This petitioner has been convicted in the Circuit Court of Montgomery, and his appeal from such judgment is now pending in this court.
In this petition, the petitioner-appellant requests leave "to proceed in the Circuit Court of Montgomery County, Alabama, in order that such Circuit Court may pass on the question of whether the judgment of record presented to the Alabama Court of Appeals is a correct judgment, and the validity thereof, inasmuch as there is no valid judgment, there is nothing from which your appellant can appeal."
A copy of the minute entry, and of the trial judge's bench notes, are attached as exhibits.
This cause was argued before this court and counsel for petitioner has submitted briefs.
From argument and briefs, we deduce that the petitioner is seeking an order from this court to permit him to proceed in the Circuit Court in an effort to have that court declare the judgment void for the reason that the bench notes of the trial judge fail to show that the appellant was ever arraigned.
Examination of the minute entry shows it to be regular in every respect, and it specifically shows an arraignment and a plea of not guilty.
The bench notes do not show such arraignment, nor plea.
A minute entry constitutes the final record of a judgment. It cannot, in a court of record, be impeached by the judge's bench notes or memoranda, which operate only as a direction to the clerk as to what judgments and orders shall be entered on the court's records. Lockhart v. State, 34 Ala.App. 297, 39 So.2d 40.
And in Du Pree v. Hart, 242 Ala. 690, 8 So.2d 183, 186, it is stated:
It should be noted that petitioner does not aver that he was not arraigned, but only that the bench notes fail to show an arraignment. As before stated, the minute entry does show such arraignment.
It is clearly apparent from the above that the petitioner cannot impeach the minute entry on the basis of all the facts averred in his petition. It would be a futile thing for this court to grant petitioner's prayer, and would result in unnecessary delay in processing the appeal now on file in this court. For this reason, the motion of the Attorney General is meritorious, and should be granted.