author: LYONS, Justice.

text:
    Ex parte Christopher DERAMUS. (In re Christopher Deramus v. State of Alabama).
    1010923.
    Supreme Court of Alabama.
    June 7, 2002.
    Christopher Deramus, pro se.
    Andrew W. Redd, general counsel, and Jane LeCroy Brannan, asst. gen. counsel, Department of Corrections, for respondent.
   LYONS, Justice.

Christopher Deramus was convicted of murder in 1988 and was sentenced to 45 years’ imprisonment. Deramus began serving his sentence in September 1988. In October 1988, Deramus posted an appeal bond and was released pending the outcome of his appeal. Deramus was unsuccessful in his efforts to appeal, and in June 1990, he was returned to Kilby Correctional Facility to serve the remainder of his sentence. In 1994, Deramus was granted work-release status. In 1995, Deramus began participating in the “PDL” work-release program, and he continued in the program for approximately five years. On June 28, 2000, Deramus was removed from work-release status and returned to Kilby Correctional Facility. Following his removal from the program, the Alabama Department of Corrections (“DOC”) notified Deramus that he had been reclassified as a “heinous offender” and that he was permanently ineligible to participate in the work-release program.

On February 12, 2001, Deramus filed a “petition for writ of certiorari” in the Limestone Circuit Court. The petition alleged that DOC had improperly classified him as a “heinous offender.” The circuit court restyled the petition as one for a writ of habeas corpus and, after conducting a hearing, denied the petition. Deramus appealed. The Court of Criminal Appeals did not address the merits of Deramus’s argument; instead that court affirmed the judgment of the circuit court because Der-amus had mislabeled his petition — Dera-mus’s petition was styled as a “petition for writ of certiorari,” rather than a “petition for writ of habeas corpus.” 882 So.2d 874 (Ala.Crim.App.2001). We granted certiora-ri review to determine whether the Court of Criminal Appeals erred in refusing to address the merits of Deramus’s claims. We conclude that it did, and we reverse the judgment of the Court of Criminal Appeals and remand the case.

In determining whether the Court of Criminal Appeals should have treated Deramus’s petition as a petition for a writ of habeas corpus, we take note that the Alabama Rules of Civil Procedure apply to habeas corpus proceedings to the extent that the practice in this matter is not provided for by statute. Rule 81(a)(13), Ala. R. Civ. P., see also Rayburn v. State, 366 So.2d 708 (Ala.1979). Although § 15-21-4, Ala.Code 1975, sets forth certain requirements that an application for a writ of habeas corpus must contain, the provision does not address whether a mislabeled petition may be treated as an application for a writ of habeas corpus based upon the relief requested. However, as the Committee Comments to Rule 1, Ala. R. Civ. P., note, “the policy of [the Rules of Civil Procedure] is to disregard technicality and form in order that the civil rights of litigants may be asserted and tried on the merits.” Rule 1, Ala. R. Civ. P., Committee Comments on 1973 Adoption, citing Mitchell v. White Consol., Inc., 177 F.2d 500 (7th Cir.1949).

Indeed, the mere mislabeling of a motion is not fatal. King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714, 718 (Ala.1987). This Court has stated that it is “committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance.” King Mines Resort, 518 So.2d at 718; see also Lockhart v. Phenix City Inv. Co., 488 So.2d 1353 (Ala.1986), and Sexton v. Prisock, 495 So.2d 581 (Ala.1986). Further, the Court has held that “[t]he substance of a motion and not its style determines what kind of motion it is.” Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997). These principles, requiring us to construe motions and pleadings liberally in civil cases, should also be applied when determining whether a petitioner in a criminal case is entitled to a writ of habeas corpus.

