
    In re James F. CARTER v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1561.
    Supreme Court of Alabama.
    Feb. 27, 1976.
    Rehearing Denied Nov. 19, 1976.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
    Jack Livingston and Ronald A. Drum-mond, Scottsboro, for respondent.
   BLOODWORTH, Justice.

Petition of the State, by its Attorney General, for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Carter v. State, 57 Ala.App. -, 339 So.2d 594, wherein that court admitted respondent to bail.

The petition was sought by the State on grounds of: “conflict,” “decision affects a class of state and county officials,” and case of “first impression.” See Rule 39 A.R.A.P. We granted the petition and this cause was submitted on briefs.

It appears that respondent was arrested and committed to Jackson County jail September 19, 1975, to finish serving a three-month sentence upon a former conviction for assaulting an officer. October 1, 1975, he filed a writ of habeas corpus in the circuit court. It was denied by the judge after a hearing on October 7, 1975. Respondent appealed and asked the trial judge to grant bail pending appeal. It, too, was denied. Respondent then petitioned the Court of Criminal Appeals for bail pending appeal. Bail of $500 was granted by that court on October 13,1975. Petitioner-State applied for rehearing which was denied. This petition for certiorari followed.

Section 369 of Tit. 15, Code of Alabama 1940, has been held to be the exclusive remedy for appeal in habeas corpus cases. Bradley v. State, 265 Ala. 463, 92 So.2d 10 (1957).

This section was amended by Act No. 40, Acts of the Legislature, Regular Session 1949, p. 75 (approved June 10,1949) to read as follows:

“ ‘Section 369. (a) Any party aggrieved by the judgment on the trial of a habeas corpus may appeal to the supreme court or court of appeals.
“ ‘(b) The solicitor or other prosecuting officer or attorney may take an appeal on behalf of the State to the supreme court or court of appeals when, on habeas corpus, any person held in custody under a charge of conviction for crime or for extradition as a fugitive from justice from any other State is discharged from custody, or when any person held in custody under an indictment by the grand jury charging him with a capital offence is admitted to bail. In all such cases the judgment must be suspended pending the appeal.
“ ‘(c) Pending the appeal, the person restrained shall be admitted to bail, with sufficient sureties, conditioned that he will appear before such court or officer as may be prescribed by the judge and abide the judgment rendered, provided such person is charged with an offense that is bailable under the laws of this State and is not a prisoner serving his sentence and the judgment appealed from is not a judgment denying his application for bail.
“ ‘(d) No bill of exceptions or assignments of error shall be necessary or required. Within thirty days from the date of judgment, the clerk of the court from which the appeal is taken shall forward a transcript of the record and a certificate of appeal to the supreme court or court of appeals, together with a statement of the evidence and the judge’s ruling thereon, which shall be certified to be correct by the judge or officer hearing the petition. The appellate court shall consider the case on the record and the evidence as set forth. If the judgment of the trial court is correct, the case shall be affirmed. If the judgment is erroneous, the appellate court shall render such judgment as the trial court should have rendered. When so certified, the case on appeal shall be docketed and submitted to and be considered and decided by the appellate court without delay.’ ” [Emphasis supplied.]

The section appears unchanged in the 1958 Recompiled Code except that: the phrase “charge of” in subsection (b) reads “charge or” [sic?]; “transcript of the evidence” was inserted, by legislative amendment in 1955, in place of “statement of the evidence” in subsection (d) and an additional sentence inserted in (d) providing for preparation of the “transcript of evidence.”

It is the general rule that admission to bail pending a review by appeal in a habeas corpus case is statutory. 39 C.J.S. Habeas Corpus § 115 c. Bail. See also Bradley v. State, supra.

Subsection (c) of § 369, supra, clearly permits bail in those certain specified instances when one has won his release and the state has appealed. State v. Jones, 31 Ala.App. 208, 14 So.2d 590 (1943).

Subsection (c) clearly denies bail when one is a prisoner serving his sentence and when the judgment appealed from has denied his application for bail. This is the case here.

Thus, there is no statutory authority to grant bail, pending appeal, in a habeas corpus case on appeal from a denial of relief to petitioner. See Balasco v. State, 52 Ala.App. 99, 289 So.2d 666 (1974) wherein the Court of Criminal Appeals held:

“Title 15, § 369, Code of Alabama 1940, governing appeals from judgments in ha-beas corpus proceedings, does not provide for bail when the judgment is adverse to petitioner . . . .” [Emphasis supplied.]

