Butler v. State (Ex parte Butler)

• Citation: 295 So.3d 1115
• Decision Date: 25 October 2019
• Docket Number: CR-18-0066
• Parties: EX PARTE Michelle Lynn BUTLER (In re: Michelle Lynn Butler v. State of Alabama)
• Court: Alabama Court of Criminal Appeals

295 So.3d 1115

EX PARTE Michelle Lynn BUTLER

(In re: Michelle Lynn Butler

v.State of Alabama)

CR-18-0066

Court of Criminal Appeals of Alabama.

October 25, 2019

Stephen D. Boyd of Boyd Law, LLC, Livingston, for appellant.

Steve Marshall, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.

MINOR, Judge.

In this case, we consider whether a circuit court has jurisdiction to order a defendant to pay restitution after the case against the defendant has been dismissed and after the time for filing postjudgment motions and for appealing the dismissal has expired. For the reasons discussed below, we hold that a circuit court does not have subject-matter jurisdiction to order restitution in such a case.

Michelle Lynn Butler was indicted for first-degree theft of property on September 27, 2016, and in February or March 2017, she sought entrance into a drug-court program. The drug-court application packet filed with the circuit court included a signed acknowledgment by Butler that she must pay restitution as determined by the circuit court at a later time, and the packet included an unsigned "Order for Restitution" that identified "Edgar's Foodland" as the business that would receive restitution.¹ On March 10, 2017, the circuit court adjudged Butler guilty of first-degree theft of property, see § 13A-8-3, Ala. Code 1975, but the circuit court deferred sentencing "because defendant is in drug court." Butler successfully completed the drug-court program, and on March 14, 2018, the State moved to dismiss the case against Butler based on the fact that Butler had "completed 17th Circuit Drug Court Program on March 9, 2018." The circuit court dismissed the case the next day, March 15, 2018. No postjudgment motions were filed, and neither party appealed the circuit court's judgment dismissing Butler's case.

On August 3, 2018, the State filed a motion in the circuit court requesting the circuit court to set a restitution hearing "to address the restitution that is owed and was ordered paid to Edgar's Foodland on or about March 7, 2017." After conducting a restitution hearing, the circuit court entered an "Amended Order" on August 31, 2018, directing Butler to pay restitution to Edgar's Foodland.

"That certain order heretofore entered on the 15th day of March 2018 is hereby amended to require defendant, Michelle Lynn Butler, to pay $6200.00 to Edgar's Foodland, at the rate of $50.00 per month beginning October 1, 2018. Said order through inadvertence and/or mistake failed to include the restitution owed to Edgar's Foodland which formed the basis of Theft of Property First Degree Charge."

(C. 60.) Butler filed a timely notice of appeal, arguing that the circuit court did not have jurisdiction to enter the order directing her to pay restitution to Edgar's Foodland because, she says, at the time the restitution order was entered, more than 30 days had passed following the dismissal of the case against Butler, and the time for appealing the dismissal had expired. We agree.²

Initially, we note that Butler's "appeal" of the circuit court's order of restitution presents a bit of a jurisdictional paradox. The crux of her argument is that the circuit court lacked subject-matter jurisdiction to enter the restitution order. If that argument is correct, the circuit court's order is void. And, under long-standing precedent, a void order will not support an appeal. See, e.g., Ex parte Holley, 883 So. 2d 266, 268 (Ala. Crim. App. 2003). To remedy this problem, this Court may, when appropriate, exercise its discretion under the Rules of Appellate Procedure to treat an appeal challenging the subject-matter jurisdiction of the circuit court as a petition for a writ of mandamus. See Kirksey v. Johnson, 166 So. 3d 633 (Ala. 2014). In Kirksey, the Alabama Supreme Court treated a cross-appeal challenging the subject-matter jurisdiction of the probate court as a petition for a writ of mandamus, and in doing so, the Court stated:

"This Court has treated a notice of appeal as a petition for a writ of mandamus, Morrison Rests., Inc. v. Homestead Vill. of Fairhope, Ltd., 710 So. 2d 905 (Ala. 1998), and, conversely, treated a petition for a writ of mandamus as a notice of appeal, Ex parte Burch, 730 So. 2d 143 (Ala. 1999). As noted in F.L. Crane & Sons, Inc. v. Malouf Construction Corp., 953 So. 2d 366 (Ala. 2006), this Court's actions in the above cases is consistent with Rule 1, Ala. R. App. P., which provides: ‘[These rules] shall be ... construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.’ Likewise, Rule 2(b), Ala. R. App. P., also calls for the suspension of the requirements or provisions of any of the Rules of Appellate Procedure ‘[i]n the interest of expediting decision.’ "

Kirksey, 166 So. 3d at 643. There is "no bright-line test" for determining when this Court should treat an appeal as a petition for a writ of mandamus, and in deciding whether to treat a particular filing as a petition or as an appeal, we "consider the facts of the particular case." Kirksey, 166 So. 3d at 644 (quoting F.L. Crane & Sons, Inc. v. Malouf Construction Corp., 953 So. 2d 366, 372 (Ala. 2006) ). Because Butler challenges the circuit court's subject-matter jurisdiction to order her to pay restitution and because it is well settled that "the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus," see, e.g., Ex parte Flint Construction Co., 775 So. 2d 805, 808 (Ala. 2000), we exercise our discretion under the Rules of Appellate Procedure to treat Butler's timely filed appeal as a petition for a writ of mandamus, and we have restyled the case accordingly.

