author: PER CURIAM. COBB, Judge,

text:
    Leamon SMITH, alias James Leamon Smith, Jr. v. STATE of Alabama.
    CR-00-2388.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.

      John Davis McCord, Gadsden, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for ap-pellee.
   PER CURIAM.

On March 10, 2000, Leamon Smith, alias James Leamon Smith, Jr., was indicted by an Etowah County grand jury on one count of trafficking in morphine (CC-00-230.01), a violation of § 13A-12-231(3)(a), Code of Alabama 1975, and on one count of unlawful distribution of a controlled substance (CC-00-230.02), a violation of § 13A-12-211. On May 3, 2000, Smith waived arraignment and entered pleas of not guilty to both charges. On September 8, 2000, Smith was indicted by an Etowah County grand jury on one count of unlawful possession of a controlled substance (CC-00-855), a violation of § 13A-12-212(a)(1), Ala.Code 1975. On October 27, 2000, Smith waived arraignment and entered a plea of not guilty to the charge of unlawful possession.

On February 12, 2001, Smith withdrew his not-guilty pleas and entered blind pleas of guilty to all three charged offenses. The circuit court held a plea hearing and accepted Smith’s plea of guilty to all three charged offenses and set a sentencing hearing. On August 7, 2001, the circuit court conducted a sentencing hearing and sentenced Smith on all three charges. In the trafficking case, the circuit court sentenced Smith to 15 years’ imprisonment; that sentence was split and he was ordered to serve 3 years in prison. Smith was fined $50,000 pursuant to § 13A-12-231(3)(a), Ala.Code 1975. In the distribution case, Smith was sentenced to 12 years’ imprisonment, and was ordered to pay a $1,000 Demand Reduction Assessment pursuant to § 13A-12-281, and other fines. In the possession case, Smith was sentenced to 12 years’ imprisonment, and was ordered to pay a $1,000 Demand Reduction Assessment and other fines. The circuit judge also ordered Smith to pay court costs and $50 to the Victims Compensation Fund in each of the three cases. The sentences were to run concurrently.

On August 8, 2001, Smith filed a “Motion to Set Aside Guilty Plea; Motion to Reconsider Sentence; Motion for New Trial.” The motion made the following allegations:

“1. The Defendant’s plea of guilt was not voluntarily made.
“2. The Defendant’s plea of guilt was not made with the Defendant’s full understanding of the charges against him, was not made with the Defendant’s full understanding of his rights, the punishment or punishments provided by law, and was not made with the Defendant’s understanding the consequences of his pleading guilty.”

(C.R.14, 89.)

On August 10, 2001, the circuit court conducted another sentencing hearing. At that hearing, the circuit judge stated that he had intended the 12-year sentence for distribution to be split so that Smith would serve 3 years’ imprisonment, to mirror the trafficking sentence, and he modified Smith’s sentence in the distribution case accordingly. On August 16, 2001, the circuit court summarily denied Smith’s motion to withdraw his guilty pleas. This appeal followed.

On appeal, Smith claims that “[t]he trial court abused its discretion by failing to set aside [his] pleas of guilt by failing to schedule an evidentiary hearing or otherwise investigate [his] motion to set aside the guilty pleas.” (Smith’s brief, p. 6.) We disagree.

An attack on the validity of a guilty plea is preserved for appellate review by first presenting to the trial court a timely objection, a motion to withdraw the guilty plea, or a motion for a new trial. See Grays v. State, 782 So.2d 842, 844 (Ala.Crim.App.2000). This Court will not overturn the trial court’s decision on whether to allow a defendant to withdraw his guilty plea absent an abuse of discretion by the trial court. See Palmer v. State, 745 So.2d 920, 921 (Ala.Crim.App.1999). See also Speigner v. State, 663 So.2d 1024, 1028 (Ala.Crim.App.1994).

The circuit judge apparently considered Smith’s motion and concluded that summary dismissal was appropriate. There is no requirement, either statutory or in caselaw, that an evidentiary hearing be held on the matter. To the contrary, a motion to withdraw a guilty plea, as the functional equivalent of a motion for a new trial, may be denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P. Therefore, we look to the record to determine whether the circuit court’s summary dismissal was an abuse of discretion.

Smith’s motion alleged that his pleas were not entered into voluntarily and that he did not understand the charges against him, his rights, the punishments he faced, or the consequences of pleading guilty.

However, at the plea hearing, Smith indicated that he had discussed the eases with his attorney several times and that he understood his rights and the nature of the charges against him. Smith confirmed that he had read the indictments, that he understood the charges against him, and that he did not wish the judge to read the indictments. Smith also confirmed that he had read and understood the “Explanation of Rights and Plea of Guilty” form (C.R.9), and that his attorney had gone over the form with him. Smith confirmed that he understood that the two five-year enhancements would apply to his sentence for unlawful sale within three miles of a school and within three miles of a housing project. The circuit court explained the maximum and minimum sentences Smith could receive. The circuit court then conducted a full and thorough colloquy by questioning Smith further about his understanding of his rights. Smith answered affirmatively that he understood each right as the circuit judge explained them. Smith pleaded guilty to each of the charged offenses. The prosecutor stated what he expected the evidence to show. Smith agreed with the prosecutor’s version of the facts. Smith’s attorney stipulated that the unlawful distribution occurred within three miles of a school and within three miles of a housing project.

The record reflects that the plea colloquy satisfied the requirements of Rule 14.4, Ala. R.Crim. P., and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record shows that Smith’s guilty pleas were made knowingly, intelligently, and voluntarily, and that a sufficient factual basis supported the guilty pleas. Thus, viewing the issues presented to the circuit court in Smith’s motion, we find no abuse of discretion in that court’s summary dismissal of Smith’s motion to withdraw his guilty pleas.

On appeal, Smith states, “In the case at bar, the Appellant was seventy-three years old, was ill, and had expressed to the trial court on the Record that he was unaware of what was going on.” (Smith’s brief, p 7.) The general language in Smith’s motion to withdraw his guilty pleas was not sufficient to put the circuit court on notice of the specific issues he now attempts to raise on appeal. “Failure to include a reasonably ascertainable issue in a motion for a new trial will result in a bar to further argument of the issue on appeal and in post-conviction proceedings.” Ex parte Jackson, 598 So.2d 895, 897 (Ala.l992)(overruled on other grounds by Ex parte Ingram, 675 So.2d 863 (Ala. 1996)). See also Cantu v. State, 660 So.2d 1026, 1029 (Ala.1994) (“the trial court is given the first opportunity to review the issue of voluntariness of the guilty plea”). Thus, the boilerplate language he used in his motion to withdraw his guilty pleas failed to preserve for appellate review the specific claims now raised on appeal.

Moreover, even if Smith had preserved those claims for our review, he would not be entitled to any relief because his claims are without merit. Throughout the colloquy, Smith indicated that he understood the charges against him, his rights, and the ramifications of his plea. In his brief on appeal, Smith cites two portions of the record (R. 20, 32), which he contends support his claim that his age and health affected his understanding of the plea and its voluntariness, and that he communicated the same to the circuit court. A review of those record cites reveals nothing of that nature.

At sentencing, nearly six months after Smith entered pleas of guilty, the circuit court asked if he had anything to say before sentence was imposed. Smith’s attorney responded,

“Judge, Mr. Smith [is] 73 years old. He is ill. He has health problems. He has a lady that he’s living with—it’s his common-law wife. He doesn’t know that but that’s what she is. She’s recently had an open-heart surgery and he’s in charge of her health at this time. I spoke with her yesterday.”

(R. 20.) Smith’s attorney went on to discuss Smith’s attempts to assist law enforcement and referenced a petition signed by Smith’s neighbors that indicated that he did not cause them any trouble. This portion of the record does not support Smith’s contention that he entered into his plea involuntarily or unknowingly. Rather, it was a plea for leniency, as evidenced by the last sentence in that same passage by Smith’s attorney. “I know the Court’s hands are tied with regards to the issues contained in this case and the statutes provided herein but we would ask that Your Honor consider any possible opportunity to either limit or avoid incarceration on behalf of Mr. Smith.” (R. 21.) Clearly, this does not support Smith’s contention that he advised the circuit court that his age and health affected the validity of his guilty pleas.

Next, we look to the second citation in Smith’s brief to the record. At the second sentencing hearing conducted by the circuit court, that court amended its earlier sentence in the distribution case from 12 years’ imprisonment, and it split that sentence so that Smith would serve 3 years. At the beginning of that hearing, the circuit judge asked Smith how he was doing. The following colloquy ensued:

“[Smith]: I don’t know—aware of what’s going on, really.
“The Court: You are or you are not.
“[Smith]: I don’t have—I-
“The Court: Okay. Let me tell you why we brought you— —
“[Smith]: I’ve been learning a lesson.”

(R. 32.) The circuit judge then explained to Smith that he was amending his sentence in the distribution case so that it would run the same length of time as in the trafficking case. He explained that, if it was not amended, Smith would have been imprisoned for approximately one year longer than the circuit judge originally intended. Smith affirmed that he understood what the circuit judge had told him and that he did not have anything further to say before the judge amended the sentence.

Again, nothing in this portion of the record gives rise to any indication that Smith’s guilty pleas were defective. Smith did express confusion about the purpose of the second sentencing hearing, and the amendment to his sentence. However, after the circuit judge explained the amendment, Smith confirmed that he understood the amended sentence and that he did not have anything further to say before that judge amended the sentence. Therefore, even if Smith’s claims had been preserved for our review, he would not be entitled to any relief because there is no merit to his claims.

