author: COBB, Judge. BASCHAB, Judge,

text:
    Tony FOUNTAIN v. STATE.
    CR-99-0378.
    Court of Criminal Appeals of Alabama.
    April 28, 2000.
    Rehearing Denied June 23, 2000.

      Tony Fountain, pro se.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   COBB, Judge.

In an out-of-time appeal granted by the circuit court, Tony Fountain appeals from the circuit court’s 1996 dismissal of his Rule 32, Ala.R.Crim.P., petition for post-conviction relief. The question whether Rule 32, Ala.R.Crim.P., permits an out-of-time appeal from the denial of a petition for posttrial relief is a matter of first impression in the State of Alabama.

Fountain’s petition challenged his November 15, 1988, convictions for rape in the first degree and kidnapping in the second degree. On direct appeal, we affirmed Fountain’s convictions. Fountain v. State, 598 So.2d 1026 (Ala.Cr.App.1992). Fountain filed a Rule 32 petition for post-conviction relief on December 10, 1992, raising several allegations of error during the trial, allegations of ineffective assistance regarding an attorney who was briefly appointed to represent Fountain, but who withdrew before trial, and the following allegations of ineffective assistance of the trial defense counsel:

1. Counsel “failed to investigate the case and the applicable law and failed to interview or subpoena a witness who was present in the car with Fountain on the night of the kidnapping and rape”;
2. Counsel “failed to subpoena the doctor or nurse that examined the victim at the hospital and failed to subpoena the victim’s medical records, which may have disclosed the presence or absence of any signs of physical violence or signs of forcible penetration”;
3. Counsel “failed to interview, investigate, or impeach state witnesses”;
4. Counsel “failed to object to prosecutor’s leading questions”;
5. Counsel “improperly asked the trial court to conduct a post-trial hearing, pursuant to Rule 10(f), Ala.R.App.P., at which the trial court corrected an improper sentence as to the kidnapping count, and then failed to object to the trial court’s correcting the sentence at that hearing”;
6. Counsel “failed to admit a tape of the preliminary hearing into evidence at trial”;
7. Counsel “failed to advise Fountain of his constitutional rights guaranteed him by the Sixth Amendment”;
8. Counsel “failed to subpoena the rape victim’s school records and failed to investigate into the victim’s reputation as to chastity, failed to discover the identity of the victim’s boyfriend, and, if there was such a person, failed to call him as a witness so that he could testify that the victim was at his house the night of the rape”;
9. Counsel “failed to object to the court’s reasonable doubt instruction”;
10. Counsel “faded to establish and maintain the requisite confidential relationship with Fountain, failed to properly prepare Fountain for his testimony at trial, and failed to inform Fountain of the state’s motion to consolidate the charges for trial”;
11. Counsel “failed to provide Fountain with a complete transcript of the trial (the jury strike list was missing)”;
12. Counsel “failed to challenge the indictment on a lesser included offense”;
13. Counsel “failed to object to the prosecution’s suppression of the evidence which should have been raised on pre-trial motion, or at trial, or on direct appeals”; and
14. Counsel “failed to object to the court’s contaminating, by extraneous influence, the jury’s deliberations.”

The circuit court eventually dismissed Fountain’s petition on March 21, 1996, stating:

“Petitioner filed a timely Rule 32 asserting that certain constitutional rights were violated. Fountain claims that the pretrial line-up procedures employed by the Montgomery Police Department were unconstitutional, that he was given ineffective assistance of counsel, that the Court failed to notify the petitioner and counsel of the numerical division of the jury, that there was insufficient evidence, that there was improper consolidation, and that counsel did not inform petitioner of consolidation which resulted in ineffective assistance of counsel.
“The petitioner’s allegations are precluded based on Rules 32.2[ (a) ](2), 32.2[ (a) ](3), and 32.2[ (a) ](5), A.R.Crim. P., because the issues were not raised and addressed at trial, and could have been raised on appeal but were not raised.
“Based on the foregoing, it is ordered that the Respondent’s Motion to Dismiss and/or Answer to Amended Petition is due to be and is hereby granted.”

(C. 130.)

On September 20, 1999, Fountain filed a Rule 32 petition for postconviction relief, alleging that he was entitled to an out-of-time appeal of the 1996 dismissal of his first petition. On November 4, 1999, the circuit court granted Fountain an out-of-time appeal, ruling that, because Fountain was never notified of the 1996 dismissal of his petition, his failure to timely appeal from that dismissal was through no fault of his own.

I.

The State argues that Rule 32, Ala. R.Crim.P., does not provide for an out-of-time appeal from a circuit court’s denial of postconviction relief and asks that we dismiss Fountain’s appeal. The State cites as authority an unpublished memorandum of this court issued in Ho v. State, (No. CR-98-2469, December 3, 1999), 796 So.2d 461 (Ala.Crim.App.1999)(table), in which this court concluded that, while Rule 32.1(f), Ala.R.Crim.P., provides a means of seeking an out-of-time appeal of a conviction or sentence, it does not provide a means of seeking an out-of-time appeal of the denial of a Rule 32 petition. An unpublished memorandum has no precedential value. Rule 54(d), Ala.R.App.P.; Ex parte Hugley, 731 So.2d 634 (Ala.1999). Rule 32.1, in pertinent part, reads:

“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original jurisdiction to secure appropriate relief on the ground that:
“(f) The petitioner failed to appeal ■within the prescribed time and that failure was without fault on petitioner’s part.”

(Emphasis added.)

A plain reading of Rule 32, Ala.R.Crim. P., reveals that the Alabama Rules of Criminal Procedure do not specifically provide for an out-of-time appeal from the denial of a Rule 32 petition, neither do the Rules specifically prohibit such relief. However, Rule 1.2 of the Alabama Rules of Criminal Procedure provides the following:

“These rules are intended to provide for the just and speedy determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of individuals while preserving the public welfare.”

While there is no caselaw that directly addresses the issue, there is caselaw in which Alabama appellate courts have interpreted the Alabama Rules of Criminal Procedure in such a way as to protect the rights of individuals and to assure fairness in the administration of our judicial process.

In Ex parte A.D.R., 690 So.2d 1208 (Ala.1996), the Alabama Supreme Court reversed this court’s holding that Rule 32 afforded no mechanism for a court to consider a claim of ineffective assistance of counsel arising from a juvenile transfer hearing, because such a hearing was not a “conviction.” Using the same rationale it later reiterated in Ho, this court determined that the language of Rule 32.1 limited the application of Rule 32 to “any defendant who has been convicted of a criminal offense.” The Supreme Court wrote:

“Neither the Alabama Rules of Criminal Procedure nor the Alabama Rules of Juvenile Procedure address the question of how a court may consider a juvenile’s claims of ineffective assistance of counsel in regard to the transfer hearing, where no appeal is taken. The petition for the writ of error coram nobis has historically been available for a criminal defendant to raise allegations of ineffective assistance of counsel. Thompson v. State, 525 So.2d 820 (Ala.1985).... Rule 32, Ala.R.Crim.P., incorporates the procedure for filing what was classified under prior practice as a petition for the writ of error coram nobis. See H. Maddox, Alabama Rules of Criminal Procedure, § 32.0 at 782 (1990). Because no other procedure is provided by our procedural rules, A.D.R. has raised the issue of ineffective assistance of counsel by the use of Rule 32, which incorporated the petition for the writ of error coram nobis. At this point we are faced with either allowing A.D.R. to use Rule 32 to raise the issue of ineffective assistance of counsel in regard to the transfer hearing, or requiring him to await trial and, if convicted, raise it on appeal of the conviction or by a Rule 32 petition .... It would be a waste of time and money for the circuit court to try him as an adult and then, if he is convicted, for the appellate courts to reverse because he had been provided ineffective of counsel.
“Justice requires that we reverse the judgment of the Court of Criminal Appeals and remand this case with instructions to allow an out-of-time appeal of the transfer order.”

Ex parte A.D.R., 690 So.2d at 1209.

This same sense of what justice requires under certain circumstances led the circuit court to allow Fountain an out-of-time appeal of its denial of postconviction relief. The circuit court noted in its order:

“The Court has reviewed the record and finds that Petitioner has proven, by a preponderance of the evidence, that he did not receive a copy of the March 21, 1996, order in time to file a timely appeal. The Court further finds that failure to appeal the order of March 21, 1996, was without fault on the part of Petitioner.
“This Court has not been able to locate any Alabama cases addressing whether one can be granted an out-of-time appeal for failure to appeal a post-conviction Rule 32 order where the petitioner is without fault. It is clear that a Rule 32 petition is the proper means to raise failure to appeal a direct appeal or revocation order within the prescribed time. And this Court is of the opinion that the same reasoning should be applied to a post-conviction order denying relief.”

(C. 191-92.)

We find a similar rationale in the Alabama Supreme Court’s decision Ex parte Weeks, 611 So.2d 259 (Ala.1992). In Weeks, the Supreme Court reversed this court’s denial of a petition for a writ of mandamus asking this court to order the circuit court to reinstate a de novo appeal of a district court conviction. According to the facts in Weeks, the petitioner had appealed to the circuit court from a district court conviction. After he repeatedly telephoned the circuit court clerk’s office asking for the date his case would be heard, the clerk’s office told him not to call again, that he would be mailed the notice of his court date. The petitioner left his address with the clerk’s office and complied with its instructions. Months later, he discovered his appeal had been dismissed because he did not appear in court. According to the petitioner, the clerk’s office had mailed the notice of his court date to an outdated address. In determining that justice required that the appeal be reinstated, the Supreme Court wrote:

“Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.... Although it is generally held in Alabama that a party is under a duty to follow the status of his case, whether he is represented by counsel or acting pro se, and that, as a general rule, no duty rests upon either the court or the opposing party to advise that party of his scheduled trial date, see the cases collected at 18A Ala. Digest Trial § 9(1) (1956), a party’s right to procedural due process is nonetheless violated if he is denied his day in court because the court, acting through its clerk, assumed the duty of notifying that party of his scheduled trial date and then negligently failed to do so.
“The circuit court’s dismissal of [petitioner’s] appeal, on the facts presented, lacked one of the fundamental attributes of a fair judicial proceeding — the opportunity for all of the parties to be heard— and could never be upheld where justice is fairly administered. Because the sole object and only legitimate end of state government (including the judicial branch of state government) is to protect the citizen in the enjoyment of life, liberty, and property, it would surely amount to ‘usurpation and oppression’ by this state’s judicial branch of government if this branch failed to recognize [the petitioner’s] right to procedural due process and he was not afforded his day in court. Article I, § 35, Ala. Const.”

