192 So. 2d 926 | Ala. Ct. App. | 1966
September 28, 1966, Marlow filed (6 Div. 269) an original petition for us to issue mandamus to the Circuit Court of Jefferson County, Birmingham Division. He wants to be enlarged on bail pending appeal in two cases. (6 Div. 222 and 223.)
Each period of suspension was set at ten years by judgments dated June 6, 1958. Nothing appears to show that the sentences (i. e., each for five years) were to be served concurrently. Code 1940, T. 45, § 32, as amended;1 Luquire v. Holman,
Whether the period of probation was twenty years or concurrent for ten is not relevant to these cases.
"This the 15th day of July, 1966, the said defendant being now in open Court and being asked by the Court if he had anything to say as to why his probation should not be revoked, the defendant says nothing. Wherefore, after hearing all the evidence, the Court is of the opinion that the defendant has violated the terms of his probation, due to a subsequent conviction by the Federal District Court. It is therefore considered, ordered and adjudged by the Court that the probation of the defendant be and it is hereby revoked and the sentence heretofore pronounced against the defendant on June 6, 1958, be and the same is hereby put into immediate execution."
This entry also shows the defendant noting an appeal to this court and requesting "bond to be fixed." No transcript of the evidence was put in the record.
Heretofore our Supreme Court has, without opinion, refused to issue the writ of mandamus to compel a circuit judge to enlarge an appellant on bail pending appeal from revocation of probation. Conversely several appeals have come to this court with the execution of sentence stayed by circuit judges pending review here. Certainly there is no statute for such cases made and provided.
In view of the broad language of Code 1940, T. 42, § 24, as amended, the circuit court may, in its good discretion, postpone the revocation pending appeal. This without prejudice to the State's right to measure the sentence as being put into execution only when the defendant is legally ready to obey and endure it.
This discretion inheres in the evidence supporting revocation. In other *496
words, if the evidence suffices to support revocation (Fiorella v. State,
Until presented with a proper case, we forego commenting on whether the State can proceed in an appellate court to forestall a circuit judge's order enlarging an appellant in such a proceeding
In 6 Div. 222 and 223, the judgment revoking probation are due to be
Affirmed.
In 6 Div. 269, the disposition of the aforementioned appeals renders the petition moot. Hence, it will be and hereby is ordered to be
Dismissed.