Hightower v. State Court Opinion

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442 Ala.

Quenton S. HIGHTOWER

v.

STATE.

6 Div. 711'

Court of Criminal Appcals of Alabama'

Nov. 24, 1981'

Rehearing Denied Dec' 29, 1981'

Certiorari Denied, March 19' 1982

Alabama SuPremc Court 81-337'

Proceeding was instituted on a petition

fo, writ of e.ror .oram 
'obis. -Th: 9ittYit

Court, Lamar County, Carlton Mayhell' Jr"

J., nnl."a ju<Igmen! denying pclition' antl

putition". upp"utua. The Court of Criminal
'App""l., Bowen, J., hcld that pctition for

writ of error coram nobis, filcd wilhin time

that petitioner could have filed a petrtron

for writ of certiorari to the Supreme Court

to review the proprie[y of an order of thc

Court of Criminal Appeals dismissing his

appeal from conviction, was properly llc-

,i"d, *hut" petition not only sought to rc-

ui"* tf," dismissal of the appeal from his

conviction, but contained no alicgations

if,ut ttt" petitioner was innoccnt or ha<l a

,uiia a"f"n.e to the crime for which hc

.iood 
"onri.ted 

and did not dcscribe thc

specific facts on which he based his claim

tirat his rights were invaded'

Affirmed'

3. Criminal Law c-997.2 1
Petition for writ of crror coram nobis' /

filerl within time that pctitioner could havc \
filetl a petition for writ of certiorari.to the il
Suprcme Court to rcvicrv thc pro.pr.lcty ol 

J

an ortler of thc Court t'rf Criminal .Appcals I
<lismissing his apptal from convtcllon' was \
rrrotlerlv tlcnierl, rvherc pctition not only \
sougf,tio rcvicw thc tlismissal of the ap1rcal 

-

i.oll f,i. conviction, but contained no alle-

gations that the pctitioncr was innocent or

[a<t a valid tlcfensc to the crime for which

hc stoo<l convicte<l and <lid not describe the

slr"citic facts on which he trased his claim

t-hat his rights were invaded'

i'
L.

'-l

C

h.l. Criminal Law e:997.1

A writ of error coram nobis brings a

judgmentb@fo'
correction because of an error ol lact nou

evident from the face of the recortl that

;;;iJ have Prevented the judgment and'

unless the error of fact was unknown to the

court and to the convicted party at thc time

of the trial, the writ would not lie'

2. Criminal Law cp997.2

A lrctition for a writ o[ crror ('()rilm

nobis is not intended to provide revie* by

appcal wtlie the comlrlaining part) hrrs not

suugttt appcal and the time for appcal has

long since exPired.

l, _"-. ...trils-aEe - :r..-.*_...e.5lri",rp, -,. rtl*&" r,::.rr

410 SOUTHERN REPORTER, 2d SI']RIES

4. Criminal t as e997.1

A Petition f6P 1 writ of crror coram

nobis in a circuit ctlurL cannot trc used as

lnc ueti"t" to review a judgment of the

Court of Criminal APPeals'

Gary K' Grace <-rf Henderson & Grace'

Huntsville, for aPlrcllanl'

Charlcs A. Gra<idick, Atty' Gcn' and Eliz'

abeLh Ann Evans, Asst' Atty' Gen'' for ap

pcllcc.

BOWEN, Judge'

This is an appeal from the Circuit Court's

.1";;;i o1 uigt.o"'"r's petition for writ of

crror coram nollis'

On APril 21, 19?8, Hightowcr. *o:. to,1:

victcrl of sccuritics fraud in the Utrcutt

Court of Lamar County' Sentcnce-^was

ii."" y"utt' imprisonment and a $5'000'00

;i;;. hh. ."*uintl"t of the facts are sub

,o"ti.ify idcntical to those of the related

;;.;t ;i Churles J' Steen and Geraldine

;i;;; ,. Stats AIa' ?e-446 (Ms' SePtember

zo, lgsol, 14 i.B.R. 2800, on rehearing 15

e.'S.n. Sir (ltt. FebruarY 6, 1981)'

"I'\rllowing tinrcly noticrcs of alrpcal' Pc[';

Lioncrs filc<l for numcrous extcnsions of

timc to allow ctrmulction of the tran'

scripts.'fhcse r:xLension requests.rvere

grontc.l by thc Court of Criminal Ap

pcals'



