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STATE v. GRANTLAND1/9/1997
Grantlands' motion for a judgment of acquittal on the charge of murder at the close of the state's case, Judge Slate denied the Grantlands' motion for a judgment of acquittal on the manslaughter charges at that time. These factors, while not dispositive, reinforce our belief that Judge Slate's ruling on the Grantlands' post-verdict motion for a judgment of acquittal some two years after the verdicts were returned was based on matters outside the state's proof at trial.
We have made every effort here to resist expanding by judicial fiat the state's right of appeal in criminal cases and to avoid collapsing review by mandamus into review by appeal. Our review of the record, however, convinces us that the trial judge did not grant the Grantlands' motion on the basis of
any authority legally conferred upon him. In effect, the trial judge acted "ultra vires." The state's petition for the writ of mandamus is due to be granted. Public policy requires that jury verdicts not be arbitrarily set aside.
The Grantlands argue that the state cannot seek to set aside the trial court's judgment in this case without running afoul of the double jeopardy clause. However, because issuance of the writ of mandamus requires only that the trial court reinstate the guilty verdicts of the trier of fact and does not entail a separate trial, double jeopardy is not implicated. Nice, 407 So.2d at 882; see United States v. Wilson, 420 U.S. 332, 352-53, 95 S.Ct. 1013, 1026, 43 L.Ed.2d 232, 247 (1975); United States v. Cravero, 530 F.2d 666 (5th Cir. 1976).
Based on the foregoing, the state's petition for the writ of mandamus is hereby granted and the trial court is ordered to set aside its ruling granting the Grantlands' motion for a judgment of acquittal, and is hereby ordered to reinstate the jury's verdicts and to enter judgments of conviction against the Grantlands.
APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED.
McMILLAN and COBB, JJ., concur.
TAYLOR, P.J., dissents.
PATTERSON, J., dissents with opinion.
I dissent from the majority opinion in the above case and adhere to my previous vote in favor of denying the state's petition for a writ of mandamus in the original opinion. Mandamus does not lie in this case. The case of Ex parte Nice, 407 So.2d 874 (Ala. 1981), as well as the other cases relied upon by the majority to support its granting of the writ, are distinguishable from the case at bar.
PATTERSON, Judge, dissenting.
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