Ex parte Wright

• Decision Date: 03 May 2002
• Parties: Ex parte Motis Franklin WRIGHT. (In re Motis Franklin Wright v. State).
• Court: Alabama Supreme Court

860 So.2d 1253

Ex parte Motis Franklin WRIGHT.

(In re Motis Franklin Wright v. State).

1001181.

Supreme Court of Alabama.

May 3, 2002.

Motis F. Wright, pro se.

William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for respondent.

JOHNSTONE, Justice.

The defendant, Motis Franklin Wright, was convicted of first-degree robbery and was sentenced under the Habitual Felony Offender Act to life imprisonment without the possibility of parole. Acting pro se, Wright filed a Rule 32, Ala. R.Crim. P., petition complaining that the indictments in his cases were void, and the trial court denied the petition. Wright appealed the denial, and the Court of Criminal Appeals dismissed his appeal for untimeliness, without an opinion. Wright v. State, (No. CR-00-1073, March 1, 2001) 821 So.2d 1047 (Ala.Crim.App.2001) (table). The Court of Criminal Appeals subsequently dismissed Wright's motion to reinstate the appeal and his application for rehearing.

We granted Wright's petition for a writ of certiorari to determine whether the Court of Criminal Appeals erred in dismissing Wright's appeal as untimely filed. The only issue before us is whether Wright timely filed his notice of appeal. We reverse and remand with instructions.

On December 27, 2000, the trial judge signed and dated a separate order, not in bench notes or on the case action summary, denying Wright's Rule 32 petition. This order was date-stamped as received by the trial court clerk on January 8, 2001.

Wright received notice of this order through the mail on January 10, 2001. Wright alleges that he placed his notice of appeal in the prison mailbox on February 19, 2001. February 19 was 42 days after the January 8 date of the trial court clerk's receipt of the trial judge's order. Wright's notice of appeal bears a "Declaration of Mailing" signed by Wright and three witnesses stating: "I hereby certify that I have this 19th day of February, 2001, placed the foregoing Notice of Appeal in this Institution's mailbox, postage pre-paid and properly addressed, pursuant to Houston v. Lack, 487 U.S. 266 [(1988)]." On February 21, 2001, the trial court clerk date-stamped Wright's notice of appeal as received.

"[P]ostconviction proceedings filed pursuant to Rule 32 are civil proceedings." State v. Hutcherson, 847 So.2d 378, 383 (Ala.Crim.App.2001). "[I]n all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from...." Rule 4(a)(1), Ala. R.App. P. See also Rule 32.10(a), Ala. R.Crim. P. "In the context of postconviction relief, the 42-day appeal period runs from the date of the trial court's denial of the Rule 32 petition." Ex parte Jones, 773 So.2d 989, 989 (Ala.1998). (Citation omitted.) "Clearly, the wording of the Rule [4(a)(1), Ala. R.App.P.,] states that [a] notice of appeal must be filed within 42 days `after a judgment' has been entered in a case." Miles v. State, 822 So.2d 468, 469 (Ala.Crim.App.2000). See also Thigpen v. State, 825 So.2d 241, 244 (Ala.Crim.App.2001)

." `[W]hen a judge renders a judgment by a separate written order, that judgment is not entered until it is filed in the clerk's office.'" Allstate Ins. Co. v. Coastal Yacht Servs., Inc., 823 So.2d 632, 633 (Ala.2001) (quoting Smith v. Jackson, 770 So.2d 1068, 1071-72 (Ala. 2000)) (emphasis added). See also Rule 58(c), Ala. R. Civ. P.

Therefore, Wright's 42-day appeal time began on January 8, 2001, when the separate-order denial of his Rule 32 petition was filed in the trial court clerk's office. If Wright's notice of appeal be deemed and found to have been filed by February 19, 2001, then his appeal was timely and relief will be due.

Rule 4(c), Ala. R.App. P., provides:

"If an inmate confined in an institution and proceeding pro se files a notice of appeal in either a civil or a criminal case, the notice will be considered timely filed if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for `legal' mail to be processed by the United States Post Office, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a notarized statement that sets forth the date the filing was deposited in the institution's mail system." (Emphasis added.)

