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Ali v. State12/7/2004
yer, he never talked to me even two minutes. He tell me I'll call you when it's ready. The thing is ready. I didn't understand him. I said okay. Before that, they never send me any letter. He tell me you have a two. I call his secretary always. I never see him. So the next day they tell me you have eight, which was before that week. He called me around 7:45 morning on 8 morning at my house. So I drive down, and he tell me I'm going to get you another week, which is the 15th. I come 7:55. I was here. I meet him. He say they have another case. I'm going to call you. Go do what you do. I was doing my job. I'm not run. So that's what happened.
. During the hearing on the motion for new trial, Mohamed's new counsel, who is also his appellate counsel, advised the court that on the morning of the trial, Mohamed appeared as instructed but that when the case could not go forward because another trial had not concluded, Mohamed left his cellular telephone number for his attorney to contact him. The attorney attempted to reach Mohamed but was not able to do so. While there is no way of knowing whether this representation was accurate, it is not disputed in this record. For whatever reason, Mohamed's trial counsel was not called as a witness, during the hearing on the motion for a new trial to rebut anything that was said by either Mohamed or his new counsel at the hearing.
. Considering the uncontroverted facts as testified to during the hearing on the motion for a new trial, I do not believe that the trial judge acted properly in denying Mohamed's motion for a new trial, for it cannot be said that the facts here fall within that exception carved out in Jefferson. Therefore, for the reasons presented, I respectfully dissent. I would reverse and remand for a new trial.
KING, C.J., LEE, P.J., AND BARNES, J., JOIN THIS SEPARATE WRITTEN OPINION.
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