Dixon v. State

• Decision Date: 29 April 2005
• Docket Number: CR-03-1742.
• Parties: Kenneth Wayne DIXON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

920 So.2d 1122

Kenneth Wayne DIXON v. STATE of Alabama.

CR-03-1742.

Court of Criminal Appeals of Alabama.

April 29, 2005.

Rehearing Denied June 24, 2005.

Certiorari Denied August 12, 2005 Alabama Supreme Court 1041496.

COPYRIGHT MATERIAL OMITTED

Stephanie W. Kemmer, Centreville, for appellant.

Troy King, atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.

PER CURIAM.

I. Introduction

On March 4, 1991, Kenneth Wayne Dixon pleaded guilty to first-degree assault. On July 31, 1991, the trial court sentenced him to 10 years in prison; the trial court refused probation. The trial court also ordered him to pay $10,000 in restitution and $5,000 to the Alabama Crime Victims Compensation Fund. On August 28, 1991, Dixon filed a "Motion to Set Aside Court's Sentence." (C. 20-21.) After the State responded, the trial court conducted a preliminary hearing on the motion on September 25, 1991. The trial court continued the motion until November 1, 1991, noting that "[t]he Court does specifically retain jurisdiction of this case. Con't until Nov 1st." (C. 2.) Various other continuations of the motion were granted until June 3, 1992. On that date, the trial court issued an order suspending Dixon's 10-year sentence, releasing him from prison, and placing him on probation. The trial court also increased the total amount of restitution to be paid to $75,000¹ and increased the amount to be paid to the Crime Victims Compensation Fund to $10,000.²

On September 28, 1998, following a revocation hearing, the trial court revoked Dixon's probation "based on his failure to pay court ordered money as shown in the court file." (C. 194.)³ After Dixon had completed his prison sentence,⁴ the State petitioned the Court on July 28, 2003, to hold him in contempt because he owed a balance of $38,833.59 on his court-ordered restitution. (C. 213.) On February 19, 2004, Dixon moved to dismiss the petition. The trial court denied the motion to dismiss and ordered that Dixon "provide a plan for payment of the amounts due" within 21 days of the order or be held in contempt and taken into custody. (C. 247.) On June 10, 2004, Dixon filed a "Motion for New Trial," in which he took issue with the trial court's order; the trial court denied his motion on June 16, 2004. On that same date, the State moved the trial court to hold Dixon in contempt. The trial court did so, ordering that Dixon "be immediately incarcerated for such contempt and held in the Bibb County Jail pending payment of a lump sum of $10,000." (C. 251.) This appeal followed.⁵ We reverse and remand.

On appeal, Dixon argues that the trial court erred by holding him in contempt for failing to pay the ordered restitution and victims compensation fund amount because he has fulfilled the payment requirements of his original sentencing order, and the subsequent order, which placed him on probation in exchange for increasing the owed restitution and fee, was void under Rule 24.4, Ala. R.Crim. P. Dixon put forth this argument to the trial court in his motion to dismiss the contempt charges and in his motion for a new trial.

II. The Contempt Order

Although, as we explain later, we agree with Dixon's argument that the subsequent order of the trial court increasing the restitution and the amount he was required to pay to the Crime Victims Compensation Fund was void, we note that there is a greater issue before us. Initially, we reverse the order of the trial court holding Dixon in contempt based on the fact that the trial court did not have subject matter jurisdiction over the contempt action against Dixon.

It is well-settled that "[i]n no case shall an indigent defendant be incarcerated for inability to pay a fine or court costs or restitution." Rule 26.11(i)(2), Ala. R.Crim. P. See also P.W. v. State, 625 So.2d 1207, 1210 (Ala.Crim.App.1993) ("`[T]he imprisonment of an indigent offender for failure to pay his fine is generally recognized as constitutionally impermissible, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971).' Wheatt v. State, 410 So.2d 479, 481 (Ala.Cr.App.1982)."); Zeigler v. Butler, 410 So.2d 93, 94 (Ala.Civ.App.1982) ("The law is settled that imprisonment for contempt should not be imposed where the failure to pay [an arrearage in child support] is due to an inability to comply with the order. Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. denied, 287 Ala. 737, 247 So.2d 128 (1971).").

In Ex parte Watson, 757 So.2d 1107, 1112 (Ala.2000), the Alabama Supreme Court noted:

"A restitution order is a money judgment, just as an order to pay a fine and costs is a money judgment. A restitution order may be secured and collected with all of the powers available under the law for securing and collecting civil judgments, see Rules 64 and 69, Ala. R. Civ. P., albeit without some of the constraints, such as the debtor's exemptions from civil judgments. See § 15-18-78, Ala.Code 1975; Moore v. State, 706 So.2d 265 (Ala.Crim.App.1996); and Rice v. State, 491 So.2d 1049 (Ala.Crim. App.1986)."