Though we affirm Smith’s convictions, we remand this cause to the circuit court for that court to clarify for the record whether the mandatory penalties as required by §§ 13A-12-250, -270, Ala. Code 1975, were imposed. Smith stipulated that the unlawful distribution occurred within 3 miles' of a school and within 3 miles of a housing project. A review of the record revealed that the unlawful distribution and the trafficking charge arose from different incidents at the same location. Smith was informed, in the colloquy, about the nature of the enhancements and the additional penalties. The circuit court sentenced him, in the trafficking case, to 15 years’ imprisonment; that sentence was split and he was ordered to serve 3 years. It does not appear that the enhancements were applied to this sentence. The circuit court sentenced him, in the unlawful-distribution case, to 12 years’ imprisonment, and later split that sentence so that he would serve 3 years. The record does not indicate whether this sentence included the enhancements, i.e., whether Smith was sentenced to (1) two-years’ imprisonment for the underlying charge and two five-year enhancements; (2) 12 years’ imprisonment for the underlying crime, and the enhancements were imposed and suspended but that fact was merely omitted from the sentencing order; (3) 12 years’ imprisonment for the underlying crime and the enhancements were not imposed; or (4) some other sentence.

Furthermore, there is a discrepancy between the circuit court’s oral sentence and the written order in the trafficking case regarding the $1,000 Demand Reduction Assessment. The written order includes the assessment as required by § I3A-I2-281, Ala.Code 1975. However, at the sentencing hearing, the circuit court did not specify that this penalty was to be imposed on the trafficking conviction. The imposition of this assessment is mandatory for each conviction. See, e.g., Meeks v. State, 697 So.2d 60 (Ala.Crim.App.1996).

Thus, this cause is remanded to the trial court with directions for that court to impose the mandatory $1,000 Drug Demand Reduction Assessment on the trafficking conviction pursuant to § 13A-12-281 and to clarify the sentences imposed regarding the enhancements pursuant to §§ 13A-12-250 and -270. If, on remand, the circuit court determines that the enhancements were not imposed, that court is directed to conduct any hearings necessary to impose them accordingly. A return to remand shall be filed with this Court within 56 days of the date of this opinion. The return to remand shall include a transcript of any proceedings conducted by the trial court.

AFFIRMED IN PART AND REMANDED WITH DIRECTIONS.

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

COBB, J., concurs in part and dissents in part, with opinion, which SHAW, J., joins.

COBB, Judge,

concurring in part and dissenting in part.

I concur in affirming the appellant’s convictions; however, I would reverse his sentences and remand the case for resen-tencing in accordance with Judge Shaw’s special writing in Poole v. State, 846 So.2d 370, 389 (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, 846 So.2d at 398.

I believe that these sentence enhancements must be charged in the indictment and proved to the jury beyond a reasonable doubt, and that the failure to charge these sentence enhancements in the indictment is a jurisdictional defect which this Court should notice and remedy on appeal. Therefore, as to the application of the sentencing enhancements, I dissent.

SHAW, J., concurs.

      . All three charges arose from different occurrences on different dates.

      . The prosecutor stated that the trafficking violation occurred at 23rd and Forrest Avenue, and the unlawful distribution occurred in the parking lot at the Agricola Shopping Center. Smith disputed the location of the trafficking violation to the extent that he claimed both of these offenses occurred in the parking lot. Smith stated, "I’m not disputing — I ain’t disputing it happened at 23rd Street because it did happen.” (R. 16.)

      . "A stipulation is a judicial admission, dispensing with proof, recognized and enforced by the courts as a substitute for legal proof.” Gardner v. State, 668 So.2d 164, 165 (Ala.Crim.App.1995).

      . The "Explanation of Rights and Plea of Guilty” form (C.R.9) also indicated that, pursuant to § 13A-12-250, Ala.Code 1975, Smith was to be punished by an additional five years’ imprisonment for the unlawful sale within three miles of a school, and pursuant to § 13A-12-270, Ala.Code 1975, Smith was to receive an additional five years’ imprisonment for the unlawful sale within three miles of a housing project. During the colloquy, the circuit judge specifically referenced this portion of the form, and ascertained that Smith had read and understood the form.

      . We note, that effective May 25, 2000, § 15-18—8(a)(1), Ala.Code 1975, allows a trial court to suspend the sentence enhancements applied to a sentence under §§ 13A-12-250 and -270, Ala.Code 1975. See, e.g., Soles v. State, 820 So.2d 163, 164 (Ala.Crim.App. 2001).

      .The Code Commissioner’s notes specifically provide that the amendment to § 15-18-8, Ala.Code 1975, is applied prospectively and applies to any case in which the sentence was not final at the trial court on May 25, 2000. Thus, should the circuit judge decide it appropriate under the facts of this case, the amended § 15—18—8(a)(1), Ala.Code 1975, allows him the discretion to impose and then suspend the sentence enhancements under §§ 13A-12-250 and -270, Ala.Code 1975. See, e.g., Soles v. State, 820 So.2d 163, 165 (Ala.Crim.App.2001).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John Steven MARLOWE, alias Steven Peavy v. STATE.
    CR-00-2146.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Rehearing Denied Aug. 9, 2002.

      Carol Mark Lowell, Monroeville, for appellant.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, John Steven Marlowe, alias Steven Peavy, was convicted of robbery in the first degree, a violation of § 13A-8M1, Ala.Code 1975. Marlowe was sentenced to life imprisonment in the penitentiary and was ordered to pay $50 to the Crime Victim’s Compensation Fund and $5,287 in court costs. On May 30, 2001, Marlowe filed a motion for judgment of acquittal or, in the alternative, for a new trial, which the trial court denied. This appeal followed.

The evidence elicited at trial tended to establish the following. Around 3:00 p.m. on November 3, 2000, 75-year-old Nelvin Stacey arrived at his office at Colony Trailer Park. Stacey was the owner of the park. While collecting rent and making repairs, he saw a red automobile driving around the park. Later that day — around 6:00 p.m. — Stacey returned to his office. When he entered the office, he was struck in the head and chest, and he lost consciousness. As Stacey regained consciousness, he became aware that a masked man was attempting to take his wallet. Stacey struggled with the man — first inside, and then outside the office. Stacey again lost consciousness, and the man fled with several hundred dollars from Stacey’s wallet. Two residents of the trailer park noticed the struggle, and attempted to come to Stacey’s aid. As they approached, they saw the robber flee into a nearby wooded area before they arrived. One of the residents telephoned for an ambulance for Stacey. About that time, the two residents observed an older red sports car being driven from the woods. Stacey was treated at the hospital for a laceration to the head, and he remained in the hospital under observation for three days.

The Monroe County Sheriffs Department received an anonymous tip that John Steven Marlowe had committed the crime. Marlowe was brought in for questioning; he denied any knowledge of the crime, and he indicated that he was willing to take a lie-detector test. Two weeks later, Marlowe voluntarily took a polygraph test; at the conclusion of the polygraph test, he gave a statement confessing to the crime.

At trial, Marlowe moved to suppress the confession, and following a hearing the trial judge denied his motion. Marlowe was convicted; this appeal follows.

I.

On appeal, Marlowe argues that the trial court erroneously denied his motion to suppress his confession. Specifically, Marlowe contends that the trial court should have granted his motion to suppress because the police, according to Marlowe, had promised him leniency and had implied that the results of the polygraph test would be used as evidence against him in trial. We disagree.

“ ‘The standard of review when there is conflicting evidence at a hearing on a motion to suppress evidence of a confession is whether the trial court’s decision was “manifestly contrary to the great weight of the evidence.” Ex parte Matthews, 601 So.2d 52, 54-55 (Ala.), cert. denied, 505 U.S. 1206, 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992). We will not disturb the trial court’s decision on the voluntariness of a confession unless it is clearly erroneous. Ex parte Young-blood, 656 So.2d 390, 392 (Ala.1995).’”

Richardson v. State, 819 So.2d 91, 98 (Ala.Crim.App.2001) (quoting Barnes v. State, 704 So.2d 487, 492 (Ala.Crim.App.1997)).

During the trial, the trial judge conducted a hearing on Marlowe’s motion to suppress. At the hearing, Officer Terry Mason testified that he developed Marlowe as a suspect based on information he was given by witnesses and by an anonymous informant. Following a traffic stop, Marlowe was brought in for questioning; he denied any involvement in the crime; and he was released. Two weeks later, Marlowe voluntarily took a polygraph test administered by Agent Tommy Merritt of the Alabama Bureau of Investigation. Officer Mason re-interviewed Marlowe following the polygraph test. Officer Mason testified that he did not attempt to induce Marlowe to confess.

“[Prosecutor]: Did you promise him anything?
“[Officer Mason]: No, sir.
“[Prosecutor]: Did you offer a particular sentence he could receive if he gave a statement?
“[Officer Mason]: No, sir.
“[Prosecutor]: Did you tell him that he could get out on a certain bond if he gave you a statement?
“[Officer Mason]: No, sir.
“[Prosecutor]: Did you give him any inducement in any way to get him to give you a statement?
“[Officer Mason]: No, sir.
“[Prosecutor]: Any threat, any physical threat at all?
“[Officer Mason]: No, sir.
“[Prosecutor]: Did you apply any violence to him?
“[Officer Mason]: No, sir.
“[Prosecutor]: Did you threaten any violence?
“[Officer Mason]: No, sir.
“[Prosecutor]: Did you tell him that [it] would [be] better off for him to make a statement?
“[Officer Mason]: No, sir.”

(R. 93-94.)

