Ex Parte Jones
PER CURIAM.
Geary Heber Jones having filed in this Court a petition for writ of certiorari and petition for writ of habeas corpus, or, alternatively, petition for a writ of mandamus, to compel the setting of a bond on appeal and to admit petitioner to bail, and the same having been set down for hearing and argument before the court, it is considered that the petitioner is entitled to relief.
IT IS, THEREFORE, ORDERED that the writ of certiorari to the Court of Criminal Appeals be, and the same is hereby, granted.
IT IS FURTHER ORDERED that the provisions of Rule 39(f) and (g), Alabama Rules of Appellate Procedure, be, and the same are hereby, suspended, and this cause is remanded to the Court of Criminal Appeals with directions to enter an order remanding this cause to the Circuit Court of Jefferson County, Alabama, for the purpose of fixing a bond under the provisions of
Opinion of the Court to follow.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.
EMBRY, J., not sitting.
OPINION
SHORES, Justice.
Petitioner, Geary Heber Jones, was convicted of trafficking in cannabis, pursuant to
“This sentence is pronounced under
§ 20-2-81 known as the Trafficking Statute which prohibits suspension, deferment and withholding sentence and restricts eligibility for parole prior to serving the minimum term of imprisonment.“Notice of appeal is given and defendant will be represented by Attorneys Heidt and Stewart. No bond is set because the Court of Appeals opinion in Smith v. State, 4 Div. 58, prohibits bond
in this type of case under this particular statute.”
The petitioner then filed in the Court of Criminal Appeals a petition for writ of habeas corpus or, alternatively, a petition for writ of mandamus to compel setting bond pending appeal. That court denied the petition on June 21, 1983. Judges Tyson and Harris dissented.
After his application for rehearing was denied by the Court of Criminal Appeals, the petitioner filed a petition for writ of certiorari or habeas corpus or, alternatively, petition for writ of mandamus in this Court.
Petitioner argues that he is entitled to bond pending appeal under the express language of
“When any question of law is reserved in case of a felony and it shall be made known to the court that the defendant desires to take an appeal to the appropriate appellate court, judgment must be entered against the defendant, but execution thereof must be stayed pending the appeal and the defendant held in custody. If the sentence is for a term not exceeding 20 years, the judge must direct the clerk of the court in which the conviction is had to admit the defendant to bail in a sum to be fixed by the judge....” (Emphasis added.)
The State counters by arguing that
“(a) Notwithstanding the provisions of chapter 22, Title 15, with respect to any person who is found to have violated this article, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by this article.”
Chapter 22 of Title 15 deals with pardon, probation and parole. It does not deal with bail. Section 20-2-81 provides that persons who are found guilty of violating the trafficking statute shall not be considered for pardon, probation or parole. It does not say that such persons shall also be denied bail pending appeal, a right granted by
The Court of Criminal Appeals remanded Smith v. State, 436 So.2d 1 (Ala.Cr.App. 1982), for imposition of a proper sentence. Smith was convicted of trafficking in cannabis in violation of
It incorrectly concluded in the present case that
The writ of certiorari is granted, and the cause is remanded to the Court of Criminal Appeals for entry of an order directed to the trial court to fix bond pending appeal of the conviction of Jones pursuant to
WRIT GRANTED; REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, BEATTY and ADAMS, JJ., concur.
EMBRY, J., not sitting.