Allen v. State

Luther Allen has filed here his petition for writ of certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Allen v. State.

The State, acting by and through its Attorney General, has filed a motion to strike Allen's petition for writ of certiorari on the following grounds: (1) that there has been no compliance with Rule 36 of the Rules of Practice of this court in that said petition, as filed, is not on transcript paper; (2) for that there has not been full compliance with Rule 44 of the Rules of Practice of the Supreme Court, as amended, in that said petition is not accompanied by a brief pointing out and arguing the points or decision sought to be revised.

The State's motion to strike is well taken and must be granted. The petition, as alleged in the State's motion to strike, is not on transcript paper, but is written out on ordinary legal cap paper and, therefore, is not in compliance with Supreme Court Rule 36. Title 7, Appendix, Code 1940. In Peterson v. State, 248 Ala. 179, 27 So.2d 30, it was held that a petition for certiorari not made on transcript paper is subject to being stricken. Petitioner has not filed a brief in this court setting out and arguing the points in the opinion of the Court of Appeals sought to be reviewed. Petitioner has merely refiled the brief originally filed in the Court of Appeals. This is not a sufficient compliance with Supreme Court Rule 44, as amended, which requires that the application for certiorari must be accompanied by a brief pointing out and arguing the points or decision sought to be revised. Ex parte Locklear, 205 Ala. 236, 87 So. 712; Gulf, M. O. R. Co. v. Scott, 248 Ala. 250, 27 So.2d 152.

It follows, therefore, that the petition for writ of certiorari filed by Luther Allen must be stricken. It is so ordered.

Petition for writ of certiorari stricken.

GARDNER, C. J., and FOSTER and STAKELY, JJ., concur.