910 So.2d 146 (Ala.Crim.App. 2005), CR-01-1804, Loggins v. State

Docket Nº:CR-01-1804.
Citation:910 So.2d 146
Opinion Judge:PER CURIAM.
Party Name:Kenneth LOGGINS v. STATE of Alabama.
Case Date:March 11, 2005
Court:Alabama Court of Criminal Appeals

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910 So.2d 146 (Ala.Crim.App. 2005)



STATE of Alabama.


Alabama Court of Criminal Appeals

March 11, 2005

Appeal from Jefferson Circuit Court, CC-94-3524.60

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Martin Flumenbaum, New York, New York; Wilson Myers, Sr., Gulf Shores (withdrew 4/27/04); and Talitha Powers Bailey, Birmingham, for appellant.

William H. Pryor, Jr., and Troy King, attys. gen., and James R. Houts and Beth Jackson Hughes, asst. attys. gen., for appellee.


Kenneth Loggins appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his capital-murder conviction and his sentence of death.

In August 1994, Loggins was indicted for two counts of capital murder in connection with the murder of Vickie Deblieux. Count I of the indictment charged Loggins with murder made capital because it was

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committed during a kidnapping, see §13A-5-40(a)(1), Ala. Code 1975; Count II of the indictment charged Loggins with murder made capital because it was committed during a robbery, see §13A-5-40(a)(2), Ala. Code 1975. A jury found Loggins guilty of the capital offense of murder committed during a kidnapping as charged in Count I of the indictment and of intentional murder as a lesser-included offense of the capital offense of murder committed during a robbery under Count II of the indictment. By a vote of 10-2, the jury recommended that Loggins be sentenced to death for his capital-murder conviction. The trial court accepted the jury's recommendation and sentenced Loggins to death for the capital-murder conviction; the trial court sentenced Loggins to life imprisonment for the intentional-murder conviction. On appeal, this Court affirmed Loggins's capital-murder conviction and his sentence of death, but vacated Loggins's conviction and sentence for intentional murder on the ground that it violated the principles of double jeopardy. Loggins v. State, 771 So.2d 1070 (Ala. Crim. App. 1999). The Alabama Supreme Court affirmed this Court's judgment, Exparte Loggins, 771 So.2d 1093 (Ala. 2000), and this Court issued a certificate of judgment on June 20, 2000.

Loggins, through counsel, filed his Rule 32 petition on August 29, 2001.1 After receiving a response from the State, the circuit court summarily denied the petition on December 10, 2001. In May 2002, Loggins filed a motion with the circuit court requesting that it vacate the December 10, 2001, order summarily denying his petition on the ground that Loggins never received a copy of the order and he was not aware that his petition had been denied until he was notified by the State in late May 2002 that it had been denied.2 The circuit court granted the motion, vacated the December 10, 2001, order, and reissued the order denying Loggins's Rule 32 petition on May 28, 2002. Loggins filed a notice of appeal on June 4, 2002, and an amended notice of appeal on June 25, 2002.

This appeal is due to be dismissed because the circuit court had no jurisdiction to vacate and reissue its December 10, 2001, order almost six months after the original order had been entered; thus, Loggins's notice of appeal was untimely filed. "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987).

It is well settled that a circuit court generally retains jurisdiction to modify a judgment for only 30 days after the judgment is entered. See, e.g., Ex parte Bishop, 883 So.2d 262, 264 (Ala. Crim. App. 2003) ("According to established precedent, a trial court retains jurisdiction to modify a ruling for 30 days."). This general rule applies to Rule 32 petitions. See Henderson v. State, [Ms. CR-03-0804, October 29, 2004] ___ So.2d ___ (Ala. Crim. App. 2004). A motion for a new trial or a

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motion in arrest of judgment may be filed within 30 days of the date of sentencing, see Rule 24.1(b) and Rule 24.2(b), Ala.R.Crim.P., in which case, the sentencing court retains jurisdiction to rule on the motion beyond 30 days, see Rule 24.4, Ala.R.Crim.P., 3 and the filing of such a motion tolls the time for filing a notice of appeal. See Rule 4(b)(1), Ala.R.App.P. ("If a motion in arrest of judgment, motion for new trial, or motion for judgment of acquittal has been filed within 30 days from pronouncement of the sentence, an appeal may be taken within 42 days (6 weeks) after the denial or overruling of the motion."). However, Rule 24 has no application to postconviction proceedings under Rule 32. See Patterson v. State, 549 So.2d 635, 636 (Ala. Crim. App. 1989) ("The language of [Rule 24] clearly does not contemplate the filing of a motion for new trial after the denial of a Rule 20 [now Rule 32] petition.").

In the context of a Rule 32 petition, the postjudgment motion frequently filed by petitioners and the one recognized by this Court, is a motion to reconsider or to modify the judgment. However, such a postjudgment motion, even if timely filed, does not extend the circuit court's jurisdiction beyond 30 days after the denial of the petition. See, e.g., Henderson, supra (holding that the circuit court lacked jurisdiction to conduct an evidentiary hearing on a petitioner's timely motion to reconsider more than 30 days after the court's denial of the Rule 32 petition). Nor does the filing of such a motion toll the time for filing a notice of appeal. See, e.g., Ex parte Wright, 860 So.2d 1253, 1254 (Ala. 2002) (holding that, in the context of postconviction relief, the 42-day appeal period runs from the date of the circuit court's denial of the Rule 32 petition if the court does not issue a separate written order of denial or, if the court issues a separate written order denying the Rule 32 petition, the date that order is filed in the circuit clerk's office), and Conley v. State, 545 So.2d 246, 247 (Ala. Crim. App. 1989) ("A motion to reconsider or amend does not fall within that category of motions that tolls the time for appeal under the Alabama Rules of Appellate Procedure."). As this Court noted in Patterson, "[n]either the Alabama Rules of Criminal Procedure nor the Alabama Rules of Appellate Procedure provide a procedure for suspending the time for appeal upon the filing of a motion to reconsider the denial of a Rule 20 [now Rule 32] petition." 549 So.2d at 636.

Thus, in this case, the...

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