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Court of Criminal Appeals of Alabama.

Andre Levon ASH v. STATE of Alabama.


Decided: April 26, 2002

Andre Levon Ash, pro se. William H. Pryor, Jr., atty. gen., and Robin Blevins, asst. atty. gen., for appellee.

On Remand from the Alabama Supreme Court

Pursuant to the Alabama Supreme Court's opinion in Ash v. State, 843 So.2d 213 (Ala.2002), this case must be remanded to the circuit court of Marshall County.   The Supreme Court stated:

“Because the ground of Ash's Rule 32 petition was precluded, the trial court was right to deny the petition summarily.   Therefore, we reverse the judgment of the Court of Criminal Appeals reversing the trial court, and we remand the cause to the Court of Criminal Appeals for that court to remand to the trial court for reinstatement of the summary denial entered by the trial court.”

843 So.2d at 217 (emphasis added).

 However, we note that a judgment of this Court is not final until it issues its certificate of judgment.   An application for rehearing filed in this Court and a petition filed in the Alabama Supreme Court for the writ of certiorari stay the issuance of that certificate.   See Jackson v. State, 566 So.2d 758 (Ala.1990);  Gordon v. State, 710 So.2d 943 (Ala.Crim.App.1998);  Pratte v. State, 465 So.2d 483 (Ala.Crim.App.1985);  and Rule 41, Ala.R.App.P. The Supreme Court's reversal of this Court's judgment in the present case leaves intact the trial court's summary denial of Ash's Rule 32 petition.   Although we recognize that trial court's have enough to do without being required to enter unnecessary orders and that it is not necessary to remand this case to the trial court “for reinstatement of the summary denial,” we nevertheless must comply with the Supreme Court's instructions.



FOOTNOTE.   Note from the reporter of decisions:  On August 16, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

SHAW, Judge.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.