
    John Henry LEE v. STATE.
    7 Div. 417.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Earl F. Hilliard, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

It appears from the record here on file that appellant was indicted for an unlawful homicide and convicted therefor.

It further appears that within the time provided by law that he appealed from the judgment of conviction and certificate of appeal was filed with this court.

Subsequently thereto, and before the present transcript was mailed or sent to this court, he moved the trial court to withdraw his appeal. The motion was granted, inter alia, by judgment on May 3, 1976, T. 15, Section 381, Recompiled Code 1958, authorizes this procedure.

Thereafter, on June 24, 1976, this court, as an incident to the trial court’s dismissal of the appeal, dismissed the appeal, thereby terminating this court’s jurisdiction.

Thereafter, on August 10,1976, appellant, through his attorneys, filed in the circuit court his motion in writing to vacate and set aside its order granting petitioner’s motion for withdrawal of appeal dated May 3, 1976, and to reinstate petitioner’s notice of appeal.

The trial court, on August 13, 1976, ordered and adjudged that the motion to vacate the order of dismissal be granted and that the appeal be reinstated.

We do not know of any statutory or other authority for the trial court to reinstate the appeal as it undertook to do in this case. Dismissal of the appeal at nisi prius level is authorized by statute, supra, but a subsequent reinstatement is not authorized.

This court dismissed the appeal at the time and in the manner provided by law and so far as this court is concerned the appeal is not now pending.

The motion of the State to strike the record here filed as an incident to the dismissed appeal has merit. The record is stricken.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

MOTION GRANTED; RECORD STRICKEN:

Order of June 24, 1976, dismissing the appeal remains in effect.

TYSON, P. J., and HARRIS, DeCARLO, and BOWEN, JJ., concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge,

concurring specially:

I concur in the result of this opinion, however, I do not concur with any implication that an appeal cannot be reinstated after dismissal if the reinstatement is within the time for filing an original appeal. That is, within six months pursuant to Title 15, § 368, Code of Alabama 1940 in the instant case, or within forty-two days after judgment pursuant to Rules 3 and 4, Alabama Rules of Appellate Procedure (effective December 1, 1975).

Since the attempted reinstatement in this case took place more than six months after rendition of judgment, the trial court had no jurisdiction over the appeal and neither do we.  