Barfield v. State, CR-96-0467
Citation | 703 So.2d 1011 |
Decision Date | 18 April 1997 |
Docket Number | CR-96-0467 |
Parties | Kevin BARFIELD v. STATE. |
Court | Alabama Court of Criminal Appeals |
Kevin Barfield, pro se.
Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
The appellant, Kevin Barfield, purports to appeal from the trial court's denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his 1995 guilty-plea conviction for first degree rape, and the resulting sentence of 20 years' imprisonment. The attorney general argues that this appeal should be dismissed because, it argues, the appellant's notice of appeal was untimely.
The relevant facts are as follows:
1. On June 26, 1996, the appellant filed a Rule 32 petition in the Circuit Court of Jefferson County. (C.R. 1-10.) In the petition, the appellant maintained that he was entitled to relief because, he argued, a number of his constitutional rights had been violated. The appellant also argued that the trial court was without jurisdiction to impose the sentence, that the sentence exceeded the maximum authorized by law, and that he had failed to appeal his conviction through no fault of his own.
2. On August 26, 1996, the state filed a motion to dismiss the petition on the grounds that the claims were either precluded, were without merit, or were merely bare allegations. (C.R.13-18.)
3. On September 5, 1996, the appellant filed a response to the state's motion to dismiss. (C.R.19-20.)
4. On September 23, 1996, the appellant filed a document entitled " 'Motion for Expansion of Records, Introduction of Newly Discovered Evidence," which included an affidavit from a prison inmate who vouched for the appellant's innocence. (C.R. 21-23.)
5. On October 16, 1996, the trial court denied the appellant's petition in the following written order:
6. The trial court clerk's record contains a written notice of appeal filed by the appellant in the Jefferson County Circuit Court. (C.R.24.) The notice of appeal does not indicate when the notice was filed in the circuit clerk's office; however, both the notice of appeal and its certificate of service are dated November 11, 1996.
7. On November 12, 1996, this Court received a copy of the appellant's written notice of appeal, apparently sent by the appellant.
8. The document immediately following the appellant's notice of appeal in the trial court clerk's record is a document entitled "Motion in Objection to Court's Denial of Rule 32 Petition on October 16, 1996." (C.R.25-26.) This document and its certificate of service are also dated November 11, 1996. The stamp on this document indicates that it was filed in the circuit clerk's office on November 18, 1996.
9. The reporter's transcript order and the Court of Criminal Appeals docketing statement, which were executed by the appellant, are both dated November 25, 1996. (C.R.27-30.) The certificate of service attached to these documents is dated November 26, 1996. (C.R.28.) The stamp on these documents indicates that they were not filed in the circuit clerk's office until December 6, 1996.
10. The notice of appeal to this Court by the circuit clerk shows that the appellant filed his notice of appeal on December 2, 1996. (C.R.31.)
11. The circuit clerk's certificate of completion of the record also shows that the appellant filed his notice of appeal on December 2, 1996. (C.R.34.)
The attorney general argues that the appellant's December 2, 1996, notice of appeal was untimely, and that thus, the appeal is due to be dismissed. Symanowski v. State, 606 So.2d 171 (Ala.Crim.App.1992). In Symanowski, we held:
It is undisputed that for the notice of appeal to be timely, it had to be filed with the clerk of the trial court by November 27, 1996, which is 42 days from the trial court's denial of his Rule 32 petition. 1 See Rules 3 and 4, Ala.R.App.P. If, as the state argues, the appellant's notice of appeal was filed on December 2, 1996, then the appeal is due to be dismissed as untimely; however, from our review of the record, we are unable to tell when the appellant filed his written notice of appeal with the trial court clerk, or how the trial court...
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