Weeks, 611 So.2d at 261-62 (citations omitted).

There can be no doubt that had Fountain received timely notice from the circuit court that his petition for postcon-viction relief had been denied without an evidentiary hearing, he would have been entitled to appeal the circuit court’s decision to this court. The circuit court properly concluded that Fountain did not receive timely notice of the court’s decision, through no fault of his own. We therefore believe that, under these circumstances, to deny Fountain the opportunity to seek an out-of-time appeal of the circuit court’s denial of postconviction relief, solely because the Alabama Rules of Criminal Procedure do not specifically provide such a procedure, would be to deny Fountain his right to procedural due process and would not be a fair administration of justice. Our sense of fundamental fair play requires us to recognize a petitioner’s right to petition a circuit court for an out-of-time appeal pursuant to rule 32.1(f), Ala. R.Crim.P., of that court’s denial of post-conviction relief when the petitioner has been denied the ability to file a timely appeal because of a mistake by the circuit court. Article I, § 35, Alabama Constitution of 1901. Our holding is limited to those cases where, as here, the circuit court recognizes that it was the fault of the court that the petitioner was unable to perfect a timely appeal. In coming to this conclusion, we adopt the cautionary language of the Alabama Supreme Court in Ex parte A.D.R.:

“The facts of this case indicate a need to amend ... the Alabama Rules of Criminal Procedure to designate the procedure to be followed in a fact situation such as this. Until our procedural rules are amended to deal specifically with this problem, this opinion should serve to remind [circuit judges of the duty to serve a petitioner with timely notice of the court’s decision denying a petition for postconviction relief or dismissing the petition.]”

A.D.R., 690 So.2d at 1209-10.

We will therefore address the issues Fountain raises in his out-of-time appeal.

II.

On appeal, Fountain argues that the circuit court erred in dismissing the ineffective-assistance-of-counsel claims on grounds that they are precluded; that the circuit court erred in not holding an evi-dentiary hearing; that the circuit court erred in not stating specific reasons for its denial of relief; and that he presented meritorious claims of ineffective assistance of counsel.

We agree with the circuit court that the issues regarding the trial court’s errors at trial were precluded because they were either raised at trial, or could have been raised at trial or on direct appeal and were not. Rule 32.2(a)(2), (3), and (5), Ala. R.Crim.P.

Fountain argues that the circuit court erred in dismissing the ineffective-assistance-of-counsel claims on the preclusion grounds set out in 32.2(a)(2), (3), and (5). Fountain points out that, because he had the same attorney for trial and on direct appeal, this Rule 32 petition was the first opportunity he had to raise ineffective-assistance-of-counsel claims. On that point Fountain is correct. However, a review of Fountain’s claims of ineffective assistance of counsel show that these claims were mere assertions and conclusory statements that counsel had been ineffective. To prevail on a claim of ineffective assistance of counsel, Fountain must prove (1) that his counsel’s performance was deficient, and (2) that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rule 32.6, Ala. R.Crim.P., provides that “[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds.” Fountain’s petition did not meet this requirement. Thus, this series of claims of ineffective assistance were due to be dismissed. Grayson v. State, 675 So.2d 516 (Ala.Crim.App.1995). Likewise, the allegations of ineffective assistance of counsel made against an appointed counsel who withdrew and who was then replaced by another appointed counsel before trial were properly dismissed because, not only were these allegations not sufficiently pleaded in the petition, but they were also irrelevant to the case at hand. Fountain did not even allege how the effectiveness of an attorney who did not represent him at trial could have been so deficient that it prejudiced him at trial. See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). “[Wjhere the judgment of the circuit court denying a petition for post-conviction relief is correct for any reason, it will be affirmed by this Court, even if the circuit court stated an incorrect reason for its denial.” Long v. State, 675 So.2d 532, 533 (Ala.Crim.App.1996).

Fountain also claims that he was entitled to an evidentiary hearing on his petition. Because the issues raised in his petition were not sufficiently pleaded, or were precluded from review, Fountain was not entitled to an evidentiary hearing. Alderman v. State, 647 So.2d 28, 35 (Ala.Crim.App.1994). Regarding Fountain’s argument that the circuit court erred in not making specific findings in its order dismissing the petition, we note that in Fincher v. State, 724 So.2d 87 (Ala.Crim.App.1998) we held that the circuit court need not make specific findings of facts when it summarily denies a Rule 32 petition.

In his brief to this court, Fountain restates his claims of ineffective assistance of counsel, makes additional allegations of ineffective assistance against trial counsel and, for the first time, makes allegations of ineffective assistance of counsel against his appellate counsel. This court will not consider allegations of ineffective assistance raised for the first time on appeal. Ex parte Jackson, 598 So.2d 895, 897 (Ala.1992).

Accordingly, we affirm the circuit court’s denial of Fountain’s Rule 32 petition.

AFFIRMED.

LONG, P.J., and FRY, J., concur. BASCHAB, J., dissents, with opinion, which McMILLAN, J., joins.

BASCHAB, Judge,

dissenting.

Because I do not believe the circuit court had the authority to grant Fountain an out-of-time appeal from the dismissal of his first Rule 32 petition, I respectfully dissent. To be timely, a notice of appeal must be filed within 42 days after the circuit court dismisses a Rule 32 petition. See Ex parte Jones, 773 So.2d 989 (Ala.1998) (citing Barfield v. State, 703 So.2d 1011 (Ala.Crim.App.1997)).

“ ‘ “In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal ... even to relieve against mistake, inadvertence, accident, or misfortune.... ” Meeks v. State Farm Mut. Auto. Ins. Co., 286 Ala. 513, 515, 243 So.2d 27, 28 (1970) (quoting with approval Hanley v. Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250, 1261-67 (1943)). “In the interest of finality of judgments, the prescribed time within which a notice of appeal must be filed with the trial court cannot be waived nor is it subject to extension of time by agreement of the parties or by order of this Court.” Stewart v. Younger, 375 So.2d 428, 428 (Ala.1979) (emphasis in original). See also Hayden v. Harris, 437 So.2d 1283, 1287 (Ala.1983); State v. Kebe, 399 So.2d 348 (Ala.1981) (wherein our supreme court noted that a United States District Court could not confer to the court the authority to extend the 42-day period).’ “Symanowski v. State, 606 So.2d 171, 172 (Ala.Cr.App.1992)

Woods v. State, 609 So.2d 7, 8 (Ala.Crim.App.1992). Because Fountain filed his notice of appeal after the 42-day period had expired, it was not timely. Furthermore, Alabama law does not provide for an out-of-time appeal from the dismissal of a Rule 32 petition. Rule 32 provides possible avenues of relief for complaints about the causes of confinement (i.e., a conviction and sentence), but not for complaints about collateral proceedings. Although Rule 32.1(f) provides a method for seeking an out-of-time appeal from a conviction or sentence, see Symanowski v. State, 606 So.2d 171 (Ala.Crim.App.1992), it does not provide a method for seeking an out-of-time appeal from the dismissal of a Rule 32 petition. Relief under Rule 32.1(f)

“includes the situation in which the defendant fails to appeal because the trial court despite the requirements of [Rule] 26.[9(b)(4), Ala. R.Crim. P.], did not advise the defendant of his appeal rights, and the situation in which the defendant intended to appeal and believed timely appeal had been filed by his attorney when in reality it had not.”

Longmire v. State, 443 So.2d 1265, 1269-70 n. 1 (Ala.1982) (quoting Comment to Proposed Rule 32.1(f), Ala. R.Crim. P.). However, unlike a defendant who wishes to appeal his conviction, a Rule 32 petitioner who wishes to appeal the dismissal of his Rule 32 petition is not entitled as a matter of right either to the assistance of counsel or to an appeal. See Ex parte Cox, 451 So.2d 235, 237 (Ala.1983). Because Alabama law does not specifically provide for an out-of-time appeal from the dismissal of a Rule 32 petition, the circuit court in this case did not have the authority to grant Fountain leave to file an out-of-time appeal from the dismissal of his first Rule 32 petition. Accordingly, this court should dismiss this appeal.


source: Caselaw Access Project

author: JOHNSTONE, Justice. WOODALL, Justice

license: Public Domain

text:
    Ex parte Tony FOUNTAIN. (In re Tony Fountain v. State).
    1991893.
    Supreme Court of Alabama.
    Dec. 28, 2001.

      Tony Fountain, pro se.
    Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for respondent.
   JOHNSTONE, Justice.

This Court granted the defendant Tony Fountain’s petition for a writ of certiorari to the Court of Criminal Appeals to determine whether his right to due process was violated by the State’s failure to serve him with a copy of its appellee’s brief on Fountain’s appeal of the denial of his first Rule 32, Ala. R.Crim. P., petition and by the failure of the Court of Criminal Appeals to enforce his right to a copy of the State’s brief and to accord him a fair opportunity to reply to it. We reverse and remand on that issue. The State has not sought cer-tiorari review of the aspect of the judgment of the Court of Criminal Appeals affirming the trial court in its granting Fountain an out-of-time appeal.

