State v. Hutcherson

• Decision Date: 09 November 2001
• Citation: 847 So.2d 378
• Parties: Ex parte State of Alabama. In re STATE of Alabama v. Larry Eugene HUTCHERSON.
• Court: Alabama Court of Criminal Appeals

847 So.2d 378

Ex parte State of Alabama.

In re STATE of Alabama v. Larry Eugene HUTCHERSON.

CR-00-2567.

Court of Criminal Appeals of Alabama.

November 9, 2001.

William H. Pryor, Jr., atty. gen., and George A. Martin, Jr., asst. atty. gen., for petitioner.

Glenn L. Davidson, Mobile, for respondent.

PER CURIAM.

The State filed this petition for a writ of mandamus directing Judge John R. Lockett to dismiss Larry Eugene Hutcherson's postconviction petition filed pursuant to Rule 32, Ala.R.Crim.P. In 1992, Hutcherson was convicted of capital murder. The Alabama Supreme Court subsequently reversed his conviction. See Ex parte Hutcherson, 677 So.2d 1205 (Ala.1996). Hutcherson then pleaded guilty to capital murder and was sentenced to death by electrocution. His conviction and sentence were affirmed on direct appeal. See Hutcherson v. State, 727 So.2d 846 (Ala. Crim.App.1997), aff'd, 727 So.2d 861 (Ala. 1998), cert. denied, 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). On January 5, 1999, we issued the certificate of judgment in Hutcherson's case. On May 4, 2001, Hutcherson filed a petition for postconviction relief pursuant to Rule 32, Ala.R.Crim.P. The State moved that the petition be dismissed because it was filed more than two years after the certificate of judgment was issued and thus was, the State argued, barred by the limitations provision of Rule 32.2(c), Ala.R.Crim.P. Judge Lockett heard oral argument on the issue and took the matter under advisement. Judge Lockett has scheduled a hearing on the merits of the claims, but has not yet held the hearing. The State filed this mandamus petition, requesting us to order Judge Lockett to grant its motion to dismiss. Because a hearing on this case is imminent, we have expedited the filing of the respondent's answer and our decision in this case. See Rule 21(a), Ala. R.Crim.P.

Before we review the merits of this mandamus petition, we must first determine if mandamus is the appropriate manner in which to seek review of the ruling in this case. The State seeks review of a pretrial ruling on a motion that sought dismissal of the petition based on the defense that the limitations period had expired. The Alabama Supreme Court has shown an increasing willingness to review by mandamus petition pretrial rulings that raise viable defenses that would bar subsequent action. See Ex parte Ziglar, 669 So.2d 133 (Ala.1995).

The Supreme Court has recognized that a petition for a writ of mandamus can be used to review issues where "the rights of the parties cannot be adequately protected by appellate review of a final judgment." Ex parte Spears, 621 So.2d 1255, 1258 (Ala.1993). The Alabama Supreme Court in Ex parte Spears stated:

"It is now a well-established general rule in this state that if the matters complained of can ultimately be presented by an appeal, a writ of mandamus will not be issued. Ex parte Fowler, 574 So.2d 745 (Ala.1990). However, this Court, exercising its discretion, has recognized certain exceptions to this general rule in specific cases where appeals are not considered to be adequate to prevent `undue injury.' See, e.g., Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912 (Ala.1991) (mandamus proper to review discovery rulings); Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988) (mandamus proper to enforce a trial court's compliance with this Court's mandate); Ex parte Rush, 419 So.2d 1388 (Ala.1982) (mandamus proper to enforce a statutory or constitutional right to a jury trial); Ex parte Weissinger, [247 Ala. 113, 22 So.2d 510 (1945) ] supra (mandamus proper to vacate certain interlocutory rulings in divorce cases); see, also, Ex parte Brooks, 264 Ala. 674, 89 So.2d 100 (1956); and Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955), and the cases cited therein. The rationale underlying the recognition of these exceptions has not always been crystal clear. For example, the remedy by appeal that will make mandamus review unavailable was described by this Court in one case as `one competent to afford relief on the very subject matter in question, and which is equally convenient, beneficial, and effectual' See East v. Todd, 284 Ala. 495, 499, 226 So.2d 153, 156 (1969). Matters of expense and public interest have also been considered important factors in some cases. See, e.g., Ex parte Weissinger, supra. On the other hand, in Ex parte Moss, 278 Ala. 628, 179 So.2d 753 (1965); and Ex parte Brooks, supra, this Court stated that expense and inconvenience were not controlling in determining whether a party had an adequate remedy by appeal."

