Ex рarte Donna Renee SAWYER. (In re Donna Renee Sawyer v. State of Alabama)
82-261
Supreme Court of Alabama
Feb. 10, 1984
456 So. 2d 112
The Court of Criminal Appeals, 456 So.2d 110, affirmed the petitioner‘s conviction, expressly holding that the record failed tо show that she had reserved her right to raise the search and seizure issue on aрpeal, despite her guilty plea.
After the Court of Criminal Appeals released its opinion on November 2, 1982, the petitioner filed an application fоr rehearing accompanied by the following supplemental record pursuant to Rule 10 (f), Alabama Rules of Appellate Procedure:
“STIPULATION FOR CORRECTION OR “MODIFICATION OF THE RECORD
“Pursuant to Rule 10 (f) of the Alabama Rules of Appellate Procedure, the Defendant/Appellant by and through her attorney, Kathleen M. Warren, and the State of Alabama by and through its рrosecutor, Charles D. Martin, hereby stipulate to a material omission in the trial court record.
“1. Immediately following the trial court‘s denial of the defendant‘s motiоn to suppress the evidence, a brief recess was granted. During that recess, the attorney for the defendant and the prosecuting attorney engaged in a disсussion outside the presence of the trial judge.
“2. Upon the return of the defense attorney, the prosecuting attorney and the defendant to the trial judge‘s chambers, a conversation occurred between the defense attorney, thе prosecuting attorney and the trial judge which was mistakenly omitted from the recоrd. In summary, the omitted discussion was that the trial judge was informed by counsel for the defendant and by the prosecuting attorney that an agreement had been reachеd between them, in which the defendant concurred, that a guilty plea would be entered by the defendant conditioned upon the reservation of the issue of unlawful sеarch and seizure for appeal. The trial judge agreed to accеpt the guilty plea under those conditions and assured defense counsel and thе defendant that the issue of the unlawful search and seizure would be preserved on appeal. “/s/ Kathleen M. Warren KATHLEEN M. WARREN 1024 Forrest Avenue Gadsden, Alabama 35901 ATTORNEY FOR DEFENDANT/APPELLANT /s/ Charles D. Mаrtin CHARLES D. MARTIN 823 Forrest Avenue Gadsden, Alabama 35901 ASSISTANT DISTRICT ATTORNEY”
“ORDER
“Having received and considered the Stipulation for Correction or Modification of the Record filed in this case, and bаsed also on my own independent recollection of the material omitted from the record, it is hereby ORDERED, ADJUDGED AND DECREED that the record on appeal in this cause bе corrected to include the following at page 15 just after the granting of the recess and just prior to the colloquy which began the entering of the guilty plea by thе defendant:
“The court was informed by counsel for the defendant and by the prosеcuting attorney that an agreement had been reached between them, in whiсh the defendant concurred, that a guilty plea would be entered by the defendаnt conditioned upon the reservation of the issue of unlawful search and seizure for appeal. The court agreed to accept the guilty plea under those conditions and assured defense counsel and the defendant that the issue of the unlawful search and seizure would be preserved on appeal.
“It is further ORDERED, ADJUDGED AND DECREED, that a copy of the Stipulation for Correction and Modification of the Record and this Order will be certified by the Circuit Court Clerk of Etowah County and transmitted to the Alabama Court of Criminal Appeals immediately.
“Done this the 9th day of November, 1982.
“/s/ Cyril L. Smith CYRIL SMITH, CIRCUIT JUDGE, PRESIDING”
The Court of Criminal Appeаls denied rehearing without comment.
We reverse and remand the cause to thе Court of Criminal Appeals for consideration of the search and seizure issue in light of the record as now properly supplemented under ARAP 10 (f). Ballou v. State, 365 So.2d 352 (Ala.Cr.App. 1978).
The supplemеnted record supports the petitioner‘s claim that the search and seizurе issue was preserved for consideration on appeal. We do not, however, reach the merits of her claim, leaving that for consideration by the Cоurt of Criminal Appeals, taking into account the supplemented record.
REVERSED AND REMANDED.
All the Justices concur.