Ex Parte Pardue
Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for respondent.
COOK, Justice.
Michael Rene Pardue was arrested and charged with robbery on July 28, 1978. On August 15, 1978, through his counsel, Pardue filed notice with the district court of his intention to enter a guilty plea. The district court accepted Pardue‘s plea on August 18, 1978, and entered a judgment of conviction.* The district court then
We granted Pardue‘s petition for certiorari review. He asks this Court to reverse the judgement of the Court of Criminal Appeals. He argues that his conviction and sentence were improper, contending that the district court had lacked jurisdiction to accept his plea, because of the provisions of
Section 15-15-22 states:
“When an information has been filed as provided in Section 15-15-21 and counsel employed or appointed, the court shall, by order entered upon the minutes of the court, fix a date for the defendant to formally make and enter his plea of guilty in open court, which date shall not be within 15 days after the arrest of the defendant nor within three days after notice to the court of his intention to plead guilty, and notice of such date shall be served by the sheriff upon the defendant and upon his counsel.”
We must answer this question: Do the three days referred to in
In answering these questions, we are guided by long-established precedent. In Headen v. Headen, 171 Ala. 521, 530, 54 So. 646, 649 (1911), for example, this Court stated:
“The rule is well settled that in the computation of time from an act done, the day of performance is to be excluded (Lang v. Phillips, 27 Ala. 311); and `where it is provided that an act can be done after the expiration of so many days from an act or event, the act cannot be done until the prescribed number of entire days has expired, exclusive of the terminus a quo’ (28 Am. & Eng. Ency. Law, p. 221).”
Thus, the first day of the three-day period was August 16, the day after Pardue gave notice to the court; the third day of the period was August 18.
Now, we must consider whether the district court could properly accept Pardue‘s plea on August 18, that third day. We conclude that it could not.
Headen states that “where it is provided that an act can be done after the expiration of so many days from an act or event“—and this is the situation provided for by the three-day rule of
The State cites State v. Baker, 268 Ala. 410, 108 So.2d 361 (1959), and Patrick v. State, 43 Ala.App. 620, 197 So.2d 782 (1967), in support of its argument that the day a defendant gives notice of an intent to plead guilty should be counted in the computation of the three days. Using that approach, the State argues that Pardue entered his guilty plea on the fourth day.
In Baker, the defendant pleaded guilty on the same day he gave notice that he intended to plead guilty. This Court concluded that the guilty plea was not entered in accordance with the statute. The Court also addressed the State‘s argument that the statute was not mandatory, but directory:
“Amendment XXXVII to the Constitution, which is the basis of legislative authority to dispense with indictments in certain felonies, recites `... the defendant cannot plead guilty within fifteen days after his arrest.\’ We do not think it will be seriously contended that the fifteen-day provision is not mandatory. Clearly the amendment undertakes to require that fifteen days shall elapse after arrest before an indictment can be dispensed with and a plea of guilty received. It is reasonable to presume that the legislature, in adding the additional requirement for three days’ notice, intended to place the three-day provision on the same plane as the fifteen-day provision beside which the three-day provision appears.”
Baker, 268 Ala. at 412-13, 108 So.2d at 363.
In Patrick, the defendant was charged on May 17, 1951, and warrants for his arrest were issued that date. The defendant was arrested, and on May 29, 1951, the 12th day after the warrants had been issued, the defendant, after having pleaded guilty, was sentenced. The Court of Appeals reasoned:
“It is clear to us, ... that it is the intent of the law that the inception or beginning of the fifteen-day provision be computed from the date of the arrest of the defendant for the offense or offenses with which he is charged and to which appellant pled guilty. The fifteen-day provision herein referred to is mandatory and must be strictly complied with.”
Patrick, 43 Ala.App. at 621, 197 So.2d at 783.
Neither Baker nor Patrick determines which days are counted as the first day and the last day of the 15-day period dealt with in those two cases. Neither case helps in determining the meaning of the statutory language involved in the present case, language stating that a plea of guilty shall not be taken “within three days after notice to the court of [a defendant‘s] intention to plead guilty.”
Pardue argues that the statute requires that three full 24-hour days pass between the date a defendant gives notice of an intention to plead guilty and the day on which his guilty plea is taken. We agree. The word “within,” as it is used in the statute, is defined by Merriam Webster‘s Collegiate Dictionary (10th ed.1997) as “a function word [used] to indicate enclosure or containment.” Consistent with this Court‘s ruling in Headen, supra, we conclude that
REVERSED AND REMANDED.
MADDOX, HOUSTON, SEE, LYONS, JOHNSTONE, and ENGLAND, JJ., concur.
BROWN, J., recuses herself.**
On Application for Rehearing
COOK, Justice.
APPLICATION FOR REHEARING OVERRULED.
HOOPER, C.J., and MADDOX, LYONS, JOHNSTONE, and ENGLAND, JJ., concur.
HOUSTON and SEE, JJ., dissent.
BROWN, J., recuses herself.**
HOUSTON, Justice (dissenting).
Upon a more serious reflection and review of cases involving guilty pleas and in which I voted, I am persuaded that my initial vote was wrong. A guilty plea waives a number of substantive rights that cannot later be argued on appeal. Some of the substantive rights that all defendants waive by pleading guilty are described in
“(vi) ... [B]y entering a plea of guilty, the defendant waives the right to a trial by jury, the right to confront witnesses against him or her, the right to cross-examine witnesses or have them cross-examined in defendant‘s presence, the right to testify and present evidence and witnesses on the defendant‘s own behalf, and the right to have the aid of compulsory process in securing the attendance of witnesses; and
“(vii) ... [I]f the plea of guilty is accepted by the court, there will not be a further trial on the issue of [the] defendant‘s guilt.”
When the State brings a charge against a defendant by an information,
SEE, J., concurs.