Smith v. Houston

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: MAIN, Judge.
• Citation: Smith v. Houston, 71 So.3d 721 (Ala. Crim. App. 2010)
• Decision Date: 05 March 2010
• Docket Number: CR–07–2027.
• Parties: Brian A. SMITHv.Randall HOUSTON et al.

71 So.3d 721

Brian A. SMITH

v.Randall HOUSTON et al.

CR–07–2027.

Court of Criminal Appeals of Alabama.

March 5, 2010.

Brian A. Smith, pro se.Troy King, atty. gen., and J. Matt Bledsoe, asst. atty. gen., for appellees.MAIN, Judge.

Brian A. Smith appeals the Montgomery Circuit Court's denial, after a hearing, of his complaint filed pursuant to the Declaratory Judgment Act, § 6–6–220 et seq., Ala.Code 1975, seeking a declaration by the circuit court that the State of Alabama, through various public officials, had improperly, and unconstitutionally, interpreted and applied § 13A–5–40(a)(18), Ala.Code 1975. Smith initially appealed to the Court of Civil Appeals. That court transferred the appeal to the Alabama Supreme Court, and the Supreme Court transferred the appeal back to that court; the Court of Civil Appeals then transferred the appeal to this Court. For the reasons stated below, we hold that this Court does not have jurisdiction over this appeal, and we transfer the appeal back to the Court of Civil Appeals.

Facts and Procedural History

On September 6, 2008, Smith filed a complaint in the circuit court entitled “Complaint Pursuant to Section 6–6–220, Code of Alabama, 1975, Declaratory Judgment Act,” against the following defendants: “Fob James thru Bob Riley, Governor[s], Janice Clardy/Randall Houston, District Attorney[s], Troy King, Attorney General, All District Attorneys A–Z in the State of Alabama.” (C. 12.) In the complaint, Smith alleged that the State of Alabama, through the above-named defendants, had, since the adoption of § 13A–5–40(a)(18), Ala.Code 1975, in 1992, improperly and unconstitutionally interpreted and applied the statute (making capital an intentional murder by or through the use of a deadly weapon used within or from a vehicle).

Smith cited in his complaint Act No. 2006–642, Ala. Acts 2006, a joint resolution by the legislature (hereinafter “joint legislative resolution”), which the Alabama Legislature indicated that its intent in enacting § 13A–5–40(a)(18) was to address “drive-by shootings,” that is, “murder[s] committed by or through the use of a deadly weapon fired or otherwise used within or from a vehicle which murders were gang-related or intended to incite public terror or alarm.” The joint legislative resolution further urged the attorney general and district attorneys “to charge with violating [§ 13A–5–40(a)(18) ] only those individuals who commit murder by or through the use of a deadly weapon fired or otherwise used within or from a vehicle.” Finally, the joint legislative resolution urged this Court and the Alabama Supreme Court “to review at the earliest opportunity the interpretation of [§ 13A–5–40(a)(18) ] and hold that it applies only to those individuals who commit murder by or through the use of a deadly weapon fired or otherwise used within or from a vehicle if the vehicle is an instrumentality or otherwise involved in the murder.”

Smith maintained in his complaint that the State of Alabama, through the above-named defendants, had routinely charged criminal defendants, including himself, with violating § 13A–5–40(a)(18) despite the fact that the crimes were not gang-related, and that, by doing so, the State of Alabama has unconstitutionally interpreted § 13A–5–40(a)(18) in violation of the joint legislative resolution and clear legislative intent. Smith stated in his complaint that he had been convicted of violating § 13A–5–40(a)(18) despite the fact that his crime was not gang-related, and he included a single statement in his complaint that “his conviction and sentence are arbitrary and unconstitutional” ¹ (C. 13) as a result of the allegedly improper and unconstitutional interpretation and application of § 13A–5–40(a)(18). However, in the conclusion of the complaint, Smith stated: “Wherefore, [Smith] asks that this Honorable Court declare 13A–5–40[ (a) ](18), Code of Ala., 1975, unconstitutional in the way it has been applied to all those individuals with Capital Murder for non gang related offenses.” (C. 15.)

On January 22, 2008, on behalf of defendant Randall Houston, district attorney for the 19th Judicial Circuit, an assistant district attorney filed a motion to dismiss Smith's complaint pursuant to Rule 12(b), Ala.R.Civ.P. In the motion, the assistant district attorney argued that Smith failed to state a claim upon which relief could be granted under [§ 6–6–221, Ala.Code 1975, ²] of the Declaratory Judgment Act because Smith had already been convicted and sentenced under § 13A–5–40(a)(18), and, thus, “this action cannot, and will not, settle or afford relief from uncertainty and insecurity with respect to rights, status and other legal relations regarding this statute's operation.” (C. 24.) In the alternative, the assistant district attorney argued that because Smith included a sentence in his complaint that his conviction and sentence were unconstitutional, his only avenue of relief would be through a Rule 32, Ala.R.Crim.P., petition for postconviction relief, which must be filed in the county of conviction (Smith was convicted in Chilton County) and that, therefore, the complaint filed in Montgomery County was filed in the wrong venue and the Montgomery Circuit Court lacked jurisdiction to rule on the complaint.

