Opinion
6 Div. 132.
January 20, 1976.
Appeal from the Circuit Court of Jefferson County.
Robert R. Bryan, Birmingham, for petitioner.
The issue presently presented is whether the aforesaid order of dismissal complied with the provisions of Title 37, Section 588, Code of Alabama 1958. In resolving this inquiry it should be recognized that when the right of appeal is by statute, provisions of the statute are mandatory and compliance therewith is necessary. Ireland v. Brown, 6 Ala. App. 234, 60 So. 559. The relevant portions of Section 588 are: "If such defendant fails to appear in the court to which an appeal was taken, when the case is called for trial, unless good cause is shown to the court for his absence or his default, the court shall enter up a judgment of forfeiture on said appeal bond against the defendant and his sureties . . ., and the court may also . . . dismiss such appeal." Section 588 in substance is rather similar to Section 27, General Acts of Alabama, 1915, with the exception that an appeal could not be dismissed unless the forfeiture had been made final. As construed by the Supreme Court of Alabama: "Manifestly, this authority to dismiss the appeal is special and limited, and cannot be extended beyond the terms by which it is granted. Either the court may proceed as usual with the default and the prosecution, or, when the forfeiture has been made final, after notice to defendant of the conditional forfeiture and his failure to then appear and excuse his default the appeal may be dismissed . . ." "It would seem therefore that, had the judgment of forfeiture been made final against this defendant, in due course of procedure, the Circuit Court would have then been authorized to dismiss the appeal. But that essential condition was not fulfilled, and hence the authority was not called into existence. The judgment of the Circuit Court dismissing the petitioner's appeal was unauthorized and void, and his arrest and detention . . . was therefore unauthorized and unlawful." Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406 (1928). The Fourteenth Amendment of the United States Constitution guarantees to all those accused of crime the right to due process of law and equal protection of the laws. Where life and liberty are involved, due process requires there be a regular course of judicial proceedings according to established procedures or rules of practice applicable to all cases. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. The discriminatory denial of a statutory right of appeal, as in the case at hand, is a violation of the equal protection clause. Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453.
William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., for the respondent, the State.
A circuit judge possesses statutory authority to declare a judgment of forfeiture and to dismiss an appeal from an inferior court for the failure of the defendant to appear at trial. Code of Alabama, Title 37, § 588; City of Birmingham v. Reed, 35 Ala. App. 31, 44 So.2d 607; Thompson v. City of Birmingham, 22 Ala. App. 496, 117 So. 403.
The petition for writ of mandamus and material filed in support thereof being insufficient, as a matter of law, the rule nisi is quashed, and the petition for writ of mandamus is denied.
All the Judges concur.