
    Ex Parte Bennie B. BARTON. Re Bennie B. Barton v. State of Alabama.
    SC 2638.
    Supreme Court of Alabama.
    Feb. 10, 1978.
    Rehearing Denied March 10, 1978.
    Joseph W. McDowell of Pitts & Pitts, Selma, for petitioner.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen. for the State, opposed.
   FAULKNER, Justice.

Bennie B. Barton was convicted of robbery and sentenced to ten years in the penitentiary on February 10, 1976. He gave notice of appeal on the same day.

On March 11 the defendant filed a motion for new trial, which was continued and overruled on August 9. On September 17, the defendant filed a notice of appeal from this post-judgment order.

On November 15, the court reporter filed the transcript of the evidence with the circuit clerk, who completed the record on appeal and filed a certificate of completion with the Court of Criminal Appeals on November 18. No attempt was made to secure an extension of time for filing the reporter’s transcript. The defendant asserted the court reporter’s mistake in calculating the date on which the transcript was due as the reason for the delay.

The Court of Criminal Appeals granted the State’s motion to strike the transcript for noncompliance with Alabama Rules of Appellate Procedure, Rule 11, thus impliedly denying the defendant’s motion to suspend the Rules. The conviction was affirmed on the record proper. This court granted writ of certiorari.

We remand this case to the Court of Criminal Appeals for it to exercise its sound discretion to consider whether to suspend the Rules to permit filing the transcript. Rule 2 ARAP provides that the appellate court may, in its sound discretion, suspend the Rules, except for extending the time for taking an appeal, in the interest of expediting decision or for other good cause shown. See also, Comments to Rule 2.

REMANDED TO COURT OF CRIMINAL APPEALS.

All the Justices concur.

JONES, Justice

(concurring specially):

I concur specially in order, hopefully, to clarify what I believe is a misunderstanding created by confusing language in Rule 4(b), ARAP. The Rule does not specifically address itself to the practical aspects of appeals in criminal cases. Unlike civil cases (because of the appeal bond situation) many, if not most, criminal cases require the filing of the notice of appeal immediately upon sentencing.

The literal wording of Rule 4(b) creates the impression that a second notice of appeal may then be filed within 42 days from the order overruling the motion for a new trial effecting the running of a new timetable. This is not the intent of the Rule. Indeed, the Court of Criminal Appeals has promulgated a supplemental rule, which, I believe, is a good one, clarifying this situation:

The Court of Criminal Appeals hereby orders that, when notice of appeal is given before the timely filing of a motion for new trial and timely ruling thereon, the time for the filing of the court reporter’s transcript and the clerk’s record shall be tolled. The time for filing shall be governed by the rules of Alabama Appellate Procedure rule 11(b) and 11(c), as if notice of appeal had been given on the date of the overruling of the motion for new trial, timely filed and ruled upon.

See also Comment to Rule 4(b), and Emerson v. State, 241 Ala. 383, 4 So.2d 186 (1941).

In other words, the second notice of appeal (following the order denying the motion for a new trial) was out of order and nothing was effectuated thereby. This would not be the case, however, if this notice had been the first and only notice of appeal filed; and, in this event, the filing of the record on appeal with the appellate clerk would have been timely. The court reporter’s 56 days for filing of the transcript began on August 10 (or, stated another way from August 9 — the date of the order overruling the motion of new trial), and the record on appeal was due in the appellate court not later than October 11 (56 days plus 7 days).

I feel confident that the Court of Criminal Appeals, upon remand of this cause, will take into consideration, in the exercise of its sound discretion as authorized by the Rules, the misunderstanding which results at least in part from the unclear language of Rule 4(b).  