Memorandum from Wilson to Seay; Legal Research on Petition for Writ of Error

    INTEROFFICE I4EMO

TO: Mr. Solomon S. Seay, Jr.

FROIvt: James E. Wilson, Jr.

DATE: April 12, L982

RE: POST CONVICTION REMEDIES IN WILDER/BOZEMAN

At this stage in the Wilder/Bozeman cases we are con-

cerned with Post Conviction remedies. One such remedy

is the Writ of Error Coram Nobis. The first question

concerning such Writ is, in what Court should the Writ

be fiIed. In Ex Parte Charles R. Campbe1l, 162 So.

2d 6L7, the Supreme Court of Alabama he1d, "where

judgement or conviction has been affirmed on appeal,

leave to file petition for Writ of Error Coram Nobis

must be first obtained from the affirming Court prior

to filing such petition in Circuit Court. " The con-

victions of Wilder/Bozeman were affirmed by the Court

of Appeals of the State of Alabama. fnerefore.the//
Court of Appeals is the proper Court in which to file

the Petition for Leave to file Writ of Error Coram

Nobis in the Circuit Court. In Ca1dwel1 v. State, 63

S3. 2d. 384 the Court of Appeals of Alabama held "Court

of Appeals which had faffirmed convj-cti-on could not

entertain application for Writ of Error Coram Nobis

and could not quash judgement of conviction, and re-

store cause to trial Court Docket, but proper procedure



was to apply to Court of Appeals for Leave to File ap-

plication in Trial Court. " The Court further held that

"when judgment or conviction has been affj-rmed by the

Court of Appeals, an application for Writ of Error Coram

Nobis should not be made t-o the Tria1 Court until the

permission of the Coura oi, ippeals has been obtained to

make such application." See also CSttlSy v. .9t3!9-,.3_0

f----------------o' 

2d, 153 '

A petition for Writ of E-rror Coram Nobis should be filed
f91,""'l''

with the Court of,,,Appeals of the State of Alabama. The
,.
i l'r-lt'r 

'Court of,Appeals can in its discretion deny or grant the

Writ of Error Coram Nobis. If the Court of Appeals

chooses to deny the Writ of Error Coram Nobis, an ap- 7
I

peal of such denial would probably 1ie in the Supreme

Court.

Another collateral issue researched was how long must

the clerk maintain the list of absentee voters. Sec-

tion 17-10-5 Code of Alabama, 1975 provides: Upon re-

ceipt of the applications for an absentee baIIot, if
I

the applicantJname appears on the list of qualified

voters in the election to be held or, if the voter

makes an affidavit for a challenged vote, or the

Clerk or Register is satisfied that the voter is the

Person he claims to be, he shall funish the absentee

ballot to the applicant as required in section 17-10-9.

The official list of qualified voters herein referred

to sha11 be furnished the Clerk or Register by the



Probate Judge or other persons preparing said list at

least 21 days before the election. The C1erk or Re-

gj-ster sha1l underscore on said list the name of the

voter and shall write inunediately beside his name the

work "absentee." He shall also enroll the namer r€-

sidence, and polling place of the applicant, and the

date the application was received on a list of absen-

tee voters. The Clerk or Register shaIl each day enter

on said list the name, addresses, and polling places

of each voters who have that day applied for an absen-

tee ballot, and shal1 post a copy of the list of ap-

plications received. each day on the regular bulletin

board or other public place in the County Courthouse.

1lctr :list shalI be maintained in the Office of the

Clerk or Register for 60 days after the election, dt

which time, it shaIl be destroyed. .t.tt /,,,a z.1r, y' '.: :

A second collateral issue is.how long must the Clerk

maintain a list of absentee ballots. Section 17-13-5,

Code of Alabama, L975 provides: The sheriff sha1l

keep the ballots 5 months, and then the packages shal1

be taken out of the box, without opening or unsealing

the packages and destroyed, unless within 6 months the

sheriff having them in custody, is notified that the

election of some officer for which the election was held

will be contested, in which case he must preserve the

box containing the ballots cast for such contestant un-

ti1 such contest is finally determined or until such



box is demanded by such 1egaI1y constituted custodian

during such contest.



E 17721
Cb- 19il EBBoB, lvBrr oD'

rOBMS

S L?721. Petition for Writ of Error (Coile 1940' Tit' 15' $ 883;

seit, v. stu,tc,lfl,$}ptnp' 498, 98 So' 321)

Ix rsr Coorlt oraAppeits on Ar'ereul'

A. 8., Plaintiff in Error. I petition for Writ of Error
v' L to th" Circuit Court of B'

Tsp Srerp or Ar,asaDra', I County. Alabama.
Defendant in Error'J

To the Honorable, the prtsiaing Judge' and the Associate Judges

of the Court of Appeals of Alabama'l

Your petitioner, ;-B; f"t"Uy petitions this Honorable Court

to grant a writ of .'-* io the 
-Ciicuit 

Court of B' County' Ala-

bama, to the .ra tr*t'iit itott"ai"gs in said Court in the case of

the State of Alaba,ia ;;. i. B', a"J the judgment 
9f. 

s{d Circuit

Court thereon in said cause, rn'ay be "'-i"*"d 
by this Court ancl

reversed lor and on account of errors committed by said Court

in the following Particulars:

1. lHere set out the en'or of taza apparent on th'e face of tha

record'relied, upon f or the issr'tonce of the writ'f

to the said Circuit Co"tt tf b' Cot"tty' Alabama' and that the pro-

ceedings and judgm""t of said trial court may be reviewed and

that the judgment U.-'"""ta and that your petitioner may have

such other ortlers and relief as the nature of his case may justify'

2.

3.

Wherefore, petitioner prays that a writ of error may l:"t:t-:I

And petitioner will ever PraY' A. B.,
Petitioner.
ByX.Y.'

His AttorneY.

l ff the petltton ls att'lresseil to the Suprenoe Court thts lorm coultl be used:

,,To the flonorable, ,n" COIJ iusUce uoO tUe Associate Justtcea of tbe 8u-

preme Oourt ol Alabuma"'

t05