State v. Carruth
Citation | 21 So.3d 764 |
Decision Date | 30 May 2008 |
Docket Number | CR-06-1967. |
Parties | STATE of Alabama v. Michael David CARRUTH. |
Court | Alabama Court of Criminal Appeals |
Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for appellant.
Glenn L. Davidson, Mobile, for appellee.
On October 9, 2003, the appellee, Michael David Carruth, was convicted of four counts of capital murder for the killing of William Brett Bowyer. The murder was made capital because he committed it during the course of a kidnapping, see § 13A-5-40(a)(1), Ala.Code 1975; because he committed it during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975; because he committed it during the course of a first-degree burglary, see § 13A-5-40(a)(4), Ala.Code 1975; and because the victim was less than 14 years of age, see § 13A-5-40(a)(15), Ala.Code 1975. He was also convicted of attempted murder, first-degree robbery, and first-degree burglary. The jury unanimously recommended that the appellee be sentenced to death on the capital murder convictions. The trial court followed the jury's recommendation and sentenced him to death on the capital murder convictions. It also sentenced him to serve terms of life in prison on the attempted murder, first-degree robbery, and first-degree burglary convictions. We affirmed the appellee's convictions and sentences for capital murder and attempted murder, but reversed his convictions and sentences for first-degree robbery and first-degree burglary. See Carruth v. State, 927 So.2d 866 (Ala. Crim.App.2005). Although he filed an application for a rehearing in this court, the appellee did not file a petition for a writ of certiorari in the Alabama Supreme Court. This court issued a certificate of judgment on November 2, 2005.
On October 25, 2006, the appellee filed a Rule 32 petition, challenging his convictions and sentences. He also sought "an out-of-time appeal to the Alabama Supreme Court" based on allegations that he did not appeal through no fault of his own, see Rule 32.1(f), Ala. R.Crim. P., and that his counsel rendered ineffective assistance because he did not petition the Alabama Supreme Court for certiorari review. (C.R. 5.) After the State responded, the circuit court entered an order in which it stated:
(C.R. 162.) This appeal by the State followed.1
The State argues that the circuit court erred in granting the appellee permission to file an out-of-time petition for a writ of certiorari in the Alabama Supreme Court. For the reasons set forth herein, we agree.
With regard to petitions for writs of certiorari, Rule 39(a), Ala. R.App. P., provides, in pertinent part:
(Emphasis added.) The "Court Comment to Amendment to Rule 39 Effective May 19, 2000, as to death-penalty cases and August 1, 2000, as to all other cases" states, in pertinent part:
(Emphasis added.)
The State argues that Rule 32.1(f), Ala. R.Crim. P., did not provide a valid basis for granting his requested relief. In Elliott v. State, 768 So.2d 422 (Ala.Crim. App.1999), citing a previous version of Rule 32.1(f), Ala. R.Crim. P., the circuit court granted Elliott permission to file an out-of-time application for a rehearing in this court. We struck the out-of-time application for a rehearing, stating:
Rule 32.1, Ala. R.Crim. P., currently provides, in pertinent part "Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
(Emphasis added.) Although Rule 32.1(f), Ala. R.Crim. P., has been amended to include out-of-time appeals from rulings on Rule 32 petitions, our reasoning in Elliott remains valid. By its plain language, Rule 32.1(f), Ala. R.Crim. P., applies only in situations where the notice of appeal from a conviction and sentence or from a dismissal or denial of a Rule 32 petition is untimely. It does not mention and does not have any application to petitions for writs of certiorari in the Alabama Supreme Court. Accordingly, Rule 32.1(f), Ala. R.Crim. P., did not support the granting of permission for the appellee to file an out-of-time petition for a writ of certiorari in the Alabama Supreme Court.
The State also argues that the appellee's contention that his counsel rendered ineffective assistance on direct appeal because he did not file a petition for a writ of certiorari in the Alabama Supreme Court was not a valid basis for granting his requested relief. We addressed a similar situation in Birdsong v. State, 929 So.2d 1027, 1028-29 (Ala.Crim.App.2005), as follows:
Also, in Jenkins v. State, 972 So.2d 111, 124-27 (Ala.Crim.App.2004), aff'd in relevant part, rev'd on other grounds, 972 So.2d 159 (Ala.2005), a death penalty case, we held:
To continue reading
Request your trial-
Woods v. State
...court found that the claim had no merit and was due to be dismissed based on the Alabama Supreme Court's decision in Ex parte Carruth, 21 So.3d 770 (Ala.2009).The circuit court correctly found that this claim had been raised in this Court and the Alabama Supreme Court; therefore, it was pro......
- Smith v. State
-
Carruth v. Hamm
...constitutional right to the effective assistance of counsel at the certiorari stage of the proceedings. (Doc. # 21-28 at 132-33.) Carruth, 21 So.3d at 767-69. Rehearing denied on August 15, 2008. (Doc. # 21-28 at 129.) Carruth filed a petition for writ of certiorari in the Alabama Supreme C......
-
Smith v. State
...Alabama Supreme Court because Smith did not have a right to counsel when pursuing a discretionary appeal to that Court. State v. Carruth, 21 So.3d 764 (Ala.Crim.App.2008). Thus, he could not claim ineffectiveness. Similarly, Smith's [112 So.3d 1125]claim that his appellate counsel failed to......