Opinion
6 Div. 346.
June 13, 1972.
Appeal from the Circuit Court, Tuscaloosa County, Nicol J.
Rosen, Wright Harwood, Tuscaloosa, for petitioners.
When pending a proceeding a ruling is made which is important in shaping the further progress of the case, so that ends of justice would be better served by a review of it before proceeding further, and no provision for appeal is available or appeal would be an inadequate remedy, it may be reviewed by a petition for mandamus. Ex parte Jim Dandy, 286 Ala. 295, 239 So.2d 545; DeMoville v. Merchants Farmers Bank of Greene County, 237 Ala. 347, 186 So. 704; Ex parte Green, 221 Ala. 298, 129 So. 72. Mandamus lies to compel a judge to enter an order restraining the use of evidence secured through an abuse of judicial process or to compel the court to modify its order striking and suppressing evidence. 55 C.J.S. Mandamus, § 87. A defendant pleading guilty to a criminal charge is not allowed to obtain a review on appeal of the admissibility of evidence used against him which was allegedly gathered in an unlawful search and seizure. Adams v. State, 42 Ala. App. 664, 177 So.2d 922; 21 Am.Jur.2d, Criminal Law, § 495; 20 A.L.R.3d 724 (1968) Annot., "Plea of guilty as waiver of claim of unlawful search and seizures."
William J. Baxley, Atty. Gen., and John A. Yung, IV, Asst. Atty. Gen., for respondent.
To authorize the issuance of a writ of mandamus, there must be a clear legal right, and no other adequate remedy. Tanner v. Dobbins, 251 Ala. 392, 37 So.2d 520; Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510; Woodward Iron Co. v. Vines, 217 Ala. 369, 116 So. 514. The writ of mandamus will be awarded to compel courts to entertain jurisdiction and pronounce judgment but will not be awarded to order or direct what judgment shall be rendered in any given case. Tanner v. Dobbins, supra; State v. Jones, 252 Ala. 479, 41 So.2d 280; Woodward Iron Co. v. Vines, supra; Ex parte Redd, 73 Ala. 548; State v. Williams, 69 Ala. 311; Henry v. State, 200 Ala. 475, 76 So. 417; Ex parte Edwards, 20 Ala. App. 567, 104 So. 53; Ex parte Crumpton, 21 Ala. App. 446, 109 So. 184.
This is an original proceeding seeking mandamus to review an order denying a pretrial motion to suppress certain evidence allegedly seized in execution of a claimed defective search warrant.
On oral argument it was pressed upon us that if we were to find that the circuit court should have suppressed the evidence then since the State had no other or additional proof to make out the case charged, the entire cause would be at an end.
In Ex parte Pickett, 46 Ala. App. 227, 239 So.2d 900, no such claim was made. An examination of the Pickett record reveals that, except for the possibility that the magistrate who issued a search warrant took some of his proof from a policeman in a telephonic conversation, the proof to justify the search and seizure was prima facie adequate.
On rereading Pickett we consider its authority requires that the petition sub judice is due to be
Denied.
All the Judges concur.