author:
HARWOOD, Justice.
     SEE, Justice JOHNSTONE, Justice

text:
    Ex parte State of Alabama. (Re Melvin VINSON, Jr. v. STATE of Alabama.)
    1992037.
    Supreme Court of Alabama.
    Oct. 12, 2001.
    William H. Pryor, Jr., atty. gen., and P. David Bjurberg, asst. atty. gen., for petitioner.
    J. William Cole of Luker, Cole & Associates, L.L.C., Birmingham, for respondent.
   HARWOOD, Justice.

This Court granted the petition for cer-tiorari filed by the State to review the judgment of the Court of Criminal Appeals reversing Melvin Vinson’s convictions for unlawful distribution of a controlled substance and unlawful possession of a pistol after having been convicted of a crime of violence. See Ala.Code 1975, §§ 13A-12-211 and 13A-ll-72(a). Vinson was sentenced to a period of imprisonment. He appealed to the Court of Criminal Appeals; that court reversed his conviction. Vinson v. State, 843 So.2d 221 (Ala.Crim.App.2000).

The Court of Criminal Appeals set out the facts as follows:

“Two college students were apprehended for selling drugs; they cooperated with police and disclosed that Melvin Vinson was their drug source. On November 21, 1994, as a result of the information provided by the college students, the officers obtained and executed a search warrant for Melvin Vinson’s residence. The affidavit in support of the search warrant stated that the college students told Officer [Elden] Willingham that on November 11, 1994, they had gone to Vinson’s house and were given one pound and three ounces of marijuana on consignment.
“Agent [Guy] Warren and three other officers went to Vinson’s residence around 8:00 p.m. to conduct their search. The officer knocked on the door; there was no answer. The officers contacted the apartment manager and secured a key, which they used to enter the apartment. No one was in the apartment when the officers began the search. While the officers were conducting the search, they received a telephone call from another agent who told them Vinson had been in Tuscaloosa and was on his way back to Birmingham.
“As the officers were searching Vinson’s residence, they were notified over the radio that a white male was walking up the steps to the back door. Vinson took one step into his dark apartment and was confronted by four officers who identified themselves as the police. Vinson threw his hands into the air and dropped a brown leather satchel. 0 Although there was a discrepancy in the record as to exactly where Vinson dropped the leather satchel, it was dropped close to Vinson’s feet, either inside the apartment or outside at the doorsteps of the apartment.
“Two officers secured Vinson by taking him by the arm, performing a pat-down to ensure he did not have any weapons on his person, and then sat him down. Officer Warren testified that after Vinson was secured by the two officers, [Officer Warren] ‘picked up the brown satchel that was there and located a handgun in it.’ Officer Warren testified that he did not know if he unzipped the bag or not, but he did remember that the bag had to be unzipped. Officer Warren stated that Vinson was on the porch about half an arm’s length from the door when he dropped the bag.
“Vinson immediately began to make spontaneous voluntary statements as to where he had been and what he had been doing. The officer testified at trial that ‘[Vinson] said that he had gotten back from Tuscaloosa and went into two college kids’ apartment and took their property that was in the car.’ The officer stopped him, told him to calm down, and read him his Miranda[ ] rights. Vinson continued to talk. He told the officer that he had gone to Tuscaloosa to see two college kids who owed him $2,100 for some marijuana he had ‘fronted’ them. However, he said that the students were not home, and because Vinson was unable to collect his money, he decided to take an electric guitar and other electrical equipment from them. Vinson also admitted that he owed money to his supplier. Vinson was afraid his supplier would kill him if he did not get the money.
“Vinson gave the police oral consent to search his vehicle to retrieve the stolen items. Vinson agreed to cooperate with police, but he later refused to cooperate. After searching records at the National Crime Information Center, the police discovered that Vinson should not have been in possession of a firearm. Several weeks later Vinson was charged and arrested for violating § 18A-11-72, ‘Certain persons Forbidden to Carry a Firearm.’ ”

843 So.2d at 224-25 (citations to record omitted).

The Court of Criminal Appeals also noted that the trial court had granted the defense’s motion to suppress the evidence seized as a result of the search because it concluded that the search warrant was deficient in that the warrant was based upon “stale” information. Specifically, the Court of Criminal Appeals stated:

“The affidavit in support of the search warrant stated that drugs were observed in Vinson’s residence on November 11, 1994; however, the search warrant was not executed until 8:00 p.m. on November 21, 1994. Thus, the trial court held that the search warrant was insufficient.”

