Barnes v. State, CR-90-1853

• Decision Date: 24 July 1992
• Docket Number: CR-90-1853
• Parties: Bennie BARNES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 329

621 So.2d 329

Bennie BARNES v. STATE.

CR-90-1853.

Court of Criminal Appeals of Alabama.

July 24, 1992.

Bennie Barnes, pro se.

James H. Evans, Atty. Gen., and Thomas W. Sorrells, Asst. Atty. Gen., for appellee.

PATTERSON, Presiding Judge.

The appellant, Bennie Barnes, appeals from the circuit court's "denial" of his second Rule 32, A.R.Cr.P., petition, in which he contested his 1989 conviction for trafficking in cocaine and his resulting sentence of 15 years' imprisonment and fine of $50,000. We find the following chronology helpful in sifting through the procedural quagmire presented by this case:

April 11, 1991: Barnes's conviction and sentence were affirmed by this court in an unpublished memorandum decision, Ms. 90-563. 586 So.2d 297.

April 17: Barnes filed his first Rule 32 petition.

April 25: This petition was summarily denied on the circuit court's finding that the petition's "claims regarding ineffective assistance of counsel and illegal search are procedurally barred by the pendency of his appeal, since both claims could be presented to the Appellate Courts" and, also, the circuit court found that "as a further ground for dismissal, the motion does not state a claim for ineffective assistance." Barnes subsequently appealed from this ruling.

April 29: This court issued a certificate of judgment in the appeal of Barnes's conviction and sentence.

August 12: Barnes filed a second Rule 32 petition, which the circuit court treated as an attempt to amend his first petition. This second petition is the subject of this appeal.

August 19: The appeal of the circuit court's denial of Barnes's first Rule 32 petition was dismissed by this court pursuant to Barnes's motion, Ms. 90-713. 587 So.2d 1108.

In response to Barnes's second petition, the circuit court issued the following order on August 21: "I have denied the motion to refile the motion for Rule 32 relief. The motion to dismiss the appeal [presumably of Barnes's first petition] lies within the Court of Criminal Appeals' jurisdiction and I have therefore struck it in this Court." Thereafter, Barnes filed a response to this order, a motion in response to the prosecution's response, and two motions to amend or supplement his petition. On August 29, the circuit court issued the following order:

"I entered a final order denying the Defendant's Rule 32 motion on April 25, 1991 [, the denial of Barnes's first petition]. He subsequently appealed, then procured a voluntary dismissal of his appeal. I have again considered his motions to amend his Rule 32 motion and find they are procedurally barred. More than 30 days have elapsed since the denial of relief, so this Court lacks jurisdiction to allow the amendment. Alternatively, the filing of an amended Rule 32 petition does not substitute for an appeal of my original ruling. I have therefore denied him leave to file the amended motions."

We disagree with the circuit court's finding that it could not accept what we consider to be Barnes's second petition on the ground that, as an amendment filed more than 30 days after denial of relief of Barnes's first petition, it was untimely. This second petition followed the required form prescribed by Rule 32.6(a) and was complete in itself. If we were to adopt the circuit court's finding, a second petition could never be entertained and, consequently, there would be no need for the successive petition procedural bar encompassed in Rule 32.2(b).

Thus, the question before us is whether the circuit court has jurisdiction to entertain a second petition filed while an appeal of a first petition was pending. We have recently addressed this question in Besselaar v. State, 600 So.2d 980 (Ala.Cr.App.1992). There, the petitioner filed a second petition for post-conviction relief while the appeal of his first petition was pending in the Alabama Supreme Court. Thereafter, the case involving the first petition was remanded to the circuit court for an evidentiary hearing. In affirming the circuit court's denial of the petitioner's second petition, this court held: "Because the appeal regarding the appellant's first petition was still pending in an appellate court when he filed the second petition, and because the first petition is presently pending in the circuit court, this cause is hereby dismissed based on the authority of Grant v. State, 565 So.2d 696 (Ala.Cr.App.1990)." Id. at 981.

Grant v. State determined the question of whether a petition for post-conviction relief can be entertained in the circuit court while an appeal of the petitioner's conviction is pending. The Grant court dismissed the appeal of a Rule 20, A.R.Cr.P. Temp., petition that had been filed in the circuit court after the appellate court had affirmed without opinion his conviction but before the certificate of judgment was issued. In so doing, the court relied on the following language of Brown v. State, 250 Ala. 444, 447, 35 So.2d 518, 521 (1948):

"We think the petition to the circuit court for the writ [of error coram nobis] was properly dismissed because that court had no jurisdiction to hear it while the appeal was pending and undisposed of, though the motion to dismiss did not assign that as a ground. If that court had no jurisdiction of the subject matter at that time, the dismissal was not erroneous."

