O'Neal v. State , 39 Ala. App. 203 ( 1957 )

On Application for Rehearing.

PRICE, Judge.

In brief on application for rehearing, counsel complains that Supreme Court Rule 16, Code 1940, Tit. 7 Appendix was not complied with in this case.

Rule 16 provides, among other things, that in criminal cases the clerk “shall notify the appellant and the appellee, or their attorneys, when the record is filed in this court. Thereafter, each party shall have ten days in which to notify the clerk whether a brief will be submitted in the cause. * * *

“Where the clerk is duly notified by either party that briefs will be filed, the cause will then be called and tried as civil cases are called and tried, * * * and briefs will be filed by respective parties as provided in Rule 12, supra.”

The record was filed in this court May 21, 1957. The cause was submitted May 23, 1957, and was affirmed without opinion on May 28, 1957.

Counsel was not advised by the clerk that the record had been filed, nor was he allowed ten days in which to notify the clerk whether he would submit a brief.

Defendant was charged with the offense of illegal possession of prohibited liquors. He entered a plea of guilty to said charge. The appeal is on the record proper. The only question presented for our review is the regularity of the proceedings.

We carefullv searched the record for error and, finding it regular in every respect, we affirmed the judgment of conviction. Counsel, in brief, points out no error in the proceedings, but confines his argument to the technical aspects of our failure to follow Rule 16.

It is our view that Rule 16 should be held to apply only in cases based upon an actual controversy, and that it should have no application in cases such as this, where the appeal is on the record proper from a conviction on a plea of guilty, and where all the questions presented for review have been considered and the defendant is not deprived of any of his substantial rights.

Application overruled.