Officer Mason testified that he told Marlowe what the results of the polygraph test were and that he told Marlowe that the results were not admissible as evidence in court.

Officer Mason testified that he advised Marlowe of the rights he was waiving by signing the waiver-of-rights form, and that Marlowe signed the waiver and indicated that he understood those rights and that he understood that he was waiving them. Marlowe then gave the following statement, which Officer Mason wrote on the back of the waiver-of-rights form.

“On November 3rd around 4:30 p.m., I went to Colony Trailer Park in my Chrysler Laser [automobile], burgundy in color, and parked on the trail by the mailboxes, across from the office. I parked where I could come out forward. I had a pair of [camouflage] pants, gray hooded sweatshirt pulled over my head, boots black and gloves, batting. I walked in his office and sat in a chair by the door. The door was open and it was dark. I sat there thirty minutes before he, Mr. Stacey, came in. I had worked with him before and knew that he would come to the office. He drove up in his truck and got out. He walked up to the door. I hit him in the chest. He grabbed me and I grabbed him back. We fell by the door. I fell on top of him. I grabbed the billfold out of his pants pocket and as he was on the floor, I turned and walked away. He grabbed my shirt and I stepped off the steps backward, as I had a hold of him and we fell to the bottom of the steps. I rolled him over and I got up. Money fell out of the wallet. I picked it up off the ground and I left. I got in my car and went straight to the house. I got around $200.00 cash. I left and went to Fort Deposit, like I said the first time. I burned what I had the next day in Old Salem. I’m not going to show you. I give this statement of my own free will and no promises or threats have been made to me, no pressure or coercion had been used against me.”

(R. 100-01.)

Marlowe testified at the suppression hearing that he was given the impression that the polygraph test results were admissible in court and that they would be used against him. He further testified that Officer Mason indicated that if he confessed, he might get a lighter sentence.

The trial court’s ruling on a motion to suppress a confession is given great deference on appeal and will not be overturned unless that ruling is palpably contrary to the weight of the evidence. See, e.g., Taylor v. State, 808 So.2d 1148 (Ala.Crim.App.2000); D.M.M. v. State, 647 So.2d 57 (Ala.Crim.App.1994). Based on our review of the record, we cannot say that the trial court’s denial of the motion to suppress was “manifestly contrary to the great weight of the evidence.” Richardson v. State, 819 So.2d at 98. The trial judge did not err in denying Marlowe’s motion to suppress.

II.

Marlowe argues in his brief to this Court that the trial court erroneously denied his motion for a judgment of acquittal and his motion for a new trial. At the conclusion of the State’s case-in-chief, Marlowe made the following motion for a judgment of acquittal: “Your Honor, at this time I would like to make a Motion for Judgment of Acquittal.” (R. 138.) At the close of the State’s case, Marlowe also submitted a written motion for a judgment of acquittal. That motion specifically alleged: “The State has failed to prove that this Defendant caused ‘serious physical injury’ to Nelvin Stacey as charged in the indictment.” (C. 17.) Marlowe, in his motion for a new trial, argued, in relevant part, that the State had failed to prove a prima facie case of first-degree robbery, and he specifically stated that the prosecution had failed to prove that Stacey suffered serious physical injury.

The Alabama Supreme Court addressed the appellate court’s role in reviewing the sufficiency of the evidence in criminal cases in Ex parte Woodall, 730 So.2d 652 (Ala.1998):

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985).’ Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr.App.1992). Thus, ‘[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 858 So.2d 1040, 1042 (Ala.1978) (emphasis original).”

730 So.2d at 658.

Section 13A-8^41 (a)(2), Ala.Code 1975, provides: “A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he: ... Causes serious physical injury to another.” Section 13A-8^13 defines third-degree robbery. A person commits third-degree robbery in violation of § 13A-8-43, Ala. Code 1975, if he uses force or threatens the imminent use of force in the course of committing a theft.

“Serious physical injury” is defined as “[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” § 13A-l-2(9), Ala.Code 1975. In determining whether serious physical injury has occurred, “neither the jury nor this Court [are] required to ignore ‘common sense, common reason, and common observation.’ Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557 (1926).” Hale v. State, 654 So.2d 83, 86 (Ala.Crim.App.1994).

The evidence at trial revealed that Marlowe struck the 75-year-old victim in the head and robbed him of the contents of his wallet. The blow to Stacey’s head rendered him unconscious; he also suffered a laceration to the head requiring closure with metal staples. Two witnesses testified that they saw blood flowing from an open wound on Stacey’s head. Dr. David Keddy, the emergency-room physician who treated Stacey, testified that he suffered from an eight centimeter laceration to the head. The victim was given a CAT scan, and the results showed that the brain was within “normal and acceptable limits.” (R. 43.) The wound was closed with metal staples; Stacey was hospitalized and remained under observation for three days following the incident.

Dr. Keddy testified that this type of injury could cause serious harm or death, but that he did not consider Stacey’s injuries to be life threatening. Dr. Keddy testified that although he did not think the injuries created a substantial risk of death, it would have been possible for Stacey to have died if he had not received medical treatment, and that the injuries caused a serious and permanent disfigurement of Stacey’s head, but that he could not say whether they would cause him protracted or long-term health problems. Indeed Dr. Keddy stated that he would have to refer questions of long-term impairment to Dr. Stallworth, the doctor who treated and observed Stacey following his removal from the emergency room into a regular hospital room. Dr. Stallworth did not testify at trial.

At trial, Stacey testified that his assailant struck him in the head with some sort of hard object, causing him to lose consciousness two or three times during the attack. Some five months after the attack, Stacey testified that he still suffered from headaches, sharp pain, dizziness, blurred vision, and some memory loss as a result of the blow to his head. He also stated that he suffered some back problems from the fall. Additionally, Stacey testified that he did not return to his office for over a month following the attack. Stacey testified that he was knocked unconscious two or three times during the attack, and that he was struck with some sort of hard object.

Given Stacey’s age, together with his testimony of his continued medical problems, the evidence was sufficient to create a jury question as to whether Stacey suffered “serious physical injury” as defined in § 18A-l-2(9). Indeed, this Court has held similar evidence to be sufficient to create a jury question as to whether the victim had suffered “serious physical injury” as defined by statute. In Sizemore v. State, 686 So.2d 544 (Ala.Crim.App.1996), this Court rejected a trial court’s finding that an injury had to be “life-threatening” before it would constitute “serious physical injury.” We stated:

“The [trial] court erroneously found that the facts of the case did not establish ‘serious physical injury1 because there was no evidence that the injury was life-threatening. The record reflects that the victim was injured as a result of an automobile collision with the appellant’s car. As a result of the accident the victim had underwent surgery on her knee and wore a brace on that knee for two years. The victim testified that after the accident she cannot walk for as long as she could before the accident. This testimony was sufficient to show that the victim suffered ‘serious physical injury’ as defined in the statute defining the offense of assault in the first degree.”

686 So.2d at 545-46. Likewise, in James v. State, 654 So.2d 59, 60 (Ala.Crim.App.1994), this Court held that the State had established that the victim suffered “serious physical injury” by the victim’s testimony that the defendant hit her with a baseball bat, that she was rendered unconscious, that she required stitches and spent several days in the hospital, that she still suffered from headaches some months after the attack, that she could not walk for about a week, and that she could not return to work for several months. See also Glass v. State, 671 So.2d 114, 120 (Ala.Crim.App.1995), overruled in part on other grounds, Ex parte Gentry, 689 So.2d 916 (Ala.1996) (that victim sustained “serious physical injury” was established by evidence that victim continued to suffer from severe headaches more than a year after the assault, that victim developed additional medical problems as a result of the attack, that the victim’s injuries caused her to experience pain when chewing, and that victim would continue to suffer from these conditions for the remainder of her life). Although those cases involved the offense of first-degree assault rather than first-degree robbery, the same definition of “serious physical injury” is applicable in this case as in those cases.

This Court’s duty is to determine whether there was legally sufficient evidence to support the conviction. Based on Sizemore, James, and Glass, we conclude that the State presented sufficient evidence indicating that the victim suffered “serious physical injury” to present a question for the jury’s determination. We acknowledge that our decision in this case may appear to signal a shift away from the seemingly more stringent definition of “serious physical injury” this Court applied in Wilson v. State, 695 So.2d 195 (Ala.Crim.App.1997), Saylor v. State, 719 So.2d 266 (Ala.Crim.App.1998), and other cases. Without addressing whether today’s decision signals such a shift, we merely note that, based on the particular facts of this case, to hold that Marlowe’s attack on the victim did not result in “serious physical injury” would require this Court “to ignore ‘common sense, common reason, and common observation.’ ” Hale v. State, supra, 654 So.2d at 86 (quoting Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557, 558 (1926)). The jury weighed the evidence and found Marlowe guilty of first-degree robbery. It is not this Court’s responsibility to reweigh the evidence. The trial court correctly denied Marlowe’s motion for a judgment of acquittal and his motion for a new trial.

III.

Marlowe also argues that the trial court’s jury instruction covering first-degree robbery was incorrect. Specifically, he contends that such an instruction was improper because the evidence presented at trial did not establish “serious physical injury” to the victim. As we have previously determined, the evidence presented at trial was sufficient to establish a prima facie case of first-degree robbery, including the element of “serious physical injury.” Therefore, an instruction on first-degree robbery was warranted.

