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04/14/95 DANIEL SIMILTON v. STATE

April 14, 1995

DANIEL SIMILTON
v.
STATE



Appeal from Montgomery Circuit Court. (CC-93-1256).

Cobb, Judge. All the Judges concur.

The opinion of the court was delivered by: Cobb

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.

The appellant, Daniel Similton, was convicted of murder and was sentenced to life imprisonment without the possibility of parole.

Appellant's trial counsel was allowed to withdraw after sentencing. New counsel was appointed for the appellant at that time and new counsel filed a timely motion for a new trial on May 23, 1994. See Ex parte Jackson, 598 So. 2d 895 (Ala. 1992) on May 23, 1994. The motion was denied by operation of law on July 22, 1994. See Rule 24.4, Ala. R. Crim. P. However, on August 18, 1994, the trial court purported to hold a hearing on the motion for new trial and it subsequently issued an order on January 12, 1995, purporting to deny the motion for a new trial.

This appeal is clearly from the denial of the motion for new trial by operation of law on July 22, 1994. There was no ruling by the trial court on the motion for a new trial within 60 days of the filing of the motion. Thus, after July 22, 1994, the trial court did not have jurisdiction to rule on the motion for a new trial and the trial court's order purporting to deny the motion was a nullity. Edgar v. State, 646 So. 2d 683 (Ala. 1994). The appellant seems to recognize this fact. His contention on appeal is that the trial court erred in not setting a timely hearing on his motion for new trial. However, this court will not find error in the trial court's failure to rule on a motion for a new trial before the motion is denied by operation of law due to the passage of time. Howard v. McMillian, 480 So. 2d 1251 (Ala. Civ. App. 1985).

The appellant also argues in his brief to this court that he is entitled to a hearing on his motion for a new trial so that he can prove the allegations of ineffective assistance of counsel. In Edgar, the Alabama Supreme Court held that

"where...a criminal defendant's motion for a new trial is denied under the provisions of Rule 24.4, Ala. R. Crim. P., without an affirmative statement by the trial Judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion."

646 So. 2d at 687.

The following is a list of the allegations of ineffective assistance of counsel contained in the appellant's motion for a new trial:

"8) Defendant was denied effective assistance of counsel as required in the Sixth Amendment to the Constitution of the United States as follows:

"a. The attorney, appointed to represent the Defendant for trial, did not investigate the alleged crime or the background of the victim and State's witnesses.

"b. The attorney, appointed to represent the Defendant for trial, did not interview the Defendant as to the ...


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