Ex parte Stephens
Decision Date | 25 February 2005 |
Citation | 907 So.2d 1094 |
Parties | Ex parte Victor R. STEPHENS. In re State of Alabama v. Victor R. Stephens. |
Court | Alabama Court of Criminal Appeals |
James S. Christie, Jr., Birmingham, for petitioner.
Troy King, atty. gen., and A. Vernon Barnett IV and J. Clayton Crenshaw, asst. attys. gen., for respondent.
Victor R. Stephens filed this petition for a writ of mandamus requesting an out-of-time appeal from the denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief attacking his sentence of death. In October 2004, Stephens filed a Rule 32 petition in the Hale Circuit Court. On November 22, 2004, Judge Jack W. Meigs entered an order dismissing the Rule 32 petition. In January 2005, Stephens moved to allow discovery. On January 18, 2005, Judge Meigs sent Stephens a letter stating that the State's motion to dismiss the Rule 32 petition had been granted in November 2004. Stephens contacted the office of the circuit clerk of Hale County, and on January 25, 2005, the office sent Stephens a facsimile transmission of the order of dismissal. On January 28, 2005, Stephens filed this mandamus petition requesting that we grant him an out-of-time appeal because he was not notified that his Rule 32 petition had been dismissed until the time for filing a notice of appeal from its dismissal had expired.
Judge Meigs has filed the following response:
The Alabama Supreme Court in Marshall v. State, 884 So.2d 900 (Ala. 2003), held that the only way to secure an out-of-time appeal from the denial of a Rule 32 petition is to file a petition for a writ of mandamus with this Court. However, on January 13, 2005, the Alabama Supreme Court adopted an order amending Rule 32.1(f), Ala.R.Crim.P., effective June 1, 2005. As amended, Rule 32.1(f) states that a petitioner may obtain an out-of-time appeal if "[t]he petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner's part." Accordingly, after June 1, 2005, the proper method of seeking an out-of-time appeal from the denial of a prior Rule 32 petition is a Rule 32 petition.
The Alabama Supreme Court in Ex parte Johnson, 806 So.2d 1195 (Ala.2001), when granting a similar mandamus petition, stated:
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