Melson v. State
Decision Date | 06 January 2004 |
Citation | 902 So.2d 715 |
Parties | Robert Bryant MELSON v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
Loretta Collins, Gadsden; and Ingrid J. DeFranco, Boulder, Colorado, for appellant.
William H. Pryor, Jr., atty. gen., and A. Vernon Barnett IV and David R. Clark, asst. attys. gen., for appellee.
Alabama Supreme Court 1030777.
On April 25, 1996, the appellant, Robert Bryant Melson, was convicted of three counts of robbery-murder because he committed the murders during the course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975; one count of capital murder because he murdered two or more people by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975; one count of attempted murder; and one count of first-degree robbery. On April 16, 1996, the jury recommended, by a vote of 10-2, that he be sentenced to death on the robbery-murder convictions. The trial court accepted the jury's recommendation and sentenced the appellant to death on the three robbery-murder convictions. It also sentenced him to imprisonment for life without the possibility of parole on the remaining capital murder conviction, 40 years in prison on the attempted murder conviction, and 40 years in prison on the first-degree robbery conviction. We affirmed his convictions on direct appeal and issued a certificate of judgment on August 22, 2000. See Melson v. State, 775 So.2d 857 (Ala.Crim. App.1999),
aff'd, 775 So.2d 904 (Ala.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 141 (2001).
The following dates and events are relevant to an understanding of the present posture of this case:
March 4, 2002 The appellant, through counsel, filed an unverified Rule 32 petition, challenging his convictions. March 12, 2002 The State filed a motion to dismiss on the ground that the petition was not verified, as required by Rule 32.6(a), Ala. R.Crim. P. March 15, 2002 The circuit court entered an order granting the State's motion to dismiss and giving the appellant 21 days to comply with the verification requirement. March 25, 2002 The appellant, through counsel, amended his petition to comply with Rule 32.6(a), Ala. R.Crim. P. August 15, 2002 The State filed an answer and a motion to dismiss the petition. September 8, 2002 The appellant, through counsel, filed a response to the State's answer and motion to dismiss. October 17, 2002 The circuit court entered an order dismissing the petition. December 2, 2002 The appellant, through counsel, filed a notice of appeal with the Alabama Court of Criminal Appeals. December 6, 2002 The appellant, through counsel, filed a notice of appeal with the Etowah Circuit Clerk. December 16, 2002 The Alabama Court of Criminal Appeals issued a certificate of judgment dismissing the appeal because it was not timely filed.
Subsequently, on March 6, 2003, the appellant, through counsel, filed a second verified Rule 32 petition. Citing Rule 32.1(f), Ala. R.Crim. P., he requested an out-of-time appeal from the dismissal of his previous Rule 32 petition on the ground that he had not timely filed a notice of appeal through no fault of his own.1 After the State responded, the circuit court summarily dismissed the petition. This appeal followed.
The appellant argues that the circuit court erred in summarily dismissing his petition without conducting an evidentiary hearing or making findings of fact regarding fault in the failure to perfect an appeal from the dismissal of the previous petition. With regard to summary disposition of Rule 32 petitions, Rule 32.7(d), Ala. R.Crim. P., provides, in pertinent part:
"If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition."
(Emphasis added.)
In his petition, the only relief the appellant sought was an out-of-time appeal from the dismissal of his previous Rule 32 petition. In Marshall v. State, 884 So.2d 900, 904 (Ala.2003), the Alabama Supreme Court stated:
(Footnote omitted; emphasis added.) Based on the Alabama Supreme Court's holding in Marshall, the appellant could not use Rule 32.1(f), Ala. R.Crim. P., to petition for an out-of-time appeal from the dismissal of his previous Rule 32 petition. Therefore, because the appellant did not state a claim upon which relief could be granted, the circuit court properly dismissed his petition without conducting an evidentiary hearing. See Rule 32.7(d), Ala. R.Crim. P. Furthermore, a circuit court need not make specific findings of fact when it summarily dismisses a petition. See Fincher v. State, 724 So.2d 87 (Ala. Crim.App.1998)
. Accordingly, the appellant's arguments are without merit.
The appellant also argues that fundamental fairness requires either that he be treated as a pro se petitioner and the mailbox rule applied to his case or that the circuit court notify him of the dismissal of his petition and he be allowed to file a timely notice of appeal within 42 days thereafter. He further argues that "heightened standards of reliability, review, and care mandated in a capital case weigh heavily in favor of affording [him] the remedy of an out-of-time appeal." (Appellant's brief at p. 28.) In addition, during the oral arguments on this case, the appellant asserted that the right to counsel should be extended to postconviction proceedings. However, he did not first present any of these arguments to the circuit court. Therefore, they are not properly before this court. See Morrison v. State, 551 So.2d 435 (Ala.Crim.App.1989)
.
Finally, the appellant argues that "[n]otice to the clerk of the court made by [local counsel] should be viewed as an imperfect notice of appeal which, when viewed together with the misdirection of the circuit court, enables this court, in its sound discretion, to suspend the rules and hear the original appeal." (Appellant's brief at p. 26.) Rule 4(a)(1), Ala. R.App. P., provides, in pertinent part:
"Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from...."
Rule 2(b), Ala. R.App. P., provides, in pertinent part:
"In the interest of expediting decision, or for other good cause shown, an appellate court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, an appellate court may not extend the time for taking an appeal, as provided in Rule 4(a)(1)...."
(Emphasis added.)
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...purposes. Further, Alabama courts routinely have enforced the 42-day rule and denied out-of-time appeals. See, e.g., Melson v. State, 902 So.2d 715 (Ala.Crim.App.2004); Shephard v. State, 598 So.2d 39 (Ala.Crim.App.1992); Alverson v. State, 531 So.2d 44 (Ala.Crim. Alabama has granted out-of......
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...however, for failing to comply with the verification requirement of Rule 32.6(a) of the Alabama Rules of Criminal Procedure. See Melson, 902 So.2d at 717. Rule 32.6(a) requires a Rule 32 petition to be "verified by the petitioner or the petitioner's attorney ... using or following the form ......
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Loggins v. State, CR-01-1804.
...notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional.'" Melson v. State, 902 So.2d 715, 719 (Ala.Crim.App.2004), quoting Committee Comments to Rule 3, Ala.R.App.P. "`[A] court cannot extend, expand, or otherwise modify the time for p......
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T.G. v. Etowah County Dept. of Human Res.
...So.2d 27, 28 (1970) (quoting Hanley v. Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250, 1261-67 (1943)); accord Melson v. State, 902 So.2d 715, 719 (Ala.Crim.App.2004). Therefore, the mother's April 20, 2005, notice of appeal is untimely. State Dep't of Human Res., supra. Accordingly, ......