The soundness of this legislative enactment is manifest. To permit one serving a sentence (in the county jail or penitentiary) to appeal from an adverse ruling on his habeas corpus petition and thus secure his liberty by bond would permit one to gain indirectly that which was directly denied him. See State v. Jones, supra; 39 C.J.S. Habeas Corpus, supra.

The judgment and order of the Court of Criminal Appeals is reversed and remanded for entry of a judgment and order in conformity herewith.

Reversed and remanded.

HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

JONES, J., dissents.

JONES, Justice

(dissenting):

When I am the “1” in an 8 to 1 vote on a case, I strive mightily to see my error and conform my thinking with that of such a weighty majority. My every effort in the case at bar, however, has failed to change my original position. I may not be any more right, but I am no less convinced that this Court is in error in reversing the Court of Criminal Appeals’ order setting bond pending appeal by the defendant;

It is not the rule of law — the “prisoner exception” to the bail statute — with which I disagree. Indeed, the majority opinion does not on its face appear to be erroneous. The first sentence of the third paragraph reads, “It appears that respondent was arrested and committed to Jackson County jail September 19, 1975, to finish serving a three-month sentence upon a former conviction for assaulting an officer.” It is with this factual premise to which the “prisoner exception” is applied that I find myself in disagreement. The “It appears” from that statement of the majority opinion refers to the Sheriff/respondent’s return on the Petition for Writ of Habeas Corpus and the recital by the trial Court denying the petition for bond. But, as his authority for apprehending and holding the defendant, the Sheriff’s reply (in the return on the Petition for the Writ) attached the following:

The trial Court denied the petition for Writ of Habeas Corpus and a petition for bail pending appeal, reciting:

“The defendant being a prisoner under sentence and serving a sentence, the application for bail is denied.”

The facts are simple, yet essential to an understanding of the issue before us:

On October 17, 1974, Carter entered a plea of guilty to the offense of assaulting an officer with a deadly weapon while in the performance of his duties. He was fined $100 and sentenced to imprisonment in the County jail for three months. Carter paid the fine and turned himself in to the Sheriff to begin serving his sentence. He was told by the Sheriff to go home and forget about it. This he did. Eleven months later, the Sheriff, armed with the “Alias Writ of Arrest,” apprehended and confined the defendant in the County jail.

How the “prisoner exception” to the bail statute has any possible application to these facts is simply beyond my power of understanding. This is not to overlook the trial Court’s recital in his order denying bail that “The defendant being a prisoner under sentence and serving a sentence . . .” But this recital cannot overcome a totally void writ of arrest — the only purported legal basis for the Sheriff to hold the “prisoner.” Can the Constitutional guarantee against double jeopardy be circumvented by arresting and confining the defendant on a criminal offense for which he has already been tried without subjecting him to a second trial? Surely, this question is self answering.

It is axiomatic that, for the “prisoner exception” to operate as a denial of bail, there must be something at least purporting to show that the defendant “is a prisoner serving his sentence . . . ” I find it difficult to believe that the majority opinion would allow this showing to be supplied by the Court’s order denying bail. This is not only shifting the burden of proof but permitting the burden to be met by a recital in the judgment of the trial Court.

I would have no difficulty whatsoever in giving the “prisoner exception” a field of operation had the defendant been charged with violating the terms and conditions of his 90-day sentence. For example, had he been charged with escaping from the Sheriff’s custody and the Sheriff’s return on the writ supported this charge, then clearly the “prisoner exception” would have been invoked. Not so, however, when the only authority to hold the defendant is a reissued writ of arrest on a charge to which he has pleaded guilty and been sentenced eleven months earlier.

I realize the majority feels that I am confusing the denial of bail issue with the merits of the habeas corpus appeal. Perhaps so; but how can the two be separated when the practical effect would be to require the defendant to serve his full 90 days or longer while waiting bondlessly in jail only to be told later that his apprehension and incarceration were void? If this is justice under the law, then I can only assume that I am missing some element essential to my proper understanding of the issue.

There is yet another reason for not overturning the Court of Criminal Appeals in this case. In so doing, this Court is saying that, when the Court of Criminal Appeals has pending before it for consideration an appeal in which bond has been denied below, we will reverse that Court’s order fixing bail pending the appeal. As a matter of policy, I would not disturb that Court’s exercise of its prerogative in granting bail during the pendency before it of a habeas corpus appeal.

If we did entertain the review, in my opinion, it would be for the limited purpose in the instant case of doing what the Court of Criminal Appeals should have already done whether acting on the petition for bail or on the habeas corpus appeal; that is, since the record shows on its face that the defendant is being illegally held, he should be ordered released and discharged forthwith.  