The Court of Criminal Appeals has held that a petition for a writ of habeas corpus is the appropriate vehicle by which to challenge a change in custody classification. Drayton v. State, 600 So.2d 1088, 1090 (Ala.Crim.App.1992), overruled on other grounds, Maddox v. State, 662 So.2d 915 (Ala.1995). Deramus’s petition stated in the first paragraph that he was requesting the court to “review the process ... which [DOG] use[s] in the Classification of certain inmates as heinous offenders .” Because it was clear on the face of Dera-mus’s petition that he was requesting relief regarding the change in his custody classification, the Court of Criminal Appeals, having already held that a petition for a writ of habeas corpus is the proper vehicle by which to challenge a change in custody classification, should have treated Deramus’s petition as a petition for a writ of habeas corpus and considered the merits of his claims.

Such a result would not be inconsistent with prior decisions of the Court of Criminal Appeals. The Court of Criminal Appeals has generally construed petitions from inmates acting pro se liberally, and has generally treated a mislabeled petition as a petition for a writ of habeas corpus when the relief requested could be sought only by a petition for a writ habeas corpus. See Ware v. State, 807 So.2d 594, 594 n. 1 (Ala.Crim.App.2001) (“The appellant actually styled his petition a ‘Motion for Correction of Jail Credit.’ ... However, it is well established that a petition for a .writ of habeas corpus is the proper .method by which to challenge the calculation of an inmate’s term of imprisonment ...; thus, even when a petition is not designated as such, we will treat it as a petition.”); Sims v. State, 625 So.2d 1192, 1192 n. 1 (Ala.Crim.App.1993) (“Sims’s petition is. styled ‘Petition for Writ of Certiorari’; however, the proper remedy is by a petition for writ of habeas corpus, and the circuit court treated his petition as one for habeas corpus.”); Boutwell v. State, 488 So.2d 33, 34 (Ala.Crim.App.1986) (the appellant filed a pro se pleading styled “Motion for Jail Time,” alleging that he had spent 13 months in jail awaiting trial and that this time had not been credited to his sentence. The Court, quoting Mead v. State, 475 So.2d 645, 645 (Ala.Crim.App.1985), noted that “ ‘[a] petition , for writ of habeas corpus is a proper procedure to test whether the State has properly ■ calculated the amount of time the inmate must serve, in prison,’ ” and held that “[ajppellant’s motion was properly sworn to and we will view it as a petition for writ of .habeas corpus, although not properly designated as such”).

We observe that our conclusion is supported by cases from 'the United States Court of Appeals for the Eleventh Circuit, see Lee v. Wiman, 280 F.2d 257, 264 (5th Cir.1960) (“[a]n application for habeas corpus presented by a prisoner without the aid of counsel will not be dismissed for mere technical defects, but will be considered with solicitude for the essential rights of the accused”); Williams v. Griswald, 743 F.2d 1533, 1542 (11th Cir.1984) (“It is well established that the standards governing the sufficiency of habeas corpus petitions are less stringent when the petition is drafted pro se and without the aid of counsel.”); Haggard v. Alabama, 494 F.2d 1187, 1189 (5th Cir.1974) (liberal construction must be accorded pro se habeas petitions). Because Alabama’s Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure, the construction the federal courts place on the sufficiency of pleadings is instructive when we are interpreting Alabama’s Rules of Civil Procedure. See Rule 1, Ala. R. Civ. P., Committee Comments on 1973 Adoption.

We also note that our holding does not absolve a petitioner of the requirement that the contents of his petition for a writ of habeas corpus must substantially comply with the provisions of § 15-21-4, Ala. Code 1975. See Ex parte Corbitt, 468 So.2d 92 (Ala.1985). Deramus’s petition was signed by him and verified by oath; the petition included the place of Dera-mus’s imprisonment and the cause of his imprisonment. Deramus’s petition substantially complies with the provisions of § 15-21-4, Ala.Code 1975.

Based upon the foregoing, we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

       Note from the reporter of decisions: On August 16, 2002, on remand from the Supreme Court, the Court of Criminal Appeals affirmed, without opinion. On September 6, 2002, the Court of Criminal Appeals denied rehearing, without opinion.


source: Caselaw Access Project

author: LYONS, Justice. SEE, Justice,

license: Public Domain

text:
    Ex parte Christopher DERAMUS. (In re Christopher Deramus v. State of Alabama).
    1012372.
    Supreme Court of Alabama.
    March 21, 2003.
    Christopher Deramus, pro se.

