Silver v. State

Full title: Donald Lee SILVER v. STATE

Court: Court of Criminal Appeals of Alabama

Date published: Nov 12, 1985

480 So. 2d 602 (Ala. Crim. App. 1985)

Opinion

7 Div. 170.

August 30, 1983. On Return to Remand November 12, 1985.

Appeal from the Circuit Court, Cherokee County, David A. Rains, J.

Al Shumaker of Burns, Shumaker Davis, Centre, for appellant.

No Briefs for appellee.

BOWEN, Presiding Judge.

The appellant, Donald Lee Silver, pled guilty to an indictment charging forgery in the second degree. Sentence was fifteen years' imprisonment as a habitual offender.

The transcript of the proceedings shows that, before accepting the guilty plea, the trial judge failed to advise Silver of his privilege against compulsory self-incrimination guaranteed by the Fifth Amendment of the United States Constitution and applicable to the State by reason of the Fourteenth. The guilty plea was in violation of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

On appeal, the parties have filed a "joint motion for remandment to circuit court" wherein it is argued that "in fairness to the parties and to the trial court, the trial court should be allowed to examine the record and determine whether appellant should be allowed to withdraw his guilty plea and to re-plead to the indictment." We feel that it is in the best interests of all concerned that this motion be granted. Therefore, the joint motion of the State and Silver is granted with directions that, unless there is some affirmative evidence adduced that Silver was in fact aware of his Fifth Amendment rights, Silver either be permitted to plead guilty to the indictment after being fully advised of all of his constitutional rights under Boykin, supra, or that Silver be allowed to withdraw his guilty plea.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Presiding Judge.

In August of 1983, we remanded this case for a hearing on the voluntariness of the defendant's guilty plea. After the hearing, the guilty plea was set aside and the defendant was tried and convicted. The return to remand was filed in this Court on November 1, 1985, reflecting such. Consequently, the judgment of the circuit court is affirmed.

OPINION EXTENDED;

AFFIRMED.

All Judges concur.