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462 So. 2d 949

Docket 83-963.

Ex Parte State

Ex parte State of Alabama (In re Leroy BLAKE v. STATE of Alabama).

Supreme Court of Alabama

Decided August 31, 1984.

Supreme Court of Alabama · decided 1984-08-31

Key passage — most relied on by later courts

“if the clerk failed to make the certification as the law required, the defendant should have raised the point at that time, but his failure to do so in a matter as grave as serving more time than the law requires should not be fatal.”

quoted by 2 later decisions, including Mumpfield v. State, 465 So. 2d 483 - Pratte v. State

Relies on Blake v. State · Blake v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1984-08-31

How this case has been cited

Cited by 5 later decisions — most recently May 2003

5 state decisions

20198419902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for petitioner.

¶2Thomas M. Goggans of Goggans & McInnish, Montgomery, for respondent.

¶3Prior report: 462 So.2d 948.

¶4PER CURIAM.

¶5This cause is remanded to the Court of Criminal Appeals for an order remanding the cause to the Montgomery Circuit Court with instructions for that court to determine the incarceration time, if any, served by the Defendant incident to the instant criminal offense prior to his conviction and sentence, and to correct the sentence previously pronounced accordingly, if so indicated by such determination.

¶6REMANDED TO THE COURT OF CRIMINAL APPEALS.

¶7TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.

¶8MADDOX, J., concurs specially.

¶9MADDOX, Justice (concurring specially).

¶10I agree that the writ should be denied. I was almost persuaded by the reasoning set forth by Judge Bowen that the burden is on an appellant to show from the record that prejudicial error was committed by the trial court; however, I assume that the defendant will be able to show, on remand, *950 that he did actually serve some time which was not credited. The fact that I have to make this assumption almost compels me to dissent, but I have to agree that a person should not serve more time in prison than the law requires. Procedurally, if the clerk failed to make the certification as the law required, the defendant should have raised the point at that time, but his failure to do so in a matter as grave as serving more time than the law requires should not be fatal. Consequently, I agree with the judgment which remands the cause to the trial court to allow the defendant to show, if he can, that he was not given credit for time served.

¶11On remand, Ala.Cr.App., 462 So.2d 950.

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