Davis v. Hardwick , 40 Ala. App. 164 ( 1959 )

HARWOOD, Presiding Judge.

This proceeding was originally assigned to Judge Cates. The writer being unable to agree with the conclusions reached by Judge Cates has' prepared the following opinion, with which Judge Price concurs. The opinion of the writer therefore becomes the opinion of the court.

The pleading and facts forming the basis of the order or judgment of the lower court have been fully set forth in Judge Cates’ opinion, and we will not again repeat them.

As we interpret the doctrine of Smith v. Pelham, 252 Ala. 415, 41 So.2d 570, it simply held that the power of the trial court to suspend sentence and grant probation was not limited to any particular time after pronouncement of sentence, but continued until its execution was actually commenced, and the Supreme Court determining that sentence had not commenced, it was held that it was the right of the convict to have her application for suspension of sentence and probation entertained, heard and determined by the respondent judge, and the peremptory writ was ordered, the respondent judge having refused entirely to act on the petition for suspension and probation.

In the present litigation we are considering an entirely different question, that is, whether there is any duty to entertain an application for a rehearing after petitioner’s original application for suspension of sentence and probation has been heard, determined, and denied, or more accurately put, whether a positive right to such rehearing can spring from the lower court’s denial of an application for a rehearing, even though such denial be based on the erroneous ground that the court did not have jurisdiction to entertain the application for rehearing of the order entered pursuant to the hearing on the original petition for probation.

In Armstrong v. O’Neal, 176 Ala. 611, 58 So. 268, 270, our Supreme Court, through Sayre, J., wrote:

“Where the application is for mandamus, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondent to perform the act required.” See also Cloe v. State, 209 Ala. 544, 96 So. 704; Ex parte Jones, 26 Ala.App. 414, 161 So. 266; Ex parte Bryant, 38 Ala.App. 127, 78 So.2d 821, and many other authorities stating the above principle to be found in 14 Ala.Dig., Mandamus, 10, et seq.

Nowhere in Chapter 2 of Title 42 (Sections 19-26), containing all of the statutory provisions relative to probation, is there any provision for a rehearing after an original petition for suspension of sentence and probation has been entertained and determined.

Ordinarily, in the absence of a statute so providing, there is no inherent right to a rehearing. It follows therefore that no duty devolves upon a court to entertain such an application in the absence of such statutory provision.

This petitioner therefore had no clear legal right to apply for a rehearing of the adverse judgment upon his petition for probation.

There not only was no imperative duty upon the respondent to entertain the application, there was no duty whatsoever upon him to do so.

We think that the court below had the inherent power to entertain the rehearing, assuming the necessary jurisdictional facts existed, had it so desired.

However, we do not think that the act of the respondent in granting the State’s motion to strike the petition for rehearing, even though granted on an erroneous ground, can be deemed to have created a clear legal right, or to have created an imperative duty on the part of the respondent to entertain the application for rehearing. Such right and duty can exist only by force of statute.

Such right and duty being a necessaty requirement to the proper issuance of a peremptory writ of mandamus, and being entirely absent, the petition is denied.

Mandamus denied.