,Un nol)is,

ould have
',rri to the
t)l)riety of
rl Appcals
i't ion, was

not onlY
tht'appeal
rl no alle-
nnocent or
for which

cscribe the
I his claim

rror coram
lrc used as

rcnt of the

n & Grace,

rn. and Eliz-
1;en., for a[F

AIa. M3
"In January of 191i0, Pctirioncrs w,cr'c of crror cor:rm nobis lrrings a ju<igmcnt
informed that the trial court rcportcr hatl lrcf<irc thc o|iginal trial court for correctior,
died, and that a new court rcl)ortc:- l-,a(l because of an error of fact not evidentbeen assigned to transcrillc the lrial from the facc of thc rccorrl that rvould havenotes' Petitioners immetriatcly maac ii,- ,rcvcnrctr thc jurlg,cnt. Ttrggrgr-g!_Inct
plication to the new court reltortcr to nrust havc lrcen unknown to the court An6proceed with the transcriptions. Thc ncu' li the convir:trxl u;irlrr :rt fha timo ,rf rh.

I{IGIIT0IVER v. ST"ITE
Clte as, /,!a.Cr.App., 410 So.2d +42

der by the Court of Criminal Aplrcals: n1

"'lt appearing to thc Court of Crirninal h
Appeals that obtaining transcripts of tiffi ayola v.thetriaIsintheabor'e-st1'lcrlcausesissm.A;j,;.;.

pruceeu wrln Lne [ranscnpttons. 'I'hc ncu' lg_]h" SgrylAql pqIL.\, at the time of thereporterdeclinedbecauseofthctlitlicut-ti
tiesencounteredintranscribinganother3@}rasthceffectof..aLrEr EuuvuuLcrc(r rn LranscnDlng anorner 315 (1944). tr__u:tu_bqthc effect of ,,a
reporter,snotcs'ThcState<ifAlabanra,tlotionfcrranerr't.iuI6?lEffii
on February 7, 1980, file<l a Motion to nDismisstheSteens,appeal,whichMotior,iffi,Ij.1.o"n,,*i
was granted without opinion. petitio,- eglz). ,.Thc ofilcc of the rvrit of errorers'subsequent attempts to have this or- .".", ,"frl, i=ffi
der vacated resulted in thc following or- t,r!ffi:iffiffito sock rcview of

impossible, it is hereby orderer.l that thc <lcnicrl, B.l4 So.2d gZ2 (Al,a.Lg77).
motion to set aside dismissals anrl rcin-
sLate appeals be and ,r,. ."rn. i. ;";;i;; "coratn nobis is nol an omnium gatherum

denied.,t, 
-'----'- "-'-"-J or catchall of accordion like rcmedies to

,)

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rhis courr overrured Highrou,er s a1,1 ri- ili:,: f;:1[:]:lJJ:;:T,Tl,T:,,ff ijcation for rehearing on February 22, lgSt). Alal;ama, a w"rit to llrevcnt fpgd in theInstead of seeking a review of this Court's ,,"
order dismissing [i, "r;iir, *,,r]"- i,] ithe Supreme Court of Alabama for a licti- io.2rl 6iB, cert. denicci, 295 Ala. Bg0, BZgtion for certiorari, Hightorver returncrl to a

rhe circuit court. Befo-rffi;;"#:ilJ:i :,:,l,:Ll,rffr "*"ffihis application for rehearing,. Hightorvcr 
"rrf:glL Gootlman v. SLate,3g? So.2d g62

filed a "Motion For New Trial oj .ll.,Th. iatu.c..epp.), cert. tlenied, Ex parte Good_Alternative, Motion For A Re-Trial" on man, Bg? So.2<l g64 (A1a.1980), or a writ ofFebruary i4' 1980' in the circuit lo"^1: 9n ccrtiorari. Ex trtarte Gantmon, zsS Ala. b02,February 22, 1980, Hightower als.o filerl " iZ So.2cl 869 (19b1); Ex parte Andcrson,4l-Votion for Error Coram Nobis" in rhe itu.epr. 620,147 5o.26 862 (1962).Cirruit Court of Lamar County. At the
bearing on the petition for writ of error 12) Thc cases are lcgion which hold that
@ram nobis, Hightower attempted to the u'rit of error coram nobis is not intend-
;rote, through the testimony of his attor- ccl to provirle review by appeal where thery' that despite his efforts, he had bccn comPlaining party has not sought appeal
Bable to obtain the court reporter's tran- ancl the timc for ap1rcal has lon[ sinct'ex-

=gt 
of his trial proceedings. on July 1?, lrirc<l. Thomas v.'statc, 280 Ala. 10g, 1g0

RSl, the circuit court denied Hightorver's so.2<l s4z (1966). A petition filed within
Srjtion for writ of error coram nobis. the time that an appeul could have beenfroo this judgment, Hightowcr aplicals. takcn should lrc tiismissed. vincent v.

