Brooks v. State

Decision Date26 April 2002
Citation892 So.2d 969
PartiesRodgrick Cornilius BROOKS v. STATE of Alabama.
CourtAlabama 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

PER CURIAM.

This Court's opinion of December 21, 2001, is withdrawn and the following opinion is substituted therefor.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 On June 19, 1998, this Court affirmed Brooks's convictions and sentences on direct appeal, in an unpublished memorandum.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) ("This Court has held that the date of entry by the clerk, rather than the date the judgment is rendered, should be used when computing the time within which the notice of appeal must be filed.").

In Symanowski v. State, 606 So.2d 171 (Ala.Crim.App.1992), this Court stated:

"An appeal must be taken in the manner and within the time prescribed by the Alabama Rules of Appellate Procedure, or it is not taken at all. See Rogers v. Singleton, 286 Ala. 83, 237 So.2d 473 (1970)

. [Ala.]R.App.P. 4(b) provides that in a criminal case the notice of appeal must be filed within 42 days of pronouncement of sentence, provided that the notice of appeal may be orally entered at the sentencing, or it must be filed within 42 days after the denial or overruling of a motion in arrest of judgment, motion for a new trial, or motion for judgment of acquittal filed within 30 days of sentence. `This 42 day period is to be applied uniformly....' Committee Comments, Rule 4. Rule 2(a)(1) provides: `An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.' This requirement of timely filing of the notice of appeal is `a jurisdictional act'; `[i]t is the only step in the appellate process which is jurisdictional.' Committee Comments, Rule 3. See also Lewis v. State, 463 So.2d 154, 155 (Ala.1985); Woods v. State, 371 So.2d 944, 945 (Ala.1979); Turner v. State, 365 So.2d 335, 335 (Ala.Cr.App.),

cert. denied,

365 So.2d 336 ([Ala.]1978).

"`In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal ... even to relieve against mistake, inadvertence, accident, or misfortune....' Meeks v. State Farm Mut. Auto. Ins. Co., 286 Ala. 513, 515, 243 So.2d 27, 28 (1970) (quoting with approval Hanley v. Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250, 1261-67 (1943)). `In the interest of finality of judgments, the prescribed time within which a notice of appeal must be filed with the trial court cannot be waived nor is it subject to extension of time by agreement of the parties or by order of this Court.' Stewart v. Younger, 375 So.2d 428, 428 (Ala.1979) (emphasis in original). See also Hayden v. Harris, 437 So.2d 1283, 1287 (Ala.1983)

; State v. Kebe, 399 So.2d 348 (Ala.1981) (wherein our supreme court noted that a United States District Court could not confer to the court the authority to extend the 42-day period)."

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:

"[U]nder these circumstances, to deny Fountain the opportunity to seek an out-of-time appeal of the circuit court's denial of postconviction relief, solely because the Alabama Rules of Criminal Procedure do not specifically provide such a procedure, would be to deny Fountain his right to procedural due process and would not be a fair administration of justice. Our sense of fundamental fair play requires us to recognize a petitioner's right to petition a circuit court for an out-of-time appeal pursuant to Rule 32.1(f), Ala.R.Crim.P., of that court's denial of postconviction relief when the petitioner has been denied the ability to file a timely appeal because of a mistake by the circuit court. Article I, § 35, Alabama Constitution of 1901. Our holding is limited to those cases where, as here, the circuit court recognizes that it was the fault of the court that the petitioner was unable to perfect a timely appeal."

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:

"`Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.... Although it is generally held in Alabama that a party is under a duty to follow the status of his case, whether he is represented by counsel or acting pro se, and that, as a general rule, no duty rests upon either the court or the opposing party to advise that party of his scheduled trial date, see the cases collected at 18A Ala. Digest Trial § 9(1) (1956), a party's right to procedural due process is nonetheless violated if he is denied his day in court because the court, acting through its clerk, assumed the duty of notifying that party of his scheduled trial date and then negligently failed to do so.
"`The circuit court's dismissal of Weeks's appeal, on the facts presented, lacked one of the fundamental attributes of a fair judicial proceeding — the opportunity for all of the parties to be heard — and could never be upheld where justice is fairly administered. Because the sole object and only legitimate end of state government (including the judicial branch of state government) is to protect the citizen in the enjoyment of life, liberty, and property, it would surely amount to "usurpation and oppression" by this state's judicial branch of government if this branch failed to recognize Weeks's right to procedural due process and he was not afforded his day in court. Article I, § 35, Ala. Const.'
"611 So.2d at 261-62 (citations omitted).
"Considering the limited facts before us on this mandamus petition, we conclude that, through no fault of his own, Johnson has never been notified that his Rule 32 petition has been denied, even though it appears the petition was denied and even though he was entitled to such notification. The trial judge does not dispute Johnson's allegation that he has
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9 cases
  • Ankrom v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 26, 2011
    ...noted that it has the authority to amend the rules of procedure and stated:“The Court of Criminal Appeals claimed in Brooks [v. State, 892 So.2d 969 (Ala.Crim.App.2002),] that it had ‘created a narrow exception to the 42–day rule [in Rule 4(b)(1), Ala. R.App. P.,] in Fountain v. State, 842 ......
  • W.B.S. v. State, CR–13–0494.
    • United States
    • Alabama Court of Criminal Appeals
    • May 29, 2015
    ...noted that it has the authority to amend the rules of procedure and stated:“ ‘The Court of Criminal Appeals claimed in Brooks [v. State, 892 So.2d 969 (Ala.Crim.App.2002),] that it had “created a narrow exception to the 42–day rule [in Rule 4(b)(1), Ala. R.App. P.,] in Fountain v. State, 84......
  • Brooks v. State
    • United States
    • Alabama Supreme Court
    • January 16, 2004
    ...of Criminal Appeals issued an opinion on rehearing withdrawing the December 21 opinion and substituting a new opinion. Brooks v. State, 892 So.2d 969 (Ala.Crim.App.2002). That new opinion, which did not treat the appeal as a petition for a writ of mandamus, remanded the case for the trial c......
  • Loggins v. State, CR-01-1804.
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    • Alabama Supreme Court
    • March 11, 2005
    ...32 petition: a subsequent Rule 32 petition and a petition for a writ of mandamus. See Brooks v. State, 892 So.2d 969, 972 (Ala.Crim.App.2002) (Shaw, J., concurring in the result, joined by Baschab, J.). Over two years later, however, on September 26, 2003, the Alabama Supreme Court issued i......
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