Opinion
6 Div. 185.
December 15, 1970. Rehearing Denied March 2, 1971.
Appeal from the Circuit Court, Jefferson County, Elias C. Watson, Jr., J.
Robert R. Bryan, Birmingham, for appellant.
The right to a trial by jury attaches to any crime punishable by more than six months imprisonment. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Constitution of the United States, Amdts. VI and XIV Article III, Section 2, Clause 3; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. One accused of a misdemeanor in which the total maximum punishment exceeds six months imprisonment has a right to the assistance of counsel and in the event he is indigent the Court must appoint counsel in his behalf, and failure by the Court to clearly advise the accused accordingly will render any resulting conviction and incarceration constitutionally improper. Constitution of the United States, Amdts. VI and XIV; Harvey v. Mississippi, 340 F.2d 263; Goslin v. Thomas, 400 F.2d 594; James v. Walter Headley, Chief of Police of City of Miami, 410 F.2d 325; Gideon v. Wainwright, 372 U.S. 330, 83 S.Ct. 792, 9 L.Ed.2d 799; McDonald v. Moorer, 353 F.2d 106; ABA Product on Minimum Standards for Criminal Justice, (1967); Evans v. Rice, 75 U.S.App.D.C. 242, 126 F.2d 633.
J. M. Breckenridge and W. C. Walker, Birmingham, for appellee.
There are no decisions at present requiring that defendants be advised of their right to jury trial, and any future decision requiring such advice should not be applied retroactively. Darwin v. Conn., 391 U.S. 346, 88 S.Ct. 1488, L.Ed.2d 630; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; De Backer v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148. An indigent defendant is not entitled to an appointed counsel when charged in Recorder's Court with the violation of an ordinance subject to a maximum penalty of six (6) months and one hundred ($100) dollars fine. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Irvin v. State, 44 Ala. App. 101, 203 So.2d 283; Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437; Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137; Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Sections 318(1), 318(2), Title 15, 1940 Code of Alabama, Recompiled 1958. The denial of the right of counsel cannot be raised by habeas corpus proceedings in Alabama. Anderson v. State, 41 Ala. App. 502, 139 So.2d 352; Ex parte Nuckols, 42 Ala. App. 269, 160 So.2d 655.
Habeas corpus denied.
Morris, unattended by a lawyer, was convicted in the City of Birmingham Recorder's Court September 18, 1969, on two charges of trespass and two of assault and battery. One trespass and an assault occurred September 9, 1969, the other trespass and assault took place the next day. We see no agglutinative chronologic nexus as was applied in James v. Headley, 5 Cir., 410 F.2d 325.
No one conviction carried more than 180 days. Morris did not appeal for a trial de novo in the circuit court wherein he could have had a jury trial.
Since coram nobis must be sued out in the court convicting the prisoner, we cannot treat the instant petition as one for that writ because the proceeding sub judice was in the circuit court.
Habeas corpus is not the proper remedy. Code 1940, T. 15, § 27. Anderson v. State, 41 Ala. App. 502, 139 So.2d 352; Ex parte Nuckols, 42 Ala. App. 269, 160 So.2d 655; Ex parte Nuckols, 276 Ala. 368, 162 So.2d 464.
The judgment below is due to be
Affirmed.
ALMON, J., not sitting.