State v. Webber

• Decision Date: 05 March 2004
• Citation: State v. Webber (Ex parte State), 892 So.2d 869 (Ala. 2004)
• Parties: Ex parte State of Alabama (In re STATE of Alabama v. Clennan Hill WEBBER).
• Court: Alabama Supreme Court

892 So.2d 869

Ex parte State of Alabama

(In re STATE of Alabama v. Clennan Hill WEBBER).

1021743.

Supreme Court of Alabama.

March 5, 2004.

Rehearing Denied May 28, 2004.

Eleanor I. Brooks, district atty., and Vernetta R. Perkins, deputy district atty., for petitioner.

Thomas M. Goggans, Montgomery, for respondent Clennan Hill Weber.

Tracy S. McCooey, Circuit Judge, Montgomery.

H.W. "Bucky" McMillan, Presiding Judge; and Sue Bell Cobb, Pamela W. Baschab, and A. Kelli Wise, Judges, Alabama Court of Criminal Appeals. JOHNSTONE, Justice.

The State has petitioned this Court for a writ of mandamus directing the trial judge to vacate her order dismissing the "case" against the defendant Clennan Hill Webber and to adjudicate him guilty and to sentence him in accordance with his guilty pleas. For the reasons explained in this opinion, we must dismiss the petition for the writ of mandamus.

In December 2001, Webber was indicted for four property crimes. He declined to participate in the "pre-trial diversion program" operated by the district attorney but agreed to participate in the "drug court" instituted and supervised by the trial judge herself. He entered guilty pleas to the four charges in the "case," and the trial court deferred adjudications and sentencing subject to certain conditions, including participation in the trial judge's "drug court." After the defendant completed the drug court program and fulfilled all other conditions imposed by the trial court, it, over the district attorney's objection, dismissed the "case" against the defendant with prejudice on April 24, 2003.

On May 1, 2003, within the seven days next following the date of the judgment of dismissal, see Rule 21(a), Ala. R.App. P., and Rule 15.7, Ala. R.Crim. P., the State, through the district attorney, petitioned the Alabama Court of Criminal Appeals for the same mandamus relief the State now seeks from us. The Court of Criminal Appeals dismissed that petition on July 9, 2003, without an opinion, State v. Webber, (No. CR-02-1386), 886 So.2d 187 (Ala.Crim.App.2003) (table); and the State petitioned us within seven days thereafter, on July 16, 2003.

The State claims that the trial court "usurped the authority of the district attorney" and "abused its discretion by arbitrarily and capriciously dismissing the charges against the Defendant over the State's objection." The State does not claim lack of notice or opportunity to be heard before the trial court.

Because the trial court now lacks jurisdiction to vacate the judgment of dismissal, and the appellate courts of the state now lack jurisdiction to order the judgment vacated, we cannot reach the merits of the claim of the State, as the claim is moot, and accordingly we must dismiss the petition for a writ of mandamus directing that the dismissal of the case be vacated, the charges adjudicated, and the defendant sentenced. Parkerson v. Seventeenth Judicial Circuit Court, Sumter County, 277 Ala. 345, 170 So.2d 491 (1965). See State ex rel. City of Prichard v. Jansen, 271 Ala. 104, 122 So.2d 736 (1960). We will explain.

The April 24, 2003 dismissal of the case constituted a final judgment, as distinguished from an interlocutory judgment or order. Ex parte Sullivan, 779 So.2d 1157, 1160 (Ala.2000).¹ See also Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). The trial court lost subject-matter jurisdiction of the cases at the expiration of thirty days following entry of the final judgments. Ex parte Hitt, 778 So.2d 159 (Ala.2000); Massey v. State, 587 So.2d 448 (Ala.Crim.App.1991); and Shepard v. State, 347 So.2d 1017 (Ala.Crim.App.1977). See Rule 24, Ala. R.Crim. P.

No party filed an appeal.² Because no party filed a timely appeal, no appellate court ever acquired any appellate jurisdiction over the cases. Spina v. Causey, 403 So.2d 199 (Ala.1981); Lewis v. State, 463 So.2d 154 (Ala.1985); Woods v. State, 371 So.2d 944, 945 (Ala.1979); and Turner v. State, 365 So.2d 335, 336 (Ala.Crim.App.1978).

Within seven days after the trial court entered the final judgments, during the thirty days when the trial court did retain subject-matter jurisdiction, the State petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial judge to vacate the dismissal, to adjudicate the charges, and to sentence the defendant. The State did not, however, obtain, from either the trial court or any appellate court, any stay of the final judgment.

