Smith v. State

Decision Date25 February 2005
Docket NumberCR-03-2146.
Citation918 So.2d 141
PartiesLorenzo SMITH v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Lorenzo Smith, appellant, pro se.

Troy King, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.

SHAW, Judge.

Lorenzo Smith appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked the 23-year sentence imposed for his 1992 guilty-plea conviction for murder. Smith did not appeal his conviction and sentence.

Smith filed his petition on June 27, 2004. In his petition, Smith alleged that his sentence should be vacated and he should be resentenced because, he said, he was not provided with a copy of the presentence report before he was sentenced, as required by Rule 26.3(c), Ala.R.Crim.P. After receiving a response from the State, the circuit court summarily denied the petition on September 7, 2004.

I.

Smith's petition was not properly verified as required by Rule 32.6(a), Ala.R.Crim.P. 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 (Ala.Crim.App.2003).

In Thornton, Thomas Thornton, exercising a duly appointed power of attorney, verified and filed separate Rule 32 petitions in the Jefferson Circuit Court on behalf of his brothers Michael Thornton and Kenneth Thornton. The circuit court summarily denied the petitions. Although the State did not raise the lack of proper verification as an issue on appeal, this Court took notice that the Thorntons' petitions were not properly verified and held that Rule 32 contemplates the verification of a petition only by (1) the petitioner or (2) the petitioner's legal counsel, i.e., someone duly licensed and authorized to engage in the practice of providing legal representation in the State of Alabama. For the reasons stated in this Court's opinion in Thornton, we adhere to that specific holding.

After concluding in Thornton that the petition had not been properly verified, we dismissed the appeals, stating "that the petitions were not properly verified and, thus, that the circuit court did not have jurisdiction to rule on the petitions." 859 So.2d at 459. We then stated that "[t]he circuit court should allow Michael Thornton and Kenneth Thornton a reasonable time, not less than 60 days, to file properly verified petitions and the date of those petitions should relate back to the date of the original petitions." 859 So.2d at 460.

In Coleman, Joe Coleman appealed from the circuit court's summary denial of his Rule 32 petition. Again, although the State did not raise the lack of proper verification as an issue on appeal, without considering the grounds relied on by the circuit court in denying the petition we took notice that Coleman's petition was not properly verified and held that the circuit court had no jurisdiction to rule on the unverified petition. We then dismissed the appeal, stating that "[t]he circuit court should allow Coleman a reasonable time, not less than 60 days, to file a properly verified petition and the date of that petition should relate back to the date of the original petition." 911 So.2d at 1100.

In Kelley, Daniel Kelley appealed the denial, on the merits, of his Rule 32 petition. Without addressing the merits of the petition, we took notice that Kelley's petition was not properly verified; we held that because Kelley had not signed his petition in the presence of a notary public, the petition was not properly verified. For the reasons stated in this Court's opinion in Kelley, we adhere to that specific holding.

After concluding in Kelley that the petition had not been properly verified, we dismissed the appeal, holding that the circuit court had no jurisdiction to consider the merits of the Rule 32 petition and stating:

"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 original petition was filed in the circuit court. If the ruling on the properly filed Rule 32 petition is adverse to Kelley then Kelley should file a new notice of appeal within 42 days of the date of the ruling on the amended petition."

911 So.2d at 1128.

Thornton Coleman, and Kelley are similar in several respects. First, because this Court was of the opinion that the lack of proper verification of a Rule 32 petition deprived the circuit court of subject-matter jurisdiction to entertain the petition, we took notice and addressed the verification issue in all three cases, even though the issue had not been raised. See Lanier v. State, 733 So.2d 931 (Ala.Crim.App.1998) (noting that this Court can address an issue involving subject-matter jurisdiction at any time, even if the issue is not raised on appeal). Second, and for the same reason, we dismissed all three appeals. Third, although we held that each petition was a nullity as far as establishing subject-matter jurisdiction, we nonetheless held that the petition was sufficient to toll the limitations period in Rule 32.2(c), and we allowed each petitioner the opportunity to file another petition, with the filing date for the new petition to relate back to the date the original petition was filed in the circuit court.1

Thornton was the first case in which this Court held that the lack of proper verification, as required by Rule 32.6(a), constituted a jurisdictional defect that deprived the circuit court of authority to act on a Rule 32 petition. We adhered to that holding in Coleman and again in Kelley. However, we are now concerned that our holding in Thornton may have been unnecessarily broad; that our interpretation of the verification requirement in Rule 32.6(a) as being a prerequisite to subject-matter jurisdiction will inevitably lead to unnecessary expense and delay and consequently place an additional burden on an already overburdened court system; and that our interpretation may be inconsistent with the Alabama Supreme Court's intent in adopting the verification requirement in Rule 32.6(a). Thus, we take the opportunity presented by this case to reexamine our holdings in Kelley, Coleman, and Thornton.2 In so doing, the issue we focus on is whether lack of proper verification of a Rule 32 petition is a jurisdictional defect, necessitating the dismissal of an appeal from a ruling on a jurisdictionally defective petition, or whether lack of proper verification constitutes only a defect in the form of the petition that is subject to waiver.