On December 10, 1992, Fountain timely filed his first Rule 32 petition challenging his 1988 convictions for first-degree rape and second-degree kidnapping. Fountain raised several claims, including a claim of ineffective assistance of counsel. Holding that the petitioner’s claims were procedurally barred by Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P., the trial court summarily dismissed that Rule 32 petition. Because Fountain did not receive notice of the dismissal of his petition, he did not timely appeal to the Court of Criminal Appeals. However, on September 20, 1999, he petitioned, in another Rule 32 petition, for an out-of-time appeal of the dismissal. Finding that, through no fault of Fountain’s own, he had not received notice of the dismissal, the trial court granted him an out-of-time appeal. Fountain then appealed the dismissal of his 1992 Rule 32 petition to the Court of Criminal Appeals.

In his appellant’s brief, served and filed on November 26, 1999, Fountain argued that the trial court had erred in summarily dismissing his Rule 32 petition without conducting an evidentiary hearing and without making specific findings of fact. In the appellee’s brief, never served on Fountain, the State argued, first, that the trial court had erred in granting Fountain an out-of-time appeal of the dismissal of his first Rule 32 petition. Second, the State argued that the trial court had not erred in summarily dismissing Fountain’s petition. The State contended that Fountain’s claims were precluded and meritless. The State contended also that Fountain’s claims of ineffective assistance were bare allegations without evidentiary support. (State’s appellee’s brief, p. 8.)

On January 10, 2000, Fountain received a letter from the attorney general’s office notifying him that the State had requested an extension of time to file its appellee’s brief. On January 14, 2000, the State filed its appellee’s brief. In its brief, the State certified that it had mailed a copy of the brief to Fountain at the following address: AIS #118406 G-4D-247, 1000 St. Clair Road, Springville, Alabama, 35146-5582. That address, however, was not Fountain’s correct address, which he had properly supplied in his appellant’s brief as Staton Correctional Facility, P.O. Box 56, Elmore, Alabama 36025. Therefore, Fountain did not receive a copy of the State’s appellee’s brief.

On February 22, 2000, Fountain served and filed a reply brief stating that “the Appellee [the State] has yet to favor this Court with a brief in this matter, therefore procedurally defaulting [it] from filing and/or arguing any of the appellant’s submitted facts set forth in the appellant’s brief on appeal.” (Fountain’s Reply Brief on appeal to the Court of Criminal Appeals, pp. 2-3.) Therefore, Fountain argued, the Court of Criminal Appeals should accept the facts stated in his brief as true.

On March 19, 2000, Fountain sent the clerk of the Court of Criminal Appeals a letter requesting a copy of the State’s brief and an update on the status of his case. The Court of Criminal Appeals docket sheet bears a notation that a docket clerk telephoned “Tracy” and requested, in a voice mail message, that she forward a copy of the State’s brief to Fountain. (Page 2 of the Court of Criminal Appeals docket sheet, included with materials in support of Fountain’s petition for certiora-ri review.) The docket sheet bears a further notation that “Tracy called on April 26, 2000, and said appellant had filed a reply brief indicating he received appel-lee’s brief.” (Page 2 of the Court of Criminal Appeals docket sheet.) Tracy’s call ignores the content of Fountain’s reply brief, which specifically complains of his not receiving the State’s brief. Perhaps Tracy was relying on a docket entry noting the filing of Fountain’s reply brief rather than on the reply brief itself.

On April 28, 2000, in an opinion, the Court of Criminal Appeals affirmed the judgment of the trial court denying Fountain’s first Rule 32 petition. Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000). However, the Court of Criminal Appeals, holding that a Rule 32 petitioner has a right to an out-of-time appeal if the petitioner, through no fault of his own, has been unable to file a timely appeal, 842 So.2d at 723-24, also affirmed the trial court’s order granting Fountain the out-of-time appeal pursuant to his second Rule 32 petition.

The opinion of the Court of Criminal Appeals did not address whether Fountain had received a copy of the State’s appel-lee’s brief. Rather, the opinion addressed the arguments advanced by the State in its appellee’s brief and by Fountain in his appellant’s brief. The Court of Criminal Appeals held that Fountain’s claims of trial court error were precluded from review because they could have been raised at trial and on direct appeal. Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P. The Court of Criminal Appeals held further that Fountain’s claims of ineffective assistance of counsel were mere assertions and conclu-sory statements of law. The Court of Criminal Appeals concluded that Fountain was not entitled to an evidentiary hearing on his claims of ineffective assistance of counsel because he had not pleaded sufficient supporting facts.

On May 10, 2000, Fountain filed an application for rehearing and a Rule 39(k), Ala. R.App. P., motion. Two days later, the State filed an application for rehearing. The State’s application for rehearing certified that a copy of the application and accompanying brief had been mailed to Fountain at his correct prison address, AIS # 152157, Staton Correctional Facility, P.O. Box 56, Elmore, Alabama 36025. However, Fountain maintains that he never received a copy of the State’s application for rehearing and brief.

By letter filed on May 15, 2000, the State moved to withdraw its application for rehearing. Fountain acknowledges that he received a copy of this letter. On the ground that he had not received a copy of the State’s application for rehearing itself, however, he opposed the State’s motion to withdraw it. Nonetheless, on May 17, 2000, the Court of Criminal Appeals granted the State’s motion to withdraw its application for rehearing.

After the Court of Criminal Appeals denied Fountain’s application for rehearing and Rule 39(k), Ala. R.App. P., motion, he petitioned this Court of a writ of certiorari. He argues that his right to due process was violated by the State’s failure to send him a copy of its response brief on appeal and a copy of its application for rehearing. He specifically claims that his right to due process was violated because he was deprived of “ ‘the opportunity to present evidence and argument ... to the claims of the opposing party with a reasonable opportunity to controvert them.’ ” (Petition, p. 5, quoting Ex parte Weeks, 611 So.2d 259 (Ala.1992)).

We first observe that Fountain’s claim that his right to due process was violated because he did not receive a copy of the State’s application for rehearing, is moot because the State’s application for rehearing was withdrawn within five days of its being filed. Nevertheless, Fountain’s claim that his right to due process was violated because he did not receive a copy of the State’s appellee’s brief is properly before this Court.

“[Procedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one’s life, liberty, or property interest are about to be affected by governmental action.” Brown’s Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala.1992).

“Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.”

Ex parte Weeks, 611 So.2d at 261 (emphasis added). Rule 31(a) of the Alabama Rules of Appellate Procedure provides, in pertinent part, that in all criminal cases:

“[T]he appellant shall serve and file the appellant’s brief within 28 days (4 weeks) after the date shown on the copy of the certificate of completion of the record on appeal.... The appellee shall serve and file the appellee’s brief within 21 days (3 weeks) after the filing of the brief of the appellant in the appellate court.... The appellant may serve and file a reply brief within 14 days (2 weeks) after the fifing of the brief of the appellee in the appellate court.”

(Emphasis added.) As early as 1933, the Alabama Court of Appeals held that, when an appellant fails to comply with procedural rules by failing to serve the appellee with a copy of the appellant’s brief on appeal, the appellate court cannot consider the arguments made by the appellant and must affirm the judgment of the lower court. Dollahite-Levy Co. v. Overton, 25 Ala.App. 421, 147 So. 689 (1933). See also Cunningham v. State, 270 Ala. 731, 121 So.2d 890 (1960); and Bruner v. State, 265 Ala. 357, 91 So.2d 224 (1956)(holding that, if a petitioner fails to serve the opposing party with a copy of his petition for the writ of certiorari and his supporting brief, nothing is properly before the appellate court for its consideration). The reason for these holdings applies equally to both (or all) sides.

“Both the Alabama and United States Constitutions protect a citizen of this state from being deprived of life or liberty without ‘due process of law.’ The phrase ‘due process of law,’ although incapable of a precise definition, in its most basic sense encompasses the observation of that degree of fundamental fairness that is essential to our concept of justice.”

Ex parte Frazier, 562 So.2d 560, 565 (Ala.1990) (citations omitted). Rule 31, Ala. R.App. P., requiring that each party’s brief or briefs be served on each other party, is formulated to achieve precisely the goal of fundamental fairness that is the essence of due process. An appeal is a debate between the parties to the appeal. That debate is hardly fair if either party presents that party’s arguments ex parte, so that the opponent cannot know what to answer, and if the appellate court considers those ex parte arguments and decides the appeal without affording the opponent a fair opportunity to respond. Rather, each party is due “information as to the claims of the opposing party, with reasonable opportunity to controvert them,” Ex parte Weeks, supra, as Rule 31 provides. The requirement for appellate due process in the serving of briefs transcends the merits of the appeal.

In the case before us, even though Fountain supplied his correct address in his appellant’s brief, the State, responding to that very brief, used a different and incorrect address for service on Fountain. The Court of Criminal Appeals, fully on notice that Fountain had not received the State’s brief, proceeded to decide the appeal adversely to Fountain, without affording him his due process right to know the State’s arguments in order to formulate the reply Rule 31 allows him.

For this denial of appellate due process, that aspect of the judgment of the Court of Criminal Appeals affirming the denial of Fountain’s Rule 32 petition must be reversed, although we affirm that aspect of the judgment of the Court of Criminal Appeals affirming the grant of the out-of-time appeal. As to the reversed aspect of the judgment of the Court of Criminal Appeals, the case will be remanded with instructions for that court to require that the State serve a copy of its brief on Fountain; to afford Fountain 14 days after such service to file a revised reply brief; and to consider anew the issues on appeal except for the issue of the propriety of the out-of-time appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

HOUSTON, SEE, LYONS, HARWOOD, and STUART, JJ„ concur.