The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order or perfecting a filing in the case. See Ex parte St. John, 805 So.2d 684 (Ala.2001); State ex rel. S.N. v. W.Y., 622 So.2d 378, 381 (Ala.Civ.App.1993); and Continental Oil Co. v. Williams, 370 So.2d 953, 954 (Ala.1979). The petition for a writ of mandamus, if meritorious, merely prompts the appellate court to exercise its supervisory power to tell the trial judge, as an official, as distinguished from the trial court itself, to do his or her duty when that duty is so clear that there are no two ways about it. Ex parte Little, 837 So.2d 822, 824 (Ala.2002). Further, a petition for a writ of mandamus is not a substitute for an appeal. State v. Van Reed, 673 So.2d 857, 858 (Ala.Crim.App.1996); and Ex parte City of Tuscaloosa, 636 So.2d 692, 694 (Ala.Crim.App.1993).

Therefore, in the case now before us, the filing of the petition for a writ of mandamus neither transferred the retained subject-matter jurisdiction of the trial court to the appellate court, nor tolled the expiration of the thirty days of retained jurisdiction of the trial court, nor conferred appellate jurisdiction (as distinguished from supervisory jurisdiction over the trial judge) on the Court of Criminal Appeals. Thus, after the thirty days of retained jurisdiction in the trial court expired, and after any applicable period for appeal, if any,³ expired, the trial court lost all jurisdiction and all possibility of reacquiring jurisdiction to vacate the judgment of dismissal, and the appellate courts lost all possibility of acquiring appellate jurisdiction to remand the case for the judgment to be vacated.

PETITION DISMISSED.

HOUSTON, LYONS, and HARWOOD, JJ., and GORDON, Special Justice,⁴ concur.

SEE, J., concurs specially.

WOODALL, J., concurs in the result.

BROWN and STUART, JJ., dissent.

SEE, Justice (concurring specially).

Although I agree with Justice Stuart that the trial court improperly dismissed the case, I do not reach this issue for the reasons stated in the main opinion.

WOODALL, Justice (concurring in the result).

I believe the State's petition for a writ of mandamus was not filed in a timely manner. Therefore, I concur in the result. STUART, Justice (dissenting).

The State of Alabama, through the Montgomery County District Attorney's Office ("the State"), petitions this Court to issue a writ of mandamus ordering Judge Tracy S. McCooey to reinstate the case against Clennan Hill Webber. The majority denies the petition on jurisdictional grounds. I, however, believe that a petition for a writ of mandamus is the proper vehicle by which to address this matter. Therefore, I would not dismiss the petition; I would address the merits.

In December 2001 the Montgomery County grand jury indicted Webber for two counts of burglary in the third degree, violations of § 13A-7-7, Ala.Code 1975, and two counts of theft of property in the second degree, violations of § 13A-8-4, Ala.Code 1975. In May 2002 the State mailed a letter to Webber's counsel explaining the district attorney's pretrial-diversion program established pursuant to Act No. 706, Ala. Acts 1978.⁵ The letter stated:

"At this time the only way the State of Alabama will nolle prosse the charges is if [Webber] complete[s] Pre-Trial Diversion. There is no Drug Court Program accepting defendants at this time.

"While I cannot guarantee [Webber] will be accepted, based on the information available to me, I believe it to be in [his] interest to apply for Pre-Trial Diversion."

(State's petition, Exhibit A.) Webber declined to participate in the pretrial-diversion program.

On June 10, 2002, Webber pleaded guilty to the charges. The trial court did not adjudicate Webber guilty, but ordered him to participate in the trial court's drug-court program.⁶ On June 13, 2002, the State filed a motion requesting that the trial court adjudicate and sentence Webber. On June 25, 2002, the trial court denied the motion.

On April 21, 2003, the trial court informed the district attorney that Webber had successfully completed all the requirements of its drug-court program and requested that the charges against Webber be nol-prossed. On April 24, 2003, the State filed a refusal to nol-pros the case and an objection to a dismissal. The State also filed a second motion requesting that Webber be adjudicated and sentenced. The trial court dismissed Webber's case.

On May 1, 2003, the State filed a petition for a writ of mandamus requesting that the Court of Criminal Appeals order the trial court to reinstate its case against Webber, to adjudicate the case, and to sentence Webber. See Ex parte Sullivan, 779 So.2d 1157 (Ala.2000). The Court of Criminal Appeals, citing Rule 21(a), Ala. R.App. P., and Ex parte Thomas, 828 So.2d 952 (Ala.2001), dismissed the petition. The State then filed the present petition for a writ of mandamus with this Court pursuant to Rule 21(e)(1), Ala. R.App. P.

In its petition the State contended that the trial court exceeded the scope of its authority by, it said, arbitrarily and capriciously dismissing the charges against Webber.

First, I note that a Rule 13.5(c)(1), Ala. R.Crim. P., provides:

"(1) A motion to dismiss the indictment may be based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure

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