Higtrtower's pctition for writ of crror cor- Stala, 284 Ala,. 24?, 224 So.Zd 601 (1969).

,rcuit Court's
r for writ of

,er was con-

the Circuit
r,entence was

,rl a $5,000.00
r'acts are sut>
,f Lhe related
nd Geraldine
,Is. September
r rehearing 15

)81).

,f appeal, Peti-
t.xtensions of
o[ the tran-

rr.rluesLs were

Oriminal AP

u nobis was propcrly dcnicd.

tU Initially, we note that a l.rctition lor
r:n of error coram nobis docs not lie for
& 3m,unds asserted by Hightower. A writ

t3l In this <:asc thc 1x:tition for writ of
crror corarn nobis rva^s tilcd within thc timc
that Hightorvcr could have file<l a pctition
for writ of certiorari to the Supreme Court



444 Ala. 410 SOUTHERN REPORTER, 2d SEI'IES

of Alalrama to review tirc propricty rrf thc

order of this Court <lismissing his appcal as

was done by the defentlants in thc Stccn

cases. Sce generally Postconviction Reme'

dics in Alabama,2g Alatrama Larv licvicw
61?, G35 (19?8); Comment, The Writ of
Error Coram Nobrs in Alabama, 2 Ala'L'

Rev. its1 (1950).

Hightower is attempting to use this ap-

peal from the denial of his petition for writ
nf 

"..o. 
coram nobis to rcview Lhc ordcr of

this Court dismissing the appeal of his con-

viction. This is evident from the first sen-

tence of the Argument section of his bricf

on appeal which reads: "It is clear from thc

facts of this case Lhat the defendant, High-

tower, was tlenied procedural due process in

the dismissal of his appeal by the Court of

Criminal Appeals ..." In fact, Hightow-

er's entire brief is directed to the issue that

this Court erred in dismissing his appeal'

In brief Hightower acknowledges that he

is seeking an appeal of his conviction: "All
Hightower wants is an opportunity for judi-

cial review of the evidence presented at the

trial of his case." This is not the office or

function of coram nobis. Only a new trial

is obtained if coram nobis is granted' 29

Ala.L.Rev. at 634 and authorilies citc<l'

Furthermore, we note that Hightou'cr's

"Motion for Error Coram Nobis" is totally

inadequate as a petition for writ of error

corarn nobis. It alleges no grounds upon

which the writ could or should bc granted'

it contains no allegation that Hightower is

innocent or has a valid defense to the crime

for which he stands convictcd, Scibcrt t"

State, 3,li} So.2d ?88 (Ala'1977), and it docs

not describe the specific facts on which

Hightower bases his claim that his rights

we-re invaded. Thomas v' State, 274 Ala'

pctition for writ of crror coram nobis in a

circuit court cannot be used as the vehicle

to rcview a jutlgmont of this Court' The

jutlgment of the circuit court denf ing High-

io*o.'* "MoLion for Error Coram Nobis" is

aff irmcd.

AFFIRMED.

All Judges concur.

Gerald WaYne NUNNERY

v.

STATE.

I Div. 272.

Court of Criminal Appeals of Alabama'

Dec. 29, 1981'

Rehearing Denied Jan' 26, 1982'

Certiorari Denied, March 19, 1982

Alabama SuPreme Court 81-412'

Defendant was convicted before the

Circuit Court, Mobile County, Elwood L'

Hogan, J., on fivc burglary charges and on

ct,argc of posscssion of a pistol aftcr convic-

tion of , ..i*o of violence, and he appealed'

The Court of Criminal Appeals, Leigh M'

Clark, Retired Circuit Judge, held that: (1)

although there was some confusion regard-

ing motion for continuance to determine

compctency to withstand trial there was no

"..n, 
in denial of such motion or failure to

intluire furthcr as lo compctency' and (2)

crimc of possession of a pistol after convic-

tion of crime of violence is a class C felony

for purpose of Habitual Felony Offenders

Act.

Affirmed.

Law.

t41 Aftcr his ap1rcal was dismissetl by

this Court, Hightower's only lcgal and prop-

er remedy was through petition for writ of

certiorari in the Supreme Court of Ala-

bama. Rule 39, A.R.A.P. tsy the very na-

ture and function of the writ and by the

limited jurisdiction of the circuit court, a

531. 150 So.2d 38? (1963)' Generally see A'
r^;^",-6;t miation Remedies. 28 Ala.