Thornton v. State
Court | Alabama Court of Criminal Appeals |
Citation | 859 So.2d 458 |
Parties | Michael THORNTON and Kenneth Thornton v. STATE. |
Decision Date | 21 March 2003 |
Michael Thornton, pro se.
Kenneth Thornton, pro se.
William H. Pryor, Jr., atty. gen., and John M. Porter and Jean A. Therkelsen, asst. attys. gen., for appellee.
On May 22, 2002, Thomas Thornton, exercising a duly appointed power of attorney, verified and filed separate Rule 32, Ala.R.Crim.P., petitions in the Circuit Court of Jefferson County on behalf of his brothers Michael Thornton and Kenneth Thornton. The petitions challenged Michael's and Kenneth's October 29, 1992, convictions for rape in the first degree, sodomy in the first degree, and kidnapping in the second degree. Those convictions were obtained pursuant to guilty pleas. No direct appeal was taken. The petitions were assigned to the same circuit judge who summarily denied the petitions before the State responded by notations on the case action summary sheets.1 These appeals followed.
For the reasons discussed below, we hold that the petitions were not properly verified and, thus, that the circuit court did not have jurisdiction to rule on the petitions.
"[N]o statute expressly allows the commencement of actions by attorneys-in-fact." Miller v. Jackson Hosp. & Clinic, 776 So.2d 122, 126 (Ala.2000). Rule 32, Ala.R.Crim.P., does not permit an individual invested with a power of attorney to verify as true the assertions contained in a Rule 32 petition filed on behalf of a petitioner. To the contrary, Rule 32.6(a), Ala. R.Crim.P., provides: "A proceeding under this rule is commenced by filing a petition, verified by the petitioner or petitioner's attorney, with the clerk of the court." (Emphasis added.) Moreover, the appendix to Rule 32, Ala.R.Crim.P., instructs a petitioner filing a petition pursuant to Rule 32 that a Rule 32, Ala.R.Crim.P., petition "must be legibly handwritten or typewritten, and must be signed by the petitioner or petitioner's attorney under penalty of perjury."
A properly executed power of attorney allows an individual (hereinafter "the agent") to represent, and to make decisions for, the principal; however, it does not allow the agent to act as an attorney for the principal. The Alabama Legislature has regulated the practice of law:
Godwin v. State ex rel. McKnight, 784 So.2d 1014, 1015 (Ala.2000)(a complaint filed on behalf of another not permitted).
In re Battelle Mem'l Inst., 170 N.E.2d 774, 782 (Ohio Com.P1.1960) .
Telephone Man, Inc. v. Hinds County, 791 So.2d 208, 211 (Miss.2001).
"Because the petition was not presented by an attorney authorized to represent litigants before this court, the petition is due to be and is stricken." Herndon v. Lee, 281 Ala. 61, 66, 199 So.2d 74, 78 (1967)(petition was not presented by an attorney to court). "Only such persons as are regularly licensed have authority to practice law." Id.
Because nothing in the record suggests that Thomas Thornton is a licensed attorney in the State of Alabama and because Rule 32.6(a), Ala.R.Crim.P., specifically requires that the petitioner or his attorney must verify the claims contained in the petition, the instant petitions were not properly filed. Thus, the circuit court was without jurisdiction to rule on the petitions.
"`' "
Crapps v. State, 822 So.2d 447, 448 (Ala. Crim.App.2000) (quoting Crapps v. State, 723 So.2d 775, 776 (Ala.Crim.App.1998), quoting in turn Banks v. State, 658 So.2d 511, 512 (Ala.Crim.App.1994)). The circuit court should allow Michael Thornton and Kenneth Thornton a reasonable time, not less than 60 days, to file properly verified petitions and the date of these petitions should relate back to the date of the original petitions.
APPEALS DISMISSED.
I agree with the majority that the petitions filed by Thomas Thornton on behalf of his brothers, Michael Thornton and Kenneth Thornton, were not properly filed in circuit court and, therefore, that the circuit court did not have jurisdiction to rule on the petitions. I write specially only to make the following observations.
Rule 32.6(a), Ala.R.Crim.P., addresses the commencement of the proceedings; it provides in relevant part:
(Emphasis added.) Rule 32.7(c), Ala. R.Crim.P., discussing the appointment of counsel, provides:
"If the court does not summarily dismiss the petition, and if it appears that the petitioner is indigent or otherwise unable to obtain the assistance of counsel and desires the assistance of counsel, and it further appears that counsel is necessary to assert or protect the rights of the petitioner, the court shall appoint counsel."
In addition, Rule 32.8, Ala.R.Crim.P., states that "[i]n order to expedite the proceeding, the court may hold a prehearing conference, at which the petitioner need not be present if he or she is represented by counsel who is present."
As noted by the majority, the appendix to Rule 32 provides the form to be used for petitions filed pursuant to Rule 32, Ala. R.Crim.P. The instructions for that form provide, in relevant part:
Additionally, the form itself provides for the "Petitioner's verification...
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