      Andrew W. Redd, general counsel, and Jane LeCroy Brannon, asst. gen. counsel, Department of Corrections, for respondent.
   LYONS, Justice.

The defendant, Christopher Deramus, petitioned this Court for a writ of certiora-ri to review whether the Court of Criminal Appeals erred in affirming the trial court’s judgment dismissing Deramus’s petition for a writ of habeas corpus. We granted certiorari review. For the reasons discussed below, we reverse the judgment of the Court of Criminal Appeals.

We adopt the statement of facts set forth by this Court in Ex parte Deramus, 882 So.2d 875 (Ala.2002):

“Christopher Deramus was convicted of murder in 1988 and was sentenced to 45 years’ imprisonment.... In 1994, Deramus was granted work-release status. In 1995, Deramus began participating in the ‘PDL’ work-release program, and he continued in the program for approximately five years. On June 23, 2000, Deramus was removed from work-release status and returned to Kilby Correctional Facility. Following his removal from the program, the Alabama Department of Corrections (‘DOC’) notified Deramus that he had been reclassified as a ‘heinous offender’ and that he was permanently ineligible to participate in the work-release program.
“On February 12, 2001, Deramus filed a ‘petition for writ of certiorari’ in the Limestone Circuit Court. The petition alleged that DOC had improperly classified him as a ‘heinous offender.’ The circuit court restyled the petition as one for a writ of habeas corpus and, after conducting a hearing, denied the petition. Deramus appealed. The Court of Criminal Appeals did not address the merits of Deramus’s argument; instead the court affirmed the judgment of the circuit court because Deramus had mislabeled his petition- — Deramus’s petition was styled as a ‘petition for writ of certiorari,’ rather than a ‘petition for writ of habeas corpus.’ 882 So.2d 874 (Ala.Crim.App.2001). We granted certio-rari review to determine whether the Court of Criminal Appeals erred in refusing to address the merits of Dera-mus’s claims.”

882 So.2d at 875-76. This Court concluded that the Court of Criminal Appeals had erred, stating:

“Because it was clear on the face of Deramus’s petition that he was requesting relief regarding the change in his custody classification, the Court of Criminal Appeals, having already held that a petition for a writ of habeas corpus is the proper vehicle by which to challenge a change in custody classification, should have treated Deramus’s petition as a petition for a writ of habeas corpus and considered the merits of his claims.”

882 So.2d at 877. We reversed the judgment of the Court of Criminal Appeals and remanded the case to that court to address the merits of Deramus’s claims.

On remand, the Court of Criminal Appeals, in an unpublished memorandum, again affirmed the trial court’s dismissal of Deramus’s petition on the ground that Deramus had “not compl[ied] with the statutory pleading requirements set forth in § 15-21-4, Ala.Code 1975.” The Court of Criminal Appeals based this determination on the fact that Deramus did not attach documents to his petition

“showing that he had a liberty interest in remaining on work release, showing that he had been removed from work release without due process, and showing that DOC had inconsistently and arbitrarily applied the policy. Further, he did not allege that he had demanded copies of any such documents and that his demand had been refused, and he did not offer any excuse for his failure to comply with § 15-214L”

