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03/03/95 GLORIA ANN NEWMAN MOORE v. STATE

March 3, 1995

GLORIA ANN NEWMAN MOORE
v.
STATE



Appeal from Russell Circuit Court. (CC-93-499). Paul Miller, TRIAL JUDGE. This Opinion Substituted by the Court for Withdrawn Opinion of January 13, 1995, Previously .

Rule 39(k) Motion Denied May 5, 1995. Rehearing Denied May 5, 1995. Certiorari Denied August 25, 1995. Released For Publication February 17, 1996.

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This court's opinion of January 13, 1995, is hereby withdrawn and the following opinion is substituted therefor.

The appellant, Gloria Ann Newman Moore, was indicted for theft of property in the first degree, a violation of § 13A-8-3, Code of Alabama 1975. Pursuant to a plea agreement, the appellant pleaded guilty to theft of property in the second degree and was sentenced to 15 years' imprisonment. It is from this conviction and sentence that this appeal is taken.

I

The appellant contends that her guilty plea was not voluntarily entered because, she says, the trial court failed to comply with Rule 14.4(a)(2), Ala. R. Crim. P. when it failed to determine if the appellant's guilty plea was "voluntary and not the result of force, threats, or coercion, nor of any promise apart from the plea agreement that has been disclosed to the court."

In Trice v. State, 601 So. 2d 180 (Ala. Crim. App. 1992), this court reversed the trial court because it failed to ask the appellant "if he had been threatened or promised a reward to plead guilty." This court held that although there was an Ireland form in the record in which the appellant acknowledged that he "had not been threatened, abused, or offered any inducement or reward to get him to plead guilty," there was no reference to the Ireland form in the guilty plea colloquy.

This case is clearly distinguishable from Trice. As in Trice, the explanation of rights form that the appellant signed stated that she had not been threatened or promised a reward to induce her to plead guilty. However, in this case, the trial court specifically asked the appellant during the guilty plea hearing if she had "been over this explanation of rights form and plea of guilty form" and if she had signed the form voluntarily. The appellant replied affirmatively.

"In Twyman v. State, 293 Ala. 75, 81-82, 300 So. 2d 124, 130 (1974), our Supreme Court held that an Ireland form executed by the defendant and acknowledged by defense counsel and the trial Judge may establish that a guilty plea was voluntarily and intelligently made, 'provided there is other evidence in the record supporting that fact.' Davis v. State, 348 So. 2d 844, 846 (Ala.Cr. App.), cert. denied, 348 So. 2d 847 (Ala.1977) (emphasis in original)."

Trice, 601 So. 2d at 184. In this case, execution of the explanation of rights form by the appellant and the reference to the form by the trial Judge with the acknowledgement by the appellant that she had "been over" the form and had signed it voluntarily is sufficient to establish that the appellant's guilty plea was voluntarily and intelligently made despite the fact the trial court did ...


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