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12/29/94 RICKY HOPKINS v. STATE

December 29, 1994

RICKY HOPKINS
v.
STATE



Mobile. CC-93-859. Ferrill McRae, TRIAL JUDGE. Original Opinion of September 30, 1994, .

Rule 39(k) Motion Denied December 29, 1994. Application For Rehearing Overruled December 29, 1994. Certiorari Denied May 5, 1995. Released for Publication October 17, 1995.

Bowen, Presiding Judge. All Judges concur.

The opinion of the court was delivered by: Bowen

ON REHEARING EX MERO MOTU

BOWEN, PRESIDING JUDGE

This Court unanimously reversed the appellant's guilty plea conviction for the unlawful possession of cocaine. Based upon the record of the testimony and proceedings presented to this Court, this Court held that the police did not have even a reasonable suspicion to detain the appellant and consequently had absolutely no authority to enter the residence of a third party in order to apprehend the appellant.

The State filed a motion to suspend the rules and also requested that it be allowed to supplement the record on appeal. This Court granted that motion and placed this cause on rehearing ex mero motu. Supplements to the record were filed on October 28, 1994, and November 16, 1994. On November 28, 1994, the State filed a motion for the finding of additional facts pursuant to Rule 39(k), A.R.App.P., and its brief in support of rehearing.

The record presently before this Court now contains the actual guilty plea proceedings that occurred on March 1, 1994. See Supp. Record filed October 28, 1994. That record shows that the trial court's ruling on the motion to suppress "was based on the transcript of the preliminary hearing" which was introduced as Court's Exhibit A. R. 12 (Supp. Record filed October 28, 1994). However, that transcript of the preliminary hearing was included in the original record. The supplemental record filed October 28, 1994, adds absolutely no significant fact to the facts originally submitted to this Court.

The supplemental record filed November 16, 1994, contains a transcript of the hearing on the motion to supplement the record held on November 3, 1994. That transcript shows that at the hearing on the motion to supplement the record the assistant district attorney asserted that at the suppression hearing he did challenge the appellant's standing to object to the search of the third party's residence. R. 5-6 (Supp. Record filed November 16, 1994). However, defense counsel disagreed and stated that while the issue of standing was mentioned by the district attorney, "the issue of standing was never raised and never addressed." Id. at 6. The trial court could only state: "I remember there being some Discussion about it." Id. at 7.

Nothing new has been presented to this Court. The State's motion for the finding of additional facts is denied.

OPINION EXTENDED;

RULE 39(k) MOTION DENIED;

APPLICATION FOR REHEARING ...


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