In Holland v. State, 621 So.2d 373 (1993), the Court of Criminal Appeals observed and held:

"The appellant's certificate of service averred that he placed the petition in the mail on March 19, four days before the limitations period elapsed. Although the petition may not have been received by the circuit clerk until March 24, one day after the statute of limitations ran, we conclude, based on the holding of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), that the appellant's petition was timely filed....

"....

"... In this case, we do not have the prison mail log before us. We cannot verify that the appellant in fact delivered his petition to prison authorities for mailing on March 19, four days before the limitations period elapsed, as his certificate of service avers. However, the district attorney failed to challenge this allegation in the circuit court and, consequently, it must be accepted as true. Ex parte Floyd, 457 So.2d 961, 962 (Ala.1984)."

Holland, 621 So.2d at 374-75. In Jones, 773 So.2d at 989, this Court explained and held:

"[T]he trial court denied [Jones's Rule 32] petition, by a written order, on February 5, 1997. On March 17, Jones handed his notice of appeal to a prison official at the Limestone Correctional Facility, where Jones was imprisoned. Jones paid to have the notice of appeal sent by certified mail. It was sent by certified mail, and on March 21—the 44th day after the February 5 denial of the petition—the Tuscaloosa County circuit clerk's office received Jones's envelope containing his notice of appeal. The Court of Criminal Appeals dismissed Jones's appeal ... [as] untimely.

"....

"... The 42d day after the trial court's February 5, 1997, denial of Jones's Rule 32 petition was March 19. Relying on Holland v. State, 621 So.2d 373 (Ala.Crim.App.1993), Jones argues that his notice of appeal should be deemed to have been `filed' on the day he gave the notice of appeal to the prison official, that is, on March 17—the 40th day after the entry of judgment.

"....

"The record contains a copy of the envelope that contained Jones's notice of appeal. The envelope was sent by certified mail to the office of the Tuscaloosa County circuit clerk, and it was postmarked March 17, 1997—two days before the 42-day period for appeal would have expired. Further, Jones's certificate of service for the notice of appeal was dated March 17. Thus, the record indicates that on or before March 17, Jones had given a prison official his notice of appeal to be mailed.... Because Jones was incarcerated and was filing his notice of appeal pro se, his notice of appeal should have been considered `filed' on March 17, the day he gave it over to the prison authorities."

Jones, 773 So.2d at 989-90 (emphasis added).

In Hatfield v. State, 784 So.2d 377 (Ala. Crim.App.2000), Hatfield, a pro se inmate, timely appealed the denial by the trial court of his Rule 32 petition. In his Rule 32 petition, Hatfield had prayed that the trial court grant him an out-of-time direct appeal from his convictions because, he claimed, his original direct appeal had been improperly dismissed. Reversing the denial by the trial court of Hatfield's Rule 32 petition, the Court of Criminal Appeals observed that Hatfield apparently had mailed from prison his notice of direct appeal exactly 42 days after the pronouncement of his sentence even though the trial court clerk did not mark the notice as filed until two days later. The Court of Criminal Appeals reasoned and ruled:

"We take judicial notice of the record of the dismissal of Hatfield's direct appeal. Hatfield was sentenced on October 6, 1998. The 42nd day after pronouncement of sentence was November 17, 1998. Our records contain a pro se notice of appeal dated November 17, 1998. The notice of appeal indicates that at the time Hatfield was incarcerated in the Kilby Correctional Facility in Montgomery, Alabama. The notice of appeal is marked filed by the DeKalb circuit clerk on November 19, 1998—the 44th day after the pronouncement of the sentence.

"Hatfield's claim that he is entitled to an out-of-time appeal is, at least on its face, meritorious. Therefore, we remand this cause to the circuit court to address Hatfield's claim in light of our Supreme Court's holding that a notice of appeal filed by a pro se litigant who is incarcerated is considered filed when it is handed to a prison official. The circuit court is to make written findings of fact with regard to this claim, and, if necessary, to hold an evidentiary hearing on this matter."

Hatfield, 784 So.2d at 378 (citations omitted and emphasis added).

Likewise, in Thigpen v. State, supra,

the Court of Criminal Appeals remanded Thigpen's case to the trial court to determine whether Thigpen's notice of appeal was timely filed:

"The trial court's order denying the petition was issued on July 17, 2000. The appellant filed a written notice of appeal dated August 25, 2000, accompanied by the following unverified certificate of

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