Opinion
77-433.
April 20, 1979. Rehearing Denied June 22, 1979.
Appeal from the Circuit Court, Mobile County, William D. Bolling, J.
Al Pennington, Reggie H. Stephens, Mobile, for petitioner.
William J. Baxley, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State, respondent.
ON REHEARING
The original opinion quashing the writ as having been improvidently granted is hereby withdrawn.
On original submission, this Court reviewed the opinion of the Court of Criminal Appeals and the proceedings in the trial court as provided for in Rule 39 (k) and Rule 45A, Alabama Rules of Appellate Procedure, even though this cause was argued and submitted prior to the effective date of those rules.
Rule 39 (k) and Rule 45A provide:
"In all cases in which the death penalty has been imposed, upon review of the opinion of the Court of Criminal Appeals on certiorari, the Supreme Court may notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner."
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
After reviewing the opinion and the proceedings, we do not note any plain error or defect in the proceedings which has or probably has adversely affected the substantial rights of the petitioner.
The judgment of the Court of Criminal Appeals is due to be and is hereby affirmed.
APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; AFFIRMED.
All the Justices concur.