Wesley v. Alabama, 488 F.2d 30 (5th Cir. 1974). In our judgment, the case of Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587, cert. denied, 280 Ala. 28, 189 So.2d 590 (1966), is distinguishable on its facts. There, the defendant testified he was not represented by counsel at the time he entered his guilty plea. Furthermore, the defendant's counsel of record stated that he had no recollection of having attended the accused at the time of the plea.
However, it is within the sound discretion of the trial judge to allow withdrawal of a guilty plea, and his refusal to allow such a request will not be disturbed except where an abuse of discretion is shown. Dawson v. State, 44 Ala. App. 525, 215 So.2d 459, cert. denied, 283 Ala. 714, 215 So.2d 463; Malone v. State, 41 Ala. App. 230, 132 So.2d 749, cert. denied, 272 Ala. 706, 132 So.2d 752. Of course, if a defendant has not freely and voluntarily entered a guilty plea, the trial court has abused its discretion if it has denied the defendant permission to withdraw the faulty plea. Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587, cert. denied, 280 Ala. 28, 189 So.2d 590. To aid in a determination of the voluntariness vel non of appellant's guilty plea, the evidence, where it is pertinent to his mental state at the time of his plea, adduced at the hearing on his request to withdraw the plea, is set out below.
Short v. State, 46 Ala. App. 445, 243 So.2d 529. Where defendant was prejudiced by lack of counsel at sentencing, coram nobis proceeding will lie. Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587. Writ of coram nobis is available where defendant was not represented at arraignment; also on trial for assault with intent to murder. Dillard v. State, 283 Ala. 245, 215 So.2d 464; Knight v. State, 42 Ala. App. 672, 178 So.2d 101.
Where a plea of guilty is not freely and voluntarily entered a denial of leave to withdraw the plea and stand trial is an abuse of the courts discretion. Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587. Trial Court is limited to entering a plea of not guilty, and that plea only, in the absence of accused express consent to enter a different plea when the indictment charges a felony. Goodman v. State, 45 Ala. App. 100, 226 So.2d 94.
We also point out that the judgment entry of December 14, 1970, does not affirmatively show that defendant's counsel was present at the sentencing. Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587, cert. denied, 280 Ala. 28, 189 So.2d 587. Reversed and remanded.
It would seem, if the Pennsylvania Supreme Court is correct, that the Boykin question does not foreclose proceedings such as we decided in Ware, supra, by way of post-conviction review as to what in fact took place. See also Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587. The Attorney General's application for rehearing is granted; the judgment of the trial court is due to be and hereby is
I. In Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587 (where no counsel attended Shellnut on his pleading guilty), this court noted, per Price, P. J.: "Where a plea of guilty is not freely and voluntarily entered the denial of leave to withdraw the plea and stand trial is an abuse of the court's discretion.
The defendant was entitled to counsel when he entered his plea of guilty. The failure of the judgment entry to recite the presence of defendant's counsel at that time, requires a reversal of the judgment. Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587, cert. den. 280 Ala. 28, 189 So.2d 590. Reversed and remanded.
(Italics supplied.) In Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587, this court, per Price, P.J., noted: "Under Code 1940, Title 7, Sec. 567, the court may amend the judgment, '* * * when there is sufficient matter apparent on the record or entries of the court to amend by.' We hold that the record entries do not sufficiently show the presence in court of appellant's court appointed attorney at the time of sentencing to authorize the amendment made."