Opinion
5 Div. 670 to 5 Div. 672.
June 8, 1982. On Return to Remand March 29, 1983.
Appeal from the Circuit Court, Elmore County, Joe Macon, J.
William B. Dunn of Howard, Dunn Howard, Wetumpka, for appellant.
Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted for forgery. Sentence was ten years' imprisonment. Dailey v. State, 374 So.2d 414 (Ala.Cr.App. 1979). In three separate petitions for writs of habeas corpus Dailey alleges that his conviction is void because he was indicted for forgery in the first degree but convicted of forgery in the second degree. Each of Dailey's petitions was denied without a hearing.
In requesting that this cause be remanded for a hearing on the petitions, the Attorney General states that "there appears to be a discrepancy in the allegations that the Petitioner has asserted and the transcript of record, indictment, and judgment entry on file with the Circuit Clerk's Office of Escambia County." We note that in one record the Attorney General argues that the indictment charges forgery in the second degree while in another record the District Attorney states that the defendant was indicted for forgery in the first degree.
In a brief submitted to the United States Court of Appeals for the Fifth Circuit in connection with a petition for writ of habeas corpus filed by Dailey in Federal Court an Assistant Attorney General stated: "The Appellant (Dailey) was convicted by a jury for forgery in the second degree and sentenced to ten years' imprisonment." Record, 5 Div. 670, p. 37.
"Since entirely different and unrelated proof is required to sustain each degree of forgery set forth in our Code, it necessarily follows that a higher degree of forgery cannot be deemed to include a lower degree." Hamilton v. State, 35 Ala. App. 570, 571, 50 So.2d 449 (1951).
Because of the discrepancies in the records presented to this Court, we grant the motion of the Attorney General, set aside the judgment of the circuit court and remand this cause to that court to determine the merits of the petitions for writ of habeas corpus.
REMANDED WITH DIRECTIONS.
All Judges concur.
ON RETURN TO REMAND
On remand, the district attorney introduced evidence that Dailey was indicted and convicted for forgery in the first degree. Dailey's sole allegation in his petitions for writs of habeas corpus was that he had been convicted of an offense (second degree forgery) not charged in the indictment. Since that allegation is without merit and contrary to the facts, the circuit judge properly granted the State's motion to dismiss the petitions.
The judgment of the circuit court is affirmed.
OPINION EXTENDED;
AFFIRMED.
All Judges concur.