¶1(dissenting).
¶2The reversal of the judgment denying the coram nobis petition is based on the fact that appointed counsel was not afforded a sufficient time to prepare appellant’s case. In accordance with this reason the majority said the failure to grant the continuance necessitated this post conviction relief.
¶3Of course the matter of a continuance is addressed to the trial court’s discretion and is only subject to review upon a showing of abuse. Ballard v. State, 51 Ala.App. 393, 286 So.2d 68.
¶4The original opinion, Browning v. State, 51 Ala.App. 632, 288 So.2d 170, was written by Judge Leigh Clark, Supernumerary Circuit Judge. It was concurred in by all the judges of this court. In that opinion substantially the same facts were considered as are now being relied on in this coram nobis petition. The comparable portion of Browning, supra, reads:
“When the case was called for announcements, the defendant requested a continuance. There was considerable discussion among the court, defendant and defendant’s counsel as to defendant’s request for a continuance. Appearing for him was his appointed counsel, who had been appointed at the arraignment on September 13, 1972, the trial commencing on October 12, 1972. Defendant stated he had not discussed the case with his appointed attorney until a few moments before the request for a continuance. He said he had paid a retainer’s fee to another attorney and was advised by the other attorney not to speak with anyone concerning the case. The defendant mentioned a previous conversation that day with the judge. The judge reminded the defendant that the judge had previously tried to contact an attorney in Atlanta, whose name had been given to the judge, that he was unable to locate him, and that thereafter the judge had been apprised by the defendant of defendant’s claim that he had a lawyer in Gadsden. The judge further told him that he had talked with the mentioned lawyer in Gadsden who told the judge ‘that it would be better if you could obtain service of some other’ attorney.
“Most of the discussion as to the request for continuance was between the defendant and the court, but defendant’s counsel did formally request a continuance as follows: ‘We respectfully ask the Court to continue this case until the next term of Court.’ The court then stated:
“ T appreciate the situation, however it appears from the record that the indictment was returned February 29, 1972, and that the Defendant, of course, has had knowledge of the seriousness of the charge for some time. The Court has previously considered the matter of whether or not a continuance should be granted at this time The motion of counsel for a continuance is overruled.’ ”
“It should be said that appointed counsel, with admirable loyalty to defendant, strongly supported defendant in his request for a continuance, but no contention or showing was made that there was not sufficient time for defendant and the appointed attorney to prepare for trial at that term of court.” (Emphasis ours).
¶5*222Additionally at the evidentiary hearing on the coram nobis petition we find this testimony by the appointed counsel:
“Q. I believe when Judge Tally appointed you to represent him at arraignment you went outside and talked to him and entered a plea of not guilty and asked permission to file other things. That’s correct, isn’t it?
“A. I generally do that and I probably did that on this occasion.
“Q. And I’ll ask you if Judge Tally didn’t tell him, he didn’t tell Judge Tally he had employed another attorney.
“A. As I recall Judge Tally told him when the trial date would be and if he wanted to make arrangements with the other attorney, he would have time to do that.
“Q. And if he didn’t employ another attorney you would represent him?
“A. He probably did, but I don’t recall him saying that.”
“Q. Now, on the date of the trial do you recall something being mentioned about Rowan Bone — On the day of the trial, I’ll ask you if the defendant stated that Rowan Bone represented him ?
“A. As I recall the defendant stated he had retained Rowan Bone, yes.
“Q. I’ll ask you if Judge Tally didn’t state in Court, it’s in the record, that he had a conversation with Rowan Bone and a recess was taken and we went to the Judge’s office. And you and I were present and Browning was present. Isn’t it a fact that Rowan Bone was paid a retainer’s of $100 and hadn’t been paid any more money .
“MR. RAINS: That’s not a matter of record.
“COURT: Overruled.
“Q. That’s correct, isn’t it ?
“A. I recall — seems like the Judge made a telephone call to Mr. Bone and I don’t think I talked to Mr. Bone myself, but Judge Tally did.
“Q. Rowan Bone stated to the Judge he didn’t represent him?
“A. I think that’s what was indicated.
“Q. And he had been paid a small retainer, I believe it was $100. — I’m not sure — by some woman and they never came back to see him any more and paid him any more money.
“A. I think that’s correct.
“COURT: Mr. Shumaker I want to ask you at least one question. Would it be accurate to say that your delay in getting into the actual preparation for trial of this case was occasioned by Mr. Browning’s insistence that he had someone else representing him ?
“A. I think that would be a fair statement.
“COURT: Would it be an accurate statement ?
“A. That’s correct.”
¶6I respectfully submit that it was appellant’s own doing that prevented appointed counsel from being prepared to defend against the accusation. The post conviction remedy sought was not intended to relieve a party from the consequences of his own negligence. Ex parte Taylor, 249 Ala. 667, 32 So.2d 659.
¶7In referring to certain claims of error set out in a coram nobis petition, this court said in Braswell v. State, 53 Ala.App. 645, 303 So.2d 145:
*223“ ‘This claimed error could have been raised on direct appeal rather than by way of a coram nobis petition. The office of the writ of error coram nobis is not that of a delayed appeal but rather a vehicle to seek review of certain matters which were not known or could not have been reasonably discovered within the time for taking a direct appeal.’ ”
¶8Mr. Shumaker further stated during the hearing:
“Q. Did you write a brief for Mr. Browning for an appeal on this case?
“A. I did.
“Q. In that brief, I believe, you said it was impossible to build a winning defense with the time allowed?
“A. I don’t recall the exact words, but I believe that would be a fair statement of my complaint in the appeal.”
¶9Since this question appears to have been settled on appeal, and this proceeding merely seeks to reopen a question already considered and determined on appeal to this court, it should not now be reconsidered. Divine v. State, 285 Ala. 488, 234 So.2d 28.
¶10In deference to Judge Cates’ concurring opinion, I again reexamined this record and the original record. Based on that examination and the foregoing, it is my opinion this case should be affirmed for the following reasons:
¶11First: Judge Clark had substantially the same facts on the original appeal as are now relied on in this coram nobis appeal.
¶12Second: Mr. Shumaker testified he was also counsel for the original appeal and had raised the issue of insufficient time to prepare.
¶13I respectfully dissent.