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MAYES v. STATE11/14/1997
holding as follows:
" 'The plain wording of both § 12-14-70(9) and Rule 30.5(b) supports the appellant's contention that the circuit court has authority to dismiss a de novo appeal only when the defendant fails to appear for trial. Section 12-14-70(f) provides, "Upon failure of an appellant to appear in the circuit court when the case is called for trial, unless good cause for such default is shown, the court shall dismiss the appeal." (Emphasis added [in Riddle].). Rule 30.5(b) provides, "Where appellant, without sufficient excuse, does not appear for trial de novo when called for trial, the court may dismiss the appeal." (Emphasis added [in Riddle].)
" 'We have been cited to no authority authorizing the dismissal of a de novo appeal based upon a defendant's failure to appear at a time other than when the defendant's case is called for trial. See Ex parte Lawson, 578 So.2d 1052 (Ala. 1991) (defendant not present when case called for trial); Grizzard v. City of Huntsville, 641 So.2d 1273 (Ala. Cr. App. 1993) (defendant not present when case called for trial); Knight v. City of Enterprise, 594 So.2d 1302 (Ala. Cr. App. 1992) (defendant not present at call of trial docket).
" 'We, therefore, hold that the circuit court's dismissal of the appeal when the appellant failed to appear at "plea day" was premature. Compare Grizzard v. City of Huntsville, 641 So.2d at 1273 (" he appeal was properly dismissed because the appellant failed to appear on the scheduled trial date"). Because it was unauthorized by either statute or rule, the circuit court's dismissal of the appeal is due to be reversed.'
Riddle v. State, 641 So.2d 1316, 1317-18 (Ala. Cr. App. 1994)."
McLemore v. State, 686 So.2d 492, 493 (Ala. Cr. App. 1996).
The circumstances surrounding the dismissal of the appellant's appeal are unclear. Therefore, we remanded this case to the trial court for a determination of the nature of the proceedings that resulted in the dismissal of the appellant's appeal. If the case was called for trial and the appellant failed to appear, then the trial court's order dismissing the appeal was proper. However, if the case was dismissed because the appellant failed to appear at "plea day," the appeal should be reinstated. The circuit court shall make specific findings of fact concerning the circumstances surrounding the dismissal of the appeal. Due return shall be filed in this court no later than 42 days from the date of this opinion.
REMANDED WITH INSTRUCTIONS.[fn*]
All judges concur.
[fn*] On February 13, 1998, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.
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