Burden v. State

Feb 18, 1975
6 Div. 835
Versions:310 So. 2d 264
54 Ala. App. 545
1975 Ala. Crim. App. LEXIS 1592
BOOKOUT, Judge.

Appellant’s petition for writ of error coram nobis was denied by the Circuit Court of Jefferson County, Bessemer Division, Harry E. Pickens, J., and appellant appeals therefrom.

Appellant was indicted on a charge of carnal knowledge of a girl under the age of twelve years. He was represented by court-appointed counsel at all stages of his trial and on his original coram nobis petition and appealed therefrom, Burden v. State, 52 Ala.App. 348, 292 So.2d 463. He was likewise represented by court-appointed counsel in the trial court and on this appeal from the denial of his second coram nobis petition.

Defendant prior to trial entered a plea of guilty and was sentenced by the trial judge to a term of fifty years in the penitentiary.

Both his first petition for coram nobis and the instant petition are based on substantially similar grounds and would be disposed of pursuant to Rule 50 of the Alabama Supreme Court Rules except for one ground in the instant petition which did not appear in the petition previously disposed of by this Court.

*546The primary ground and argument of appellant in the instant petition, not covered in the prior petition, is that the trial judge committed error in fixing appellant’s punishment rather than impaneling a jury for such purpose. In support of this argument, appellant cites Houston v. State, 37 Ala.App. 359, 68 So.2d 735. Houston has been modified by statute. Title 15, Section 277, Code of Alabama 1940, as amended in 1969, provides that the trial judge may fix the punishment on a guilty plea without the intervention of a jury, if the guilty plea was introduced prior to trial.

The record affirmatively shows that the appellant in open court with his counsel during his arraignment on the indictment entered his plea of guilty. Pursuant to Title 15, Section 277, Code of Alabama 1940, as amended, the trial judge was legally authorized to fix the punishment of the appellant.

Affirmed.

All the Judges concur.