We further note, however, that Marlowe failed to preserve this claim for appellate review. Marlowe’s only objection to the trial court’s jury instruction was that the judge had not given “jury charge number 7 to be included, which states or restates the definition of serious physical injury to a person.” (R. 156.) The court advised Marlowe that the definition had been covered in the oral charge. Marlowe’s objection fails to comply with the standard set forth in Rule 21.3, Ala. R.Crim.P. Because Marlowe did not object to the inclusion of the jury charge for first-degree robbery, this claim was not preserved for our review. See McCart v. State, 765 So.2d 21, 30 (Ala.Crim.App.1999); Davis v. State, 747 So.2d 921, 924 (Ala.Crim.App.1999).

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . A copy of the written statement was included in the record on appeal. (C. 111.) The written version substantially matches Officer Mason’s testimony, with punctuation comprising the primary changes.

      . Marlowe’s motion also alleged that the State had failed to prove each element of first-degree robbery. Because we specifically find that the confession was properly admitted, we need not address those elements Marlowe admitted to in the statement. Thus, we focus our review, as Marlowe does on appeal, on whether the State made a prima facie showing that Stacey suffered serious physical injury-


author: HOUSTON, Justice. JOHNSTONE,

text:
    Ex parte John Steven MARLOWE. (In re John Steven Marlowe, alias Steven Peavy v. State of Alabama).
    1012174.
    Supreme Court of Alabama.
    Feb. 7, 2003.

      C. Mark Lowell, Monroeville, for petitioner.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley and Elizabeth Ray Butler, asst, attys. gen., for respondent.
   HOUSTON, Justice.

John Steven Marlowe was convicted of robbery in the first degree, a violation of Ala.Code 1975, § 13A-8ritl, and was sentenced to life imprisonment. The Alabama Court of Criminal Appeals affirmed Marlowe’s conviction. Marlowe v. State, 854 So.2d 1182 (Ala.Crim.App.2002). We granted Marlowe’s petition for a writ of certiorari to determine whether the Court of Criminal Appeals correctly decided that the State had produced sufficient evidence indicating that the victim had suffered a “serious physical injury,” an element of § 13A-8-41. We now affirm the judgment of the Court of Criminal Appeals and adopt the reasoning of that court as set out in the following portion of its opinion:

“Marlowe argues in his brief to this Court that the trial court erroneously denied his motion for a judgment of acquittal and his motion for a new trial.... Marlowe, in his motion for a new trial [and in his motion for a judgment of acquittal], argued, in relevant part, that the State had failed to prove a prima facie case of first-degree robbery, and he specifically stated that the prosecution had failed to prove that [the victim] suffered serious physical injury.
“The Alabama Supreme Court addressed the appellate court’s role in reviewing the sufficiency of the evidence in criminal cases in Ex parte Woodall, 730 So.2d 652 (Ala.1998):
“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985).” Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr.App.1992). Thus, “[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978) (emphasis original).’
730 So.2d at 658.
“Section 13A-8-41(a)(2), Ala.Code 1975, provides: ‘A person commits the crime of robbery in the first degree if he violates Section 13A-8^43 and he: ... Causes serious physical injury to another.’ Section 13A-8-43 defines third-degree robbery. A person commits third-degree robbery in violation of § 13A-8-43, Ala.Code 1975, if he uses force or threatens the imminent use of force in the course of committing a theft.
“ ‘Serious physical injury1 is defined as ‘[pjhysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.’ § 13A-l-2(9), Ala.Code 1975. In determining whether serious physical injury has occurred, ‘neither the jury nor this Court [are] required to ignore “common sense, common reason, and common observation.” Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557 (1926).’ Hale v. State 654 So.2d 83, 86 (Ala.Crim.App.1994).
“The evidence at trial revealed that Marlowe struck the 75-year-old victim in the head and robbed him of the contents of his wallet. The blow to [the victim’s] head rendered him unconscious; he also suffered a laceration to the head requiring closure with metal staples. Two witnesses testified that they saw blood flowing from an open wound on [the victim’s] head. Dr. David Keddy, the emergency-room physician who treated [the victim], testified that he suffered from an eight centimeter laceration to the head. The victim was given a CAT scan, and the results showed that the brain was within ‘normal and acceptable limits.’ (R. 43.) The wound was closed with metal staples; [the victim] was hospitalized and remained under observation for three days following the incident.
“Dr. Keddy testified that this type of injury could cause serious harm or death, but that he did not consider [the victim’s] injuries to be life threatening. Dr. Keddy testified that although he did not think the injuries created a substantial risk of death, it would have been possible for [the victim] to have died if he had not received medical treatment, and that the injuries caused a serious and permanent disfigurement of [the victim’s] head, but that he could not say whether they would cause him protracted or long-term health problems. Indeed, Dr. Keddy stated that he would have to refer questions of long-term impairment to Dr. Stallworth, the doctor who treated and observed [the victim] following his removal from the emergency room into a regular hospital room. Dr. Stallworth did not testify at trial.
“At trial, [the victim] testified that his assailant struck him in the head with some sort of hard object, causing him to lose consciousness two or three times during the attack. Some five months after the attack, [the victim] testified that he still suffered from headaches, sharp pain, dizziness, blurred vision, and some memory loss as a result of the blow to his head. He also stated that he suffered some back problems from the fall. Additionally, [the victim] testified that he did not return to his office for over a month following the attack. [The victim] testified the he was knocked unconscious two or three times during the attack, and that he was struck with some sort of hard object.
“Given [the victim’s] age, together with his testimony of his continued medical problems, the evidence was sufficient to create a jury question as to whether [the victim] suffered ‘serious physical injury’ as defined in § 13A-1-2(9). Indeed, this Court has held similar evidence to be sufficient to create a jury question as to whether the victim had suffered ‘serious physical injury’ as defined by statute. In Sizemore v. State, 686 So.2d 544 (AIa.Crim.App.1996), this Court rejected a trial court’s finding that an injury had to be ‘life-threatening’ before it would constitute ‘serious physical injury.’ We stated:
“ ‘The [trial] court erroneously found that the facts of the case did not establish “serious physical injury” because there was no evidence that the injury was life-threatening. The record reflects that the victim was injured as a result of an automobile collision with the appellant’s car. As a result of the accident the victim had undergone] surgery on her knee and wore a brace on that knee for two years. The victim testified that after the accident she cannot walk for as long as she could before the accident. This testimony was sufficient to show that the victim suffered “serious physical injury” as defined in the statute defining the offense of assault in the first degree.’
686 So.2d at 545-46. Likewise, in James v. State, 654 So.2d 59, 60 (Ala. Crim.App.1994), this Court held that the State had established that the victim suffered ‘serious physical injury’ by the victim’s testimony that the defendant hit her with a baseball bat, that she was rendered unconscious, that she required stitches and spent several days in the hospital, that she still suffered from headaches some months after the attack, that she could not walk for about a week, and that she could not return to work for several months. See also Glass v. State, 671 So.2d 114, 120 (Ala.Crim.App.1995) ... (that victim sustained ‘serious physical injury’ was established by evidence that victim continued to suffer from severe headaches more than a year after the assault, that the victim developed additional medical problems as a result of the attack, that the victim’s injuries caused her to experience pain when chewing, and that the victim would continue to suffer from these conditions for the remainder of her life)[, overruled in part on other grounds, Ex parte Gentry, 689 So.2d 916 (Ala.1996)]. Although those cases involved the offense of first-degree assault rather than first-degree robbery, the same definition of ‘serious physical injury’ is applicable in this case as in those cases.
“This Court’s duty is to determine whether there was legally sufficient evidence to support the conviction. Based on Sizemore, James, and Glass, we conclude that the State presented sufficient evidence indicating that the victim suffered ‘serious physical injury’ to present a question for the jury’s determination .... [Biased on the particular facts of this case, to hold that Marlowe’s attack on the victim did not result in ‘serious physical injury’ would require this Court ‘to ignore “common sense, common reason, and common observation.” ’ Hale v. State, supra, 654 So.2d at 86 (quoting Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557, 558 (1926)). The jury weighed the evidence and found Marlowe guilty of first-degree robbery. It is not this Court’s responsibility to reweigh the evidence. The trial court correctly denied Marlowe’s motion for a judgment of acquittal and his motion for a new trial.”

Marlowe v. State, 854 So.2d at 1186-88.

The Court of Criminal Appeals recognized that their opinion appeared to signify a less stringent definition of “serious physical injury.” Its opinion states:

“We acknowledge that our decision in this case may appear to signal a shift away from the seemingly more stringent definition of ‘serious physical injury” this Court applied in Wilson v. State, 695 So.2d 195 (Ala.Crim.App.1997), Saylor v. State, 719 So.2d 266 (Ala.Crim.App.1998), and other cases. [We do not] address[] whether today’s decision signals such a shift-”

Marlowe, 854 So.2d at 1188. To the extent that the Court of Criminal Appeals’ opinion signals a shift in the application of § 13A-l-2(9), Ala.Code 1975, we adopt that shift.

Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

MOORE, C.J., and SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs in part and dissents in part.

JOHNSTONE,

Justice (concurring in part and dissenting in part).

But for one exception, I concur. The exception is that I respectfully dissent from the language in the opinion that reads: “To the extent that the Court of Criminal Appeals’ opinion signals a shift in the application of § 13A-l-2(9), Ala.Code 1975, we adopt that shift.”


author: COBB, Judge.

text:
    Houston E. BASS v. STATE of Alabama.
    CR-01-0339.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Roianne Houlton Frith, Montgomery; and Daniel W. Wright, Montgomery, for appellant.
    Houston E. Bass, pro se.
   COBB, Judge.

