RUPERT v. STATE, 344 So.2d 1255 (Ala.Crim.App. 1977)

344 So.2d 1255

John L. RUPERT v. STATE.

3 Div. 616.Court of Criminal Appeals of Alabama.
April 19, 1977.

Appeal from the Circuit Court, Montgomery County, Eugene Carter, J.

Page 1256

No brief for appellant.

William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.

SIMMONS, Retired Circuit Judge.

Conviction for robbery. Sentence by the jury was fixed at thirty-seven years.

Appellant qualified as an indigent on this appeal. Appointed counsel did not file a brief; the State complied. We have examined the record and find no error that mandates a reversal or remand.

We note that defendant filed a motion for a new trial. It was not ruled on. This motion was filed within the time required by T. 13, § 119, Code of Alabama 1940, Recompiled 1958. It was not called to the attention of the court as mandated by said Code § 119, supra. It was not incumbent on the clerk of the court to call said motion to the attention of the trial judge. This duty was imposed upon the movant and his failure to do so within thirty days terminated the power of the court to act upon the merits of the motion. Arrick v. Fanning, 35 Ala. App. 409, 47 So.2d 708.

The judgment of the trial court is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, retired Circuit Judge, serving as a Judge of this Court under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.