State v. Willis

166 So. 2d 917, 42 Ala. App. 414, 1964 Ala. App. LEXIS 261

• Court: Alabama Court of Appeals
• Decided: August 18, 1964
• Docket: 4 Div. 480
• Status: Published

Opinions

JOHNSON, Judge.

The State of Alabama filed application for rehearing requesting this court to reverse its original decision affirming the judgment of the Circuit Court of Houston County, Alabama, without an opinion.

The petitioner was indicted by the Grand Jury of Houston County on September 16, 1960, for the offense of burglary in the second degree. At the time the indictment was returned against the petitioner, he was in jail in Ozark, Alabama, on a charge of burglary in the second degree committed in Dale County, Alabama. In November, 1960, he was sentenced to thirteen months in the penitentiary by the Circuit Court of Dale County, Alabama, and then transported to Pike County, Alabama, where he pleaded guilty on November 11, 1960, to a charge of second degree burglary committed in Pike County, Alabama, and was sentenced to a second term of thirteen months in the penitentiary. Petitioner was then transported to Kilby Prison to begin serving the sentences imposed in Dale and Pike Counties.

Testimony of the petitioner at his hearing on his writ of error coram nobis, disclosed that the sheriff of Pike County notified the sheriff of Houston County on November 11, 1960, that the petitioner was available to be returned to Houston County to be tried on the indictment returned against him in September, 1960. Petitioner testified that he heard nothing from the officials of Houston County concerning the charge against him there. He further testified that while he was in the penitentiary, he wrote the circuit solicitor of Houston County, Alabama, requesting that he be carried to Dothan and tried on the charge against him but he never heard from the solicitor, and that he also wrote the sheriff of Houston County on March 29, 1961, and that this letter was acknowledged on March 30, 1961. Petitioner heard nothing further from the sheriff until he wrote him again requesting a trial in Houston County and the sheriff answered, in effect, refusing to bring the petitioner to trial until he had completed the sentences which he was serving.

When petitioner completed the two sentences he was serving, he was brought to Houston County, an attorney was appointed by the court, and, after a consultation with his attorney, he pleaded guilty to burglary in the second degree and was sentenced to four years in the penitentiary.

Petitioner filed a writ of error coram nobis in the Circuit Court of Houston County, alleging a denial of his constitutional right to a speedy trial and the court granted the writ. Hence, this appeal by the State of Alabama.

We think we erred in our original decision affirming the judgment of the trial court. The petitioner failed to raise the constitutional question in the trial below and plead guilty to the charge even though he made several unsuccessful attempts to obtain a trial prior to his release from prison.

The Supreme Court and this court have held many times that the function of the writ of error coram nobis is not to relieve a party of his own negligence of not raising issue at the time of the trial when he had full knowledge of the facts. Ex Parte Taylor, 249 Ala. 667, 32 So.2d 659; Johnson v. Williams, 244 Ala. 391, 13 So.2d 683; Stephens v. State, 36 Ala.App. 57, 52 So.2d 169.

In Stephens v. State, supra, this court ruled that the entering of a plea of guilty on the advice of defendant’s counsel without duress, fraud, intimidation or deception of any character was not a ground for writ of error coram nobis.

“Defendant’s plea of guilty made without raising the question of the denial of a speedy trial constitutes a valid and binding waiver of the right thereto.” 57 A.L.R.2d 343.

Application for rehearing granted. Judgment reversed and cause remanded.

Reversed and remanded.