Brooks v. State

• Decision Date: 16 January 2004
• Citation: 892 So.2d 976
• Parties: Ex parte State of Alabama (In re Rodgrick Cornilius BROOKS v. STATE of Alabama).
• Court: Alabama Supreme Court

892 So.2d 976

Ex parte State of Alabama

(In re Rodgrick Cornilius BROOKS v. STATE of Alabama).

1020344.

Supreme Court of Alabama.

January 16, 2004.

William H. Pryor, Jr., atty. gen., and Robin Blevins Scales and G. Ward Beeson III, asst. attys. gen., for petitioner.

Submitted on petitioner's brief only.

HARWOOD, Justice.

The State of Alabama petitioned this Court for a writ of certiorari, which we granted, to address whether the Court of Criminal Appeals erred in reversing the judgment of the trial court denying Rodgrick Cornilius Brooks's second Rule 32, Ala.R.Crim.P., petition for postconviction relief. The Court of Criminal Appeals concluded that Brooks might have been entitled to an out-of-time appeal from the dismissal of his first Rule 32 petition based on the authority of Ex parte Fountain, 842 So.2d 726 (Ala.2001), and Ex parte Johnson, 806 So.2d 1195 (Ala.2001). We reverse and remand.

The record reveals the following. On October 20, 1997, Brooks was convicted of murder and first-degree robbery. He was sentenced to 30 years' imprisonment on the murder conviction and to 20 years' imprisonment on the first-degree-robbery conviction, the sentences to be served consecutively. The Court of Criminal Appeals affirmed Brooks's convictions and sentences on direct appeal, in an unpublished memorandum. Brooks v. State (No. CR-97-0540, June 19, 1998), 738 So.2d 941 (Ala.Crim.App.1998) (table). That court issued a certificate of judgment on July 7, 1998. On March 20, 2000, Brooks filed his first Rule 32, Ala.R.Crim.P., petition for postconviction relief, 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 petition, the trial court summarily dismissed Brooks's Rule 32 petition. The order dismissing the petition concluded with the declaration: "Done this _____ day of August, 2000."

After receiving a copy of the order dismissing his petition, which was not stamped as having been received by the circuit clerk, Brooks sent three letters complaining that the order was undated. The first letter, dated October 4, 2000, was addressed to Judge Eugene W. Reese, the circuit court judge who entered the order, and requested that the circuit court vacate the undated order and issue a new one. The second letter, dated October 23, 2000, was addressed to the clerk of the Montgomery Circuit Court and inquired as to the status of his previous request to have the undated order vacated and a new order issued. The last letter, dated October 30, 2000, was addressed to the Administrative Office of Courts. Brooks did not receive a response to any of his letters.

On November 16, 2000, Brooks filed a "Motion for Correction of Clerical Mistake or Error," which was denied on November 29, 2000. On December 5, 2000, Brooks petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial court to vacate the undated order. On December 7, 2000, the Court of Criminal Appeals dismissed the petition because the petition failed to state a proper claim. Ex parte Brooks, 820 So.2d 183 (No. CR-00-0476, Dec. 7, 2000).

On December 28, 2000, because the trial court had not responded to his requests to issue a dated order, Brooks filed his second Rule 32 petition — the Rule 32 petition that is the subject of the State's instant petition for a writ of certiorari — requesting an out-of-time appeal from the dismissal of his first petition pursuant to Rule 32.1(f), Ala.R.Crim.P. After the State had filed its answer and had moved to dismiss the second Rule 32 petition, the circuit court entered an order on February 8, 2001, summarily dismissing Brooks's second Rule 32 petition. Brooks appealed to the Court of Criminal Appeals. In a per curiam opinion issued on December 21, 2001, the Court of Criminal Appeals treated Brooks's appeal as a petition for a writ of mandamus and granted the petition. On January 4, 2002, the State filed an application for rehearing, and on April 26, 2002, the Court 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 court "to determine when its order denying Brooks's first Rule 32 petition was entered, i.e., stamped as received by the circuit clerk, and whether Brooks received a copy of that order that was stamped as received by the circuit clerk." 892 So.2d at 973-74. The opinion also stated that if the circuit court determined that Brooks received his copy of the order after the 42-day period for filing a notice of appeal had run, or if it determined that he received no notice as to when the order had been entered, "it shall grant Brooks an out-of-time appeal." 892 So.2d at 974. On May 10, 2002, the State filed another application for a rehearing. Thereafter, apparently in response to the remand order, the trial court, on May 23, 2002, signed an order in all respects identical to its order entered on the "_____ day of August, 2000," thereby again denying Brooks's first Rule 32 petition. On October 18, 2002, the Court of Criminal Appeals, in an unpublished memorandum, on return to remand and on the State's application for a rehearing, determined that "the circuit court has granted Brooks the relief he requested," dismissed Brooks's appeal as moot, and overruled the State's pending application for rehearing. Brooks v. State (No. CR-00-1134, October 18, 2002), ___ So.2d ___ (Ala.Crim.App.2002) (table). The State filed its third application for rehearing on November 1, 2002, and the Court of Criminal Appeals overruled that application on November 15, 2002; the State now seeks certiorari review.

In its April 26, 2002, opinion, the Court of Criminal Appeals stated, in relevant part:

"`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),

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