In support of its holding, the Court of Criminal Appeals cited its decision in Conners v. State, 837 So.2d 319 (Ala.Crim.App.2001). In Conners, the Court of Criminal Appeals affirmed the trial court’s dismissal of Conners’s petition for a writ of habeas corpus. Conners’s petition alleged that he was denied due process when he was removed from the work-release program and reclassified as a “heinous offender.” Conners pointed to this Court’s decision in Ex parte Berry, 794 So.2d 307 (Ala.2000), in support of his argument that he had a liberty interest in remaining on work release. The Court of Criminal Appeals distinguished Berry, pointing out that, unlike the appellant in Berry, Conners had failed to attach to his petition his work-release contract, the basis for his claim of a liberty interest in the work-release program. The Court of Criminal Appeals held that Conners had violated § 15-21-4, Ala.Code 1975, by failing to “attach to his petition any documents supporting his claim that he had a liberty interest in remaining on work release or that he was removed from work release without due process.” Conners, 837 So.2d at 321. The Court of Criminal Appeals also noted that Conners, unlike the petitioners in Young v. State, 712 So.2d 1121 (Ala.Crim.App.1998), and Williams v. State, 651 So.2d 1153 (Ala.Crim.App.1994), who were allowed to proceed despite not having attached the aforementioned documentation to their petitions, did not “allege that he had demanded a copy of any such documents and was refused” or provide an excuse for his failure to follow the pleading requirements of § 15-21-4. Conners, 837 So.2d at 321. The Court of Criminal Appeals further held that Conners’s petition was properly denied for reasons related to the merits of his claim, independent of the pleading deficiency. Conners, 837 So.2d at 321-22.

Conners is the only case with a similar fact scenario, but we decline to follow it on the issue of the adequacy of the documentation before us. The Court of Criminal Appeals stated in Conners:

“[Although the Alabama Supreme Court’s holding in Ex parte Berry, [794 So.2d 307 (Ala.2000) ] shows that inmates may, in fact, have a liberty interest in remaining on work release, that holding does not relieve inmates of then-burden under § 15-21-4 either to attach copies of the record of their removal from work release or to demand those records in a timely fashion.”

837 So.2d 322. In Berry, this Court evaluated the merits of Berry’s petition, not whether it met the requirements of § 15-21-4, although we referred to the fact that Berry provided the Court with portions of the Department of Corrections’ Classifica tion Manual. In fact, § 15-21^4 is not even mentioned in Berry. When this Court denied certiorari in Conners, we stated as follows: “In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements, of law in the Court of Criminal Appeals’ opinion.” Ex parte Conners, 837 So.2d 326 (Ala.2002).

Deramus challenged his removal from the work-release program and his reclassification as a “heinous offender.” The documents relevant to Deramus’s claims are not analogous to a disciplinary report made in connection with a prison disciplinary proceeding. Nor is he complaining that his “imprisonment is by virtue of any warrant, writ or other process.” See § 15-21-4. To the extent that Conners conflicts with our holding today, we expressly overrule Conners.

In addition to Conners, the Court of Criminal Appeals has addressed the issue whether § 15-21-4 is violated when the defendant does not attach documentation pertaining to the basis of a petition for a writ of habeas corpus on only two other occasions. Young, 712 So.2d at 1121-22; Williams, 651 So.2d at 1153. As previously noted in the discussion of the judgment of the Court of Criminal Appeals now before us, the failure to attach documents in Young and Williams was found to be excused because Young and Williams had demanded copies of documentation and their demands had been refused. We do not reach the question whether those cases were correctly decided on the issue of necessity for demand and refusal under the circumstances there presented. We note that Deramus’s petition arose out of a different factual scenario than those of Young and Williams, where the inmates were challenging adverse determinations in disciplinary proceedings. We decline to draw from Young and Williams the proposition that Deramus, who is challenging his removal from the work-release program and his reclassification as a “heinous offender” and who did not attach documentation, must request documentation and be refused in order to satisfy the requirements of § 15-21-4.

Based upon our determination that Der-amus’s petition complied with the requirements of § 15-21-4, we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., and SEE, J., dissent.

SEE, Justice,

dissenting.

I respectfully dissent from the majority opinion that reverses the judgment of the Court of Criminal Appeals holding that Deramus’s petition for a writ of habeas corpus does not comply with the requirements of § 15-21-4, Ala.Code 1975.

Section 15-21-4, Ala.Code 1975, provides:

“Application for a writ of habeas corpus must be made by petition ...; and, if the imprisonment is by virtue of any warrant, writ or other process, a copy thereof must be annexed to the petition or the petition must allege that a copy thereof has been demanded and refused or must show some sufficient excuse for the failure to demand a copy.”

