Phelps v. State

| Ala. | Nov 24, 1976

339 So. 2d 124" date_filed="1976-11-24" court="Ala." case_name="Phelps v. State">339 So. 2d 124 (1976)

In re Larry Wade PHELPS, alias
v.
STATE of Alabama.
Ex parte Larry Wade Phelps, alias.

SC 2170.

Supreme Court of Alabama.

November 24, 1976.

Earl V. Johnson, Andalusia, for petitioner.

No brief for the State.

BLOODWORTH, Justice.

Petition of Larry Wade Phelps, alias, for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Phelps v. State, Ala.Cr. App., 339 So. 2d 124. The case was affirmed without opinion.

Although the petition's basis is averred to be a "conflict" with a prior decision on the same point of law, it does not comport with Rule 39(c). The petition does not set out what the conflict is and what the case with which it conflicts held. The petition must therefore be denied.

We recognize that it is difficult, if not impossible, to claim a "conflict" in a "no opinion" case. But, we have not left a petitioner remediless.

What the petitioner should do when it is a "no opinion" case and he wants a review is to file (on rehearing in the Court of Appeals) a Rule 39(k), ARAP, request for additional facts so as to present his point for review. If that court "fails to accede to this request," Rule 39(k), he should copy the same statement in his petition to this Court. The rule states "it will be considered * * if found to be correct."

WRIT DENIED.

HEFLIN, C. J., and JONES, ALMON and EMBRY, JJ., concur.