MOORE, C.J., and BROWN and WOODALL, JJ., concur in the result in part and dissent in part.

WOODALL, Justice

(concurring in the result in part and dissenting in part).

I would quash the writ of certiorari as improvidently granted. I concur in the result with respect to affirming that aspect of the judgment of the Court of Criminal Appeals that affirmed the grant of the out-of-time appeal. However, I dissent with regard to reversing the judgment of the Court of Criminal Appeals insofar as it affirmed the denial of Fountain’s Rule 32 petition.

MOORE, C.J., and BROWN, J., concur.

      . Rule 39, Ala. R.App. P., was amended effective May 19, 2000, as to death-penalty cases, and August 1, 2000, as to all other cases. The provisions relating to the statement of facts are now found at Rule 39(d)(5).


author: WISE, Judge.

text:
    Jon Frederick LEWIS v. STATE of Alabama.
    CR-99-2447.
    Court of Criminal Appeals of Alabama.
    June 29, 2001.
    Clark Maurice Parker, Dothan, for appellant.

      Jon Frederick Lewis, pro se.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   WISE, Judge.

Jon Frederick Lewis appeals from the circuit court’s denial of his Rule 32, Ala. R.Crim.P., petition for postconviction relief, in which he attacked his 1997 conviction for first-degree assault, see § 13A-6-20, Ala.Code 1975, and his sentence of 20 years’ imprisonment. We affirmed Lewis’s conviction on direct appeal, without an opinion. Lewis v. State, 711 So.2d 1132 (Ala.Crim.App.1997).

On January 30, 2000, Lewis filed this Rule 32 petition, wherein he alleged (1) that the trial court had given erroneous jury instructions, creating a fatal variance between the indictment and the court’s oral charge; (2) that the trial court had been without jurisdiction to render the judgment or to impose the sentence because, he says, the record was silent as to whether his jury was sworn; (3) that he had been improperly sentenced under the Habitual Felony Offender Act; (4) that he had been denied due process of law by the State’s suppression of evidence that he says was favorable to him; and (5) that he had received ineffective assistance of trial and appellate counsel. On March 14, 2000, the State filed a motion for summary disposition of the Rule 32 petition. The circuit court set an evidentiary hearing for August 22, 2000, and appointed counsel to represent Lewis. At the hearing neither the State or Lewis presented evidence; the hearing consisted of a discussion between the court, the prosecutor, and Lewis’s attorney. The circuit court determined that because Lewis had been convicted on March 19, 1997, and did not file his Rule 32 petition until January 30, 2000, all nonjurisdictional claims raised in the petition were barred by the two-year limitations period of Rule 32.2(c), Ala. R.Crim.P. The circuit court further concluded that there was no merit to Lewis’s claims that the court lacked jurisdiction to render the judgment or to impose the sentence and that he was improperly sentenced under the Habitual Offender Act. However, the circuit court’s order denying Lewis’s Rule 32 petition contained no findings of fact. Indeed, the court’s written order consisted of an entry stating that the “Rule 32 [petition] is denied.” This appeal followed.

Lewis’s appointed counsel has filed a brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967). Counsel stated that his review of the record revealed that no error had occurred in the trial court’s denial of Lewis’s Rule 32 petition.

This Court issued an order on March 12, 2001, informing Lewis that his counsel had filed an Anders brief, and ordering him to file with the Court any issues he believed to be worthy of review. Lewis filed a pro se brief on April 17, 2001, in which he argued (1) that the circuit court erred in finding that the petition was barred by the two-year limitations period set out in Rule 32.2(c), Ala.R.Crim.P.; and (2) that the circuit court erred in finding that the petition was barred by Rule 32.2(a)(5), Ala. R.Crim.P.

Lewis’s contention that the circuit court erred in finding that his petition was barred by Rule 32.2(a)(5) is without merit. Our review of the record reveals that the circuit court’s summary denial of Lewis’s petition was based on its conclusion that Lewis’s claims either lacked merit or were barred by the two-year limitations period of Rule 32.2(c).

Lewis, however, also contends that the trial court erred in finding that his petition was barred by the two-year limitations period provided in Rule 82.2(c). We agree.

Rule 82.2(c) states, in pertinent part:

“Subject to the further provisions hereinafter set out in this section, the court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within two (2) years after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, Ala.R.App. P....”

Rule 41(a), Ala.R.App.P., provides that “The certificate of judgment of the court shall issue 18 days after the entry of judgment unless the time is shortened or enlarged by order.” However, Rule 41(b), Ala.R.App.P., provides, in pertinent part:

“The timely filing of a petition for a writ of certiorari in the Supreme Court shall stay the issuance of the certificate of judgment by the courts of appeals, which stay shall continue until the final disposition by the Supreme Court. Upon the filing of a copy of an order of the Supreme Court denying the petition for certiorari, the certificate of judgment of the courts of appeals shall issue immediately.”

Although this Court affirmed Lewis’s conviction on November 14, 1997, we did not issue a certificate of judgment until March 20, 1998, the same date the Supreme Court denied Lewis’s petition for certiorari review. This appeal challenges the denial of Lewis’s petition and presents the sole issue whether the trial court improperly denied his Rule 32 petition by applying Rule 32.2 to preclude his claims. Thus, Lewis had until March 20, 2000, to file his Rule 32 petition. Lewis filed his petition on January 30, 2000. Accordingly, his petition was timely.

Based on the foregoing, we remand this cause to the circuit court for that court to enter a new order addressing the merits of Lewis’s claims. See Bland v. State, 673 So.2d 459, 460 (Ala.Crim.App.1994) (remand required where “the order of the trial court does not specify which claims its order of denial encompasses, nor does it make specific findings of fact with regard to each of those claims”). Should the trial court deem it necessary to hold another evidentiary hearing before addressing Lewis’s claims, the circuit court’s return to remand shall include a transcript of those proceedings. Rule 32.9(d), Ala. R.Crim.P., requires that if an evidentiary hearing is conducted on the Rule 32 petition, “[t]he court shall make specific findings of fact relating to each material issue of fact presented.” See also Ex parte Walker, 652 So.2d 198 (Ala.1994); Smith v. State, 665 So.2d 954 (Ala.Crim.App.1994). It appears from the record that the judge who presided over Lewis’s 1997 trial was not the same judge who denied Lewis’s petition. Nevertheless, in making these factual determinations, the circuit court may take judicial notice of the record in Lewis’s 1997 trial. As this Court has stated, “[a] statement of the basis of the [circuit] court’s decision is essential to afford the appellant due process.” Owens v. State, 666 So.2d 31, 32 (Ala.Crim.App.1994).

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

      . The court may take evidence as provided in Rule 32.9(a), Ala.R.Crim.P.

      . The court’s order should also include specific findings of fact concerning Lewis’s claims that the trial court lacked jurisdiction to render the judgment or to impose the sentence, see Nix v. State, 819 So.2d 84 (Ala.Crim.App.2001), and that he was improperly sentenced under the Habitual Felony Offender Act.


author: BASCHAB, Judge.

text:
    Charles Louis PETERSON v. STATE.
    CR-00-1417.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2001.
    Opinion on Return to Remand Nov. 30, 2001.
    Opinion on Return to Second Remand Feb. 1, 2002.
    Opinion on Return to Third Remand April 26, 2002.

      Katrina McCan Mu’Min, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

The appellant, Charles Louis Peterson, was indicted for capital murder. In 1997, he pled guilty to felony-murder and first-degree robbery. The trial court sentenced him to serve consecutive terms of thirty years in prison on the felony-murder conviction and twenty years in prison on the first-degree robbery conviction. He did not appeal his convictions. On July 25, 2000, the appellant filed a Rule 32 petition, challenging his convictions. After the State responded, the circuit court summarily dismissed his petition. This appeal followed.

The appellant argues that the trial court did not have jurisdiction to render judgments and impose sentences in his case. Specifically, he contends that his convictions for both felony-murder and first-degree robbery violate double jeopardy principles and that he should not have been convicted of two offenses because only one indictment was returned against him. The appellant’s double jeopardy claim may be meritorious. Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings of. fact regarding the appellant’s double jeopardy claim. On remand, the circuit court may require the State to respond specifically to the appellant’s double jeopardy claim and/or may conduct an evi-dentiary hearing on that claim. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact and, if applicable, the State’s response and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

On Return to Remand

BASCHAB, Judge.

The appellant, Charles Louis Peterson, was indicted for capital murder. In 1997, he pled guilty to felony-murder and first-degree robbery. The trial court sentenced him to serve consecutive terms of thirty years in prison on the felony-murder conviction and twenty years in prison on the first-degree robbery conviction. He did not appeal his convictions. On July 25, 2000, the appellant filed a Rule 32 petition, challenging his convictions. After the State responded, the circuit court summarily dismissed his petition. On August 31, 2001, we remanded this case for the circuit court to make specific, written findings of fact regarding the appellant’s double jeopardy claim. See Peterson v. State, 842 So.2d 734 (Ala.Crim.App.2001).

On remand, the circuit court did not make specific findings of fact regarding the' appellant’s double jeopardy claim. Rather, it simply stated that the appellant’s claim was precluded and was without merit. However, the appellant alleged that he was indicted for murder made capital because he committed it during the course of a robbery. See § 13A-5-40(a)(2), Ala.Code 1975. He further asserted that he was convicted of felony-murder, for which the underlying offense was robbery, and first-degree robbery. Therefore, he concluded that his convictions for both offenses violated double jeopardy principles.

