Ex parte Swoope

• Decision Date: 15 October 1998
• Citation: 724 So.2d 92
• Parties: Ex parte Christopher B. SWOOPE. (In re City of Decatur v. Christopher Swoope).
• Court: Alabama Court of Criminal Appeals

724 So.2d 92

Ex parte Christopher B. SWOOPE.

(In re City of Decatur v. Christopher Swoope).

CR-97-2247.

Court of Criminal Appeals of Alabama.

October 15, 1998.

Rehearing Denied October 30, 1998.

Peter Johnson Davis, Florence, for petitioner.

J. Tilden Dillard, Decatur, for respondent.

LONG, Presiding Judge.

The petitioner, Christopher B. Swoope, filed this petition for a writ of mandamus directing the Honorable Steve Haddock, circuit judge for the Eighth Judicial Circuit, to reinstate Swoope's de novo appeal. Swoope was convicted in the Decatur Municipal Court of harassment, and he appealed for a trial de novo in the Morgan Circuit Court. Swoope's trial was originally set for June 22, 1998. The date was continued to June 25, 1998, at 9:00 a.m. When Swoope failed to appear for trial, Judge Haddock dismissed the appeal. Swoope filed a motion to set aside the order of dismissal, arguing that he was confused about the date and time of the trial. The motion to set aside the order of dismissal was denied, and on August 17, 1998, Swoope filed this petition for the writ of mandamus.

On August 21, 1998, pursuant to Rule 21(b), Ala.R.App.P.,¹ this Court allowed Judge Haddock 21 days, i.e., until September 11, 1998, to answer the allegations in the petition. No answer was filed with this Court. A week after the answer was due, this Court inquired of Judge Haddock's office as to why an answer had not been filed. This Court was told that Judge Haddock would not be filing a response to the petition.

Failure to respond to the allegations in a petition for a writ of mandamus compels this Court to consider those allegations to be true. The Alabama Supreme Court, noting the importance of an answer, stated, "[A]n answer in a mandamus proceeding is very important, as is evidenced by this Court's holding that uncontroverted averments of fact stated in an answer should be taken as true." Ex parte Sharpe, 513 So.2d 609, 610 (Ala.1987). See also Ex parte Helbling, 278 Ala. 234, 177 So.2d 454 (1965). A further reason for requiring an answer is that mandamus relief may not be granted unless the respondent is granted an opportunity to answer the allegations in the petition. Sharpe, 513 So.2d 609; see also Rule 21(a), Ala.R.App.P.

This Court is aware of the provision in Rule 21(b), that when a respondent judge does not appear in a proceeding a reviewing court may not take the petition as admitted. Before Rule 21 was adopted, the Alabama Supreme Court had stated in Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 260 So.2d 589, 596 (1972):

"[T]he answer does not contain a denial of any of the facts stated in the petition for mandamus, nor does it contain averments of other facts sufficient in law to defeat the petitioner's application. It follows that the averments of fact in the petition for mandamus... will be taken as true.—State ex rel. St. Peter's M. Baptist Church v. Smith, [215 Ala. 449, 111 So. 28 (Ala. 1927)] Ex parte Cullinan, [224 Ala. 263, 139 So. 255 (Ala.1931)]."

(Emphasis added.) See also State v. Crossman, 687 So.2d 817 (Ala.Cr.App.1996). Here, the "averments of fact" in the petition are supported by accompanying affidavits, copies of motions filed in the circuit court, and copies of orders issued by the circuit court. This Court has considered all of the "averments of fact" in the petition to be true.²

As with any extraordinary petition, this Court must first determine if mandamus review is appropriate. The Alabama Supreme Court has reviewed a similar contention by way of mandamus. See Ex parte Lawson, 578 So.2d 1052 (Ala.), on remand, 578 So.2d 1054 (Ala.Cr.App.1991).

Swoope argues in his petition that Judge Haddock abused his discretion in not reinstating his de novo appeal because, he says, he was notified of the wrong time to be in court. A copy of the court notification sent to Swoope by his attorney is included with the mandamus petition. The notification states that the trial was set for June 25, 1998, at 1:30 p.m. Trial was actually set for 9:00 a.m. However, the notification sent to Swoope by his attorney was not presented to the trial court in support of the motion to set aside the order of dismissal. Swoope states in his petition:

"Counsel for the Defendant/Petitioner only learned about his incorrect court reminder notice when the Defendant eventually showed up in Counsel's office with the said notice. This however was after the Defendant's counsel had served the Circuit Court a Motion to Set Aside Order of Dismissal."

The Alabama Supreme Court in Royal v. Safety Coatings, Inc., 655 So.2d 927, 932 (Ala.1994), quoting Teng v. Diners Club, Inc., 424 So.2d 629, 629-30 (Ala.Civ.App.1982), stated:

"`We cannot consider evidence or a factual assertion outside of the record which is contained solely in [the appellant's] brief. Any errors committed by the trial court must be affirmatively demonstrated by the record filed in this court, and, if it does not disclose the facts upon which an alleged error is based, we will not consider that issue.'"

Therefore, we have not considered the notification sent by Swoope's attorney, because the trial court did not have the benefit of it. The only evidence this Court may consider is the evidence presented in Swoope's motion to set aside the order of dismissal. That motion states:

"The Defendant, unfortunately, confused the time that his lawyer told him (9:00 a.m.) with the time that the Court told him (1:30 p.m.)."

Judge Haddock stated in his order denying the motion:

"The Defendant asks the Court to reinstate his appeal because he misunderstood or was confused about the trial setting. Amazingly, no other person affiliated with the case suffered from this same confusion or misunderstanding. Whether the Defendant was confused or not makes no difference to those persons who took time away from their jobs or families to appear in court on time for the Defendant's trial. His confusion carries little weight with the Court [, which] was required to pay the prospective jurors who appeared timely and were available for the Defendant's trial. In the final analysis, the Defendant and his attorney shared the responsibility for his appearing on the appointed day and time for the trial of this case."

De novo appeals and their dismissal and reinstatement are governed by § 12-14-70(f), Code of Alabama 1975, and Rule 30.5(b), Ala.R.Crim.P. Section 12-14-70(f) states, in pertinent part, as follows:

"Upon failure of the appellant to appear in the circuit court when the case is called for trial, unless good cause for such default is shown, the court shall dismiss the appeal.... The circuit court may, on motion of the defendant, within 30 days of the order of dismissal, set aside the dismissal and other orders and reinstate the appeal on such terms as the court may prescribe, for good cause shown by defendant."

Rule 30.5(b), Ala.R.Crim.P. states in pertinent part:

"Where appellant, without sufficient excuse, does not appear for trial de novo when called for trial, the court may dismiss the appeal, order the bond forfeited, and remand the case to the court appealed from for enforcement of the lower court judgment; provided, however, that on motion of the appellant for good cause shown, the circuit court may, within thirty (30) days of the date of the order of dismissal, set the order of dismissal aside and reinstate the appeal on such terms as the circuit court may prescribe."

This Court has previously addressed a circuit court's refusal to reinstate a de novo appeal. In Riddle v. State, 641 So.2d 1316 (Ala.Cr.App.1994), this Court, holding that the trial court had prematurely dismissed the de novo appeal after the appellant failed to appear at his "plea date," stated that the trial court abused its discretion in failing to reinstate the de novo appeal. The Riddle Court stated:

"Even if the dismissal of the appeal was proper, the circuit court's refusal to reinstate the appeal constituted an abuse of discretion. The court file contained a copy of the letter from the appellant's attorney to the assistant district attorney. That letter spelled out

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