State v. Maddox
Decision Date | 02 March 2001 |
Citation | 828 So.2d 946 |
Parties | Ex parte State of Alabama. (In re STATE of Alabama v. Thomas R. MADDOX). |
Court | Alabama Court of Criminal Appeals |
John M. Tyson, Jr., district atty., and Thomas E. Harrison, asst. district atty., Mobile County, for petitioner.
Thomas M. Haas, Mobile, for respondent.
The district attorney for the Thirteenth Judicial Circuit petitioned for a writ of mandamus directing Judge Herman Y. Thomas to vacate his order dismissing theft charges against Thomas R. Maddox. Maddox, a construction contractor, was indicted for theft of property in the first degree for allegedly exercising unauthorized control over $60,000—money paid to him by Leslie Barbour for materials to renovate her residence. On November 26, 2000, a jury was empaneled and sworn and the State proceeded to present its case against Maddox. During the State's case-in-chief, Maddox moved to dismiss the charges against him. He argued that the subject of the charge was a civil dispute (i.e., one based in contract) that did not subject him to criminal liability. After a hearing, Judge Thomas granted the motion. The district attorney informed Judge Thomas that he would file a petition for a writ of mandamus attacking the ruling. This petition followed.
Initially, we must determine if this action is properly before this Court. The ruling that is the subject of this mandamus petition was made during a trial on criminal charges against Maddox. A jury had been empaneled and sworn and the State had called witnesses to the stand. Jeopardy had attached. Ex parte McKenna, 655 So.2d 989 (Ala.1995).
The State has a limited right to appeal; that right is governed by § 12-12-70, Ala. Code 1975, § 12-22-91, Ala.Code 1975; and Rule 15.7, Ala.R.Crim.P. According to these provisions, the State may appeal from a judgment holding a statute unconstitutional and from pretrial rulings suppressing evidence, dismissing charges, or quashing an arrest or a search warrant. The State has no right to appeal from an order dismissing a case once jeopardy has attached. Because the State had no right to appeal from Judge Thomas's ruling, its only means of obtaining review by a higher court was to file a petition for a writ of mandamus. As the Alabama Supreme Court stated in Ex parte Sullivan, 779 So.2d 1157, 1161 (Ala.2000):
We allowed Maddox 21 days to respond to the mandamus petition. Maddox filed a motion to dismiss. He argued that the mandamus petition was filed more than 7 days from the date the motion to dismiss was granted; thus, he argued, it is untimely. Maddox cites Rule 21(a), Ala. R.App.P., in support of this contention. Rule 21(a), Ala.R.App.P., states, in pertinent part:
The above provision was added to Rule 21(a) effective September 1, 2000. Prior to this change, Rule 21 contained no provision specifying a time within which a mandamus petition had to be filed. Appellate courts had previously applied a standard of reasonableness on a case-by-case basis. In State v. McKinney, 727 So.2d 893 (Ala. Crim.App.1998), we held that a mandamus petition filed two months after the challenged ruling was filed within a reasonable time. See also Ex parte Dennis, 681 So.2d 157 (Ala.Civ.App.1995) ( ).
The district attorney responded to Maddox's motion to dismiss by stating that the ruling on the motion was not entered before trial; therefore, the mandamus petition is not subject to the seven-day filing period set out in Rule 15.7, Ala.R.Crim.P. ( ) He asserts that the "presumptively reasonable time" referred to in Rule 21(a) is the 42-day period that governs the filing of a notice of appeal. See Rule 4(b), Ala.R.App.P. We believe that the Supreme Court intended that a petitioner in a case like this one have 42 days in which to file a mandamus petition. If the Supreme Court had intended to set a separate time period for the State it could have amended Rule 21(a) to so provide. The petition here was filed 35 days after Judge Thomas granted the motion to dismiss. The petition was filed within a "presumptively reasonable time."
A problem we are confronted with in this case is that Maddox did not respond to the allegations in the petition. Thus, Maddox has failed to refute any of the factual assertions made by the district attorney for Mobile County. When a respondent fails to refute the allegations in a mandamus petition the reviewing court must consider the petitioner's assertions to be true. As we stated in Ex parte Swoope, 724 So.2d 92, 93-94 (Ala.Crim.App.1998):
Thus, we will proceed to evaluate the merits of the district attorney's petition, using the facts presented in its brief in support of the petition.
The State's evidence at trial showed that Maddox and Barbour had entered into a contract pursuant to which Maddox was to renovate Barbour's residence. The contract provided that Maddox would draw money every 30 days to pay for designated materials. The evidence showed that Maddox made six draws and that six checks were presented to him. Maddox did not dispute that he cashed these checks and that he directed the money to be paid to various vendors involved in the renovations. Draw number one was for $19,259.84, to be paid, in part, to Ladd Supply Company for building materials. Draw number two was for $27,299.91, to be paid, in part, to Ladd Supply. Draw number 3 was for $27,634.02, to be paid, in part, to Ladd Supply, and in part ($8,925.00) to J.W. Cabinets. Draw number 4 was for $34,409.48; of that amount $12,587.94 was to be paid to Ladd Supply. Draw number 5 was for $42,522.02; of that amount $9,215.06 was to be paid to Ladd Supply and $2,000 was to be paid to Blackstone Plumbing. Draw number 6 was for $48,071.31; of that amount $7,480.53 was to be paid to Ladd Supply, $5,290.00 was to be paid to Jenkins Brick, $2,200.00 was to be paid to Hunter Security for a security system, and $3,627.20 was to be paid to Archways, Inc. for a deposit on a spiral staircase. Maddox did not pay J.W. Cabinets the $8,925.00; he did not pay Blackstone Plumbing the $2,000.00; he did not pay Jenkins Brick the $5,290.00; he did not pay Archways, Inc., the $3,627.00; he did not pay Hunter Security the $2,200.00. Of the $30,000 that Maddox requested for the purpose of paying Ladd Supply, all but $2,386.77 was applied to past-due accounts, with Maddox's knowledge, not to the materials to be used to renovate Barbour's residence. The district attorney also presented evidence that Barbour was forced to pay for all of the materials after Maddox had failed to pay the vendors the amounts he had previously billed her.
The petitioner argues that Maddox's actions amount to a criminal offense because, he says, there was proof that he exercised unauthorized control of the moneys given to him by Barbour by directing those moneys to purposes other than what they had been designated for when he billed Barbour. We believe that the wording of the theft statutes and prior decisions of the appellate courts of Alabama support the petitioner's claim.
Theft of property in the first degree is defined in § 13A-8-2, Ala.Code 1975. This section states:
(Emphasis added.) Here, Maddox was indicted pursuant to § 13A-8-2(1); thus, it was incumbent on ...
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