Walker v. State

• Decision Date: 23 August 2013
• Docket Number: CR–11–0169.
• Citation: 127 So.3d 437
• Parties: Earnest Lee WALKER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

127 So.3d 437

Earnest Lee WALKER

v.STATE of Alabama.

CR–11–0169.

Court of Criminal Appeals of Alabama.

Dec. 11, 2012.

Rehearing Denied August 23, 2013

Appeal from Mobile Circuit Court (CC–06–2129); Sarah H. Stewart, J.

Shanon Haack, Montgomery, for appellant.

Luther Strange, atty. gen., and John J. Davis, asst. atty. gen., for appellee.

Note from the reporter of decisions: On December 11, 2012, the Court of Criminal Appeals entered an order dismissing Earnest Lee Walker's appeal on the basis that the Court of Criminal Appeals was without jurisdiction to address Walker's appeal because his appeal from his Rule 32, Ala. R.Crim. P., petition was untimely and, as to the remaining issue—his resentencing—, he had already obtained appellate review. Judge Welch dissented from the dismissal of the appeal and issued an opinion.

WELCH, Judge, dissenting.

In an unpublished order the majority holds that this Court has no jurisdiction to consider the issues Earnest Lee Walker has raised, and it dismisses his appeal. I disagree. Not only does this Court have jurisdiction, but Walker is entitled to relief. Therefore, I dissent.

The order sets out the procedural history of this case:

“In June 2006, Earnest Lee Walker pleaded guilty to second-degree receiving stolen property, see§ 13A–8–18, Ala.Code 1975, and was sentenced as an habitual felony offender with 3 prior felonies to 15 years' imprisonment. In February 2010, Walker filed in the circuit court a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim.App., arguing, among other things, that his sentence is illegal because one of the three prior felony convictions used to enhance Walker's sentence had been vacated. In its response to Walker's petition,the State conceded that the vacated felony conviction had been used to enhance Walker's sentence and agreed that Walker was entitled to be resentenced. On August 4, 2011, the circuit court entered a written order granting Walker's petition in part and denying it in part; specifically, the circuit court agreed that Walker was entitled to be resentenced but denied all other claims raised by Walker. Following a sentencing hearing on September 21, 2011, the circuit court resentenced Walker, without application of the habitual felony offender act, to 10 years' imprisonment; at the sentencing hearing, Walker, on his own behalf, moved to withdraw his guilty plea on the basis that it was involuntary because his new sentence did not conform with the terms of his original plea agreement. The circuit court denied Walker's motion, and Walker gave both oral and written notices of appeal. Walker now appeals.”

(Footnote omitted.)

Two additional points are relevant here. In its August 4, 2011, order, the circuit court stated that Walker was entitled to be resentenced as an habitual felony offender, without a nol-prossed case being used for enhancement. Furthermore, when the circuit court imposed the 10–year sentence on September 21, 2011, it failed to order that the sentence run concurrently with the sentence in CC–04–3797, as Walker's plea agreement provided and as the trial court ordered when it imposed the original sentence.

The Court dismisses Walker's appeal and states, first, that Walker's notice of appeal was untimely because it was filed on September 21, 2011, more than 42 days after the circuit court issued the August 4, 2011, order. The Court further holds that this Court has no jurisdiction to consider Walker's allegations of error as to his resentencing, and it relies solely on Hart v. State, 939 So.2d 948 (Ala.Crim.App.2005), to support that holding.

I.

Walker's notice of appeal was timely filed on September 21, 2011, the date the trial court imposed the sentence, because the sentencing order was the final order in the case, and the case then became ripe for review.

“ ‘[P]ostconviction proceedings filed pursuant to Rule 32[, Ala. R.Crim. P.,] are civil proceedings.’ State v. Hutcherson, 847 So.2d 378, 383 (Ala.Crim.App.2001).” Ex parte Wright, 860 So.2d 1253, 1254 (Ala.2002). Rule 32.10(a), Ala. R.Crim. P., provides that “[a]ny party may appeal the decision of a circuit court according to the procedures of the Alabama Rules of Appellate Procedure to the Court of Criminal Appeals upon taking a timely appeal as provided in Rule 4, Alabama Rules of Appellate Procedure.” Rule 4(a)(1), Ala. R.App. P., provides, in relevant part:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from....”

