State v. Sullivan
Decision Date | 02 July 1999 |
Citation | 741 So.2d 1125 |
Parties | STATE v. Carroll H. SULLIVAN. |
Court | Alabama Court of Criminal Appeals |
Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for appellant.
Donald M. Briskman, Mobile, for appellee.
The State of Alabama filed this appeal after Judge Chris N. Galanos,1 circuit judge for the Thirteenth Judicial Circuit, granted Carroll H. Sullivan's motion to dismiss the perjury charge against him. Sullivan had been indicted for first-degree perjury by the Mobile County grand jury that was convened in October 1998. Sullivan's trial was scheduled to begin on March 1, 1999. On that date a jury was empaneled and sworn, the attorneys made their opening statements, and the State called its first witness. After a lengthy discussion with the trial court, that witness invoked his Fifth Amendment right not to testify. The State immediately moved for a mistrial. Judge Galanos granted the motion and informed Sullivan that he could file a motion to dismiss the charge on the ground that to try him again would violate principles of double jeopardy. Sullivan moved to dismiss. After a hearing, Judge Galanos ruled that jeopardy had attached and that, therefore, a retrial was barred. Judge Galanos found that there was no manifest necessity for the State to move for a mistrial; thus, he held a retrial was barred on the principles of double jeopardy. The State filed a notice of appeal pursuant to Rule 15.7, Ala.R.Crim.P.
Sullivan has filed in this Court a motion to dismiss the State's appeal. He argues that Rule 15.7, Ala.R.Crim.P., does not give the State the right to appeal Judge Galanos's dismissal of the charge because, he says, the ruling was not a "pretrial" ruling within the meaning of Rule 15.7. We asked the State to respond to Sullivan's motion to dismiss. After reviewing its response, relevant caselaw, statutes, and the Rules of Criminal Procedure, we agree that the State has no right to appeal the ruling in this case.
The right of the State to appeal is governed by § 12-12-70(c) and § 12-22-91, which govern appeals by the state after a statute or ordinance has been declared invalid, and by Rule 15.7, Ala.R.Crim.P., which provides for appeals of certain pretrial rulings that are adverse to the State. See State v. Winston, 591 So.2d 147 (Ala. Cr.App.1991). Rule 15.7 states in pertinent part:
Here, the order dismissing the case was not a pretrial order. The case was dismissed after jeopardy had attached. Jeopardy attached when the jury was empaneled and sworn. Ex parte McKenna, 655 So.2d 989 (Ala.1995); Tomlin v. State, 695 So.2d 157 (Ala.Cr.App.1996). As this Court stated in State v. Hubbard, 526 So.2d 672, 673 (Ala.Cr.App.1988):
This Court is without...
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State v. Sullivan
...on July 2, 1999, holding that the State had no right to appeal the ruling, which was made after jeopardy had attached. State v. Sullivan, 741 So.2d 1125 (Ala.Cr.App.1999). The State then petitioned for a writ of mandamus challenging Judge Galanos's ruling. This Court's opinion dismissing th......
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Ex parte Sullivan
...Rule 15.7 did not permit an appeal of this nature; it advised the State that its only remedy had to be by mandamus. State v. Sullivan, 741 So.2d 1125 (Ala.Crim.App.1999). Pursuant to that court's recommendation, the State petitioned that court for a writ of mandamus directing the trial cour......
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State v. Clemons
...of evidence; (2) the dismissal of an indictment; and (3) the quashing of an arrest or search warrant. See State v. Sullivan, 741 So.2d 1125, 1126 (Ala. Crim.App.1999). "Rules and statutes relating to the same subject matter must be read in pari materia, thus allowing for legal harmony where......
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State v. Clemons, CR-05-1950 (Ala. Crim. App. 2/1/2008), CR-05-1950.
...of evidence; (2) the dismissal of an indictment; and (3) the quashing of an arrest or search warrant. See State v. Sullivan, 741 So. 2d 1125, 1126 (Ala.Crim.App. 1999). "Rules and statutes relating to the same subject matter must be read in pari materia, thus allowing for legal harmony wher......