(Emphasis added.) In his habeas corpus petition, Deramus requested that the trial court “review the process ... the [State] use[s] in the [classification of certain inmates as heinous offenders.... ” Therefore, under § 15-21-4, Ala.Code 1975, Deramus must attach to his petition documentation showing how the Department of Corrections (“the DOC”) applied its work-release classification policy in his case. Because he did not attach any such documents to his petition or allege that he demanded copies of those documents and that his demand was refused, the trial court properly dismissed Deramus’s petition.

Nonetheless, even if Deramus’s petition had complied with the requirements set forth in § 15-21-4, Ala.Code 1975, I respectfully submit that Deramus does not have a protected liberty interest in his work-release classification for the reasons Justice Brown set forth in her dissent in Ex parte Berry, 794 So.2d 307, 311 (Ala.2000). Therefore, Deramus’s claim that the DOC inconsistently and arbitrarily applied its work-release classification policy in his case is not a claim for which relief can be granted.

      . We note that the sufficiency of the documentation to support Deramus’s claim, discussed below, is the only issue raised in Dera-mus’s petition for a writ of certiorari that properly invokes this Court's jurisdiction. Accordingly, our review is limited to that issue.

      . The Department of Corrections .("D.OC”) did not raise the issue of inadequate documentation on appeal to the Court of Criminal Appeals. DOC does not attempt to support the rationale of the Court of Criminal Appeals on this issue in its brief before this Court.


author: BASCHAB, Judge.

text:
    Christopher DERAMUS v. STATE of Alabama.
    CR-00-2420.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.
    Christopher Deramus, pro se.
    Andrew W. Redd, general counsel, and Jane LeCroy Brannan, asst. gen. counsel, Department of Corrections, for appellee.
   On Remand from the Alabama Supreme Court

BASCHAB, Judge.

In accordance with the Alabama Supreme Court’s opinion in Ex parte Deramus, 882 So.2d 878 (Ala.2003), we remand this case to the circuit court for that court to conduct an evidentiary hearing, at which the appellant is present and is allowed to present evidence, on the claims he raised in his petition before that court and to make specific, written findings of fact concerning those claims. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 49 days after the release of this opinion. The return to remand shall include a transcript of the evidentiary hearing and the circuit court’s written findings of fact.

REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: On July 1, 2003, Christopher Deramus was released from prison and the circuit court on July 21, 2003, dismissed his case with prejudice. On August 1, 2003, the Court of Criminal Appeals dismissed his appeal as moot.


text:
    Tony Lee SMITH v. STATE of Alabama.
    CR-02-1440.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Tony Lee Smith, pro se.
    Andrew W. Redd, gen. counsel, and Albert Sim Butler, asst. gen. counsel, Department of Corrections, for appellee.
   BASCHAB, Judge.

The appellant, Tony Lee Smith, filed a petition for a writ of habeas corpus, arguing that he has not been credited with sufficient time for the time he spent in jail awaiting trial. The Alabama Department of Corrections filed a motion to dismiss the petition, but it did not refute the appellant’s allegations regarding the time he spent in jail awaiting trial. Thereafter, the circuit court summarily dismissed the petition, finding that the appellant’s release date had been properly computed. This appeal followed.

The appellant argues that the circuit court erroneously dismissed his petition. In his petition, he asserted that he is serving 15 year sentences on a second-degree escape conviction and a third-degree escape conviction, and he admitted that he has been credited with 279 days of jail credit with respect to each conviction. However, he appeared to argue that he has not been credited with 47 days of jail credit with respect to the second-degree escape conviction and 4 months and 4 days of jail credit with respect to the third-degree escape conviction.

“A petition for a writ of habeas corpus is the proper method by which to test whether the State has correctly calculated the time, an inmate must serve in prison. Swicegood v. State, 646 So.2d 158 (Ala.Cr.App.1993). Section 15-18-5, Ala.Code 1975, requires that a convicted person be ‘credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.’ ”

Graves v. State, 710 So.2d 535, 536 (Ala.Crim.App.1997). Furthermore,

“[w]hen the State responds to a habeas corpus petition merely by making broad, general arguments that do not address the petitioner’s specific claims, the State has failed to refute the facts alleged by the appellant and those facts must therefore be taken as true. Swicegood. See also Boutwell [v. State, 488 So.2d 33, 34 (Ala.Crim.App.1986)] (‘The State offered no facts which contradict those set out in the petition. Therefore, the unre-futed facts set out' in the petition must be taken as true.’).”

