No. 1 Div. 948.

168 So.2d 265 (1964)

Ex parte Clyde Edward LOTT.

Court of Appeals of Alabama.

Attorney(s) appearing for the Case

Clyde Edward Lott, pro se.

Richmond M. Flowers, Atty. Gen., opposed.

PRICE, Presiding Judge.

This is a request for appointment of counsel to represent petitioner in this court on his appeal from the denial of petition for writ of error coram nobis in the Circuit Court of Mobile County, Alabama.

The petitioner alleges that the trial court first appointed a lawyer to represent him on appeal, but at the request of said lawyer the order was vacated and set aside. It is further alleged that in its order setting aside its former order appointing counsel the trial court "defers the judgment to the Presiding Judge of the Court of Appeals of the State of Alabama, where said appeal is pending, as to whether or not movant deserves and needs counsel to represent him on said appeal."

While Section 6 of Act No. 526, Regular Session 1963, p. 1136, approved September 16, 1963, provides that the Presiding Judge of this court may appoint counsel in coram nobis proceedings, the preferred procedure is that the trial judge, who is in better position to know the necessity for counsel on appeal, first make the findings concerning the appointment of counsel referred to in said Section 6, and either appoint or decline to appoint a lawyer.

In Murphy v. State, 276 Ala. 427, 163 So.2d 212, the Supreme Court, found that there was no necessity for counsel on appeal because the record disclosed the trial court had considered all the points raised by petitioner, who was represented by counsel at the hearing.

Here no record of the proceedings has been filed and there is nothing before us except the petition for appointment of counsel.

It should be borne in mind that this is a coram nobis proceeding. Section 4 of Act No. 526, supra, applies to appointment of counsel on direct appeal from a conviction of guilt.

The petition is remanded to the trial court for further proceedings consistent herewith and as provided by Section 6 of Act No. 526, supra.



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