Cook v. State

333 So. 2d 858 (1976)

In re Jerry COOK v. STATE of Alabama. Ex parte Jerry Cook.

SC 1834.

Supreme Court of Alabama.

October 1, 1976.

Michael E. Sparkman, Hartselle, for petitioner.

None for the State.

Jacob Walker, Jr., Opelika, Richard H. Gill, Roland M. Nachman, Montgomery, Robert B. Harwood, Jr., Tuscaloosa, J. Edward Thornton, Mobile, Amicus Curiae.

BLOODWORTH, Justice.

Petition of Jerry Cook for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cook v. State, 57 Ala.App.___, 333 So. 2d 855 [1976].

The writ is denied on the merits. Although the petition does not state that an *859 application for rehearing was filed in the Court of Criminal Appeals and "the date of the order overruling the application for rehearing" as required by Rule 39(d)(2), A.R.A.P., the petition does follow Form 22, Appendix 1, A.R.A.P., which Rule 50 states is sufficient.

On the other hand, Rule 39(b) requires that the petition be filed with the Clerk of the Supreme Court "within 14 days (2 weeks) after the decision of the court of appeals on the application for rehearing." We cannot tell from examining the petition whether it was timely filed or not.

Form 22, Appendix 1, A.R.A.P., should contain the following averment at the end of paragraph 1:

"An application for rehearing was filed on ____________ and overruled on [date] ____________." [date]

WRIT DENIED. ORIGINAL OPINION WITHDRAWN AND CORRECTED.

All the Justices concur.