TYREE v. STATE, 436 So.2d 20 (Ala.Crim.App. 1983)

436 So.2d 20

James I. TYREE v. STATE.

5 Div. 764.Court of Criminal Appeals of Alabama.
August 2, 1983.

Appeal from the Circuit Court, Elmore County, Joe Macon, J.

Page 21

Keith A. Howard, Howard, Dunn Howard, Wetumpka, for appellant.

Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for appellee.

JOSEPH J. MULLINS, Retired Circuit Judge.

This appeal is from a judgment entered by the trial judge of the Circuit Court of Elmore County dismissing a petition for a Writ of Habeas Corpus.

Code of Alabama, 1975, Sec. 15-21-4 provides in part:

“Application for a writ of habeas corpus must be made by petition, signed either by the party himself for whose benefit it is intended or by some other person on his behalf xxx; and, if the imprisonment is by virtue of any warrant, writ or other process, a copy thereof must be annexed to the petition or the petition must allege that a copy thereof has been demanded and refused or must show some sufficient excuse for the failure to demand a copy.”

The record in this case shows on its face that the petition does not comply with the provision in Code of Alabama, Section 15-21-4, which provides that if the imprisonment is by virtue of any warrant, writ or other process, a copy thereof must be annexed to the petition or the petition must allege that a copy thereof has been demanded and refused or must show some sufficient excuse for the failure to demand a copy.

We hold that the trial court did not err by dismissing appellant’s petition. Code of Alabama, 1975, Sec. 15-21-4; Ex parte Thomas, 270 Ala. 411, 118 So.2d 738 (1960); Writ of Certiorari Denied, 363 U.S. 822, 80 S.Ct. 1263, 4 L.Ed.2d 1521 Moore v. State, Ala.Cr.App. 417 So.2d 610.

The judgment of the trial court is due to be, and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.