Beck v. ALABAMA BD. OF PARDONS AND PAROLES

• Court: Alabama Court of Criminal Appeals
• Citation: 907 So.2d 1096
• Parties: Gary Lee BECK v. ALABAMA BOARD OF PARDONS AND PAROLES and Alabama Department of Corrections.
• Decision Date: 25 February 2005

907 So.2d 1096

Gary Lee BECK
v.
ALABAMA BOARD OF PARDONS AND PAROLES and Alabama Department of Corrections

CR-04-0023.

Court of Criminal Appeals of Alabama.

February 25, 2005.

907 So.2d 1097

Gary Lee Beck, appellant, pro se

Charles Crook, gen. counsel, and Albert Sim Butler and Kim T. Thomas, asst. gen. counsel, Department of Corrections, for appellee.

WISE, Judge.

The appellant, Gary Lee Beck, appeals the circuit court's dismissal of his petition for a writ of certiorari.

On February 3, 2004, Beck filed a petition for a writ of certiorari against the Alabama Board of Pardons and Paroles ("the Board"), in which he sought to have information he contended was "false and erroneous" expunged from the Board's files. Beck alleged in his petition that the circuit court on October 3, 2002, ordered that this information be removed from his file but that the Board had not complied with the court's order.¹ On March 9, 2004, Beck filed a motion to amend his certiorari petition. The amendment appeared to add an additional respondent, by challenging his reclassification as a "heinous offender" by the Alabama Department of Corrections ("the DOC"). Beck also claimed that the DOC continued to classify him internally as a sex offender and that his reclassification as a heinous offender violated the ex post facto clause of the United States Constitution. No answer appears to have been filed by the Board; indeed, there is

907 So.2d 1098

no evidence indicating that the Board was served with a copy of the petition. However, the DOC — which was served with a copy of the petition on March 17, 2004 (C. 1) — filed a motion to dismiss Beck's petition on the ground that it was moot. Attached as an exhibit to the DOC's motion to dismiss was the affidavit of Paul Whaley, director of classifications, refuting Beck's claim that he was being classified internally as a sex offender and setting forth the criteria for Beck's classification as a "restricted offender." On September 2, 2004, the circuit court entered the following order

"The above-styled matter comes before the Court on Defendant's, Alabama Board of Pardons & Paroles, MOTION TO DISMISS AS MOOT. Upon consideration of the same, the Court finds that the MOTION is due to be and is hereby GRANTED."

(C. 94.)²

On October 1, 2004, Beck filed two notices of appeal — one purporting to be from the court's judgment in favor of the DOC (C. 85), and one purporting to be from the court's judgment in favor of the Board (C. 125).

Beck argues that the circuit court improperly dismissed his petition as moot. However, because Beck's appeal challenges the conduct of two state agencies — based on the rules and regulation of those agencies — we must first determine whether this Court has the jurisdiction to review Beck's claims.

In 1969, the Alabama Legislature created the Court of Criminal Appeals and the Court of Civil Appeals from the former Court of Appeals. See § 12-3-1, Ala.Code 1975. The appellate jurisdiction of each of the newly created courts was established by statute. The appellate jurisdiction of this Court is set out in § 12-3-9, Ala.Code 1975, which states:

"The Court of Criminal Appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases."

Additionally, § 6.03(a) of Amendment No. 328, Ala. Const. of 1901, states that this Court shall "exercise" its appellate jurisdiction "under such terms and conditions as shall be provided by law and by rules of the supreme court."

When § 12-3-9 was enacted, the Alabama Rules of Criminal Procedure had not yet been adopted; they were adopted effective January 1, 1991.³ Therefore, the only postconviction remedy available for a criminal defendant was by filing a petition for a writ of error coram nobis. See, e.g., Mayola v. State, 337 So.2d 105 (Ala.Crim. App.), cert. denied, 337 So.2d 107 (Ala. 1976) (recognizing the writ of error coram...