843 So.2d at 225. Although the Court of Criminal Appeals accepted the trial court’s determination that the warrant was deficient because it was based on stale information, it reviewed the trial court’s denial of Vinson’s motion to suppress as to evidence seized as a result of the search of Vinson’s bag and as to the statements made by Vinson when he was confronted by the police in his apartment. The trial court had determined generally that the search of the bag Vinson dropped was not within the scope of the execution of the warrant and that Vinson’s statements were not due to be suppressed because, it found, those statements were voluntarily made after Vinson had received the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court of Criminal Appeals reversed the judgment of the trial court because it concluded that the deficient warrant made the officers’ presence in Vinson’s apartment illegal, and, therefore, the officers were not legally in a position to confront Vinson and to obtain access to his bag or to take his statements.

Thus, this Court is presented with the question whether the Court of Criminal Appeals properly concluded that the trial court had correctly determined that the warrant was deficient because it was based upon stale information.

The evidence presented at the hearing on Vinson’s motion to suppress consisted of the testimony of the officers who executed the warrant. That evidence was undisputed. Accordingly, we review the trial court’s decision to grant the motion to suppress under a “de novo” standard of review. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); State v. Hill, 690 So.2d 1201 (Ala.1996); and State v. Smith, 785 So.2d 1169 (Ala.Crim.App.2000). We apply this standard to the general question whether the affidavit of Agent Guy Warren was sufficient to supply probable cause to issue the warrant.

“ ‘Probable cause must be determined by an analysis of “the totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). In determining whether to issue a search warrant, the issuing magistrate is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of the person supplying the information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ”

Loggins v. State, 771 So.2d 1070, 1080 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000) (quoting Marks v. State, 575 So.2d 611, 614-15 (Ala.Crim.App.1990)).

The critical issue in determining whether probable cause existed in this case is whether the information contained in the affidavit was so “stale” that its effect had degraded below the level required for probable cause.

As already noted, the opinion of the Court of Criminal Appeals states that Agent Warren’s affidavit recited that the two college students who had been apprehended for selling drugs “told Officer Will-ingham that on November 11, 1994, they had gone to Vinson’s house and were given one pound and three ounces of marijuana on consignment.” Vinson, supra, 843 So.2d at 224. The affidavit, contained in the record before this Court, also included the following additional pertinent information: Agent Warren had “been a State Trooper since February 1985 [and] a narcotics investigator since April 1987” and had been “assigned to numerous investigations involving narcotics activities.” His investigations had kept him “in close contact with other agents investigating narcotics trafficking” and “based on [his] training and experience” he knew “[t]hat drug traffickers commonly ‘front’ (provide illegal controlled substances on consignment) to their clients [and that] books, records, receipts, handwritten notes, ledgers, and audiotape recordings are maintained for the purpose of documenting fronted controlled substances to these individuals ... at a residence, business, or safety deposit box where the individual has ready access to these documents and they are concealed from law enforcement authorities.” Agent Warren’s affidavit stated that on November 14, 1994, a reliable confidential informant had purchased one-half pound of marijuana from two male university students in Tuscaloosa for $935. The students were then apprehended and they informed investigating agents that they had additional marijuana at their residence, which they turned over to the agents. The two students explained that on November 11, 1994, they had gone to Vinson’s residence in Birmingham “and that while there they were giv[en] one pound three ounces of marijuana on consignment.” They told the agents, including Warren, “that they had been to Vinson’s residence on four other occasions where they were furnished marijuana” by Vinson and “that they owed Vinson $2100.00 from marijuana given to them on consignment.” The affidavit went on to explain that on November 20, 1994, the day before the execution of the affidavit and the issuance of the search warrant, the two students telephoned Vinson at his residence, under the supervision of a narcotics agent who recorded the telephone conversation. During that call they told Vinson that they intended to pay him very soon, but he nonetheless threatened them by saying “I will cut you all over. Name the time of your death.” He told them that “if he did not have the money by 8:00 p.m., on 11/21/94 he would go to Tuscaloosa [and] find them,” again stating that he would “cut [them] all over.” Agent Warren concluded his affidavit by stating that, based on the recited information, he had probable cause to believe that Vinson was “concealing a quantity of marijuana and evidence of illegal-drug activities through records, proceeds, and monies” at his residence. (Emphasis supplied.)

Whether the circumstances recited in an affidavit offered in support of an application for a search warrant are such that the probable cause that might once have been demonstrated by them has grown “stale” is a matter that “must be determined by the circumstances of each case.” Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932).

“Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.”

United States v. Johnson, 461 F.2d 285, 287 (10th Cir.1972).

