Ex parte Jones

Citation773 So.2d 989
PartiesEx parte John Edward JONES. (Re John Edward Jones v. State).
Decision Date19 June 1998
CourtSupreme Court of Alabama

John Edward Jones, petitioner, pro se.

Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for respondent.

SEE, Justice.

We granted this petition for the writ of certiorari to address one issue: Whether John Edward Jones timely filed his notice of appeal from the trial court's denial of his Rule 32, Ala. R.Crim. P., petition. Because we hold that Jones did timely file his notice of appeal, we reverse and remand.

I.

Jones pleaded guilty to trafficking in cocaine. The trial court sentenced him to 15 years in prison. On February 21, 1996, Jones filed a Rule 32 petition with the trial court. After reviewing the arguments of the parties, the trial court denied the petition, by a written order, on February 5, 1997. On March 17, Jones handed his notice of appeal to a prison official at the Limestone Correctional Facility, where Jones was imprisoned. Jones paid to have the notice of appeal sent by certified mail. It was sent by certified mail, and on March 21—the 44th day after the February 5 denial of the petition—the Tuscaloosa County circuit clerk's office received Jones's envelope containing his notice of appeal. The Court of Criminal Appeals dismissed Jones's appeal, by an unpublished memorandum, stating that Jones's notice of appeal was untimely. Jones v. State, (No. CR-96-1203) 717 So.2d 903 (Ala.Crim.App.1997) (table). We disagree.

II.

Rule 4(b)(1), Ala. R.App. P., provides in pertinent 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...."

(Emphasis added.) In the context of post-conviction relief, the 42-day appeal period runs from the date of the trial court's denial of the Rule 32 petition. Barfield v. State, 703 So.2d 1011, 1012 (Ala.Crim.App. 1997). The 42d day after the trial court's February 5, 1997, denial of Jones's Rule 32 petition was March 19. Relying on Holland v. State, 621 So.2d 373 (Ala.Crim.App. 1993), Jones argues that his notice of appeal should be deemed to have been "filed" on the day he gave the notice of appeal to the prison official, that is, on March 17— the 40th day after the entry of judgment.

Although this Court has never addressed the issue of when an incarcerated pro se appellant's notice of appeal is considered "filed," in Ex parte Williams, 651 So.2d 569, 571 (Ala.1992), we held "that under Rule 25[, Ala. R.App. P.,]1 a pro se prisoner's filings [with an appellate court] shall be deemed filed upon the prisoner's tendering them to prison officials." Further, in Ex parte Powell, 674 So.2d 1258 (Ala.1995), this Court reasoned that a pro se incarcerated petitioner's filing of his Rule 32 petition was not barred by the limitations period of Rule 32, because he had given his petition to prison officials one day before the two-year limitations period expired. This Court, relying on the reasoning of the Supreme Court of the United States in Houston v. Lack, 487 U.S. 266, 270-72, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), held that a pro se incarcerated petitioner "files" a Rule 32 petition when he hands the petition over to the prison authorities. Powell, 674 So.2d at 1259.

The record contains a copy of the envelope that contained Jones's notice of appeal. The envelope was sent by certified mail to the office of the Tuscaloosa County circuit clerk, and it was postmarked March 17, 1997—two days before the 42-day period for appeal would have expired. Further, Jones's certificate of service for the notice of appeal was dated March 17. Thus, the record indicates that on or before March 17, Jones had given a prison official his notice of appeal to be mailed. Cf. Mims v. State, 650 So.2d 619, 621 (Ala.Crim.App.1994) (holding that a mere unverified assertion by a prisoner that he timely gave his Rule 32 petition to prison officials is insufficient to show the date of filing). The circuit clerk's office received Jones's envelope on March 21. Because Jones was incarcerated and was filing his notice of appeal pro se, his notice of appeal should have been considered "filed" on March 17, the day he gave it over to the prison authorities.

The Court of Criminal Appeals erroneously dismissed...

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14 cases
  • Wilson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 31 August 2001
    ...post-conviction relief, the 42day appeal period runs from the date of the trial court's denial of the Rule 32 petition." Ex parte Jones, 773 So.2d 989, 989 (Ala.1998). "An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate cour......
  • Spencer v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 18 December 2015
    ...to notices of appeal, Rule 32 petitions, and petitions for writ of certiorari to the Alabama Supreme Court. See generally, Ex parte Jones, 773 So.2d 989 (Ala.1998) (notice of appeal); Ex parte Williams, 651 So.2d 569 (Ala.1992) (petition for writ of certiorari): Holland v. State, 621 So.2d ......
  • Fountain v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 28 April 2000
    ...To be timely, a notice of appeal must be filed within 42 days after the circuit court dismisses a Rule 32 petition. See Ex parte Jones, 773 So.2d 989 (Ala. 1998) (citing Barfield v. State, 703 So.2d 1011 "`"In the absence of statutory authorization, neither the trial nor appellate courts ma......
  • Ex parte Wright
    • United States
    • Alabama Supreme Court
    • 3 May 2002
    ...postconviction relief, the 42-day appeal period runs from the date of the trial court's denial of the Rule 32 petition." Ex parte Jones, 773 So.2d 989, 989 (Ala.1998). (Citation omitted.) "Clearly, the wording of the Rule [4(a)(1), Ala. R.App.P.,] states that [a] notice of appeal must be fi......
  • Request a trial to view additional results

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