Loggins v. State, CR-01-1804.
Decision Date | 11 March 2005 |
Docket Number | CR-01-1804. |
Citation | 910 So.2d 146 |
Parties | Kenneth LOGGINS v. STATE of Alabama. |
Court | Alabama Supreme Court |
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 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, Ex parte 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) (). 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 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. (). 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) ().
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 ( ). 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) ( ), and Conley v. State, 545 So.2d 246, 247 (Ala.Crim.App.1989) (). 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 circuit court lost jurisdiction to modify its ruling 30 days after December 10, 2001, the date it denied Loggins's Rule 32 petition, and its May 2002 order purporting to vacate and reissue its December 10, 2001, order is void.4 Because the May 2002 order is void, the only order from which Loggins could have appealed is the December 10, 2001, order. However, Loggins did not file his notice of appeal until June 4, 2002, almost six months after the December 10, 2001, order was entered. Rule 32.10, Ala.R.Crim.P., provides that either party may appeal a circuit court's ruling on a Rule 32 petition by filing a timely notice of appeal in accordance with Rule 4, Ala.R.App.P. Rule 4(a)(1), Ala.R.App.P., provides that a notice of appeal must 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." "" Melson v. State, 902 So.2d 715, 719 (Ala.Crim.App.2004), quoting Committee Comments to Rule 3, Ala.R.App.P. "" Symanowski v. State, 606 So.2d 171, 173 (Ala.Crim.App.1992), quoting Wood v. City of Birmingham, 380 So.2d 394, 396 (Ala.Crim.App.1980).
Woods v. State, 609 So.2d 7, 8 (Ala.Crim.App.1992) (first emphasis added). See Rule 2(b), Ala.R.App.P. (), and Rule 2(a)(1), Ala.R.App.P. (). Therefore, Loggins's notice of appeal was untimely, and this appeal must be dismissed.
We recognize that at the time Loggins filed his motion requesting that the circuit court vacate its December 10, 2001, order, the law concerning out-of-time appeals from the denial of Rule 32 petitions was uncertain, to say the least5; we also recognize that Loggins apparently acted in a good-faith belief that the circuit court had jurisdiction to grant the relief he sought. We further recognize that our holding today will deprive Loggins of appellate review of the denial of his Rule 32 petition at this time. However,...
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