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03/03/95 JAMES CARSON LAMBERT v. CITY HENAGAR

March 3, 1995

JAMES CARSON LAMBERT
v.
CITY OF HENAGAR



Appeal from DeKalb Circuit Court. (CC-91-521). Randall Cole, TRIAL JUDGE. This Opinion Substituted by the Court for Withdrawn Opinion of August 13, 1993, Previously .

Application For Rehearing Granted March 3, 1995. As Amended. Released for Publication August 12, 1995.

Cobb, Judge. All the Judges concur.

The opinion of the court was delivered by: Cobb

ON APPLICATION FOR REHEARING

COBB, JUDGE

This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

This court's unpublished memorandum and decision of August 13, 1993, are hereby set aside and the following opinion is substituted therefor.

In a trial de novo, after having been found guilty in the municipal court of the City of Henagar, Alabama, the appellant, James Carson Lambert, was convicted in the Circuit Court of DeKalb County, Alabama, of assault in the third degree, in violation of § 13A-6-22, Code of Alabama 1975. His sentence was split and he was ordered to serve 18 months on probation and, after evaluation, if he did not meet the conditions of his probation, he was to serve six months in the municipal jail.

The prosecution's evidence tends to establish the following. On August 30, 1991, the appellant and Tommy Tozzi, a relative of the appellant's, were arguing about family property located in front of the appellant's trailer, which was adjacent to the home of the grandmother of Gary Gant, the victim, and also Tozzi's brother. The appellant told Tozzi to leave the property. The appellant asserts that Tozzi began fighting with him, and the appellant says he picked up a board and forced Tozzi to retreat across the road. Gant was driving by and saw Tozzi across the road.

Gant stopped and asked Tozzi about what was happening. Tozzi explained to Gant that Tozzi could not get his car, which he had left on the family property, because the appellant would not let him retrieve it. Gant told the appellant and Tozzi to stop fighting because it was upsetting his grandmother, who had seen the fight. Gant then went to the edge of the appellant's yard and talked with his grandmother. After speaking to his grandmother, Gant asked the appellant and Tozzi to leave. As he turned, the appellant struck Gant on the head with the board.

After being struck with the board, Gant left the property, went to the police station to ask the police to break up the fight, and then went to the hospital. Gant received at least 18 stitches as treatment to his injuries as a result of the blow to his head.

The next day, Gant swore out a complaint against the appellant. On the day of the incident, the appellant had sworn out a complaint against Gant and Tozzi. Special prosecutors were appointed to assert the charges against the appellant and to defend the charges against Gant and Tozzi because the city prosecutor had spoken to all parties in an effort to resolve the matter. The municipal court found Gant and Tozzi not guilty, and in Gant's action against the appellant found the appellant guilty. The appellant appealed and was granted a trial de novo in the circuit court. He was found guilty in circuit court of assault in the third degree.

I

The appellant first asserts that the circuit court did not have jurisdiction to hear the case against him because, he argues, the judgment of the municipal court was void in that he was not represented by counsel ...


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