Opinion
1 Div. 302.
June 20, 1972.
Appeal from the Circuit Court, Baldwin County, Telfair J. Mashburn, J.
Thomas M. Haas, and J. D. Quinlivan, Jr., Mobile, for appellant.
Where a plea of guilty is not freely and voluntarily entered a denial of leave to withdraw the plea and stand trial is an abuse of the courts discretion. Shellnut v. State, 43 Ala. App. 298, 189 So.2d 587. Trial Court is limited to entering a plea of not guilty, and that plea only, in the absence of accused express consent to enter a different plea when the indictment charges a felony. Goodman v. State, 45 Ala. App. 100, 226 So.2d 94. In a criminal case the judgment entry must recite that defendant's counsel was present in court at time of sentencing on plea of guilty. Gordon v. State, 44 Ala. App. 429, 211 So.2d 916.
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
The judgment entry controls where there is a conflict in the record. L N R.R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Keeton v. State, 280 Ala. 140, 190 So.2d 694, Id. 388 U.S. 914, 87 S.Ct. 2123, 18 L.Ed.2d 1354; Harris v. State, 44 Ala. App. 632, 218 So.2d 285. It is within the discretion of the trial court to allow the withdrawal of a guilty plea, and a refusal of its withdrawal will not be reversible error unless the defendant can prove an abuse of such discretion. Smith v. State, 32 Ala. App. 206, 23 So.2d 515; Walters v. State, 39 Ala. App. 50, 93 So.2d 528; Malone v. State, 41 Ala. App. 230, 132 So.2d 749; Swicegood v. State, 42 Ala. App. 492, 168 So.2d 624; Ex parte Sykes, 44 Ala. App. 473, 213 So.2d 413.
Possession of marihuana contrary to the Uniform Alabama Controlled Substances Act, No. 1407, September 16, 1971: fine of $100 and sentence on guilty plea of six months in the county jail with probation for two years.
Unlike the 1940 Code, T. 22, § 256, which employed the Castilian, "marijuana", the Uniform Act uses the orthographic variant "marihuana", perhaps an Anglicization to avoid the consonantal "j" sound.
The record is devoid of any colloquy between the judge and the defendant to show compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
On authority of Honeycutt v. State, 47 Ala. App. 640, 259 So.2d 846 and Walcott v. State, 288 Ala. 546, 263 So.2d 178, the judgment below must be reversed and the cause remanded.
Reversed and remanded.
TYSON and HARRIS, JJ., concur.