In this case, “the judgment or order appealed from” is the circuit court's complete disposition of Walker's petition for postconviction relief, and the case was not finally disposed of until the circuit court entered a new sentence on September 21, 2011. The circuit court stated at the beginning of the hearing on September 21, 2011:

“THE COURT: This is the State of Alabama v. Earnest Lee Walker in CC–06–2129 for resentencing pursuant to a Rule 32 Petition which I granted a portionof.

The grounds for the Rule 32 petition that I granted was that the sentence was enhanced by convictions, one of which has been set aside by the Circuit Court of Baldwin County. So at this point is it the state's intent to go forward under the Habitual Offender Act on this case?”

(R. 3.)

At the conclusion of the hearing the circuit court stated: “At this time, Mr. Walker, I'm going to sentence you to 10 years to serve in CC–06–2120 and that sentence again would be pursuant to the limited grounds for the Rule 32 that I had already granted.” (R. 7.) In the Rule 32 petition, Walker sought resentencing as a habitual felony offender with only two prior felonies, and he requested that the new sentence run concurrently with the sentence imposed in CC–04–3797, in compliance with his original plea agreement. It was only after the trial court imposed the 10–year sentence and failed to order that the newly imposed sentence run concurrently with the sentence in CC–04–3797 that it became clear that Walker had not been sentenced in accordance with his plea agreement or pursuant to either the Habitual Felony Offender Act (§ 13A–5–9, Ala.Code 1975) or the voluntary sentencing standards created following the enactment of the Alabama Sentencing Reform Act of 2003 (§ 12–25–31 et seq., Ala.Code 1975). It was only after Walker was illegally sentenced that his right to appeal from the illegal sentence ripened. Thus, his notice of appeal was timely filed on September 21, 2011.

The August 4, 2011, order was an interlocutory order, one that did not dispose of all the issues before the court and one that left sentencing for future determination. In Rule 32 cases, orders disposing of fewer than all the claims are considered on appeal after the final order disposing of the remaining claims has been issued. For example, in Taylor v. State, [Ms. CR–05–0066, Oct. 1, 2010], ––– So.3d ––––, –––– (Ala.Crim.App.2010), this Court stated: “Taylor appeals the orders of partial dismissal entered on October 23, 2003, and he appeals the August 1, 2005, final order summarily dismissing the petition in its entirety.” An interlocutory appeal, that is, “[a]n appeal that occurs before the trial court's final ruling on the entire case,” Black's Law Dictionary 113 (9th ed. 2009), is allowed only in limited circumstances. By generally limiting review to final judgments, appellate courts are spared considering over a long period multiple appeals that share the same facts and related legal issues.

Whether a judgment is a final one is not always clear; the Alabama Supreme Court has explained on several occasions that a final, appealable judgment is one that resolves all issues and claims in the litigation. For example, in Radetic v. Murphy, 71 So.3d 642 (Ala.2011), a breach-of-contract case, the Court stated:

“ ‘ “An appeal ordinarily lies only from a final judgment.” Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala.Civ.App.2001). “For a judgment to be final, it must be issued by a court of competent jurisdiction and reflect a complete resolution of each and every matter in controversy.” Potter v. Owens, 535 So.2d 173, 174 (Ala.Civ.App.1988).’ Alvira v. Campbell, 909 So.2d 847, 849 (Ala.Civ.App.2005). Here, the trial court's July 28, 2008, order, although determining [the prospective buyer's] liability, clearly did not dispose of the issue of the accompanying damages award. Therefore, it was not a final, appealable order.

“ ‘It is well established that a final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages with specificity for a sum certain determinable without resorting to extraneous facts, Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623 (Ala.1976).’

“Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990). In Dees, the Court of Civil Appeals concluded, based on a finding that there had been both a determination of liability and a stipulation as to the amount of damages, that ‘ the judicial labor ended and nothing unfinished or inconclusive remained.’ Id. In the present case, however, there remained ‘judicial labor’ to perform, namely, the assessment of damages based on the trial court's previous liability determination. Therefore, contrary to the [sellers'] argument, the February 17, 2010, order did not simply acknowledge the July 2008 judgment but constituted a final, appealable order because it conclusively determined all remaining issues in the case. See Jetton v. Jetton, 502 So.2d 756, 758 (Ala.1987) (‘It is a well established rule that, with limited...