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03/03/95 REGINALD CHARLIE RUSSELL v. STATE

March 3, 1995

REGINALD CHARLIE RUSSELL
v.
STATE



Appeal from Jefferson Circuit Court. (CC-92-1737). Alfred Bahakel, TRIAL JUDGE.

Rule 39(k) Motion Denied April 14, 1995. Rehearing Denied April 14, 1995. Certiorari Denied June 30, 1995. Released For Publication December 14, 1995.

Taylor, Presiding Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Reginald Charlie Russell, was convicted of robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. He was sentenced to life in the penitentiary without parole pursuant to the Habitual Felony Offender Act.

The state's evidence tended to show that on November 29, 1991, the appellant and another man robbed a clerk of an adult bookstore at gunpoint in Birmingham.

The appellant contends on appeal that the trial court erred by allowing him to be tried in his absence. On April 11, 1994, the state and the appellant gave opening statements, and the appellant was present. The trial court then adjourned until 9:00 a.m. the next morning. As of 9:45 a.m. that morning, the appellant had not appeared for trial and the trial court, over the objection of the appellant's counsel, ordered the trial to begin. The appellant arrived at the courtroom before 12:00 p.m., while the trial court was instructing the jury. The appellant told the court that he had had to drive from Talladega to Birmingham that morning and that he had had car trouble along the way. The appellant was present for his sentencing on June 10, 1994.

Rule 9.1, Ala.R.Crim.P., states:

"(a) Right to be present. The defendant has the right to be present at the arraignment and at every stage of the trial, including the selection of the jury, the giving of additional instructions pursuant to Rule 21, the return of the verdict, and sentencing.

"(b) Waiver of the right to be present.

"(1) Except as otherwise provided in subsection (2), a defendant may waive the right to be present at any proceeding in the following manner:

"(i) With the consent of the court, by an understanding and voluntary waiver in open court or by a written consent executed by the defendant and by the defendant's attorney of record, filed in the case.

"(ii) By the defendant's absence from any proceeding, upon the court's finding that such absence was voluntary and constitutes an understanding and voluntary waiver of the right to be present, and that the defendant had notice of the time and place of the proceeding and was informed of the right to be present."

The Committee Comments to Rule 9.1, Ala.R.Crim.P., further discuss the circumstances under which a defendant may waive the right to be ...


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