Brooks v. State
Decision Date | 26 April 2002 |
Citation | 892 So.2d 969 |
Parties | Rodgrick Cornilius BROOKS v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
Rodgrick C. Brooks, pro se.
William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for appellee.
On Application for Rehearing
This Court's opinion of December 21, 2001, is withdrawn and the following opinion is substituted therefor. On October 20, 1997, Rodgrick Cornilius Brooks was convicted of murder and first-degree robbery. On November 13, 1997, the trial court sentenced him to serve 30 years in prison on the murder charge and 20 years in prison on the first-degree robbery charge, with the sentences to be served consecutively. On June 19, 1998, this Court affirmed Brooks's convictions and sentences on direct appeal, in an unpublished memorandum. Brooks v. State (No. CR-97-0540), 738 So.2d 941 (Ala.Crim.App.1998) (table). On July 7, 1998, the certificate of judgment was issued. On March 20, 2000, Brooks filed his first Rule 32, Ala.R.Crim.P., petition, claiming ineffective assistance of both trial and appellate counsel and the improper empaneling of the petit jury. After the State filed its answer and its motion to dismiss, the circuit court summarily dismissed Brooks's petition. The order dismissing the petition stated: "Done this ___ day of August, 2000." (C. 13.)
After receiving a copy of the order dismissing his petition, which, the record indicates, was not stamped as received by the circuit clerk, Brooks sent three letters complaining that the order was undated, the first two of which were addressed to the circuit court and the last to the Administrative Office of Courts. In the first letter, dated October 4, 2000, Brooks requested that the circuit court vacate the undated order and issue a new one. In his second letter, dated October 23, 2000, Brooks questioned the status of his previous request to have the undated order vacated. In the third letter, dated October 30, 2000, Brooks took his cause to the Administrative Office of Courts. Brooks did not receive a response to any of his letters.
On December 28, 2000, because the circuit court had not responded to his requests to provide a dated order, Brooks filed his second Rule 32 petition — the petition that is the subject of this appeal — requesting an out-of-time appeal from the dismissal of his first petition pursuant to Rule 32.1(f), Ala.R.Crim.P. On February 6, 2001, after the State had filed its answer and its motion to dismiss the second Rule 32 petition, the circuit court summarily dismissed that petition.
"In a criminal case a notice of appeal by the defendant shall be filed with the clerk of the trial court within 42 days (6 weeks) after pronouncement of the sentence." Rule 4(b)(1), Ala.R.App.P. In the context of postconviction relief, the 42 day period runs from the date of the entry of the circuit court's order denying the Rule 32 petition. See Ex parte Potts, 814 So.2d 836, 838 n. 1 (Ala.2001) ().
In Symanowski v. State, 606 So.2d 171 (Ala.Crim.App.1992), this Court stated:
365 So.2d 336 ([Ala.]1978).
606 So.2d at 172. See also Woods v. State, 609 So.2d 7, 8 (Ala.Crim.App.1992).
This Court created a narrow exception to the 42 day rule in Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000), aff'd in pertinent part, rev'd on other grounds, 842 So.2d 726 (Ala.2001). In Fountain, the circuit court had granted the appellant's second Rule 32 petition, in which he had requested an out-of-time appeal from the dismissal of his first Rule 32 petition, "ruling that, because Fountain was never notified of the ... dismissal of his petition, his failure to timely appeal from that dismissal was through no fault of his own." 842 So.2d at 721. This Court stated:
842 So.2d at 724. The Alabama Supreme Court affirmed that aspect of this Court's judgment in Fountain affirming the trial court's grant of an out-of-time appeal. See Ex parte Fountain, 842 So.2d 726 (Ala.2001).1
In addition, in Ex parte Johnson, 806 So.2d 1195 (Ala.2001), the Alabama Supreme Court held that denying a Rule 32 petitioner his ability to have the ruling on his petition reviewed on appeal violated the petitioner's right to procedural due process when the petitioner's inability to perfect a timely appeal was caused by the circuit court's failure to give adequate notice of its ruling. Relying on Ex parte Weeks, 611 So.2d 259 (Ala.1992), the Court in Johnson issued a writ of mandamus, stating:
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