On September 18, 2001, Houston E. Bass pleaded guilty to theft of property in the first degree, a violation of § 13A-8-3(a), Ala.Code 1975; theft of property in the second degree, a violation of § 13A-8-4(a), Ala.Code 1975; and five counts of criminal possession of a forged instrument in the second degree, violations of § 13A-9-6, Ala.Code 1975. The circuit court held a plea hearing, and the prosecution moved to invoke the Habitual Felony Offender Act. Bass admitted to having three prior felony convictions. See § 13A-5-9(c)(l) and (2), Ala.Code 1975. The circuit court granted the prosecutor’s motion to invoke the HFOA. The circuit court determined that Bass’s pleas had been entered into knowingly, intelligently, and voluntarily, and accepted Bass’s plea of guilty to all seven charged offenses.

On October 5, 2001, the circuit court conducted a sentencing hearing. At the sentencing hearing, the prosecution introduced certified case action summary sheets from Bass’s two prior felony convictions, one showing a prior conviction for second-degree forgery and the other showing three convictions for second-degree forgery. The circuit court again granted the prosecutor’s motion to invoke the HFOA. The circuit court sentenced Bass to 16 years’ imprisonment for each count; those sentences were to run concurrently. Bass filed a timely motion for a new trial; that motion was denied by operation of law on December 4, 2001. This appeal followed.

Appellate counsel filed a brief and a motion to withdraw in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In his brief, counsel stated that, after an extensive review of the record, he could find no viable issues to present on appeal. Additionally, Bass’s appellate counsel stated that he could find no issues that would indicate that trial counsel was ineffective, no indication that Bass’s pleas were involuntary or unknowing, and no abuse of discretion by the trial judge in sentencing. Further, Bass has not filed any pro se issues with this Court. A review of the record supports appellate counsel’s assertion that there are no meritorious issues that would entitle Bass to relief as to his convictions.

However, a review of the record revealed that Bass’s sentence for the conviction of theft of property in the first degree is not within the statutory range. Theft of property in the first degree is a Class B felony. At the plea proceedings Bass admitted to having three prior felony convictions and at the sentencing hearing the prosecution submitted certified copies of case action summary sheets showing four prior felony convictions. Pursuant to § 13A-5-9(c)(2), Ala.Code 1975, the range of punishment for a conviction of a Class B felony with at least three prior felonies is “imprisonment for life or any term of not less than 20 years.” However, Bass was sentenced to 16 years’ imprisonment; that sentence is not within the mandatory statutory range.

Thus, we remand this cause to the circuit court for that court to resentence Bass within the statutory range for the conviction of first-degree theft of property. A return to remand shall be filed with this Court within 56 days of the date of this opinion. The return to remand shall include a transcript of any proceedings conducted by the trial court.

REMANDED WITH DIRECTIONS.

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


author: WISE, Judge. SHAW, Judge, BASCHAB, Judge,

text:
    Barry DOWDELL v. STATE of Alabama.
    CR-01-0610.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Rehearing Denied Aug. 9, 2002.
    Barry Dowdell, pro se.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Barry Dowdell, 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 1986 conviction for first-degree rape and the resulting sentence of 18 years’ imprisonment. As best we are able to determine from the record, Dowdell’s conviction was based on his guilty plea to the charge of rape in the first degree. There is some conflict in the record concerning whether Dowdell appealed from this conviction.

On June 6, 2001, Dowdell filed a Rule 32, Ala.R.Crim.P., petition for postconviction relief alleging that he was entitled to relief from his rape conviction based on newly discovered evidence that he says establishes his innocence of that crime. In fact, the newly discovered evidence was not yet in existence, since Dowdell’s petition sought DNA testing, the results of which, he alleged, would establish his innocence. Dowdell also alleged that he was entitled to relief based on the fact that the Alabama Constitution of 1901 was a racist document adopted to disenfranchise African-Americans; therefore, he argues, any conviction based on laws enacted under the authority of the 1901 Constitution was void and due to be set aside.

On November 1, 2001, the State filed a motion to dismiss Dowdell’s petition, claiming that the petition was time-barred under Rule 32.2(c), and that it was procedurally barred under Rule 32.2(b) as a successive petition. Without waiving these procedural bars, the State also alleged that Dowdell’s claims lacked merit and requested that the petition be summarily denied without an evidentiary hearing. On November 29, 2001, the circuit court entered an order denying Dowdell relief because the court determined that the pe~ tition was time-barred under Rule 32.2(c) and that it was procedurally barred under Rule 32.2(a)(3), because his claims could have been raised at trial but were not. Dowdell filed a notice of appeal on December 6, 2001. This appeal followed.

Dowdell contends that in light of the grounds raised in his petition, the circuit court erred in summarily denying his petition. We disagree.

Dowdell’s claim that the 1901 Constitution is unconstitutional is a nonjuris-dictional claim, and is thus subject to the procedural bars set out in Rule 32.2. See Nicks v. State, 783 So.2d 895 (Ala.Crim.App.1999), cert. quashed, 783 So.2d 926 (Ala.2000). Dowdell was convicted in 1986; his conviction became final 42 days after he was sentenced on September 26, 1986. The effective date for Rule 20, Ala.R.Crim. P.Temp., the predecessor to Rule 32, Ala. R.Cnm.P., was April 1, 1987. Temporary Rule 20 set out a two-year limitations period for filing a petition for postconviction relief. The comments to that rule provided that defendants convicted before April 1, 1987, would have two years from the effective date of the rule to file their petitions. Thus, Dowdell had until April 1, 1989, to timely file a petition for posteon-viction relief based on his claim that the Alabama Constitution of 1901 was unconstitutional because it had been adopted to disenfranchise African-Americans. Because he failed to do so, this claim is barred by the two-year limitations period set out in Rule 32.2(c). Thus, the circuit court correctly denied relief based on this ground.

Dowdell also alleges that DNA testing will establish his innocence of the crime to which he pleaded guilty in 1986. Dowdell alleges that he is entitled to raise this claim outside the two-year limitations period because he only recently learned of this method of establishing his innocence. Rule 32.1, Ala.R.Crim.P., provides, in pertinent part:

“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 conviction to secure appropriate relief on the ground that:
“(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
“(1) The facts relied upon were not known by petitioner or petitioner’s counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
“(2) The facts are not merely cumulative to other facts that were known;
“(3) The facts do not merely amount to impeachment evidence;
“(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“(5) The facts establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received.”

While Rule 32.2(c) sets out a general two-year limitation period for filing petitions for postconviction relief, it provides the following exception for claims asserting newly discovered evidence:

“The court shall not entertain a petition based on the grounds specified in Rule 32.1(e) unless the petition is filed within the applicable two-year period specified in the first sentence of this section, or within six (6) months after the discovery of the newly discovered material facts, whichever is later; provided, however, that the two-year period during which a petition may be brought shall in no case be deemed to have begun to run before the effective date of the precursor of this rule, i.e., April 1,1987.”

Alabama courts have recognized the admissibility of DNA testing since 1991. The Alabama Supreme Court, in Ex parte Perry, 586 So.2d 242 (Ala.1991), recognized the existence of a generally accepted theory in the scientific community that supports the conclusion that DNA forensic testing could produce reliable results as to “matching” evidence, and set out the evidentiary predicate to be used in determining the admissibility of DNA evidence. The decision in Ex parte Perry was released on April 19, 1991. Since 1991, Alabama courts have addressed the admissibility of DNA testing on numerous occasions and in a variety of appellate opinions. Moreover, DNA evidence was widely publicized during the 1990s in a number of high-profile criminal cases as a method of establishing a defendant’s innocence. Given these circumstances, we do not find credible Dowdell’s claim that he only learned of the existence of DNA testing as a method to prove his innocence within six months of filing his June 2001 petition. Certainly, Dowdell should have become aware of the existence of DNA testing before more than 10 years had passed since the Alabama Supreme Court recognized the existence of DNA forensic testing. Had Dowdell filed his petition within a reasonable time of the decision in Ex parte Perry, his claim that he had only recently learned about DNA testing would have been credible and we would have considered the merits of his petition alleging newly discovered evidence. However, because Dowdell waited more than 10 years to file his petition, the trial court correctly determined that his claim was time-barred by the provisions of Rule 32.2(c).

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, J., concur. SHAW, J., concurs in the result, with opinion. BASCHAB, J., dissents, with opinion.

SHAW, Judge,

concurring in the result.

I concur to affirm the summary denial of Dowdell’s Rule 32, Ala.R.Crim.P., petition for postconviction relief, although not for the reasons stated by the majority.

Like Judge Baschab, who filed a dissenting opinion in this case, I fully recognize the need for, and the importance of, post-conviction DNA testing in certain cases— especially in capital-murder cases in which the death penalty has been imposed.

“A criminal trial is not a lottery, a spin of the roulette wheel or a throw of the dice. The orderly processing of cases through the court is an important value, but it is not the end in itself. It is only the method by which we attempt to achieve the ultimate purpose of the criminal justice system — the fair conviction of the guilty and the protection of the innocent. That is what our constitutional guarantees are all about. Our system fails every time an innocent person is convicted, no matter how meticulously the procedural requirements governing criminal trials are followed.”

