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Smelley v. State3/31/2000
On May 26, 1994, the appellant, Ted Daniel Smelley, was found guilty in district court on charges of reckless driving and driving under the influence. He appealed to the Jefferson Circuit Court for a trial de novo. After numerous resettings, the case was called for trial on July 8, 1999; however, neither the appellant nor his attorney was present in court on that date. The trial court then entered an order dismissing the appeals. The court also denied the appellant's subsequent motion to reinstate the appeals.
The record reveals that the appellant's reckless driving case originally was set for trial on August 15, 1994. The case was not reached nine times between that date and September 17, 1996, when it was consolidated with his D.U.I. case and set for trial on November 18, 1996. The cases were not reached on November 18 or on eight additional dates between then and July 6, 1999. The record reveals the following continuances, all on motion of defense counsel: (1) April 17 and 31, 1995, because of illness of counsel; (2) September 17, 1996, upon consolidation of the cases for trial; and (3) June 10 and 13, 1997, to request and correct vacation dates for counsel. The record contains the following order of the trial court:
"These cases were originally set for docket call on Tuesday, July 6, 1999[;] appearing at that time w the defendant and his attorney.... At that time, the defendant and his counsel announced ready subject to his counsel being released from trial. The Court directed his counsel to appear before the Court upon his release from Judge Bahakel's Court since this case was over five (5) years old. The Court called Judge Alfred Bahakel's Court on this date [July 8, 1999] and learned that the case ... which defendant's counsel was trying was settled by plea yesterday [July 7]. Neither counsel or the defendant appeared as ordered following the release of [counsel] from Judge Bahakel's Court. The Court learned yesterday that [the counsel] had in fact called the [Court's] offices to assure the Court he would be by sometime yesterday. He failed to appear, as did the defendant.... The Court called [the counsel's] offices this morning at 9:20 a.m. and left an order on his telephone answering machine directing both him and the defendant to appear in Court by 10:00 a.m. or the appeals will be dismissed. It is now 10:05 a.m. and both the defendant and counsel have failed to appear[;] accordingly, it is the Order of the Court that the appeals in these cases are dismissed and costs are taxed to the defendant."
The appellant contends that the trial court abused its discretion by dismissing his de novo appeals. He argues that, in Littlefield v. Wingate Trucking Co., 541 So.2d 497 (Ala. 1989), the Alabama Supreme Court held that, although sanctions were warranted when an attorney failed to notify the trial court of a potential conflict due to a trial in another court, dismissal was too onerous a penalty because in that case the client paid the price for the attorney's neglect. The appellant argues that, in the present case, if someone should be punished, the punishment should fall on the attorney and not on the appellant.
In the brief filed with this court, the appellant's counsel states that he was not specifically directed to appear when he was released from Judge Bahakel's court on July 7. He admits that he returned to his office and pursued other work in his office instead of reporting to the trial court that afternoon, as he had told the judge's secretary that he would do. He also admits that he reported for trial in Bessemer the following day instead of reporting to the trial court. He says that he did not receive the order to appear because it was left on his partne
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