Glisson v. State , 43 Ala. App. 700 ( 1967 )

CATES, Judge.

This appeal from denial of coram nobis was submitted on oral argument December 20, 1966.

We have viewed Glisson’s prayer as making this in fact a habeas corpus proceeding.

In 1950 Glisson was sentenced to sixteen years imprisonment. Later, while on parole therefrom, he was convicted of grand larceny. For this he was, on March 30, 1964, sentenced to a term of thirteen months. Also, he went back to prison sometime beforehand as a parole violator.

August 15, 1966, the sixteen-year sentence was completely served.

The question sought for decision here is whether or not the 1964 sentence for thirteen months was to run concurrently with the remainder of the sixteen-year sentence.

In 1961 our Legislature allowed circuit courts to provide that one sentence run concurrently with another. However, this is not the presumed rule of interpreting sentences which appear to overlap chronologically.

The 1961 Act, No. 82, amending §§ 32 and 83 of T. 45, Code 1940, requires that multiple sentences shall be cumulative “unless it is specifically ordered in the judgment entry that such sentences shall be served concurrently.”

Said § 32, before its last amendment, was construed in Luquire v. Holman, 279 Ala. 203, 183 So.2d 799, a habeas corpus appeal, as applicable to convictions from different counties twelve years apart. The court there said:

“ * * * As a general rule, the day on which a prisoner is sentenced will be reckoned as a part of his imprisonment. Alexander v. Posey, 32 Ala.App. 494, 27 So.2d 237. * * * ”

Moreover, § 32 is in derogation of the common law hence is to be strictly construed in its strictures against concurrent sentences.

The judgment of instant concern reads:

“This the 30 day of March, 1964, came D. W. Crosland, Solicitor who prosecutes for the State of Alabama, and came also the defendant in his own proper person and by attorney; and it appearing to the Court that the said defendant has heretofore filed in this Court a petition to be allowed to plead guilty before indictment; and this being the date set for the hearing of said petition, and the said defendant now in open Court with his attorney, JOHN F. ANDREWS the said JOHN F. ANDREWS advises the said defendant to plead guilty to the charge against him, and consents to his pleading guilty. Came also all the witnesses in the cas.e. And upon hearing all the testimony offered in the Court the Court permits the defendant to file formal plea of guilty. Thereupon the said defendant in open Court pleads guilty.

“It is therefore considered and adjudged by the Court that the said defendant is guilty as charged in the Solicitor’s complaint heretofore filed.

“And on this the 30 day of March, 1964, the said defendant being now in open Court and being asked by the Court if he had anything to say why the judgment of the Court and the sentence of the law should not now be pronounced upon him says nothing. It is therefore considered by the Court and it is the judgment of the Court that the defendant is guilty as charged in the Solicitor’s complaint and it is the sentence of the law that the said defendant, the said Jesse D. Glisson, be imprisoned in the penitentiary of the State of Alabama for a tei'm of thirteen months. Said sentence to begin this day.”

Judgments in Alabama can only be altered by a separate nunc pro tunc suit. In such case only record evidence can be used to make any change.

“ * * * The testimony of the State’s witnesses perhaps supports an inference to the effect that because it was the custom of the trial judge to appoint counsel in all indigent cases where counsel is desired, that such an offer was made to Brown. We do not think that inference is sufficient to overcome the testimony of Brown and Harris to the effect that no such offer was tendered, although a request for counsel was made.” Brown v. State, 277 Ala. 353, 170 So.2d 504.

Brown, supra, was a coram nobis case wherein the State sought to circumvent Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, by evidence of custom and practice to overcome the failure of a judgment to show that Brown had been appointed counsel.

Hence, in coram nobis, we consider that parol evidence to vary the written judgment entry can only be received on an issue of fraud which would have prevented the judgment. In habeas corpus the court goes by the written mittimus of the trial court.

“It is true, of course, that the intention of the court imposing the sentence should prevail where clearly expressed. * * * Anno. 70 A.L.R. 1512. But we do not think this implies that such intention should be sought through evidence dehors the record — at least such as is here made necessary; that it is open to the same sort of proof as if the judge were writing a will or making a contract.

“A sentence is not merely a directive from which those who are to execute it may obtain information as to the extent of that duty, but, put on the official court record, it is a guarantee to the prisoner that prosecution will not again be attempted within its scope and that punishment shall not exceed its reasonably definite limits.” Ex parte Parker, 225 N.C. 369, 35 S.E.2d 169.

Moreover, the statute requires that the minutes be read and approved as the first order of business each day, which we must presume has been done. Code 1940, T. 7, § 1. Omnia praesumuntur rite et solemniter esse acta.

We think the last sentence of the judgment above quoted is specific enough to express that the judge intended the term to run with any other term which Glisson was then under judgment to obey and endure in the State penitentiary.

We have to treat the language either as meaning the sentence was to be immediately operative or else mere surplusage or nonsense. Alexander v. Posey, 32 Ala.App. 494, 27 So.2d 237.

We have pretermitted consideration of whether or not the quoted judgment complies with the requisites laid down in State v. Baker, 268 Ala. 410, 108 So.2d 361.

The judgment below is due to be reversed and one should be entered here discharging the appellant.

Reversed and rendered.

PRICE, P. J., dissents, being of the opinion that the judgment entry does not reflect the specificity required by Sec. 83, Tit. 45, Code of Alabama, 1965 Cumulative Pocket Part.