We review a petition for a writ of mandamus under the following standard:

" ‘The writ of mandamus is a drastic and extraordinary writ, to be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993) ; see also Ex parte Ziglar, 669 So. 2d 133, 134 (Ala. 1995).’ "

Ex parte McWilliams, 812 So. 2d 318, 321 (Ala. 2001) (quoting Ex parte Carter, 807 So. 2d 534, 536 (Ala. 2001) ). A petitioner challenging an action taken by the circuit court establishes a clear legal right to the relief she requests when it is shown that the circuit court did not have subject-matter jurisdiction to take the challenged action. See, e.g., Ex parte Denson, 57 So. 3d 195, 198 (Ala. 2010) ; Ex parte Liberty National Life Ins. Co., 888 So. 2d 478 (Ala. 2003).

The dismissal of a case is a final judgment subject to appeal. Denson, 57 So. 3d at 199. Any postjudgment motions must be filed within 30 days of a final judgment. See Melvin v. State, 583 So. 2d 1365, 1366 (Ala. Crim. App. 1991) (citing Ex parte Andrews, 520 So. 2d 507, 510 (Ala. 1987) ). A circuit court loses subject-matter jurisdiction at the expiration of 30 days following the entry of a final judgment. State v. Webber, 892 So. 2d 869, 870 (Ala. 2004). Any action taken by a circuit court lacking subject-matter jurisdiction is void. Miller v. Riley, 37 So. 3d 768, 772 (Ala. 2009).

Here, the circuit court's March 15, 2018, order dismissing Butler's case was a final judgment. No further action was taken in the case until the State's August 3, 2018, motion requesting the circuit court to set a restitution hearing. By the time the State filed its motion, however, the circuit court had lost subject-matter jurisdiction of the case and had no authority to take any action on the State's motion. Because the circuit court was without subject-matter jurisdiction to order Butler to pay restitution, the circuit court acted beyond its authority when it ordered Butler--nearly five months after her case was dismissed--to pay restitution to Edgar's Foodland.³

We note that, although the circuit court stated that it was "through inadvertence and/or mistake" that the March 15, 2018, order dismissing the case failed to include an award of restitution to Edgar's Foodland, Rule 29, Ala. R. Crim. P.,⁴ which allows for the amendment of judgments to correct a clerical error, may not operate to modify a court's judgment.

" ‘ "[W]hile [ Rule 60, Ala. R. Civ. P.,] authorizes a court to amend a judgment to correct a clerical error, [it] does not authorize the court to render a different judgment." Mullins v. Mullins, 770 So. 2d 624, 625 (Ala. Civ. App. 2000). "Although Rule 60(a) states that a court may correct a clerical mistake or an error arising from oversight or omission ‘at any time,’ this does not authorize a second review of a judgment."

Cornelius v. Green, 521 So. 2d 942, 945 (Ala. 1988).’ Woodward v. State, 3 So. 3d 941, 949 (Ala. Crim. App. 2008). Rule 29, Ala. R. Crim. P. also ‘is intended to deal solely with correction of clerical errors and not judicial errors in the rendition of judgments and orders.’ Committee Comments, Rule 29, Ala. R. Crim. P. ‘ "The trial court's authority to enter a Rule 60(a) [, Ala. R. Civ. P.,] order or a judgment nunc pro tunc is not unbridled. Merchant v. Merchant, 599 So. 2d 1198 (Ala. Civ. App. 1992). It cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said. Michael [v. Michael, 454 So. 2d 1035 (Ala. Civ. App. 1984) ]." ’ Smith v. Smith, 991 So. 2d 752, 754 (Ala. Civ. App. 2008), quoting McGiboney v. McGiboney, 679 So. 2d 1066, 1068 (Ala. Civ. App. 1995)."

Shapley v. State, 260 So. 3d 69, 70–71 (Ala. Crim. App. 2018). Here, the circuit court's belated order of restitution was not authorized by Rule 29.

Based on the foregoing, the circuit court acted beyond its authority in ordering Butler to pay restitution to Edgar's Foodland; thus the circuit court's August 31, 2018, order is void. Miller, 37 So. 3d at 772 ("Action taken by a...