On remand, the circuit court stated in its order that the appellant’s double jeopardy claim “has previously been affirmed on direct appeal by the Court of Criminal Appeals and on the initial Rule 32 proceeding.” (Return to Remand.) However, the appellant did not appeal his conviction. Additionally, we did not address the double jeopardy claim the appellant now raises when we affirmed the denial of his previous Rule 32 petition. See Peterson v. State, (CR-97-1814) 744 So.2d 962 (Ala.Crim.App.1998) (table). Finally, the appellant’s double jeopardy claim challenges the jurisdiction of the court to render judgments and impose sentences. See Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995). Therefore, because the appellant’s specific claim has not been addressed on the merits in any previous proceeding, the circuit court improperly determined that the claim is precluded.

The circuit court found that the appellant’s claim was not meritorious because “Felony Murder includes many possible offenses including Burglary in the first or second degree, which the evidence herein would support a conviction.” (Return to Remand.) However, it did not make any findings as to what the indictment against the appellant alleged. Additionally, the record before this court does not include a copy of the indictment, the amended indictment, the plea agreement, or a transcript of the plea proceedings. If the appellant was indicted for an intentional murder committed during the course of a robbery, then an unintentional murder committed during the course of a burglary is not an included offense. See generally Ex parte Dixon, 804 So.2d 1075 (Ala.2000). Therefore, if his felony-murder conviction was based on an underlying burglary, it must be set aside. See Johnson v. State, 675 So.2d 85 (Ala.Crim.App.1995). Furthermore, if the appellant’s convictions for both felony-murder and first-degree robbery were based on the same robbery, his convictions for both offenses violate double jeopardy principles. See Weaver v. State, 763 So.2d 972 (Ala.Crim.App.1998), rev’d on other grounds, 763 So.2d 982 (Ala.1999).

For these reasons, we again remand this case to the circuit court with instructions that that court make specific, written findings of fact regarding the allegations contained in the indictment against the appellant and the felony that provided the basis for the felony-murder conviction. If the circuit court determines that the appellant should not have been allowed to plead guilty to both felony-murder and first-degree robbery, it may grant appropriate relief. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact. In addition, if such documents are available, the return to remand shall include copies of the indictment, the amended indictment, the plea agreement, and the transcript of the plea proceedings.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

On Return to Second Remand

BASCHAB, Judge.

The appellant, Charles Louis Peterson, was indicted for capital murder. In 1997, he pled guilty to felony-murder and first-degree robbery. The trial court sentenced him to serve consecutive terms of thirty years in prison on the felony-murder conviction and twenty years in prison on the first-degree robbery conviction. He did not appeal his convictions. On July 25, 2000, the appellant filed a Rule 32 petition, challenging his convictions. After the State responded, the circuit court summarily dismissed his petition. On August 31, 2001, we remanded this case for the circuit court to make specific, written findings of fact regarding the appellant’s double jeopardy claim. See Peterson v. State, 842 So.2d 734 (Ala.Crim.App.2001). On remand, the circuit court did not make specific findings of fact regarding the appellant’s double jeopardy claim. Therefore, we again remanded this case to the circuit court with instructions that that court make specific, written findings of fact regarding the allegations contained in the indictment against the appellant and the felony that provided the basis for the felony-murder conviction. See Peterson v. State, 842 So.2d 734, 735 (Ala.Crim.App.2001). On December 17, 2001, the circuit court submitted its return to this court’s second remand.

The appellant argues that the trial court did not have jurisdiction to render judgments and impose sentences in his case. Specifically, he contends that his convictions for both felony-murder and first-degree robbery violate double jeopardy principles. The indictment, which is included in the record on the return to second remand, alleged that the appellant

“did intentionally cause the death of Eddie Allen by shooting him with a pistol and caused said death during the time that [the appellant] was in the course of committing a theft of lawful currency and/or coinage of the United States of America, a better description of which is unknown to the Grand Jury, of some value, the value of which is unknown to the Grand Jury, the property of Eddie Allen and/or Burger King, by the use of force against the person of Eddie Allen, with intent to overcome his physical resistance or physical power of resistance, while [the appellant] was armed with a deadly weapon or dangerous instrument, to-wit: pistol, a better description of which is unknown to the Grand Jury, in violation of Section 13A-5-40 of the Code of Alabama 1975 as amended, against the peace and dignity of the State of Alabama.”

(C.R. 25.) Thus, the appellant was indicted for the capital offense of robbery-murder. The record on the return to second remand also indicates that, when she established the factual basis for the acceptance of the plea, the prosecutor stated:

‘Tour Honor, the State’s evidence would be that Mr. Eddie Allen was the manager of the Burger King on Carter Hill Road in Montgomery County, Alabama, and that while at work two men forced their way into the business. They robbed the business and Mr. Allen and shot and killed him.”

(C.R. 314.)

In its order on the return to second remand, the circuit court found:

“The factual basis was sufficient for conviction for felony murder committed during a robbery or burglary and separately a robbery charge.”

However, in our opinion on the first return to remand, we stated:

“If the appellant was indicted for an intentional murder committed during the course of a robbery, then an unintentional murder committed during the course of a burglary is not an included offense. See generally Ex parte Dixon, 804 So.2d 1075 (Ala.2000). Therefore, if his felony-murder conviction was based on an underlying burglary, it must be set aside. See Johnson v. State, 675 So.2d 85 (Ala.Crim.App.1995). Furthermore, if the appellant’s convictions for both felony-murder and first-degree robbery were based on the same robbery, his convictions for both offenses violate double jeopardy principles. See Weaver v. State, 763 So.2d 972 (Ala.Crim.App.1998), rev’d on other grounds, 763 So.2d 982 (Ala.1999).”

Peterson, 842 So.2d at 736. The circuit court’s finding is not sufficiently specific to establish the offense underlying the felony-murder conviction. Accordingly, we again remand this case to the circuit court with instructions that it make specific, written findings of fact as to whether the felony-murder conviction was based on an underlying burglary or robbery. Because the appellant was indicted for robbery-murder, he could not have properly pled guilty to felony-murder based on an underlying burglary. Therefore, if the circuit court determines that the felony-murder conviction was based on an underlying burglary, it shall vacate the felony-murder conviction. Alternatively, if the circuit court determines that the appellant pled guilty to felony-murder based on an underlying robbery, it shall make specific, written findings of fact as to what robbery provided the basis for the felony-murder conviction and what robbery provided the basis for the first-degree robbery conviction. If the circuit court determines that the same robbery provided the basis for both the felony-murder conviction and the first-degree robbery conviction, then the felony-murder conviction encompasses the first-degree robbery conviction, and the circuit court shall vacate the first-degree robbery conviction. See Dorsey v. State, [Ms. CR-97-1522, May 25, 2001] - So.2d -(Ala.Crim.App.2001). The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact and its order, if any.

REMANDED WITH INSTRUCTIONS.

McMILLAN, PH., and COBB, SHAW, and WISE, JJ., concur.

On Return to Third Remand

BASCHAB, Judge.

The appellant, Charles Louis Peterson, was indicted for capital murder. In 1997, he pled guilty to felony-murder and first-degree robbery. The trial court sentenced him to serve consecutive terms of thirty years in prison on the felony-murder conviction and twenty years in prison on the first-degree robbery conviction. He did not appeal his convictions. On July 25, 2000, the appellant filed a Rule 32 petition, challenging his convictions. After the State responded, the circuit court summarily dismissed his petition, and the appellant appealed the dismissal to this court.

On August 31, 2001, we remanded this case for the circuit court to make specific, written findings of fact regarding the appellant’s double jeopardy claim. See Peterson v. State, 842 So.2d 734 (Ala.Crim.App.2001). On remand, the circuit court did not make specific findings of fact regarding the appellant’s double jeopardy claim. Therefore, we again remanded this case to the circuit court with instructions that that court make specific, written findings of fact regarding the allegations contained in the indictment against the appellant and the felony that provided the basis for the felony-murder conviction. See Peterson v. State, 842 So.2d 734, 735 (Ala.Crim.App.2001). On remand, the circuit court again did not make sufficiently specific findings of fact regarding the appellant’s double jeopardy claim. Therefore, for a third time, we remanded this case to the circuit court with instructions that that court make specific, written findings of fact as to whether the appellant’s felony-murder conviction was based upon an underlying robbery or burglary and, if the felony-murder conviction was based upon an underlying robbery, to determine what robbery provided the basis for the felony-murder conviction and what robbery provided the basis for the first-degree robbery conviction. See Peterson v. State, 842 So.2d 734, 737 (Ala.Crim.App.2002).

On March 13, 2002, the circuit court submitted its return to this court’s third remand. On remand, the State filed a “Motion to Reinstate,” in which it stated that the felony-murder conviction and the robbery conviction were both based upon the same robbery and noted that, based on this court’s opinion, the circuit court must set aside the robbery conviction and sentence. However, the State argued that the terms of the plea agreement had been significantly altered and asked the circuit court to set aside both of the appellant’s convictions and sentences and to reinstate the indictment against him. Subsequently, the circuit court granted the State’s motion, set aside both of the appellant’s convictions and sentences, and reinstated the indictment against him.

The circuit court did not make specific, written findings of fact as to whether the felony-murder conviction was based on an underlying burglary or robbery and, if the felony-murder conviction was based on an underlying robbery, what robbery provided the basis for the felony-murder conviction and what robbery provided the basis for the robbery conviction. Rather, it set aside both convictions and reinstated the indictment- against the appellant. However, in our remand order, we instructed the circuit court to set aside the appellant’s felony-murder conviction if it determined that that conviction was based upon an underlying burglary. Additionally, we instructed the circuit court to set aside the appellant’s robbery conviction if it determined that the felony-murder conviction was based upon an underlying robbery and that the same robbery provided the basis for the appellant’s felony-murder conviction and his robbery conviction.