565 So.2d at 697. The Grant court accordingly held, "Under Rule 20, A.R.Cr.P.Temp., it is apparent that an appellant/petitioner should not be able to seek both appellate and post-conviction relief at the same time." Id. See also Hart v. State, 547 So.2d 1195 (Ala.Cr.App.1989); Gibson v. State, 547 So.2d 1196 (Ala.Cr.App.1989).

In Brown v. State, upon which the Grant court relied, the Alabama Supreme Court, in holding that the circuit court did not have jurisdiction to entertain a petition for a writ of error coram nobis that was filed while the direct appeal was pending, relied in part on § 368, Title 15, Code of 1940, which provided that "the trial court shall retain jurisdiction of the cause [after a direct appeal has been taken] for purpose of hearing and determining a motion for a new trial, seasonably made...." The court reasoned that since the statute did "not reserve the right also to act on a petition for a writ of error coram nobis, that right [was] suspended pending the appeal...." 250 Ala. at 446, 35 So.2d at 519.

The limitation of the trial court's jurisdiction encompassed in § 368, Title 15, Code of 1940, has been carried forward in § 12-22-133, Code of Alabama 1975, which reads as follows:

"Where an appeal is taken from the judgment of any municipal, district or circuit court in criminal cases, the trial court retains jurisdiction for the purpose of granting a motion for a new trial and also retains jurisdiction for the purpose of enforcing its judgment where the appeal is dismissed before the judgment of the appellate court is entered."

In light of Brown and § 12-22-133, we consider that, because it lacks jurisdiction, a circuit court is barred from entertaining a Rule 32 petition while an appeal of the conviction is pending; Rule 32 cannot confer such jurisdiction, see Ex parte Ward, 540 So.2d 1350, 1351 (Ala.1988) (wherein the Alabama Supreme Court held that its authority to promulgate and effectuate rules is limited by the principle that a rule of court cannot enlarge jurisdiction).

However, it would appear that, under the Alabama Rules of Criminal Procedure, a petitioner can file a Rule 32 petition even though his appeal of his conviction is pending. Rule 32.6 states, without any qualification except the rule's limitations period, "A petition may be filed at any time after entry of judgment and sentence (subject to the provisions of Rule 32.2(c))." (Emphasis added.) Rule 32.6(c) provides the following: "Notification of Appellate Court: If an appeal of the petitioner's conviction is pending, the clerk shall also promptly send a copy of the petition to the appropriate appellate court, noting in the record the date and manner by which it is sent." We find to be just as significant the absence, from the preclusion grounds listed in Rule 32.2, of a recognition that a pending appeal of the conviction will preclude the Rule 32 petition. Rather, Rule 32.2(a)(1) precludes any ground that may still be raised on direct appeal. ¹

Moreover, looking at some of the procedural rules and standards that Justice Hugh Maddox in H. Maddox, Alabama Rules of Criminal Procedure, § 32.11 p. 794 (1990), recognizes to be "substantially similar" to our Rule 32 procedure--the Uniform Post-Conviction Procedure Act and the American Bar Association Standards relating to post-conviction remedies--we consider that the Alabama Supreme Court, in adopting the Rule 32 procedure, intended that a Rule 32 petition could be filed while a direct appeal is pending.

Section 3 of the Uniform Post-Conviction Procedure Act (U.L.A.) (1980), in addition to providing that "[a]n application may be filed at any time," § 3(b), provides in § 3(d), the following:

"If an application is filed while an appeal or other review is pending, the appell[ate] court, on motion of either party or on its own motion, may defer further action on the appeal or other review until the determination of the application by the trial court or may order the application [removed] [certified] and consolidated with the pending appeal or other review."

The comment to this subsection explains the rationale behind this rule, as follows:

"Subsection (c) [,which relates to the filing of an application before the time for appeal from the judgment of conviction or sentence has expired, ²] and (d) provide efficient procedure for integration of post-conviction litigation and direct appeals or other review following the conviction and sentence. While post-conviction proceedings are rarely instituted so early after convictions, those cases may arise occasionally; these provisions, following ABA Standard 22-2.2, permit consolidation of all pending...