DUNCAN v. STATE, 281 Ala. 226 (1967)

201 So.2d 62

Lawrence DUNCAN v. STATE of Alabama.

5 Div. 844.Supreme Court of Alabama.
June 29, 1967.

Appeal from the Circuit Court, Randolph County, Albert Hooton, J.

Lawrence Duncan, pro se.

MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

LAWSON, Justice.

Lawrence H. Duncan filed a petition for writ of error coram nobis in the Circuit Court of Randolph County on November 4, 1966. The petition was denied without a hearing on November 5, 1966, the decree of the trial court being entered on November 7, 1966. From that decree Duncan has appealed to this court.

The petition avers that Duncan was tried and convicted in the Circuit Court of Randolph County in August of 1944 and was sentenced to serve a term of thirty years in a penitentiary of this state.

But it appears from the petition that Duncan was not an inmate of a penal institution of this state at the time the petition was filed. In fact, the petition affirmatively shows that at the time it was filed Duncan was confined in a federal penitentiary. It is not averred in the petition as to why Duncan was no longer confined in an Alabama penal institution nor does the petition contain any averments pointing out the circumstances leading up to his confinement in the federal penitentiary. For aught appearing from petition, Duncan had been paroled by the prison authorities of this state and committed some federal offense which resulted in his confinement in the federal penitentiary.

Page 227

There is no averment in the petition to the effect that the prison authorities of this state have issued a detention warrant because of a parole violation by Duncan. It does not appear from the petition that at the time it was filed Duncan was wanted by the prison authorities of Alabama.

Under these circumstances, we do not think the trial court erred in dismissing Duncan’s petition for writ of error coram nobis.

The judgment of the trial court is affirmed.

Affirmed.

LIVINGSTON, C. J., and GOODWYN AND COLEMAN, JJ., concur.