New Jersey v. Thomas, 245 N.J.Super. 428, 435, 586 A.2d 250, 253-54 (1991) (discussing postconviction requests for DNA testing). In Dabbs v. Vergari, 149 Misc.2d 844, 850, 570 N.Y.S.2d 765, 769 (Sup.Ct.1990) (also discussing postconviction requests for DNA testing), the court noted:

“Consistent with society’s 'overriding concern with the justice of the finding of guilt’ (United States v. Agurs, 427 U.S. [97,] 112 [(1976)]), the courts, as well as the prosecution, must be vigilant to correct a mistake. ‘It is the State that tries a man, and it is the State that must insure that the trial is fair’ (Moore v. Illinois, 408 U.S. 786, 810 [(1972)] [Marshall, J., concurring in part and dissenting in part]). Put another way, ‘[t]he State’s obligation is not to convict, but to see that, so far as possible, truth emerges’ (Giles v. Maryland, 386 U.S. 66, 98 [(1967)] [Fortas, J., concurring]). ‘When evidence favorable to the defendant is known to exist, disclosure only enhances the quest for truth; it takes no direct toll on that inquiry’ (United States v. Bagley, 473 U.S. [667,] 692-693 [(1985)] [Marshall, J., dissenting]).”

And in Ex parte Frazier, 562 So.2d 560, 565 (Ala.1989), the Alabama Supreme Court, quoting Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), noted:

“ ‘Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance of this high function.’ ”

Legislatures and courts have only recently begun to fully appreciate and address the need for specific procedures and standards for resolving postconvietion requests for DNA testing. Across the country, existing procedures for a postconviction challenge to a conviction and sentence have generally not kept pace with the technological advances in DNA testing. There is, indeed, little guiding precedent. See, e.g., Development in the Law — Confronting the New Challenges of Scientific Evidence, 108 Harv. L.Rev. 1481 (1995); Jennifer Boemer, In the Interest of Justice: Granting Post-Conviction Deoxyribonu-cleic Acid (DNA) Testing to Inmates, 27 Wm. Mitchell L.Rev.1971 (2001); Karen Christian, ‘And the DNA Shall Set You Free”: Issues Surrounding Postconvietion DNA Evidence and the Pursuit of Innocence, 62 Ohio St. L.J. 1195 (2001).

The lack of existing procedures and precedent are no more apparent than here in Alabama. Judge Baschab correctly recognizes this and then strongly urges the Legislature to pass statutes and/or the Alabama Supreme Court to establish rules that allow for, and set parameters for, postconvietion DNA testing. I join Judge Baschab in that respect, and I call upon either or both of those bodies to study this important issue carefully and to implement procedures governing postconvietion DNA testing in Alabama. I believe that the failure to implement such procedures may raise serious due-process issues in certain cases, including capital-murder cases in which the death penalty has been imposed, and may necessitate federal court intervention in certain cases.

However, I must respectfully disagree with the proposition that this Court has the authority to create a new procedure for trial courts to follow in considering requests for postconvietion DNA testing— a procedure that anticipates, but is totally independent of, a postconvietion challenge pursuant to Rule 32, Ala.R.Crim.P. Although blind adherence to procedural rules should not necessarily take precedence over the overarching search for the truth, the inescapable fact remains that this Court is bound by the opinions and rules promulgated by the Alabama Supreme Court. See § 12-3-16, Ala.Code 1975; McGriff v. State, [Ms. CR-97-0179, September 29, 2000] — So.2d (Ala.Crim. App.2000).

Rule 32.4, Ala.R.Crim.P., provides:

“A proceeding under this rule displaces all post-trial remedies except post-trial motions under Rule 24 and appeal. Any other post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under this rule. Proceedings under this rule shall be governed by the Rules of Criminal Procedure, except that the trial court in its sole discretion may allow the taking of depositions for discovery or for use at trial.”

By its plain language, Rule 32 displaces all postconvietion petitions seeking relief from a conviction or a sentence. A proceeding under Rule 32 is the sole posttrial remedy available in Alabama, with the exception of posttrial motions under Rule 24 and appeal, neither of which is an option for Dowdell. See Cayson v. State, 778 So.2d 261 (Ala.Crim.App.2000). Only the Legislature and the Alabama Supreme Court, by virtue of its constitutional rule-making power, see Ala. Const, of 1901, Amend. No. 328, § 6.11, have the authority to change the procedure and requirements of Rule 32.

Because the statute of limitations set out in Rule 32.2(c) bars Dowdell from possibly challenging his conviction on the constitutional grounds set out in Rule 32.1(a), the only ground upon which Dowdell could conceivably seek relief, and upon which he has sought relief in this case, is set out in Rule 32.1(e), which provides:

“Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
“(1) The facts relied upon were not known by petitioner or petitioner’s counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceedings and could not have been discovered by any of those times through the exercise of reasonable diligence;
“(2) The facts are not merely cumulative to other facts that were known;
“(3) The facts do not merely amount to impeachment evidence;
“(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“(5) The facts establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received.”

(Emphasis added.) As the emphasized portion of the rule indicates, this ground, properly stated, requires a petitioner to allege the existence of facts (supported by evidence newly discovered) that meet the five conditions enumerated therein. In addition, the six-month limitations period provided in Rule 32.2(c) contemplates that a petition alleging a Rule 32.1(e) ground will be filed “within six (6) months after the discovery of the newly discovered material facts.” Therefore, the only way Dowdell can mount a Rule 32 challenge to his conviction, based on the alleged existence of newly discovered exculpatory DNA evidence, would be to first obtain postconviction discovery of that evidence, i.e., DNA test results.

The dispositive case in Alabama concerning postconviction discovery is Ex parte Land, 775 So.2d 847 (Ala.2000). In that case, the Alabama Supreme Court ordered certain discovery in connection with the petitioner’s claim of ineffective assistance of counsel, filed pursuant to Rule 32. Referring to this Court’s opinion in Ex parte Land, 775 So.2d 840 (Ala. Crim.App.1998), the Court stated, in pertinent part:

“We agree with the Court of Criminal Appeals that ‘good cause’ is the appropriate standard by which to judge post-conviction discovery motions. In fact, other courts have adopted a similar ‘good-cause’ or ‘good-reason’ standard for the postconviction discovery process. See [State v. Marshall, 148 N.J. 89, 690 A.2d 1, cert denied, 522 U.S. 850 (1997) ]; State v. Lewis, 656 So.2d 1248 (Fla.1994); People ex rel. Daley v. Fitzgerald, 123 Ill.2d 175, 121 Ill.Dec. 937, 526 N.E.2d 131 (1988). As noted by the Illinois Supreme Court, the good-cause standard guards against potential abuse of the postconviction discovery process. See Fitzgerald, supra, 123 Ill.2d at 183, 121 Ill.Dec. 937, 526 N.E.2d at 135. We also agree that New Jersey’s Marshall case provides a good working framework for reviewing discovery motions and orders in capital cases. In addition, we are bound by our own rule that ‘an evidentiary hearing must be held on a [petition for postconviction relief] which is meritorious on its face, i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief.’ Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985).
“We emphasize that this holding— that postconviction discovery motions are to be judged by a good-cause standard — does not automatically allow discovery under Rule 32, Ala.R.Crim.P., and that it does not expand the discovery procedures within Rule 32.4. Accord Lems, supra, 656 So.2d at 1250, wherein the Florida Supreme Court stated that the good-cause standard did not affect Florida’s rules relating to postconviction procedure, which are similar to ours. By adopting this standard, we are only recognizing that a trial court, upon a petitioner’s showing of good cause, may exercise its inherent authority to order discovery in a proceeding for postconviction relief. In addition, we caution that postconviction discovery does not provide a petitioner with a right to ‘fish’ through official files and that it ‘is not a device for investigating possible claims, but a means of vindicating actual claims.’ People v. Gonzalez, 51 Cal.3d 1179, 1260, 800 P.2d 1159, 1206, 275 Cal.Rptr. 729, 776 (1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 85 (1991). Instead, in order to obtain discovery, a petitioner must allege facts that, if proved, would entitle him to relief. Cf. Porter v. Waimuright, 805 F.2d 930, 933 (11th Cir.1986) (‘a hearing [on a habeas corpus petition] is not required unless the petitioner alleges facts which, if proved, would entitle him to federal habeas relief), cert. denied, 482 U.S. 918, 919, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). Furthermore, a petitioner seeking postconviction discovery also must meet the requirements of Rule 32.6(b), Ala.R.Crim.P., which states:
“‘The 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. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’
“That having been said, we must determine whether Land presented the trial court with good cause for ordering the requested discovery. To do that, we must examine Land’s basis for the relief requested in his postconviction petition and determine whether his claims are facially meritorious. Only after making that examination and determination can we determine whether Land has shown good cause.”

775 So.2d at 852-53 (footnote omitted).

It is apparent from a reading of both this Court’s opinion and the Supreme Court’s opinion in Ex parte Land, that the Supreme Court recognized that in the absence of authorization in the form of a court rule, a statute, or constitutional mandate, trial courts have the inherent, but limited, authority to order postconviction discovery where justice so requires. However, it is also apparent from a reading of the Supreme Court’s opinion in Ex parte Land that the Supreme Court has restricted postconviction discovery in Alabama to those situations where the discovery of evidence is necessary to support a facially valid Rule 32 ground. Stated differently, a petitioner must file a Rule 32 petition and clearly and specifically allege facts that, if proved, would entitle him or her to the relief sought before he or she can seek discovery in support of the ground alleged. The Supreme Court stated that a petitioner is not entitled to “fish” for evidence for the purpose of investigating a possible claim, and it cautioned that postconviction discovery was to be available only as a means of “vindicating actual claims.” 775 So.2d at 852.