“Pursuant to the Alabama Supreme Court’s holding in Lynch v. State, 587 So.2d 306 (Ala.1991), any act by a trial court beyond the scope of an appellate court’s remand order is void for lack of jurisdiction. See also Ellis v. State, 705 So.2d 843, 847 (Ala.Crim.App.1996) (stating that on remand, ‘the trial court had no jurisdiction to modify the original or base sentence imposed or to take any action beyond the express mandate of this court’).”

Anderson v. State, 796 So.2d 1151, 1156 (Ala.Crim.App.2000). It appears that the circuit court’s actions exceeded the scope of our remand order and that the circuit court did not have jurisdiction to set aside both of the appellant’s convictions and to reinstate the indictment against him. See Anderson, supra. Therefore, its order setting aside both of the appellant’s convictions and reinstating the indictment against him is void.

Because the circuit court did not comply with our instructions, we must again remand this case to the circuit court with instructions that that court make specific, written findings of fact as to whether the felony-murder conviction was based on an underlying burglary or robbery. If the circuit court determines that the felony-murder conviction was based on an underlying burglary, it shall vacate the felony-murder conviction. Alternatively, if the circuit court determines that the appellant pled guilty to felony-murder based on an underlying robbery, it shall make specific, written findings of fact as to what robbery provided the basis for the felony-murder conviction and what robbery provided the basis for the first-degree robbery conviction. If the circuit court determines that the same robbery provided the basis for both the felony-murder conviction and the first-degree robbery conviction, then the felony-murder conviction encompasses the first-degree robbery conviction, and the circuit court shall vacate the first-degree robbery conviction. See Dorsey v. State, [Ms. CR-97-1522, May 25, 2001] — So.2d - (Ala.Crim.App.2001). The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact and its order, if any.

REMANDED WITH INSTRUCTIONS.

McMILLAN, p.j., and COBB, SHAW, and WISE, JJ., concur.


author: PER CURIAM. COBB, Judge,

text:
    Esau D. McCAULLEY v. STATE of Alabama.
    CR-99-2561.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2001.
    Rehearing Denied Nov. 2, 2001.
    H. Coleman Burton, Huntsville, for appellant.
    Esau McCaulley, pro se.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. COBB, J., concurs in part and dissents in part, with opinion, in which SHAW, J., joins.

COBB, Judge,

concurring in part and dissenting in part.

I concur in the unpublished memorandum insofar as it affirms the appellant’s conviction; however, I would reverse the judgment as to his sentence and remand the ease for resentencing in accordance with Judge Shaw’s special writing in Poole v. State, [Ms. CR-99-1200, August 31, 2001] — So.2d -(Ala.Crim.App.2001), with which I concurred as to this issue. As to those points on which I disagree with Judge Shaw, see my special writing in Poole, — So.2d at-.

SHAW, J., concurs.


author: PER CURIAM. SHAW, Judge,

text:
    Timothy Craig ANDERSON v. STATE of Alabama.
    CR-00-0957.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 2001.
    Rehearing Denied Dec. 7, 2001.
    Timothy C. Anderson, pro se.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, deputy atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. SHAW, J., concurs in part and dissents in part, with opinion, which COBB, J., joins.

SHAW, Judge,

concurring in part and dissenting in part.

I concur to affirm Timothy Craig Anderson’s conviction and sentence for reckless endangerment. However, I believe that the trial court erred when it permitted the State to amend the indictment for trafficking in cocaine to include an enhancement under § 13A-12-231(13), Aal.Code 1975, because I believe the amendment resulted in Anderson’s being charged with a greater offense. See Rule 13.5(a), Ala.R.Crim.P. Therefore, I would reverse Anderson’s conviction and sentence for trafficking in cocaine. See my special writing in Poole v. State, [Ms. CR-99-1200, August 31, 2001] — So.2d -, - (Ala.Crim.App.2001) (Shaw, J., concurring in the result).


author: BASCHAB, Judge. SHAW, Judge,

text:
    Anthony T. HEULETT v. STATE.
    CR-01-0056.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Rehearing Denied April 19, 2002.
    Certiorari Denied Aug. 9, 2002 Alabama Supreme Court 1011515.

      James C. Mclnturff, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
   BASCHAB, Judge.

In Case CC-80-594, the appellant, Anthony T. Heulett, pled guilty, on November 13, 1980, to third-degree burglary and second-degree theft of property, and the trial court sentenced him, on January 9, 1981, to serve two years in prison. In Case CC-83-667, the appellant pled guilty, on August 9,1983, to possession of a short-barreled shotgun, and the trial court sentenced him, on September 16, 1983, to serve a term of one year and one day in prison. In Case CC-87-280, on May 11, 1987, the appellant pled guilty to third-degree burglary, and the trial court sentenced him to serve a term of ten years in prison. On October 4, 2000, the appellant filed petitions for a writ of habeas corpus, challenging his convictions. After the State responded, the circuit court treated the petitions as Rule 32 petitions, conducted an evidentiary hearing, and denied the petitions. This appeal followed.

The appellant argues that the trial court did not comply with the requirements of Rule 14.4, Ala. R.Crim. P., and did not advise him of his right to appeal when he entered his guilty pleas. These claims are precluded because they are time-barred. See Rule 32.2(c), Ala. R.Crim. P.

The appellant also argues that, in each case, the trial court did not allow him to make a statement on his own behalf before he was sentenced. However, Defendant’s Exhibits 2 and 5, which are the sentencing orders in Cases CC-80-594 and CC-87-280, indicate that the appellant had an opportunity to make a statement before sentence was pronounced in each case. (C.R.215, 221.) Furthermore, with regard to Case CC-83-667, the appellant simply alleged that he did not have an opportunity to “make a statement ... immediately pri- or to or subsequent to any plea.” (R. 19.) In that case, he entered his plea on August 9, 1983, and the trial court sentenced him on September 16, 1983. Although he stated that he did not have an opportunity to make a statement when he entered his plea, he did not even allege, much less prove, that the trial court did not allow him to make a statement before it sentenced him. Therefore, he has not satisfied his burden of pleading and proof pursuant to Rules 32.3 and 32.6(b), Ala. R.Crim. P. For these reasons, the appellant is not entitled to post-conviction relief on this claim.

We recognize that the Appendix to Rule 32, Ala. R.Crim. P., states: “Only the judgments entered in a single trial may be challenged in a particular petition. If you seek to challenge judgments entered in different trials, either in the same county or in different counties, you must file separate petitions.” We further note that the appellant filed petitions for a writ of habe-as corpus rather than Rule 32 petitions. Therefore, we could reverse the circuit court’s judgment and order that court to return the petitions for the appellant to file three separate petitions in the form required by Rule 32, Ala. R.Crim. P. However, in Lockett v. State, 644 So.2d 34, 34 (Ala.1994), a procedurally similar case, the Alabama Supreme Court stated:

“The claims raised in Lockett’s petition for a writ of habeas corpus could have been raised on direct appeal; therefore, those claims are clearly precluded under Rule 32, A.R.Crim. P., and the trial court did not err in summarily dismissing the petition. Because Lock-ett’s claims are clearly precluded under Rule 32, there is no need to remand for an opportunity to file a proper Rule 32 petition.”

Also, in Maddox v. State, 662 So.2d 915, 916 (Ala.1995), the Alabama Supreme Court quoted with approval the following:

“ ‘Rule 32.7(d)[, Ala. R.Crim. P.,] also takes precedence, in some cases, over the Rule 32.6(a)[, Ala. R.Crim. P.,] requirement that the petition be filed on the proper “form.” Our blind adherence to the holding of Drayton v. State, 600 So.2d 1088 (Ala.Cr.App.1992), is a literal exaltation of form over substance.
“ ‘It is ridiculous to remand this cause so that the appellant will have the opportunity to file a petition in the proper form that will be promptly dismissed. I dissent.’
662 So.2d at 915.”

Similarly, we conclude that Rule 32.7(d), Ala. R.Crim. P., is dispositive in this case. It would be an exaltation of form over substance to remand this case to the circuit court so that court could return the petitions to the appellant and so the appellant could refile three separate petitions that, for the reasons set forth above, will be promptly dismissed.

For the above-stated reasons, the circuit court properly denied the appellant’s petitions. Accordingly, we affirm the circuit court’s judgment.

AFFIRMED.

McMILLAN, P.J., and COBB and WISE, JJ., concur; SHAW, J., concurs specially, with opinion.

SHAW, Judge,

concurring specially.

This Court has taken different approaches when presented with rulings on a Rule 32, Ala.R.Crim.P., petition that challenges convictions and sentences arising out of multiple proceedings. One approach, which finds support in cases such as LaBlanc v. State, 609 So.2d 9 (Ala.Crim.App.1992), and Johnson v. State, 755 So.2d 74 (Ala.Crim.App.1999), focuses 'on strict adherence to the procedure outlined in Rule 32.6 and the accompanying appendix to Rule 32, with little or no discussion of this Court’s ability to discern the issues and arguments from the briefs and record. Under this approach, the circuit court’s judgment with respect to all claims is reversed and the case is remanded with instructions for the circuit court to return the petition to the appellant so that separate petitions may then be filed.

Another approach, which finds support in cases such as Bryant v. State, 565 So.2d 290 (Ala.Crim.App.1990), focuses on whether the petitioner’s failure to comply with the “one proceeding/one petition” rule has generated such confusion that it is difficult or impossible for this Court to adequately review the circuit court’s judgment. Under this approach, the case is remanded to afford the petitioner an opportunity to file separate petitions.

