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Gormandy v. City of Mobile8/31/2001
Gary Michael Gormandy appeals from the Circuit Court of Mobile County's refusal to dismiss the appeal of his municipal court conviction for driving under the influence. The issue on appeal is whether the circuit court erred in refusing to accept Gormandy's withdrawal of his notice of appeal and in forcing him to proceed to a jury trial. We remand this case to the trial court for it to make findings of fact.
On November 16, 2000, Gormandy was convicted in the Mobile municipal court of driving under the influence ("DUI"). He was sentenced to the minimum jail time allowable for a second DUI offense. He was also fined $1,000 and was ordered to pay court costs in the amount of $135. He sought de novo review in of the municipal court's judgment in the circuit court, as permitted by Rule 30.1(a), Ala.R.Crim.P. On November 22, 2000, Gormandy filed his appeal in the Circuit Court of Mobile County. The case was set for trial or the entry of a blind plea on February 1, 2001. On that date, Gormandy's attorney notified the court that he had another case scheduled to be tried at the same time; he asked the court to continue Gormandy's case. The trial court reset the trial for February 22, 2001. When the case was called for trial on February 22, 2001, Gormandy moved to withdraw his notice of appeal. The circuit court denied the motion, and the case proceeded to trial. The defendant was found guilty by a jury and was sentenced to one year in the Mobile jail, to serve 30 days; the balance of the sentence was suspended.
In his "order denying defendant's motion to dismiss appeal," the trial judge stated:
"Defendant invoked the jurisdiction of this Court by means of a frivolous appeal prosecuted for purposes of delay only. Defendant maintained the appeal while representing to the Court that the case required a trial by jury. Defendant was told that the only remaining options were trial by jury or entry of blind plea. In consequence of Defendant's actions considerable judicial and prosecutorial resources were devoted to the matter, not to mention the fact that a number of citizens was caused to be summoned as prospective jurors on two occasions." (R. 11.)
Rule 30.5, Ala.R.Crim.P., states:
"(b) Dismissal of Appeal. Where appellant, without sufficient excuse, does not appeal for trial de novo when called for trial, the court may dismiss the appeal, order the bond forfeited, and remand the case to the lower court judgment...
"Upon the request of the appellant, the judge of the court to which an appeal has been taken may enter an order dismissing the appeal, provided the appellant tenders payment of the costs and fines imposed by the court appealed from at the time the request for dismissal is made, and provided, further, that the appellant submits himself or herself to the sheriff or, in appeals from municipal court, to the chief of police to begin serving any sentence of imprisonment previously ordered."
Gormandy contends that the trial court erred when it denied his motion to dismiss his appeal. Gormandy relies on Ex parte Hilburn, 591 So.2d 8 (Ala. 1991), and argues that that case holds that a trial court must dismiss an appeal and reinstate an original judgment when the defendant seeks to withdraw his appeal of the conviction before a jury is empaneled or prior to the production of evidence.
While Rule 30.5, Ala.R.Crim.P., appears to be permissive, giving trial courts discretion to dismiss an appeal upon the motion of a defendant, the Alabama Supreme Court in Ex parte Hilburn, supra, reviewed the procedures for de novo appeals from municipal court and determined that Rule 30.5, Ala.R.Crim.P., must be understood as though it read
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