Mintz v. State, 675 So.2d 1356, 1357-58 (Ala.Crim.App.1995). In this case, the State did not refute the appellant’s specific allegation that he is entitled to additional credit for time he spent in jail. Accordingly, we remand this case to the circuit court with instructions that that court conduct an evidentiary hearing on the appellant’s petition. If the circuit court determines that the appellant is not entitled to any additional credit, it shall make specific findings of fact explaining why the appellant is not entitled to such credit. If the appellant is entitled to credit for additional time he spent in jail, then the circuit court should grant the petition and the appellant should be given the additional credit against his sentences. The circuit court shall file a return to remand with this court, including its written findings of fact and a transcript of the evidentiary hearing, within 56 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: Oh November 21, 2003, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion. On December 12, 2003, that court denied rehearing, without opinion.


author: SHAW, Judge. COBB, Judge,

text:
    Perry Lane DAVIS v. STATE of Alabama.
    CR-02-0565.
    Court of Criminal Appeals of Alabama.
    Dec. 2, 2003.
    Rebecca Gettys Kelly, Clayton, for appellant.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. COBB, J., concurs in the result, with opinion.

COBB, Judge,

concurring in the result.

Following a motor-vehicle accident that resulted in the death of another driver, Perry Lane Davis was indicted for reckless murder and was convicted of manslaughter. I concur fully in the majority’s analysis and conclusions as to issues II-VI of the unpublished memorandum. I write to address issue I.

In issue I, Davis alleged that the trial court erred when it admitted evidence indicating that Davis had been charged with driving under the influence of alcohol (“DUI”) after the date of the incident for which he was being tried. Davis alleged that the evidence should have been precluded under Rule 404(b), Ala. R. Evid. The majority declines to address whether the evidence was admissible. Instead, it holds that, even if the evidence was erroneously admitted, its admission was harmless error.

The issue was not preserved for review by a timely objection. The trial court held a pretrial hearing on the admissibility of evidence of DUI arrests and convictions occurring before and after the charged offense that the State intended to introduce. The court specifically withheld ruling on the arrest for DUI that occurred after the accident at issue here, and instructed the State to avoid reference to it in its opening argument.

During the State’s cross-examination of Davis, the prosecutor asked how many pri- or DUIs he had, and Davis stated he had three or four. The prosecutor then asked when he last had been arrested for a DUI and defense counsel objected on grounds that the question should be limited to convictions. The prosecutor then asked Perry when he was last charged with a DUI, and defense counsel stated, “Objection, again, Your Honor.” (R. 157.) The trial court overruled the objection. Davis testified that he had been charged with DUI in August 2002, a date after the date of the incident for which he was on trial.

Davis never received an adverse ruling on his objection that the admission of evidence regarding the DUI arrest that occurred after the charged offense was improper under Rule 404(b). The trial court specifically declined to rule on the objection pretrial, and when the State elicited testimony from Davis at trial about the arrest, defense counsel objected only on grounds that the inquiry should be limited to convictions. Because testimony regarding the post-incident DUI arrest was given without objection on Rule 404(b) grounds at trial, Davis has no adverse ruling from which to appeal, and the issue was not preserved for our review. E.g., D.K.T. v. State, [Ms. CR-02-1130, June 27, 2003] — So.2d —- (Ala.Crim.App.2003).

