Summary
In Ex parte Maxwell, 675 So.2d 546 (Ala.Crim.App.1996), noting that Rule 7.2(c) “modified” § 12–22–170, the court remanded the cause for factual findings as to whether a postconviction bond would be appropriate.
Summary of this case from Ex parte WelchOpinion
CR-95-856.
March 1, 1996.
Appeal from the Circuit Court, Conecuh County, Chris N. Galanos, Special Judge.
Everette A. Price, Jr., Brewton, and Thomas M. Goggans, Montgomery, for petitioner.
Jeff Sessions, Atty. Gen., and Greg Biggs, Asst. Atty. Gen., and Tommy Chapman, District Atty., Evergreen, for respondent.
The petitioner, Andrew O.L. Maxwell, filed this petition for a writ of habeas corpus against Judge Chris N. Galanos, alleging that Judge Galanos erred in refusing to release him on bond pending the outcome of his appeal. The petitioner was convicted of bribery, theft of property by deception, and violating Alabama's Ethics Law. He was sentenced to 10 years' imprisonment on the bribery conviction, 5 years' imprisonment on the theft by deception conviction, and 5 years' imprisonment on the ethics violation. The sentences were to run consecutively, so that his sentence was 20 years in the state penitentiary. The petitioner filed a motion to set bond; the trial court denied the motion. The petitioner then filed this petition for a writ of habeas corpus.
Judge Galanos, a circuit judge of the Thirteenth Judicial Circuit in Mobile County, was appointed as special judge to hear this case.
Rule 7.2(c)(2), Ala.R.Crim.P., states:
"Any defendant who has been convicted of an offense and who for that offense has been sentenced to a term of imprisonment of twenty (20) years or less may be released on an appearance bond or on the defendant's personal recognizance."
This rule modified § 12-22-170, which unconditionally allowed the release on bail or on personal recognizance all defendants who were appealing their convictions if their sentence was 20 years or less. See Committee Comments, Rule 7.2, Ala.R.Crim.P.
Rule 7.2(d) states:
"Release shall be denied after conviction and sentence if the trial court has reason to believe that an appearance bond or conditions of release will not reasonably assure that the defendant will not flee, or that the defendant's being at large poses a real and present danger of harm to any other person or to the public at large. . . ."
The petitioner's sentence falls within the 20-year provision of Rule 7.2(c), which permits for the release of a defendant pending the outcome of his appeal. Thus, this case is remanded to the Circuit Court for Conecuh County for that court to make specific findings of fact as to the granting or denial of bond in this case. See Rule 7.2(d), Ala.R.Crim.P. Due return should be filed in this court no later than 14 days from the date of this opinion.
Note from the Reporter of Decisions: The Court of Criminal Appeals docket sheet indicates a "return to remand" filed on March 12, 1996. The docket sheet also carries this entry on March 28, 1996: "Case transferred to circuit court for that court to consider and act upon pleadings as if they were motions for evidentiary hearing."
All the Judges concur except COBB, J., who recuses.