Ex parte James
Decision Date | 14 September 2001 |
Citation | 813 So.2d 841 |
Parties | Ex parte Edward JAMES, Jr. (Re Edward James, Jr. v. State of Alabama). |
Court | Alabama Supreme Court |
Edward James, Jr., pro se.
Submitted on petitioner's brief only.
WRIT DENIED.
I concur in the denial of James's petition for a writ of certiorari. I write specially, however, to disagree with the rationale of the Court of Criminal Appeals in affirming the summary dismissal of James's Rule 32, Ala. R.Crim. P., petition, which was filed after the expiration of the two-year time limit set by Rule 32.2(c), Ala. R.Crim. P.
In his Rule 32 petition James claimed that the indictment against him was "void due to the fact it fails to show and prove that (12) or [more] people voted to indict the petitioner." The Court of Criminal Appeals, in an unpublished memorandum, held that this claim was nonjurisdictional and was therefore time-barred by Rule 32.2(c). James v. State, 813 So.2d 928 (Ala.Crim.App.2001) (table). See also Duren v. State, 813 So.2d 928 (Ala.Crim.App. 2000)
.
The correct rationale for affirming the summary dismissal of the Rule 32 petition would have been that the signature of the grand jury foreman signified the concurrence of 12 or more grand jurors and that James's petition did not plead the actual fact of nonconcurrence of 12 or more. James's Rule 32 petition merely challenged the face of the indictment for the absence of an express recitation that 12 or more grand jurors had concurred. Because no rule or other law requires such a recitation on an indictment, James's Rule 32 petition failed to state a recognizable claim. Rule 32.3, Ala. R.Crim. P. Therefore, the trial court was correct in summarily dismissing the Rule 32 petition. Rule 32.7(d), Ala. R.Crim. P.
A validly pleaded claim that fewer than 12 grand jurors had found an indictment, however, would constitute a jurisdictional claim not subject to the two-year time-bar of Rule 32.2(c). See Gordon v. Nagle, 647 So.2d 91, 92 (Ala.1994)
(). That is, an indictment found by fewer than 12 grand jurors would be void and therefore ineffective to confer jurisdiction on a court to try, to convict, or to sentence a defendant.
Section 12-16-204, Ala.Code 1975, provides:
Ex parte Jones, 753 So.2d 1211, 1213 (Ala. Crim.App.1999) (quoting Beck v. State, 365 So.2d 985 (Ala.Crim.App.), aff'd, 365 So.2d 1006 (Ala.1978), rev'd on other grounds, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)). As early as 1898, this Court held:
Fields v. State, 121 Ala. 16, 17, 25 So. 726, 726 (1899) (emphasis added). See also Ross v. State, 529 So.2d 1074, 1078 (Ala. Crim.App.1988)
("[T]he jurisdiction of the court, in felony cases, rests upon the utilization of a grand jury indictment or information, [and thus]...
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Birdsong v. State, CR-04-0550.
..."the signature of the grand jury foreman signifie[s] the concurrence of 12 or more grand jurors," Ex parte James, 813 So.2d 841, 842 (Ala.2001) (Johnstone, J., concurring specially). In this case, the indictment was endorsed a true bill and contains the signature of the grand jury To the ex......