Ex parte Bishop
Decision Date | 12 December 2003 |
Citation | 883 So.2d 262 |
Parties | Ex parte Edward BISHOP. (In re City of Tuscaloosa v. Edward Perry Bishop). |
Court | Alabama Court of Criminal Appeals |
Donnis Cowart, Tuscaloosa, for petitioner.
William H. Pryor, Jr., atty. gen., Beth Slate Poe, asst. atty. gen., and Glenda Gamble, assoc. city atty., for respondent.
Edward Bishop filed this petition for a writ of mandamus directing Judge Charles R. Malone to reinstate the "not guilty" verdict returned by the jury in this case.
The City of Tuscaloosa ("the City") charged Bishop with driving under the influence of alcohol. On August 24, 2003, his trial began in the circuit court. During a break in the jury deliberations Bishop was seen talking with one of the jurors in his case. The trial court found Bishop in contempt of court and stated that it would set aside the verdict if the jury returned a "not guilty" verdict. The jury returned a verdict of "not guilty." The trial court then set aside the verdict and ordered that Bishop be retried on the same charges. Bishop filed a motion to reconsider; the trial court has not yet ruled on that motion. Bishop argues that retrying him on the same charge violates double jeopardy principles. (His retrial has been scheduled for February 23, 2004.) This petition followed.
The Alabama Supreme Court in Ex parte Ziglar, 669 So.2d 133 (Ala.1995), recognized that mandamus is the appropriate vehicle to seek redress of a circuit court's ruling on an allegation of a double-jeopardy violation. The Ziglar Court stated:
669 So.2d at 135. See also Ex parte Spears, 621 So.2d 1255 (Ala.1993). This case is correctly before this Court by way of a mandamus petition.
Bishop argues that once the jury returned a not-guilty verdict, his further prosecution for the same offense was barred by the Double Jeopardy Clause. He further argues that the trial court, to support its order for a new trial, would have to meet the requirements for granting a motion for a mistrial and that the facts of this case do not constitute the manifest necessity that is necessary to warrant the trial court's granting a motion for a mistrial.
The City argues that this petition is premature because Judge Malone has not disposed of Bishop's motion to reconsider its order setting aside the jury's verdict. It further argues that jeopardy does not attach when a mistrial is granted because of a manifest necessity. The City contends that the fact that one of the jurors had a conversation with Bishop before deliberations constitutes a manifest necessity justifying a new trial.
The City argues that this mandamus petition is premature because Bishop still has a remedy — the trial court may grant his motion for reconsideration. Here, the trial court set aside the jury's verdict on August 26, 2003. According to established precedent, a trial court retains jurisdiction to modify a ruling for 30 days. See Moore v. State, 814 So.2d 308 (Ala.Crim.App. 2001). This is consistent with Rule 24.4, Ala.R.Crim.P., which provides that a motion for a new trial may be filed within 30 days from the date of sentencing. The motion to reconsider was filed on September 22, 2003 — within the 30-day period. Section 12-22-133, Ala.Code 1975, provides that a trial court retains jurisdiction to dispose of a timely filed motion for a new trial. Rule 24.4, Ala.R.Crim.P., further provides that a posttrial motion for a new trial and a motion in arrest of judgment are deemed denied by operation of law if no ruling is entered on the motion within 60 days from the date of sentencing. However, we have held that a motion to reconsider does not fall within the category of motions recognized in Rule 24.4, Ala.R.Crim.P.1 See Martinez v. State, 602 So.2d 504 (Ala.Crim.App.1992). We can find no case that holds that a timely filed motion to reconsider, filed at the end of a criminal case, extends the jurisdiction of the lower court beyond 30 days. Judge Malone had jurisdiction to consider the motion to reconsider, but that jurisdiction ended 30 days from August 26, 2003 — the date of the ruling that is the subject of this petition. Therefore, this petition is not premature.
The United States Supreme Court has long recognized the basic legal premise that once a jury returns a "not guilty" verdict all criminal proceedings against the defendant are at an end. See Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the United States Supreme Court stated:
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