Therefore, under existing Alabama case-law and court rules, Dowdell is subject to a true “catch 22.” Contrary to the majority’s conclusion that Dowdell’s claim could have been considered had it been raised within a reasonable time after the Alabama Supreme Court’s opinion in Ex parte Perry, 586 So.2d 242 (Ala.1991), I believe that no matter when Dowdell filed his claim, he could not have possibly stated a proper claim under Rule 32.1(e), because he had no DNA test results upon which to base such a claim for relief. Yet he also could not discover the evidence he needs, i.e., the DNA test results, because without those results he could not state a facially valid claim under Rule 32.1(e). In short, there is no mechanism available for Dow-dell to challenge his conviction based upon allegedly exculpatory DNA test results.

I recognize that some courts have fashioned various theories for granting requests for DNA testing, e.g., treating such a request as being made pursuant to a possible motion for a new trial based on newly discovered evidence or pursuant to a possible habeas petition; and treating such a request as a motion to enforce an obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to reveal exculpatory evidence to the defense. See Development in the Law — Confronting the New Challenges of Scientific Evidence, supra; Boemer, supra; Christian, supra; see also Mebane v. State, 21 Kan.App.2d 533, 902 P.2d 494 (1995), and the cases cited therein. However, in light of the plain language of Rule 32 and the Alabama Supreme Court’s holding in Ex parte Land, I cannot conclude that this Court can create a new procedure for addressing requests for DNA testing based upon these theories. This issue must, in my view, be left to the Legislature and/or the Alabama Supreme Court.

The real issues for those bodies, as I see them, concern (1) the exact nature of the proceeding that should be created (a proceeding commenced by the filing of a separate petition for postconviction discovery, whereby the inherent authority of a trial court to order such discovery would be expanded, or a discovery proceeding authorized by an amendment to Rule 32); (2) the criteria that would be used in determining whether a “prima facie” showing has been made, or whether “good cause” has been shown, to warrant DNA testing; and (3) whether the appeal process should be expedited in some manner.

The procedure advocated by Judge Bas-chab could, and, in my opinion, would, greatly impact the criminal justice system in Alabama, especially in the area of capital litigation. The importance of the concept of finality in criminal cases cannot be overstated, and the need to conserve judicial resources by not opening the floodgates to meritless and costly claims is also an important consideration. The people of Alabama have a vested interest in the swift and efficient administration of criminal justice. Of course, the primary, and ultimately the overriding, concern for society as a whole, and for appellate judges in particular, is that justice actually be achieved in every case. In Ex parte Frazier, supra, the Supreme Court, in adopting new standards by which to judge new-trial motions alleging false testimony, aptly stated:

“We must not let our awareness of the criminal milieu in which Frazier moved stain the ‘processes of law.’ Frazier is entitled to a fair trial. Justice Cardozo wrote in The Nature of the Judicial Process (1921) at 35, that ‘the sordid controversies of the litigants are the stuff out of which great and shining truths will ultimately be shaped.’ The one ‘great and shining truth’ that has been shaped from this sordid controversy is that the courts of this state shall strive always to ensure fair treatment to all those who, because of their alleged criminal acts, stand to lose their lives or liberty, regardless of who they may be and regardless of what their alleged offenses may be. Our Constitutions require, and we will insist on', no less.”

562 So.2d at 572.

Therefore, I believe that procedures and standards must be adopted in this area of the law — procedures and standards that strike the proper balance between these competing concerns. Unfortunately, I cannot find any sound legal basis for concluding that this Court has the authority to create those new procedures and standards.

Because I would affirm the summary denial of the appellant’s petition, although not for the reasons stated by the majority, I concur in the result only.

BASCHAB, Judge,

dissenting.

Because I believe the circuit court is in a better position than this court to evaluate the validity of a request for post-conviction DNA testing, I must respectfully dissent.

The appellant filed Rule 32 petitions, challenging his convictions for first-degree rape and second-degree robbery. He also filed motions requesting that the court order the release of the victim’s medical records; “declare him indigent for the purpose of obtaining ‘Rape Kit and DNA test’ at the State’s expense”; order the State to release “the rape kits and medical reports that contain the DNA and other medical evidence of the alleged rape victims and the DNA reports of the alleged victims”; and “order DNA testing of him to specifically ascertain if it does in fact match the specimen found on the victim.” (C.R.51, 52, 55.) The circuit court summarily denied the petitions, but apparently did not specifically rule on his discovery motions.

The appellant argues that the circuit court “abused [its] discretion by not granting him post-conviction discovery.” (Appellant’s brief at p. 4.) In his petitions, he asserted that he “is innocent of the charge of rape in the first degree” and that he “is entitled to the DNA testing to exonerate him [on] the charge of rape in the first degree.” (C.R.25, 105.) He further asserted “that he should be allow[ed] the testing first and after all of the results are made final then he should be afforded the opportunity to present his newly discovered evidence at an evidentiary hearing on this claim of actually innocent.” (C.R.27, 107.)

Alabama has not established a procedure for defendants to use to request post-conviction DNA testing. Nevertheless, this court, the Alabama Supreme Court, and the Legislature should recognize the need for, and the importance of, post-conviction DNA testing in certain cases. Therefore, I strongly urge the Legislature to pass statutes and/or the Alabama Supreme Court to establish rules that allow for, and set parameters for, post-conviction DNA testing. In this regard, I suggest that those bodies consider adopting the guidelines set forth below.

A person who has been convicted of an offense in the State of Alabama should be allowed to file a motion for post-conviction DNA testing. A petitioner who requests post-conviction DNA testing should be required to make a prima facie showing that:

1) he has exercised due diligence and has timely presented his request for testing;
2) the evidence to be tested is still in existence and is in such a condition that DNA testing may be conducted;
3) the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, degraded, contaminated, replaced, or altered in any material aspect;
4) the evidence was not previously subjected to DNA testing or was not subjected to the type of DNA testing that is now requested and the new testing may resolve an issue not resolved by the prior testing;
5) the requested testing uses a scientifically valid technique and the results of such testing would likely be admissible at trial;
6) the evidence to be tested is material to the issue of the petitioner’s identity as the perpetrator of, or accomplice to, the offense for which he was convicted; and
7)the identity of the petitioner as the perpetrator of the offense was at issue during the petitioner’s trial.

When a petitioner requests post-conviction DNA testing, the circuit court should allow the State to respond to the request. It should also conduct a hearing on the request if it determines that such a hearing is necessary. Thereafter, the circuit court should make specific, written findings of fact as to whether a petitioner has or has not made a prima facie showing that post-conviction DNA testing should be ordered. Once a petitioner has made such a prima facie showing, the circuit court should make additional specific, written findings of fact as to whether the result of the trial or sentencing probably would have been more favorable to the petitioner if the results of the testing had been known at either of those times. If it determines that the result of the trial or sentencing probably would have been more favorable to the petitioner, then the court should order post-conviction DNA testing on such terms and under such conditions as it deems to be appropriate. Such terms and conditions should include, but should not be limited to, safeguards that ensure the integrity of the evidence and the testing process. After the testing has been completed, the petitioner should be allowed to seek relief pursuant to Rule 32, Ala. R.Crim. P.

For the above-stated reasons, we should remand this case to the circuit court with instructions that that court consider the appellant’s requests relating to post-conviction DNA testing applying the guidelines set forth in this dissent. Accordingly, I respectfully dissent.

      . Dowdell states in his Rule 32 petition that he pleaded guilty and that he did not appeal his conviction. The case action summary contains a notation that Dowdell pleaded guilty to rape and robbery on August 14, 1986, and that he was sentenced on September 26, 1986. There is no indication that a notice of appeal was filed within 42 days of sentencing. The circuit court and the State aver that Dowdell appealed this conviction and that this Court affirmed Dowdell’s convictions on December 5, 1989. We have reviewed our records, see Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992) (this Court may take judicial notice of its own records), and we find no record of any direct appeal. We do find, however, that on December 5, 1989, the date this Court is alleged to have affirmed Dowdell’s rape conviction, we issued a certificate of judgment resulting from our November 17, 1989, affirmance of the circuit court's denial of Dowdell's Rule 20, Ala.R.Crim.P.Temp., petition for postconviction relief. See Dowdell v. State, (No. 6 Div. 237) 555 So.2d 1198 (Ala.Crim.App.1989). The record also appears to indicate that Dow-dell filed another petition for postconviction relief in 1999, and that that petition was denied. Based on a review of our records, we conclude that no appeal was taken from the denial of the 1999 petition.

      . Judge Baschab states that "[a]fter the testing has been completed, the petitioner should be allowed to seek relief pursuant to Rule 32, Ala.R.Crim.P.” 854 So.2d at 1204.

      . Section 6.11 provides:
      "The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application.”

      . In so doing, those bodies should consider the following statutes and rules: Ariz.Rev. Stat. Ann. § 13-4240 (West 2000); Cal.Penal Code § 1405 (West 2000); Del.Code Ann. tit. 11, § 4504 (2000); Fla. Stat. ch. 925.11 (2001); 725 Ill. Comp. Stat. 5/116-3 (2000); Ind.Code §§ 35-38-7-1 through -19 (2001); Me.Rev.Stat. Ann. tit. 15, §§ 2136-2138 (West 2001); Mich. Comp. Laws § 770.16 (2001); Minn.Stat. §§ 590.01-590.06 (2000); 2001 Neb. Laws, L.B. 659 (2001); N.M. Stat. Ann. § 31-1A-1 (Michie 2000); N.Y.Crim. Proc. Law § 440.30 (McKinney 2001); N.C. Gen. Stat. § 15A-268 through -270 (2001); Okla. Stat. tit. 22, § 1371.1 (2000); Okla. Stat. tit. 22, § 1372 (2001); Tenn.Code Ann. § 40-26-106 (2000); Tex.Crim. Proc. Code Ann. §§ 64.01-64.05 (West 2001); Utah Code Ann. §§ 78-35a-301 through -304 (2001); Wash. Rev.Code § 10.73.170 (2000); Rule 3.853, Fla. R.Crim. P.; Rule 29.17, Mo. R.Crim. P.


author: PER CURIAM. SEE, Justice BROWN, Justice

text:
    Ex parte Barry DOWDELL. (In re Barry Dowdell v. State of Alabama).
    1012178.
    Supreme Court of Alabama.
    Feb. 21, 2003.
    Barry Dowdell, pro se.
   PER CURIAM.