Under another approach, which finds support in cases such as Knight v. State, 727 So.2d 900 (Ala.Crim.App.1999), and this Court’s recent decision in Reese v. State, 796 So.2d 436 (Ala.Crim.App.2001) (in which I concurred), this Court addresses the judgment entered in one of the proceedings (assuming that we can adequately isolate the issues and arguments with respect to one of the proceedings) and vacates the judgment or judgments arising out of the remaining proceedings. The petitioner is then free to file additional petitions in the remaining proceedings if he so chooses.

However, for the sake of judicial economy (both in the circuit court and in this Court), I prefer the approach taken in the present case. Here, in one petition the petitioner has challenged three convictions, based on three guilty pleas. The correctness of the circuit court’s rulings as to each of the petitioner’s claims is clearly discernible from the record. Based on this record, I agree with former Presiding Judge Bowen’s dissent in Maddox v. State, 662 So.2d 914 (Ala.Crim.App.1993), which the Alabama Supreme Court adopted in Ex parte Maddox, 662 So.2d 915 (Ala.1995): “It' is ridiculous to remand this cause so that the appellant will have the opportunity to file a petition [or petitions] in the proper form that will be promptly dismissed.” 662 So.2d at 915. I recognize that Rule 32.6 contemplates that the circuit courts will act as “gatekeepers,” in the sense that they are charged with the responsibility of ensuring adherence to proper form and of denying review of petitions that fail to comply substantially with the form set out in the appendix to Rule 32. However, in cases such as this one, where we know that the circuit court has correctly ruled on a facially meritless petition, albeit in contravention of the procedure set out in Rule 32.6, the Supreme Court clearly signaled in Maddox that this Court can proceed to address the issues and dispose of the case.

      . In his brief to this court, the appellant asserts that the State conceded that the trial court did not allow him to make a statement on his behalf before he was sentenced in each case. However, the State actually conceded only that the Explanation of Rights forms and the State’s exhibits did not show that the appellant was afforded an allocution in each case.


text:
    James Thomas HILL v. STATE of Alabama.
    CR-01-0304.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    James Thomas Hill, pro se.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   WISE, Judge.

James Thomas Hill appeals from the circuit court’s denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his conviction for rape in the first degree.

In August 1999, Hill entered a plea of guilty to rape in the first degree. Although Hill had initially been indicted for rape in the first degree, for burglary in the first degree because he was armed with a deadly weapon, for burglary in the first degree because he caused physical injury, and for intimidating a witness (C.R.32-33), the State agreed to nol-pros all counts but rape in the first degree in exchange for his guilty plea. Hill was placed on notice that the State intended to use a prior conviction of burglary in the second degree to effect a mandatory sentence under the Habitual Felony Offender Act (“HFOA”) of life imprisonment. He was subsequently sentenced to life imprisonment.

In his Rule 32 petition, which was filed on August 28, 2001, Hill alleged, among other things, that he was not advised of the actual and correct minimum and maximum sentence for the offense to which he pleaded guilty. Regarding that claim, the circuit court stated in its order denying relief that the record did not support this contention. In pertinent part, the circuit court’s order, which is contained in the record before us, reads:

“The Defendant next alleges that he was not advised of the actual and correct minimum and maximum sentence for the offense to which he [pleaded] guilty. The court record, specifically ‘Court’s Exhibit A,’ refutes the defendant’s allegation.”

(C. 2.)

Our review of the record reveals that “Court’s Exhibit A,” referenced in the circuit court’s order, is actually the waiver-of-rights-and-entry-of-plea-of-guilty form that is routinely executed to apprise the defendant of his rights and of the minimum and maximum range of the sentence he may receive for the offense to which he pleaded guilty. Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971). That document stated that the range of punishment upon conviction or plea of guilty to a Class A felony with one prior felony under the HFOA was not less than 20 years nor more than 99 years or life for Hill’s conviction of rape in the first degree. We note, however, that § 13A-5-9(a), Ala.Code 1975, mandates the following:

“In all cases when it is shown that a criminal defendant has been previously convicted of a felony and after the conviction has committed another felony, he or she must be punished as follows:
“(3) On conviction of a Class A felony, he or she must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.”

Thus, it appears that Hill may have been misinformed about the sentence range he faced by pleading guilty. However, because Hill was initially charged with several felony offenses, at least one of which involved the use of a deadly weapon, it is possible that the trial court was presented with facts sufficient to trigger the sentencing enhancement provision codified at § 13A-5-6(a)(4), which provides “[f]or a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, [a minimum sentence of] not less than 20 years.” We note that the sentence of 20 years to life is the proper sentence range which could be imposed under the HFOA where the defendant has used a deadly weapon in the commission of the crime. Given these facts, we are unable to determine whether the minimum sentence Hill faced was 15 or 20 years’ imprisonment. Because we are unable to make an absolute determination that this was the rationale of the circuit court, we must remand this case to the circuit court with directions that the court clarify its findings of fact concerning Hill’s claim that he was not made aware of the minimum and maximum sentence authorized by law. See Burns v. State, 778 So.2d 246 (Ala.Crim.App.2000); Martin v. State, 687 So.2d 1253 (Ala.Crim.App.1996).

On remand, the trial court may consider the pleadings filed by the parties, including the transcript of the plea colloquy, any affidavits submitted, and the Rule 32 petition. The court may conduct such further proceedings or take such evidence as it deems necessary to address Hill’s claim. The trial court is authorized to take whatever action under Rule 32, Ala. R.Crim. P., is necessary to render a final judgment on the petition. Return to remand should include the transcript from any further proceedings, in addition to orders issued by the trial court and motions filed by the parties. The circuit court shall also take all action in sufficient time to permit the circuit clerk to make a proper return to this Court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.


text:
    Jacob J. POLK v. STATE of Alabama.
    CR-01-0539.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Rehearing Denied May 17, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011629.
    Jeffery Yusuf Wood, Bessemer, for appellant.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and WISE, J., concur; SHAW, J., dissents, with opinion, which COBB, J., joins.

SHAW, Judge,

dissenting.

The trial court erred when it permitted the State to amend the indictment to include the enhancements under the provisions in §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, because the amendment resulted in Polk’s being charged with a greater offense. See Rule 13.5(a), Ala.R.Crim.P. Therefore, I would reverse Polk’s conviction and sentence. See my special writing in Poole v. State, [Ms. CR-99-1200, August 31, 2001] — So.2d -, - (Ala.Crim.App.2001) (Shaw, J., concurring in the result).

COBB, J., joins.


author: PER CURIAM. BASCHAB, Judge,

text:
    Roddfo Guerrero NIETO v. STATE of Alabama.
    CR-01-0184.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Scott K Hedeen, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Melissa K. Atwood, asst. atty. gen., for appellee.
   PER CURIAM.

On October 21, 1998, the appellant, Roddfo Guerrero Nieto, pleaded guilty in the Houston District Court to driving under the influence of alcohol. That same day, the district court sentenced Nieto to 12 months’ hard labor; that sentence was suspended, and Nieto was ordered to serve 60 days in jail followed by 24 months’ probation. The district court further ordered the appellant to pay $2,822.71 in fines and costs. On March 31, 1999, the trial court ordered the issuance of a writ of arrest because Nieto apparently had failed to pay his fine and, therefore, had violated the terms of his probation. On September 28, 2001, the trial court held a hearing and revoked Nieto’s probation “for failure to pay.”

Nieto appeals directly from the judgment of the Houston District Court, as authorized by Rule 30.2, Ala.R.Crim.P. The district court certified the following question of law as the sole issue for review in this case: “If neither the sentencing portion of the Uniform Traffic Ticket and Complaint nor the Case Action Summary reflect when a defendant, who is on a suspended sentence, is to pay the fines and costs, when is the payment of the fines and costs due?” (C. 25.)

Nieto argues that “the absence of an order to pay at once and the absence of a pay by date or payment plan meant that [he] could pay at any time during his twenty-four-month suspended sentence.” (Appellant’s brief at p. 6.) Citing Rule 26.11(d), Ala.R.Crim.P., the State contends that the “fines and costs were due and payable ‘immediately after the pronouncement of sentence as preferred.’ ” (State’s brief at p. 7.)

Rule 26.11(d), Ala.R.Crim.P., provides:

“If the defendant cannot pay the costs, fíne, and/or restitution immediately after pronouncement of the sentence as preferred, the court may permit payment of the costs, fíne, and/or restitution, at some later date, or in specified installments.”

We start with the basic premise that words used in court rules must be given their plain meaning. Ex parte City of Montgomery, 721 So.2d 261 (Ala.Crim.App.1998). Rule 26.11(d) clearly suggests that the preferred method of payment for court-ordered moneys is immediately after the pronouncement of sentence, unless the court permits payment at some later date or in installments. Furthermore, in Dutell v. State, 596 So.2d 624, 625 (Ala.Crim.App.1991), we stated:

“The Alabama Rules of Criminal Procedure were promulgated by the Alabama Supreme Court pursuant to its rulemaking power. In construing these rules, this court will attempt to ascertain and to effectuate the intent of the Alabama Supreme Court as set out in the rule. See generally Shelton v. Wright, 439 So.2d 55 (Ala.1983). This intent may be gleaned from the language used, the reason and necessity for the rule, and the purpose of the rule. Id. Rule 1.2, [Ala.R.Crim.P.], states that the rules ‘shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare.’ ”

In light of the plain meaning of Rule 26.11(d), Ala.R.Crim.P., and this Court’s rationale in Dutell, 596 So.2d at 625, we hold that when the sentencing portion of the Uniform Traffic Ticket and Complaint and the case action summary sheet are silent as to when a defendant is to pay fines and costs, those fines and costs are due immediately after pronouncement of sentence. However, we note that the facts in the instant case deserve a closer look by this Court beyond the narrow question submitted by the district court. Specifically, we must look to whether the appellant’s probation was revoked in compliance with Rule 27.1, Ala. R.Crim.P.