Rule 32.6(a), which deals with the form, filing, and service of a Rule 32 petition, provides, in pertinent part:

"A proceeding under this rule is commenced by filing a petition, verified by the petitioner or the petitioner's attorney, with the clerk of the court.... The petition should be filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form....

"Upon receipt of the petition and the filing fee, or an order granting leave to the petitioner to proceed in forma pauperis, the clerk shall file the petition...."

It is well established that words used in procedural rules adopted by the Alabama Supreme Court must be given their plain meaning. See Ingram v. State, 882 So.2d 374 (Ala.Crim.App.2003). In analyzing the language of Rule 32.6(a), the problem is not that there is no rational way to understand the words as they are written; the problem is that there is more than one rational way to understand those words, i.e., there is no single "plain meaning." See, e.g., Ex parte National Western Life Ins. Co., 899 So.2d 218, 223 (Ala.2004) (noting that "`only if there is no rational way to interpret the words [of the statute] as stated will we look beyond those words to determine legislative intent'").

The Alabama Rules of Criminal Procedure were promulgated by the Alabama Supreme Court pursuant to its rule-making power. In construing one of those rules, in a situation where the wording of the rule is not clear, this Court must attempt to ascertain and effectuate the intent of the Alabama Supreme Court as set out in the rule. This intent may be gleaned from the language used, the reason and necessity for the rule, and the purpose of the rule. See Dutell v. State, 596 So.2d 624 (Ala.Crim.App.1991).

In Thornton, we interpreted the first sentence of Rule 32.6(a) — that "[a] proceeding ... is commenced by filing a petition, verified by the petitioner or the petitioner's attorney, with the clerk of the [circuit] court" — as making proper verification an indispensable part of a petition. The rationale of Thornton, although not clearly stated in the opinion, was that an unverified petition has no operative effect when filed and, therefore, that it cannot invoke the circuit court's subject-matter jurisdiction. This Court treated the first sentence in Rule 32.6(a) the same as the second paragraph of Rule 32.6(a) has consistently been treated. The second paragraph of Rule 32.6(a), provides, in part, that "[u]pon receipt of the petition and the filing fee, or an order granting leave to the petitioner to proceed in forma pauperis, the clerk shall file the petition...." In Ex parte Carter, 807 So.2d 534 (Ala.2001), the Alabama Supreme Court, citing the language in the second paragraph of Rule 32.6(a), held that the failure to collect the filing fee or to approve an affidavit of substantial hardship deprived the circuit court of subject-matter jurisdiction. The Court held, in effect, that the petition could not be considered filed until the necessary filing fee had...

To continue reading

Request your trial
13 cases
  • Brooks v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 29, 2005
    ...concur. 1. Brooks's petition is not properly verified as required by Rule 32.6(a), Ala.R.Crim.P. However, recently in Smith v. State, 918 So.2d 141 (Ala.Crim.App.2005), we held that the failure to comply with the verification requirements of Rule 32.6(a) is not a defect that operates to dep......
  • Duckstein v. Wolf
    • United States
    • Arizona Court of Appeals
    • July 31, 2012
    ...formal but does not go to the essence of the law with regard to requirements for jurisdiction of the courts.”), and Smith v. State, 918 So.2d 141, 147 (Ala.Crim.App.2005) (“It appears to be the general rule, however, that, even when verification of a civil pleading is required by law, in th......
  • Smith v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 17, 2010
    ...touching on criminal matters and governed by the Alabama Rules of Criminal Procedure, is basically civil in nature,” Smith v. State, 918 So.2d 141, 146 (Ala.Crim.App.2005), and reference to civil pleading rules is appropriate here. In civil cases, the Alabama Supreme Court has stated:“An am......
  • McCartha v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 25, 2011
    ...; Fincher v. State, 724 So.2d 87 (Ala.Crim.App.1998) ; see Ex parte Beavers, 779 So.2d 1223 (Ala.2000) ; Smith v. State, 918 So.2d 141 (Ala.Crim.App.2005) ; Madden v. State, 885 So.2d 841 (Ala.Crim.App.2003) ; Baker v. State, 885 So.2d 241 (Ala.Crim.App.2003). Thus, I agree whole-heartedly ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT