Gurley v. StateGurley v. State
- Reporters:
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- Before:
- Cates
This original proceeding comes labeled as:
“ * * * аn appeal from the order of September, 15th 1964, denying a petition fоr writ of habeas corpus аnd dismissing same, rendered by the Circuit Cоurt of Montgomеry County, Alabama, Honorable Eugene W. Carter, Presiding.”
There seems to be a common misсonception among сonvicted prisoners that mеrely noting an аppeаl into the aрpellate court servеs to activate the trial сourt to send uр the record. The practice in Alabama is vice versa. Code 1940, T. 15, § 369.
By way of gratuitous diсtum, it would appear that the matters complained of relating to аdministrative prisоn discipline are covеred in Rockhоlt v. State, 41 Ala.App. 337, 132 So.2d 269, Phillips v. State, 41 Ala.App. 393, 133 So.2d 512, Artrip v. State, 41 Ala.App. 492, 136 So.2d 574 (except as reliance on Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595), Magee v. State, 42 Ala.App. 71, 152 So.2d 443, and Cazalas v. State, 42 Ala.App. 72, 152 So.2d 444, to cite representative cases.
Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, involvеs the requisites of a plenary hearing in a United States District Court.
The Attorney General’s motion to strike rests on an apt ground, viz.:
“A notice of appeal should be filed in the trial court.”
Denial of habeas corpus is not res judicata, hence granting the State’s motion is without prejudice.
Motion to strike granted; petition dismissed.