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
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 necessary requirement to the proper issuance of a peremptory writ of mandamus, and being entirely absent, the petition is denied.
CATES, Judge (dissenting).
Davis has asked us to award a writ of mandamus to command the respondent to set aside an order which he made in the Houston Circuit Court September 30, 1958, which reads:
At the time the petition was presented to us, we entertained some doubt as to the propriety of the broad relief sought, inasmuch as the petitioner not only asked to have us set aside the order of September 30, 1958, but also that we require the respondent to reinstate the cause for further consideration.
The Attorney General, appearing for the respondent, has filed, first, a motion to strike the petition for mandamus and to quash the rule nisi; and, second, an answer (a) admitting the allegations of facts in the first six paragraphs of the petition, (b) denying the allegation of fact and the correctness of the conclusions of law in paragraphs seven and eight of Davis's petition for mandamus, which read:
and (c) an affirmative allegation that the circuit court "is without jurisdiction to entertain an application for probation after the defendant has commenced the execution of his sentence and did so on the date his original application for probation was denied," and that "petitioner is not entitled to a rehearing on application for probation." (Italics supplied.)
In brief Davis says, inter alia:
The case of Smith v. Pelham, 252 Ala. 415, 41 So.2d 570, is the only Alabama decision cited by either party.
The Smith case arose from the refusal of the trial judge to entertain an application
Here, however, when Davis had lost on appeal,
The statute (Code 1940, T. 42, § 19 et seq.)
An order granting probation does not set aside the judgment of conviction and sentence, it merely affords an alternative to its execution by penal servitude.
Brickell, C. J., in Kirby v. State, 62 Ala. 51, stated what appears to be the basic premise in this State for ascertaining the time of commencement of a felony (or misdemeanor hard labor) sentence:
In Smith v. State, 4 Ala.App. 210, 58 So. 117, it was held, on habeas corpus, that the convict, after a sentence of imprisonment in the penitentiary, was not to be held by the sheriff (the jailer) an unreasonable time after entry of judgment. But this wrongful delay did not confer an absolute discharge: the prisoner should merely be turned over to the penitentiary system.
The Attorney General has cited us certain Federal cases to the effect that a prisoner in custody awaiting transportation to a place of detention has begun the service of his sentence, e. g., Trant v. United States, 7 Cir., 90 F.2d 718. However, the effective date of a sentence is expressly provided for in 18 U.S.C. § 3568:
Before the enactment of this positive provision, it would seem that the sentence did not begin until the delivery of the prisoner into the hands of the penitentiary authorities, Hynes v. United States, 7 Cir., 35 F.2d 734. This also comports with what seems to be the New York view as shown in People ex rel. Woodin v. Ottaway, 247 N.Y. 493, 161 N.E. 157. See also the annotation to Oxman v. United States, 8 Cir., 148 F.2d 750, 159 A.L.R. 155.
As to the remedy sought, concededly, there is no appeal from this judgment.
By mistakenly denying that he has jurisdiction, the trial judge, in effect, has failed to act. Ample authority to compel setting aside his order is found in Stephenson v. Mansony, 4 Ala. 317, Ex parte State, 51 Ala. 69, and Davis v. McColloch, 191 Ala. 520, 67 So. 701.
Our Constitution (§ 43) contemplates a government of laws and not of men. If the judiciary does not abide by the Rule of Law, can despotism be far away?