Ex parte Argo v. State

137 So. 2d 757 | Ala. | 1962

This is a petition for certiorari to the Court of Appeals to review and revise the decision of that court in Ex parte Jimmy Argo (Jimmy Argo v. State of Alabama) (6 Div. 839),137 So.2d 755. The state has moved for dismissal of the petition because it was not filed here within the time prescribed by Rule 39 of the Rules of Practice in the Supreme Court. 261 Ala. XIX, XXXIV; Recompiled Code 1958, Vol. 3, Tit. 7, Appendix, p. 1178.

The Court of Appeals overruled petitioner's application for rehearing on November 14, 1961. The petition for certiorari was filed with the clerk of the Supreme Court on December 1, 1961, which was more than fifteen days after denial of the application for rehearing. Rule 39 provides that the petition for certiorari "must be filed with the clerk of this court within fifteen days after the action of said court of appeals upon the said application for rehearing."

We have no alternative but to grant the state's motion to dismiss. Supreme Court Rule 39, supra; Mabry v. State, 268 Ala. 660,661, 110 So.2d 260; Accardo v. State, 268 Ala. 293,294-295, 105 So.2d 865; Morgan Plan Co. v. Beverly, 255 Ala. 235,236, 51 So.2d 179; Ex parte Pittman Const. Co., 236 Ala. 22,180 So. 728. Even if the petition had been mailed within the fifteen days, this would not have met the requirements of Rule 39. Johnson v. State, 261 Ala. 373, 374, 74 So.2d 508; Troup v. State, 248 Ala. 143, 144, 26 So.2d 622.

Petition dismissed.

LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.