellant seems to have anticipated that the probation officer would give an unfavorable recommendation or perhaps he perceived upon the judge a saturnine cast of countenance. At all events, through counsel, he sought to cancel his former plea.

As grounds his lawyer advanced the notion that he, albeit mistakenly, had thought that the District Attorney would have recommended (or at least not contested) probation. No doubt this was a bona fide belief, though not reciprocal.

Probation is the ultimate and sole responsibility of the trial judge. Each judge has his own idiosyncracies and modus operandi. While we are sure that suggestions properly put on appropriate occasions are welcome, nevertheless when the Areopagitic rhetoric dies and the die of Fate must be cast the lonely seat of decision be *656 longs to no one but the judge. This, in probation, is under the constitutional amendment and its corollary statute. Const.1901, Amendment No. 38; Code 1940, T. 42, §§ 19-26, inch

Furthermore, agreements between counsel must be in writing.

“No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby.” Sup.Ct. Rule 20 & Rule 14 Cir.Ct.Rules 1

From the foregoing we believe it is demonstrable that the judgment denying the withdrawal of the guilty plea must be

Affirmed.

All the Judges concur.

1

. See Appendix II ABCP last comment B, as to Rules of Practice in the Circuit, etc. — being superseded in Civil cases only.

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312 So. 2d 60, 54 Ala. App. 654, 1975 Ala. Crim. App. LEXIS 1611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lapesarde-v-state-alacrimapp-1975.

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