As discussed earlier in this opinion, Rule 26.11(d), Ala.R.Crim.P., clearly pertains to a trial court’s discretion to allow deferred- and installment-payment plans for defendants who cannot pay their cost, fines, or restitution immediately following the pronouncement of sentence. The rule does not, however, pertain to a defendant’s due process rights regarding the revocation of his probation, which is the ultimate issue in this case.

Payment of a fine is certainly an acceptable condition to remaining on probation. See, e.g., Rule 27.1, Ala.R.Crim.P., Committee Comments. Moreover, Rule 26.11(f)(2), states:

“If a defendant on probation fails to pay a fine or restitution, or any installment thereof, within the ’prescribed time, the clerk shall give notice of such delinquency to the defendant’s probation officer.”

(Emphasis added.) This rule clearly contemplates the existence of a payment due date as a condition to a defendant’s continuing on probation. Rule 27.1, Ala. R.Crim.P., requires that, when a trial court grants probation,

“[a]ll conditions of probation must be incorporated into a court’s written order of probation, and a copy thereof must be given to the probationer. In addition, the court or probation officer shall explain to the probationer the purpose and scope of the imposed conditions and regulations and the consequence of probationer’s violation of those conditions and regulations.”

The Committee Comments to Rule 27.1, Ala.R.Crim.P., state:

“Providing the probationer with both a written copy of imposed conditions and regulations and an explanation thereof aids in the reinforcement of the probationer’s understanding of probation. The rule should alleviate the court’s and the probation officer’s supervisory burden by eliminating some unnecessary violations caused by probationer’s lack of understanding.”

Finally, Rule 27.6(e), Ala.R.Crim.P., clearly states that “[p]robation shall not be revoked for violation of a condition or regulation if the probationer had not received a written copy of the condition or regulation.” See also Smoke v. State, 812 So.2d 387 (Ala.Crim.App 2001), opinion on remand 812 So.2d at 390.

The district court’s certification to this Court refers to, and adopts, the stipulation of facts jointly submitted by the appellant and by the State. The certification also states that those factual stipulations truly and accurately reflected the facts as presented to the district court in the appellant’s motion to reconsider. Stipulation “G” in the stipulation of facts states:

“At the hearing, it was the Court’s and State’s position that the absence of a pay-by date or payment plan meant that the Defendant was to pay at once. It was the Defendant’s position that the absence of a payment plan or pay-by date meant that the Defendant could pay at any time during the suspended sentence period- which would have expired October 21, 2000 (approximately).”

After reviewing the record, including the stipulation of facts, the motion to reconsider, and the district court’s certification, we are concerned that the district court may have revoked Nieto’s probation in violation of Rule 27.1, Ala.R.Crim.P. The record suggests that the district court may have failed to comply with Rule 27.1, Ala.R.Crim.P., by not informing Nieto in writing of a material condition of his probation, specifically, that the immediate payment of fines and costs was required. The question certified by the district court suggests that Nieto may never have been told that immediate payment was a condition of his probation.

Although the preferred due date for payment of court-ordered moneys is stated plainly in Rule 26.11(d), Ala.R.Crim.P., it appears that Nieto was never informed in the court’s written order of probation, pursuant to Rule 27.1, Ala.R.Crim.P., of the necessity to pay the court ordered moneys immediately after pronouncement of sentence. This Court is, therefore, hesitant to permit the revocation of probation based on noncompliance with a term or condition of probation that was not made known to the probationer at the time probation was granted.

It is axiomatic that “procedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one’s life, liberty, or property interests are about to be affected by governmental action.” Brown’s Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala.1992). Accordingly, we remand this case to the district court for that court to clarify whether it complied with Rule 27.1, Ala.R.Crim.P., by giving written notice to Nieto that immediate payment of fines and costs was a material condition of his probation. If the district court determines that Nieto’s probation was revoked in violation of Rule 27.1, Ala.R.Crim.P., it shall reinstate Nieto’s probation and provide him with a written copy of the conditions of probation, including the prescribed due date for payment of all fines, costs, and/or restitution.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur. BASCHAB, J., concurs in part and dissents in part, with opinion.

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur with that portion of the majority’s opinion that holds that, “when the sentencing portion of the Uniform Traffic Ticket and Complaint and the case action summary sheet are silent as to when a defendant is to pay fines and costs, those fines and costs are due immediately after pronouncement of sentence.” However, I dissent as to the portion of the majority opinion that remands this case for the district court “to clarify whether it complied with Rule 27.1, Ala. R.Crim. P., by giving written notice to Nieto that immediate payment of fines and costs was a material condition of his probation.” Because the district court certified only one question for appeal, that is the only matter that is properly before this court. Therefore, I respectfully dissent from that portion of the majority’s opinion that addresses a matter that was not certified by the district court.

      . The issuance of this warrant tolled Nieto’s probationary period. See Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). Thus, the district court retained jurisdiction to revoke Nieto’s probation.


author: SHAW, Judge.

text:
    Toney Perez PALMER v. STATE of Alabama.
    CR-00-1973.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.

      Toney Perez Palmer, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   SHAW, Judge.

Toney Perez Palmer appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he requested an out-of-time appeal from the denial of a previous Rule 32 petition on the ground that he had failed to appeal the denial of the previous petition and that failure was through no fault of his own.

In his petition, Palmer alleges the following facts: In May 1999, he was convicted of first-degree robbery and was sentenced to 25 years’ imprisonment; this Court affirmed his conviction and sentence on direct appeal in an unpublished memorandum. See Palmer v. State, (No. CR-98-1510) 778 So.2d 880 (Ala.Crim.App.1999) (table). On or about January 19, 2000, he filed a Rule 32 petition challenging his conviction and sentence. On April 3, 2000, he was transported from the Draper Correctional Facility to the Montgomery County detention facility for a hearing on his petition held on April 4, 2000. Although the transport order issued by the circuit court ordered that he be returned to Draper following the hearing, he remained in the Montgomery County detention facility for over two months. The circuit court denied his petition on the day of the hearing, April 4, 2000, but the written order denying the petition was mailed to Palmer at Draper Correctional Facility and he did not receive it until he was returned to Draper in July 2000. He filed a notice of appeal when he received the circuit court’s order denying his petition, but this Court, without an opinion, dismissed the appeal as untimely filed. See Palmer v. State, (No. CR-99-2154, July 20, 2000) 814 So.2d 1024 (Ala.Crim.App.2000) (table).

Palmer argues in his petition that he is entitled to an out-of-time appeal from the denial of his previous Rule 32 petition because, he says, (1) the circuit court never informed him of his right to appeal and, thus, he did not know he could appeal the denial of the petition, and (2) he did not receive the circuit court’s order denying his petition until over two months after it had been entered, long after the 42 days for filing a notice of appeal had elapsed.

Contrary to Palmer’s contention, Rule 32 does not require a circuit court to inform a Rule 32 petitioner that he or she has the right to appeal the denial of a Rule 32 petition. Therefore, Palmer’s argument that he is entitled to an out-of-time appeal because he was not informed of his right to appeal is meritless. However, Palmer’s claim that he is entitled to an out-of-time appeal because he did not receive the circuit court’s order denying his petition until after the 42 days for filing a notice of appeal had passed is meritorious on its face. In Fountain v. State, 842 So.2d 719, 724 (Ala.Crim.App.2000), aff'd in pertinent part, rev’d on other grounds, 842 So.2d 726 (Ala.2001), this Court recognized that a Rule 32 petitioner has the “right to petition a circuit court for an out-of-time appeal pursuant to Rule 32.1(f), Ala.R.Crim.P., of that court’s denial of postconviction relief when the petitioner has been denied the ability to file a timely appeal because of a mistake by the circuit court.” See also Brooks v. State, [Ms. CR-00-1134, April 26, 2002] — So.2d - (Ala.Crim.App.2002). In addition, in Ex parte Johnson, 806 So.2d 1195 (Ala.2001), the Alabama Supreme Court held that denying a Rule 32 petitioner a review of the ruling on his petition violated the petitioner’s right to procedural due process when the petitioner’s inability to perfect a timely appeal wad caused by the circuit court’s failure to give adequate notice of its ruling.

In his second Rule 32 petition, Palmer pleaded facts that, if true, would entitle him to relief, i.e., an out-of-time appeal from the denial of his first Rule 32 petition. Palmer alleged that he did not receive the circuit court’s order denying his first Rule 32 petition until July 2000, over two months after the order was entered, because he was not transported back to Draper Correctional Facility immediately following the hearing and that, therefore, the failure to appeal the denial of the first petition was through no fault of his own. The State did not refute Palmer’s claim in its motion to dismiss his petition; therefore, Palmer’s allegations must be accepted as true. See, e.g., Ligon v. State, 833 So.2d 671 (Ala.Crim.App.2001); Davis v. State, 737 So.2d 1054 (Ala.Crim.App.1998); Rice v. State, 682 So.2d 484 (Ala.Crim.App.1995); and Kolmetz v. State, 623 So.2d 453 (Ala.Crim.App.1993). Accepting Palmer’s allegations as true, it appears that Palmer’s failure to appeal, although not the fault of the circuit court, was also not Palmer’s fault.

Accordingly, we must remand this case for the circuit court to address the merits of Palmer’s claim that the failure to appeal the denial of his first Rule 32 petition was through no fault of his own because he did not receive the circuit court’s order until after the time for filing a notice of appeal had passed and to make specific findings of fact regarding that claim. The circuit court may either conduct an evidentiary hearing or take evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala.R.Crim.P. Due return shall be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include the circuit court’s written findings, along with a transcript of the evidentiary hearing, if any, or other evidence received by the court.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.