Moreover, if the objection had been preserved for this Court’s review, I believe it would have been appropriate to address the admissibility of the evidence. Evidence indicating that Davis had been arrested for DUI after the accident at issue here was clearly improper and was a direct violation of Rule 404(b). Davis was charged with reckless murder, an offense that does not involve proof of a specific intent to kill. E.g., Haney v. State, 603 So.2d 368, 398 (Ala.Crim.App.1991). The prosecutor stated that that he was offering the evidence of DUI arrests to show that Davis “acted in conformity on that date just as he has in the other dates when this wreck occurred. He drinks and drives.... ” (R. 15.) He then stated, “We may be using it to pile on, Judge, because it’s there just like all the other prior DUIs.” (R. 16.) Rule 404(b) states, “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” The impropriety of the evidence is clear, and because the majority chose to address the merits of the issue at all, I believe the better course of action would have been to acknowledge that the evidence was improper and that it should not have been admitted at trial. That said, I agree fully with the majority’s determination that the error was harmless, because the evidence of Davis’s guilt was overwhelming and because evidence of Davis’s three or four prior DUI convictions was admitted without objection.

For the foregoing reasons, I concur in the result.


author: COBB, Judge.

text:
    Kyndale Rene KOLKANA v. STATE of Alabama.
    CR-02-1123.
    Court of Criminal Appeals of Alabama.
    Dec. 2, 2003.
    Kyndale Rene Kolkana, pro se.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.
   COBB, Judge.

On January 15, 1999, Kyndale Rene Kol-kana pleaded guilty to possession of a controlled substance and was sentenced to five years in prison. The trial court split the five-year sentence, ordered that the sentence of five years’ imprisonment be suspended, and placed Kolkana on probation for two years. On March 21, 2001, Kolkana pleaded guilty to second-degree theft of property and second-degree possession of a forged instrument and was sentenced, in each case, to concurrent sentences of 15 years in prison. The trial court split the sentences and ordered Kol-kana to serve 18 months in prison to be followed by probation to run concurrently with the 1999 drug conviction.

On January 15, 2003, Kolkana’s probation officer filed a delinquency report. After conducting a hearing, the trial court revoked Kolkana’s probation on February 28, 2003, in all three cases. This appeal followed.

On appeal, Kolkana argues:

“There is only one issue in this case: whether [the trial court] followed proper procedure when [it] entered the order revoking my probation in that the order does not comply with the requirements for such an order as set forth by this Court.”

(Kolkana’s brief, p. 4.) Specifically, Kolka-na contends that the trial court’s written order should not be considered by this Court because it was untimely, being filed more than 30 days after Kolkana filed her notice of appeal. The main thrust of her argument is that, because the order was filed late, “Judge Woods did not give sufficient reasons [for the revocation] when he announced his decision to revoke [her at the end of the hearing],” and she therefore “was not given a chance to raise ... issues [regarding the sufficiency of the order and the sufficiency of the evidence] for this appeal.” (Kolkana’s brief, pp. 12, 9.)

The record reveals that the trial court revoked Kolkana’s probation at the end of the hearing conducted on February 28, 2003, but did not issue its detailed order until April 13, 2003, well after Kolkana had filed her notice of appeal on March 11, 2003. Assuming, without deciding, that the trial court erred by issuing its order in an untimely fashion, we hold such error to be harmless. Rule 45, Ala. R.App. P., provides:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

(Emphasis added.)

As for whether the tardiness of the written revocation order probably injuriously affected Kolkana’s substantial rights, regardless of the timing of the order of revocation, Kolkana, if she wanted to, could have raised issues concerning the sufficiency of that order in her appellate brief without having first presented those arguments to the trial court. See Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). Additionally, Kolkana and counsel were both present at the revocation hearing and could easily have argued, either at the hearing or in a posthearing motion, that the evidence' against her was insufficient to support the revocation of her probation. For these reasons, we do not see, and Kolkana does not sufficiently allege, how her substantial rights were injuriously affected by' the trial court’s untimely issuance of the revocation order:

For the reasons stated above, the judg- • ment of the trial court is affirmed.

AFFIRMED.

McMILLAN, PM., and BASCHAB and WISE, JJ., concur. SHAW, J., concurs-in the result.

