State v. Utley (Ex parte State)

• Decision Date: 27 April 2012
• Docket Number: CR–11–0244.
• Parties: Ex parte State of Alabama. (In re STATE of Alabama v. Branden Wayne UTLEY).
• Court: Alabama Court of Criminal Appeals

94 So.3d 414

Ex parte State of Alabama.
(In re STATE of Alabama
v.
Branden Wayne UTLEY).

CR–11–0244.

Court of Criminal Appeals of Alabama.

April 27, 2012.

[94 So.3d 415]

Douglas Albert Valeska, dist. atty., and Anderson D. Robinson, asst. dist. atty., Dothan, for petitioner.

Cada M. Carter, Dothan, for respondent.

PER CURIAM.

The State of Alabama filed this petition for a writ of mandamus requesting that we direct Judge Brady E. Mendheim to vacate his order granting Branden Wayne Utley's third request for probation. In May 2011, Utley pleaded guilty to enticing a child and two counts of transmitting obscene material to a child. He was sentenced on July 5, 2011, to concurrent terms of three years' imprisonment for each count. Probation was denied at that time. On July 22, 2011, Utley filed written notice of appeal. On August 4, 2011, Utley moved for an appeal bond and moved that the court reconsider probation. The court granted an appeal bond, and Utley was released. On August 19, 2011, the circuit court denied Utley's second request for probation.

On September 29, 2011, this Court dismissed Utley's appeal on motion of the appellant. See Utley v. State (CR–10–1627, September 29, 2011), –––So.3d –––– (Ala.Crim.App.2011) (table). Utley then filed his third request for probation in the circuit court. On November 4, 2011, Judge Mendheim granted Utley's request for probation. The State then filed this timely petition for a writ of mandamus.¹

The State asserts that Judge Mendheim's ruling granting probation is void because, it argues, he did not have jurisdiction to issue the order more than 30 days after the sentence had been pronounced and after Utley had started serving his sentence.

The Alabama Supreme Court has held that “[m]andamus will lie to direct a trial court to vacate a void judgment or order.” Ex parte Sealy, L.L.C., 904 So.2d 1230 (Ala.2004). “[A] writ of mandamus is the appropriate remedy by which to order a vacatur of the circuit court's void order.” Ex parte Scrushy, 940 So.2d 290, 294 (Ala.2006). “[T]here is no limit on the time to begin a proceeding to set aside a void judgment.”

[94 So.3d 416]

Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638 (Ala.2003). A void judgment has no legal effect on the underlying proceedings and is not appealable. Ex parte Chandler, 910 So.2d 763 (Ala.2005). “ ‘[A] void court order is a complete nullity.’ Hodges v. Archer, 286 Ala. 457, 459, 241 So.2d 324, 326 (1970). As a nullity, a void judgment has no effect and is subject to attack at any time.” Ex parte Full Circle Distribution, L.L.C., 883 So.2d at 643.See also Ex parte State Dep't of Human Res., 47 So.3d 823 (Ala.Civ.App.2010). According to State v. Webber, 892 So.2d 869 (Ala.2004), the filing of a petition does not stay the case and the petitioner should move to stay the underlying proceedings when seeking a writ of mandamus in a higher court. The Webber court stated:

“[A]fter the thirty days of retained jurisdiction in the trial court expired ... the trial court lost all jurisdiction and all possibility of reacquiring jurisdiction to vacate the judgment ... and the appellate courts lost all possibility of acquiring appellate jurisdiction to remand the case for the judgment to be vacated.”

892 So.2d at 871. However, neither the circuit court nor this Court can stay a void judgment. Because we hold that Judge Mendheim's actions were void, the State's failure to move to stay the underlying proceedings does not deprive this Court of jurisdiction to entertain this petition. “[The] order of [the] trial court is void because that court lacked jurisdiction to issue that order, and the filing of a motion to stay is unnecessary.” Ex parte Tiongson, 765 So.2d 643, 643 (Ala.2000).

Typically, a circuit court retains jurisdiction to modify a sentence for 30 days after the sentence is pronounced.²See State v. Monette, 887 So.2d 314 (Ala.Crim.App.2004). However, probation may be granted at any time before “execution of the sentence.” As the Alabama Supreme Court stated in State v. Green, 436 So.2d 803 (Ala.1983):

“Historically, neither the courts nor the legislature had the authority to suspend sentences and grant probation. Montgomery v. State, 231 Ala. 1, 163 So. 365 (1935). In this state, Amendment 38 of the Constitution of 1901 empowered the legislature to ‘authorize the courts having criminal jurisdiction to suspend sentence and to order probation.’ Thus the power to exercise probationary authority requires legislative sanction. That sanction presently is found in Code of Alabama 1975, § 15–22–50, which, after granting the authority, states further:

“ ‘[T]he court, after a plea of guilty, after the returning of a verdict of guilty by the jury or after the entry of a judgment of guilty by the court, may...