(Emphasis added.)

Nowhere in our caselaw, statutes, or rules do we allow the imprisonment of a civil debtor because he or she is unable to pay the debt. Nowhere in our caselaw, statutes, or rules will a case of constructive contempt lie for the inability to pay a debt owed to a creditor or, in this case, a victim. Rather, a suit is commenced, a judgment is obtained and executed, and a lien is imposed or wages are garnished. That is, the victim takes advantage of his or her civil remedies; the court does not act as an enforcer and compel payment to the victim through the imposition of a criminal penalty upon the indigent debtor.

"In order to hold a person in contempt, a court must have jurisdiction over the person and the subject matter. State v. Thomas, 550 So.2d 1067 (Ala.1989)." M.C. v. State, 600 So.2d 387, 388 (Ala.Crim.App.1991). Our law does not contemplate that this type of contempt action⁶ will lie in order to circumvent the clear prohibition in Rule 26.11(i)(2) against jailing an indigent defendant for his or her inability to pay court-ordered moneys. Therefore, we hold that the trial court did not have jurisdiction to issue the contempt order in this case. We reverse its judgment that Dixon "be immediately incarcerated for such contempt and held in the Bibb County Jail pending payment of a lump sum of $10,000.00." (C. 251.)

III. The Sentencing Order

Additionally, we find it necessary to address Dixon's claim regarding the amendment of his sentence. This is a matter of subject matter jurisdiction, an issue we would have addressed ex mero motu, even if Dixon had not raised it on appeal. See Thompson v. Board of Pardons & Paroles, 806 So.2d 374, 375 (Ala.2001) ("`[I]t is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.'" (quoting Ex parte Smith, 438 So.2d 766, 768 (Ala.1983))). This issue must be addressed at this time because, if we do not address it, Dixon, on remand, although no longer subject to imprisonment for his inability to pay any outstanding court-ordered moneys, would still be in arrears and owing restitution and payments to the Crime Victims Compensation Fund because the order of the trial court amending his sentence would still be in effect.

The issue before us is whether the trial court's second order — the order purporting to increase the restitution and crime victims compensation owed by Dixon in exchange for placing Dixon on probation — is void because the trial court lacked jurisdiction to issue the order. This is a question of law; therefore, we review it de novo. Ex parte Heard, [Ms. 1020241, December 19, 2003] ___ So.2d ___ (Ala.2003).

Rule 24.4, Ala. R.Crim. P., provides:

"No motion for new trial or motion in arrest of judgment shall remain pending in the trial court for more than sixty (60) days after the pronouncement of sentence, except as provided in this section. A failure by the trial court to rule on such a motion within the sixty (60) days allowed by this section shall constitute a denial of the motion as of the sixtieth day; provided, however, that with the express consent of the prosecutor and the defendant or the defendant's attorney, which consent shall appear in the record, the motion may be carried past the sixtieth day to a date certain; if not ruled upon by the trial court as of the date to which the motion is continued, the motion is deemed denied as of that date, unless it has been continued again as provided in this section. The motion may be continued from time to time as provided in this section."

A motion to set aside or modify a sentence falls under the purview of Rule 24.4. See Ex parte Hitt, 778 So.2d 159, 161-62 (Ala.2000) ("Motions to amend or correct a sentence are not specifically mentioned in the Rules of Criminal Procedure, but this Court has held that such posttrial motions are governed by Rule 24. Pickron v. State, 475 So.2d 599 (Ala.1985). See, also, Rose v. State, 598 So.2d 1040 (Ala.Crim.App.1992). Further, if timely filed, such a motion may be presented to the court for a ruling after the 30-day period. See Rule 24.3, Ala. R.Crim. P.; Pickron, 475 So.2d at 599-600."). See also State v. Monette, 887 So.2d 314, 315 (Ala.Crim.App.2004) ("A motion to alter amend, or vacate a sentence is the functional equivalent of a motion for a new trial and `should be treated the same procedurally as a motion for new trial or a motion in arrest of judgment....' Melvin v. State, 583 So.2d 1365, 1366 (Ala.Crim. App.1991). See also Pickron v. State, 475 So.2d 593 (Ala.Crim.App.1984), aff'd, 475 So.2d 599 (Ala.1985). A motion for a new trial must be filed within 30 days of the date of sentencing. See Rule 24.1(b), Ala. R.Crim. P. Also, a motion for a new trial is deemed denied by operation of law if no ruling is made within 60 days from the date of sentencing. See Rule 24.4, Ala. R.Crim....