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05/24/96 EX PARTE JOSEPH EARL JENKINS (RE JOSEPH

May 24, 1996

EX PARTE JOSEPH EARL JENKINS (RE: JOSEPH EARL JENKINS
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Tuscaloosa Circuit Court, CC-94-992, Court of Criminal Appeals, CR-94-1089).

Released for Publication August 22, 1996.

Ingram, Justice. Hooper, C. J., and Maddox, Shores, Kennedy, Cook, and Butts, JJ., concur. Almon and Houston, JJ., Dissent.

The opinion of the court was delivered by: Ingram

INGRAM, JUSTICE.

WRIT DENIED.

Hooper, C. J., and Maddox, Shores, Kennedy, Cook, and Butts, JJ., concur.

Almon and Houston, JJ., Dissent.

HOUSTON, JUSTICE (dissenting).

In my opinion, the form styled "Plea of Not Guilty and Waiver of Arraignment" used in Tuscaloosa County allowed the defendant to file a plea of former jeopardy at a later date, before the trial, in compliance with Rule 15.3(a)(1), Ala.R.Crim.P. Any other interpretation of that form would mislead a defendant to his prejudice. Therefore, I would hold that the plea was timely filed, and I would address the issue of double jeopardy head-on. To do this, it would be best to grant the petition so that we could hear from all sides on this important constitutional issue. I would issue the writ of certiorari; therefore, I Dissent.

19960524

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