621 So.2d at 1256-57. "`The test, as to whether mandamus will be issued, now seems to depend on whether the remedy by appeal is adequate to prevent undue injury rather than the availability merely of [a] remedy by appeal. Ex parte Watters, 180 Ala. 523, 61 So. 904 [ (1913) ].'" Ex parte Spears, 621 So.2d at 1256, quoting Ex parte Weissinger, 247 Ala. 113, 118-19, 22 So.2d 510, 515 (1913). See also Ex parte L.S.B., 800 So.2d 574 (Ala.2001).

The question is not, as Hutcherson argues, whether the State has a remedy, but whether the remedy is adequate to prevent "undue injury." See Ex parte Spears. Therefore, we have considered the great time, resources, money, and inconvenience the State will be forced to expend to defend the merits of the petition before a trial court that possibly has no jurisdiction to entertain it. (This Court has stated that the limitations provision contained in Rule 32.2(c), Ala.R.Crim.P., creates a jurisdictional bar that prevents a trial court from entertaining an untimely filed Rule 32 petition. See Williams v. State, 783 So.2d 135 (Ala.Crim.App.2000)). We have also considered that the State may be unduly prejudiced in federal court if evidence is presented and the trial court rules on the merits of a claim that is procedurally barred. "`[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case "`clearly and expressly' "states that its judgment rests on a procedural bar.'" Mullins v. State, 555 So.2d 1156, 1158 (Ala.Crim.App.1989), quoting Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

We believe that this case presents a classic example of the type of interlocutory ruling that our Supreme Court has held to be reviewable by mandamus petition. See Ex parte Snow, 764 So.2d 531 (Ala.1999) (the Alabama Supreme Court granted mandamus relief when a trial court failed to grant a motion for a summary judgment that alleged that the statute of limitations had expired), and Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000) (question whether trial court has subject-matter jurisdiction may be raised in a mandamus petition). Therefore, this case is properly before us by mandamus petition, and we will evaluate the merits of this petition.

The State argues that the trial court should grant its motion to dismiss the petition because, it says, all of the claims in the petition are barred by the limitations period in Rule 32.2(c), Ala.R.Crim.P., and the court, therefore, is without jurisdiction to hear the merits of the petition. Rule 32.2(c) states:

"Subject to the further provisions hereinafter set out in this section, the court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within two (2) years after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, [Ala.] R.App. P.; or (2) In the case of a conviction not appealed to the Court of Criminal Appeals, within two (2) years after the time for filing an appeal lapses. The court shall not entertain a petition based on the grounds specified in Rule 32.1(e) unless the petition is filed within the applicable two-year period specified in the first sentence of this section, or within six (6) months after the discovery of the newly discovered material facts, whichever is later; provided, however, that the two-year period during which a petition shall be brought shall in no case be deemed to have begun to run before the effective date of the precursor of this rule, i.e., April 1, 1987."

Rule 32.1(a) and Rule 32.1(f), referenced in Rule 32.2(c), refer to challenges to the constitutionality of the trial or the sentence and the failure of the petitioner to appeal his conviction and sentence. These two issues are barred if not raised within two years of the issuance by this Court of the certificate of judgment. Here, the respondent concedes that this petition was filed outside the limitations period specified in Rule 32.2(c), Ala.R.Crim.P. We issued the certificate of judgment on January 5, 1999; the postconviction petition was filed on May 4, 2001. Hutcherson argues that Judge Lockett has the authority and jurisdiction to extend the time for filing a postconviction petition if "excusable neglect" is established. Hutcherson argues that he has shown excusable neglect because counsel stated that he thought the limitations period began to run on the date the United States Supreme Court denied certiorari review, not the date this Court issued a certificate of judgment in the case. He cites Rule 1.3(b), Ala.R.Crim.P., in support of this contention. This section provides:

"When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of

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