      . The record reflects that probation was revoked on March 21, 2001; that the order revoking probation was modified on March 28, 2001, to allow Kolkana to attend a drug treatment center for six weeks, to be followed by her admission to jail to serve 18 months; that the order of March 28, 2001, was modified on July 26, 2001, and provided for Kolka- ■ na's sentence to be amended to "split to time served” and for her to be committed to the custody of the Hannah House program. (C. 6.) Ultimately, probation was revoked on February 28, 2003.

      . Those sentences, too, were altered or amended several times. Ultimately, probation was revoked on February 28, 2003.

      . Kolkana does not take issue with the sufficiency of the written order issued after the revocation hearing; rather, she takes issue with the sufficiency of the trial court’s oral ruling to revoke her probation on the day of the hearing. Nonetheless, we note that the trial court's order, though tardy, was sufficient in that it stated both the reasons for the revocation and the evidence relied upon.

      .Additionally, Kolkana contends that, because her sentence was altered several times by the trial court, she ''[doesn’t] really understand exactly what [her] sentence is at this time.” (Kolkana’s brief, p. 8.) To the extent that she takes issue with the clarity of her sentence, we note that any issues regarding the clarity of her sentence are not properly raised in a direct appeal from her probation revocation. Rather, she should file a postcon-viction petition regarding the terms of her sentence.

      . The order revoking Kolkana’s probation was issued on April 17, 2003, and was not filed until April 18, 2003. Kolkana's brief on appeal was filed on July 31, 2003.


text:
    Lamos GILBERT v. STATE of Alabama.
    CR-02-1145.
    Court of Criminal Appeals of Alabama.
    Dec. 2, 2003.

      Lamos Gilbert, pro se.
    William H. Pryor, Jr., atty. gen., and Marc A. Starrett, asst. atty. gen., for ap-pellee.
   COBB, Judge.

Lamos Gilbert appeals the denial of his Rule 32, Ala. R.Crim. P., petition. On August 21, 2002, Gilbert filed a petition attacking two different convictions. After an evidentiary hearing, the trial court denied the petition. This appeal followed.

As of August 1, 2002, Rule 32.1, Ala. R.Crim. P., provides that “[a] petition that challenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice.” In Lucas v. State, 855 So.2d 1128 (Ala.Crim.App.2003), this Court held that because the defendant’s petition challenged multiple judgments entered in more than a single trial or guilty-plea proceeding, the trial court should have dismissed the petition without prejudice instead of ruling on the merits.

The requirements of Rule 32.1, Ala. R.Crim. P., prevent the circuit court from obtaining jurisdiction to entertain allegations regarding multiple judgments challenged in a single petition. A filing fee or the approval of an in forma pauperis declaration must be obtained before the circuit court acquires jurisdiction to hear the claims presented in a Rule 32, Ala. R.Crim. P., petition. “[A]bsent payment of the filing fee or approval of the in forma pauperis declaration, the circuit court does not acquire subject matter jurisdiction” to consider a post-conviction petition. Goldsmith v. State, 709 So.2d 1352, 1353 (Ala.Crim.App.1997). Thus, a filing fee or an in forma pauperis declaration must be obtained for each judgment that is challenged pursuant to Rule 32.1, Ala. R.Crim. P. Moreover, when multiple judgments are challenged in a single petition this Court cannot discern, and this Court will not attempt to discern, which judgment is supported by the filing of a single filing fee or grant of a request to proceed in forma pauperis. Absence compliance with Rule 32.1, Ala. R.Crim. P., and Lucas, supra, the circuit court fails to acquire jurisdiction and the petition will be returned to the circuit court to with instructions to dismiss the petition without prejudice.

Therefore, in accordance with Rule 32.1, Ala. R.Crim. P., and Lucas, supra, because Gilbert challenged two separate convictions in one petition, the trial court was without jurisdiction to rule on the merits of the petition, but should have dismissed Gilbert’s petition without prejudice. The trial court’s ruling is due to be reversed and the cause must be remanded to the circuit court. The circuit court is ordered to vacate its judgment denying the petition and to dismiss the petition without prejudice.

REVERSED AND REMANDED.

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