On February 8, 2008, Smith filed a “Motion in Opposition to Defendant's [sic] Houston Motion to Dismiss,” in which he reiterated the argument in his complaint that the State of Alabama, through the above-named defendants, had unconstitutionally interpreted and applied § 13A–5–40(a)(18), in violation of clear legislative intent, and argued that there was “a bona fide justiciable controversy” between the defendants and himself that required the circuit court to deny the assistant district attorney's motion to dismiss. (C. 31.) Smith admitted that he had previously filed a Rule 32, Ala.R.Crim.P., petition for postconviction relief in the Chilton Circuit Court, raising a similar argument regarding the joint legislative resolution and had received no relief from either the circuit court or this Court,³ but he argued that Rule 32, Ala. R.Crim. P., was not the proper avenue for seeking the relief he now sought—“to correct the Court's misinterpretation of a statute and the way it should be applied.” (C. 34.) He also specifically stated: “The only relief that is being sought here is the Applicability of 13A–5–40(a)(18), in situation[s] wherein the crimes are not gang-related and to declare the way it has been being applied unconstitutional.” (C. 34.) Further, Smith attached to his motion in opposition an affidavit, in which he averred, among other things: “I attest lastly that I am not attacking my conviction, but only whether 13A–5–40(a)(18), Code of Ala., 1975, is applicable in situation[s] wherein the crimes are not gang-related and to declare the way it has been applied unconstitutional.” (C. 35.)

On February 11, 2008, on behalf of defendants Governor Bob Riley and Attorney General Troy King, an assistant attorney general filed a motion dismiss pursuant to Rule 12(b), Ala.R.Civ.P.; the motion was almost identical to the motion to dismiss filed by the assistant district attorney. On February 25, 2008, the circuit court conducted a hearing on Smith's complaint. The defendants were represented at the hearing by an assistant attorney general; Smith appeared pro se. At the hearing, Smith reiterated that § 13A–5–40(a)(18) had been unconstitutionally interpreted by the State of Alabama, through the defendants named in the complaint, to include all murders committed by or through the use of a deadly weapon fired within or from a vehicle when, according to Smith, the legislature intended the statute to apply only to gang-related murders committed by or through the use of a deadly weapon fired within or from a vehicle, i.e., gang-related drive-by shootings. Smith specifically stated at the hearing: “The only thing I'm asking is that the interpretation [of § 13A–5–40(a)(18) ] be declared unconstitutional, the way they have been interpreting the statute.” (R. 5.) At the hearing, the assistant attorney general abandoned the argument advanced in the motions to dismiss that Rule 32, Ala.R.Crim.P., was the proper avenue for Smith to seek the relief he sought, and argued only that § 13A–5–40(a)(18) did not itself state that it applied only to gang-related murders and that the statute had not been amended to include such language.

On March 4, 2008, the circuit court issued the following order denying Smith's complaint:

“Plaintiff seeks declaratory judgment that Ala.Code § 13A–5–40(a)(18) has been misinterpreted because of the passage of Act Number 2006–642, Bill Number HJR–575. Act Number 2006–642 clarified that the Alabama Legislature's intent in adding subdivision (18) to § 13A–5–40(a), Ala.Code 1975, was to address ‘drive-by shootings,’ that is, ‘murder committed by or through the use of a deadly weapon fired or otherwise used within or from a vehicle which murders were gang-related or intended to incite public terror or alarm.’

“In this case, the plaintiff alleges that he was found guilty of capital murder under § 13A–5–40(a)(18) without any evidence presented by the state that the crime was gang-related. However, Act No. 2006–642 is merely a joint legislative resolution and has no force of law. The Alabama Supreme Court has held that a legislative resolution has no force of law. Gunter v. Beasley, 414 So.2d 41, 43 (1982). ‘A resolution is not a law but merely the form in which the legislature expresses an opinion. The Legislature has no power to make laws by resolution.’ Id. at 43. Regardless of what the Alabama Legislature's intent was when it enacted § 13A–5–40(a)(18), the plain language of the statute made the fatal shooting of the victim from inside a vehicle a capital offense.

“Moreover, plaintiff's complaint is styled as a request for a declaratory judgment, a statutory cause of action which is governed by Code of Alabama, §...