WRIT DENIED. NO OPINION.

MOORE, C.J., and HARWOOD and STUART, JJ., concur.

SEE and BROWN, JJ., concur specially.

SEE, Justice

(concurring specially).

I believe that the reason certiorari review is inappropriate in this case is that Barry Dowdell has used the wrong procedural vehicle to assert his claim. In his petition for certiorari review, Dowdell asserts that he filed both a Rule 32, Ala. R.Crim. P., petition and a motion for post-conviction discovery, see Ex parte Land, 775 So.2d 847 (Ala.2000), and that the trial court denied both his Rule 32 petition and his discovery motion. Dowdell’s remedy as to the denial of his discovery motion, however, was to petition the Court of Criminal Appeals for a writ of mandamus, and, if that court denied the petition, then to petition this Court for the writ of mandamus. Dowdell asserts in his petition for certiorari review that that is exactly what he did.

The Court of Criminal Appeals, however, makes no mention in its opinion of Dowdell’s having filed a mandamus petition, and Dowdell does not allege that he ever petitioned this Court for mandamus relief directing the trial court to allow him to conduct postconviction discovery. See Rule 21(e)(1), Ala. R.App. P.

I further note that Dowdell’s allegations regarding his motion for postconviction discovery are not properly before this Court because he failed to provide a statement of verified facts in his petition for certiorari review. See Rule 39(d)(5)(A), Ala. RApp. P. Therefore, this Court is correct in denying Dowdell’s petition for certiorari review because he has failed to properly place before this Court the issue whether he is entitled to postconviction discovery that would subject evidence in the State’s possession to DNA analysis.

BROWN, Justice

(concurring specially).

Barry Dowdell petitions this Court for certiorari review of the Court of Criminal Appeals’ decision in Dowdell v. State, 854 So.2d 1195 (Ala.Crim.App.2002). Although I understand the concerns expressed by Judge Shaw in his opinion concurring in the result in Dowdell and by Judge Bas-chab in her dissent, I do not believe that the facts of this case — Dowdell’s apparent guilty plea to first-degree rape, his failure to file a direct appeal, and his failure to assert his innocence through DNA testing for almost 15 years — merit granting the petition.


author: SHAW, Judge.

text:
    Marlin POWELL v. STATE of Alabama.
    CR-00-2435.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.
    Cynthia Helene Bockman, Tuscaloosa, for appellant.
    Marlin Powell, pro se.
   SHAW, Judge.

In case no. CC-00-078, Marlin Powell was charged in a two-count indictment with attempted murder, a violation of §§ 13A-6-2 and 13A-4-2, Ala.Code 1975, and with assault in the first degree, a violation of § 13A-6-20(a)(l), Ala.Code 1975. In case no. CC-00-079, he was charged with discharging a firearm into an occupied automobile, a violation of § 13A-11 — 61(a), Ala.Code 1975. A jury found Powell guilty of all three charges.

On appeal, Powell’s appointed counsel filed a “no-merit” brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which counsel states that she has reviewed the record and can find no meritorious issues upon which to base an appeal. Powell was afforded an opportunity to present pro se issues to his counsel and to this Court, and he presents four issues. Three of those need not be discussed because they were not preserved for review.

Powell’s fourth issue was also not preserved for review but warrants discussion because it implicates the jurisdiction of the trial court. Powell contends that his convictions for attempted murder and for assault in the first degree violated his right to be free from double jeopardy because, he says, they arose from the same act. This double-jeopardy claim implicates the jurisdiction of the trial court and, therefore, is not subject to waiver. See Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995). See also Deas v. State, 844 So.2d 1286 (Ala.Crim.App.2002); Hale v. State, 831 So.2d 639 (Ala.Crim.App.2001); Peterson v. State, 842 So.2d 734 (Ala.Crim.App.2001)(opinion on return to remand); Grayson v. State, 824 So.2d 804 (Ala.Crim.App.1999), aff'd, 824 So.2d 844 (Ala.2001); Simmons v. State, 797 So.2d 1134 (Ala.Crim.App.1999); Loggins v. State, 771 So.2d 1070 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000); Lorance v. State, 770 So.2d 644 (Ala.Crim.App.1999); Borden v. State, 711 So.2d 498 (Ala. Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998); Dozier v. State, 706 So.2d 1287 (Ala.Crim.App.1997); and Salter v. State, 606 So.2d 209 (Ala.Crim.App.1992). Therefore, although this issue was not preserved for review, this Court must nevertheless address Powell’s claim.

The record supports Powell’s assertion; it reflects that all three charges stemmed from a single act. The evidence at trial indicated that on May 23, 2000, Powell shot Omar Harris in the head with a pistol while Harris was sitting in his vehicle. Although Harris survived the shooting, he suffered serious physical injuries. As a result of this single incident, Powell was indicted for attempted murder, assault in the first degree, and discharging a firearm into an occupied automobile. The indictment charging Powell with attempted murder and assault read:

“The Grand Jury of said county charge that before the finding of this indictment Marlin Powell, whose name is otherwise unknown to the Grand Jury, did with intent to commit the crime of murder, attempt to commit said crime by, to-wit: shooting another person, to-wit: Omar Harris, with a deadly weapon, to-wit: a pistol, a better description of which is otherwise unknown to the Grand Jury, in violation of 13A-4-2 of the Code of Alabama, against the peace and dignity of the State of Alabama. “Count II: Assault I
“The Grand Jury of said county charge that before the finding of this indictment Marlin Powell, whose name is otherwise unknown to the Grand Jury, did with intent to cause serious physical injury to another person, cause serious physical injury to another person, to-wit: Omar Harris, by means of a deadly weapon, to-wit: a gun, a better description of which is otherwise unknown to the Grand Jury, in violation of 13A-6-20(a)(1) of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C. 1.)

Under the facts in this case, assault in the first degree was a lesser-included offense of attempted murder. Powell could not constitutionally be convicted of both attempted murder and assault for the same conduct. See § 13A-l-8(b)(l), Ala. Code 1975 (“When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if ... [o]ne offense is included in the other.”).

The transcript of the sentencing hearing, the trial court’s written sentencing order, and the case action summary for case no. CC-00-078 all indicate that Powell was sentenced to life imprisonment without the possibility of parole for the attempted-murder conviction and that he was not sentenced for the assault conviction. However, as this Court stated in Lornnce, 770 So.2d at 650, “[although Lorance was ordered to serve only one sentence, the presence of two felony convictions ... could affect any later sentencing upon application of the Habitual Felony Offender Act should he commit a future offense.” See also Rolling, 673 So.2d at 816. Therefore, we must remand this case for the trial court to vacate Powell’s conviction for assault in the first degree.

Although Powell did not make this argument, we note that, unlike his convictions for attempted murder and assault, Powell’s convictions for attempted murder and for discharging a firearm into an occupied automobile do not violate the principles of double jeopardy. Although this Court has never addressed this issue directly, we have previously affirmed convictions for attempted murder and for discharging a firearm into an occupied automobile that arose from the same conduct. See, e.g., Woodson v. State, 794 So.2d 1226 (Ala.Crim.App.2000), and Simmons v. State, 675 So.2d 79 (Ala.Crim. App.1995). Attempted murder under §§ 13A-6-2 and 13A-4-2, Ala.Code 1975, and discharging a firearm into an occupied automobile under § 13A-11-61, Ala. Code 1975, each require an element the other does not and, therefore, do not constitute the “same offense” under Block-burger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

With respect to the conviction for discharging a firearm into an occupied automobile, however, we note that the record does not indicate what sentence Powell received. The case action summary indicates that Powell was found guilty on that charge and that he was sentenced on June 26, 2001 — the date of the sentencing hearing — but it does not indicate what sentence he received; it states only that the sentence for that conviction is to run concurrently with the sentence imposed in case no. CC-00-078. The trial court’s written sentencing order also indicates that Powell was found guilty of discharging a firearm into an occupied automobile; however, the sentence Powell received for that conviction is unreadable on the copy of the order in the record before this Court. Therefore, because we must remand this case for the trial court to vacate Powell’s conviction for assault in the first degree, we also instruct the trial court on remand to correct the record to reflect what sentence Powell received for his conviction for discharging a firearm into an occupied automobile.

Based on the foregoing, Powell’s convictions for attempted murder and for discharging a firearm into an occupied automobile and his sentence for the attempted-murder conviction are affirmed. Because the trial court lacked jurisdiction to adjudge Powell guilty of assault in the first degree, we remand this case to the trial court for it to vacate that conviction, and for it to correct the record to reflect what sentence was imposed for Powell’s conviction for discharging a firearm into an occupied automobile. Due return shall be filed with this Court no later than 35 days from the date of this opinion.

AFFIRMED IN PART; AND REMANDED WITH DIRECTIONS

McMILLAN, p.j„ and COBB, BASCHAB, and WISE, JJ„ concur.

      . The parties stipulated at trial that Harris's injuries were “serious physical injur[ies]'' as that term is defined in § 13A — 1—2(12), Ala. Code 1975.