Opinion
1 Div. 274.
October 3, 1967.
Ronald W. Gray, pro se.
MacDonald Gallion, Atty. Gen., for the State.
This is an original petition for suspension of sentence and allowance of bail pending appeal.
Petitioner avers that on April 20, 1967, he was convicted in the Circuit Court of Mobile County of the offense of second degree burglary and was sentenced to the penitentiary for a term of six years; that at the time of judgment and sentence he gave notice of appeal.
He now petitions this court for suspension of sentence and allowance of bail pending appeal.
The State moves to dismiss the petition on the ground that petitioner gave notice of appeal without electing to have the sentence suspended, as reflected by a sworn statement of the Deputy Administrator of the Circuit Court of Mobile County, which is attached to the motion as Exhibit "A."
Subhead (a) of Section 368, Title 15, Code of Alabama 1940, provides for suspension of judgment at the election of appellant if the appeal is taken at the time of judgment.
In ex parte State ex rel. Coburn, 20 Ala. App. 595, 104 So. 346, the court said: "The time for the election by the defendant to have the execution of sentence suspended is at the time of sentence and not afterward * * *." See also Patterson v. State, 43 Ala. App. 190, 185 So.2d 527.
There is no averment that petitioner, when he gave notice of appeal, elected to have the execution of sentence suspended. In the absence of a showing that he did so elect and that the trial judge failed or refused to enter an order suspending sentence and fixing bail we cannot assume that he asked for suspension of sentence and fixing of bail.
Motion granted. Petition dismissed.