Kelley v. State, CR-03-2130.
Decision Date | 19 November 2004 |
Docket Number | No. CR-03-2130.,CR-03-2130. |
Citation | 911 So.2d 1125 |
Parties | Daniel M. KELLEY v. STATE of Alabama. |
Court | Alabama Supreme Court |
Daniel M. Kelley, pro se.
Submitted on appellant's brief only.
The appellant, Daniel M. Kelley, appeals the denial, on the merits, of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. However, we note that Kelley's Rule 32 petition filed in the circuit court was not signed in the presence of a notary public. The question thus presented in this case is can a Rule 32 petition meet the verification requirements of Rule 32.6(a), Ala.R.Crim.P., if it is not signed in the presence of a notary public.
Kelley's Rule 32 petition contains the following sentence: "I, Daniel M. Kelley, swear under penalty of perjury that [the] foregoing is true and correct to the best of my recollection and knowledge." Kelley's signature appears below the sentence. There is no other signature on the petition.
Rule 32.6(a), Ala.R.Crim.P., sets out the requirements for a Rule 32 petition. It states, in part:
(Emphasis added.) The approved form accompanying Rule 32 contains the following provision regarding verification:
Rule 32.6(a) specifically provides that the petition must be "verified" by the petitioner or the petitioner's attorney. The Supreme Court has set out what constitutes sufficient verification for purposes of a Rule 32 petition in the form that accompanies Rule 32. The form clearly contains a place for the signature of a notary public. Rule 32 and the form accompanying the rule were adopted by the Alabama Supreme Court,1 and we are bound by the procedural rules adopted by the Supreme Court.
As we recently stated in Coleman v. State, 911 So.2d 1099, 1100 (Ala.Crim.App.2004):
See also Thornton v. State, 859 So.2d 458 (Ala.Crim.App.2003).2
This Court is not unsympathetic to the position in which an incarcerated petitioner finds himself when he seeks to file a properly verified Rule 32 petition. However, this Court has no authority to amend the Rules of Criminal Procedure. The sole responsibility for doing so rests with the Alabama Supreme Court. See § 6.11, Amend. No. 328, Ala. Const.1901, and § 12-2-7(4), Ala.Code 1975. We invite that Court to address the problem faced by an incarcerated individual who attempts to file a properly verified Rule 32 petition.
Because the Rule 32 petition in this case was not signed in the presence of a notary public as required by Rule 32.6(a), Ala.R.Crim.P., the circuit court had no jurisdiction to consider the merits of the Rule 32 petition. Moreover, a void judgment will not support an appeal. See Ex parte McWilliams, 812 So.2d 318 (Ala.2001).
As we stated in Thornton:
Accordingly, the circuit court is directed to return the petition to Kelley so that he may have an opportunity to file the petition in the proper form. The filing date for Kelley's amended petition shall relate back to the date the...
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...Therefore, we must determine whether the circuit court had jurisdiction to rule on Smith's petition in light of Kelley v. State, 911 So.2d 1125 (Ala.Crim.App.2004); Coleman v. State, 911 So.2d 1099 (Ala.Crim.App.2004); and Thornton v. State, 859 So.2d 458 In Thornton, Thomas Thornton, exerc......
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...v. State, 918 So.2d 141 (Ala.Crim.App.2005), an opinion released today, we expressly overrule our previous holdings in Kelley v. State, 911 So.2d 1125 (Ala.Crim.App.2004); Coleman v. State, 911 So.2d 1099 (Ala.Crim.App.2004); and Thornton v. State, 859 So.2d 458 (Ala.Crim. App.2003), that a......