“[T]he ‘basic criterion as to the duration of probable cause [or staleness] is the inherent nature of the crime.’ ” United States v. Magluta, 198 F.3d 1265, 1271 (11th Cir.1999) (quoting United States v. Bascaro, 742 F.2d 1335, 1345 (11th Cir.1984)). In Moore v. State, 416 So.2d 770 (Ala.Crim.App.1982), Alabama recognized that a determination of “staleness” must turn on the circumstances of each case. In Moore, the Court of Criminal Appeals concluded that the information in an affidavit supporting a search warrant was not so stale as to negate a finding of probable cause, even though some of the information in the affidavit concerning the allegedly stolen items sought by the warrant was approximately two months old at the time the warrant was executed. The court in Moore considered staleness in terms of whether the affidavit information was “fresh” or “remote,” and stated:

“What is ‘fresh’ and how is it distinguished from ‘remote?’ We do not perceive of any magical formula by which a precise computation of the time period may be made. Rather, the underlying circumstances—including such matters as the basis of the informant’s knowledge, the ease or difficulty in moving the items since they were last observed, the use or probable use to which the items are put, and the mobile nature or degree of permanence of the place of concealment—must be examined by a neutral and detached magistrate to reach a determination as to the probability of whether the proof speaks as of the time of the issuance of the search warrant.”

416 So.2d at 772. See also Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990).

In this case, the last time the two students were in Vinson’s residence and saw marijuana there was November 11, 1994, when they obtained from him “on consignment,” one pound three ounces of marijuana. The affidavit was signed and notarized, and the search warrant was issued and executed, on November 21, 1994, 10 days after that visit. Rule 3.10, Ala. R.Crim.P., provides that a search warrant shall command the law-enforcement officer to whom it is directed to effectuate the search within a specified period of time “not to exceed ten (10) days.” Here, the search was conducted on the same day the search warrant was issued, which was exactly 10 days from the date the students saw marijuana at Vinson’s residence.

However, the currentness of the probable-cause information was “refreshed” and bolstered by the fact and content of the telephone conversation the students had with Vinson the day before the affidavit was executed. The content of that conversation would allow the judge to whom the affidavit was submitted reasonably to infer that Vinson was still actively involved in the business of “fronting” marijuana to street-level dealers and that he would be continuing in that activity through at least November 21, 1994. That information was extremely important to the “practical, common-sense decision” the issuing judge was called upon to make concerning whether there was “a fair probability that contraband or evidence of a crime [would] be found in a particular place.” So were the facts that the students had been to Vinson’s residence on “four other occasions where they were furnished marijuana” by him and that “they owed $2100.00 from marijuana given to them on consignment.” The fact that the affidavit did not specify the time frame within which those four other consignments of marijuana had occurred does not detract significantly from the value of that information.

The issuing judge was clearly informed that Vinson had furnished marijuana to the students on five separate occasions. Given the usual age of college students, the judge could have logically inferred that they had not been engaged in receiving and selling drugs on consignment for any great length of time. He could reasonably have inferred that drug dealers operating at an upper level of the drug distribution “food chain” would not be keeping on hand only small amounts of marijuana specially procured to supply to two college students, “street-level” dealers who were taking the marijuana on consignment. The fact that the last transaction involved one pound three ounces of marijuana, and that the students still owed Vinson a balance of $2,100 from previous transactions, would provide the issuing judge with a basis for inferring that Vinson was routinely dealing in significant quantities of marijuana. The issuing judge would be entitled to infer, as “a practical, common-sense decision,” that Vinson’s network of dealers, whom he supplied out of his residence in Birmingham, did not consist of just two college students in Tuscaloosa. Consequently, again as a matter of allowable “common-sense” deduction and inference, the issuing judge would be warranted in concluding that Vinson was likely to have at his residence a continuing, and replenished, inventory of marijuana to provide to the students when they returned by the imposed deadline of 8:00 p.m. on November 21, 1994, with the money they owed him. Also, it must be remembered that Agent Warren laid a logical predicate for his statement that he believed that not only would Vinson be concealing a quantity of marijuana at his residence, but also that there would be located at the residence evidence of illegal drug activity through records, proceeds, and monies.

Therefore, our probable-cause analysis must relate not only to the likelihood that additional marijuana would be located at the residence, but also, and independently, to the fact that evidence of illegal drug activities, in the form of records, would be present because of the common practice, as stated in the affidavit, of drug dealers’ providing their wares on consignment “to maintain books, records, receipts, handwritten notes, ledgers, and audiotape recording ... for the purpose of documenting fronted controlled substances.” In this case, the question is whether the law-enforcement agents had the right to enter Vinson’s premises at 8:00 p.m. on November 21, 1994, for the purpose of executing the search warrant, so that they were legally in his residence at the time he arrived and began to enter his residence, allowing them to observe him throw his hands in the air and drop a brown leather satchel he was carrying, and to thereafter find a handgun in the satchel and then to hear him when he “immediately began to make spontaneous voluntary statements as to where he had been and what he had been doing.” It is the suppression of the handgun and of the statements Vinson made to the narcotics officers while they were in his home that was at issue before the Court of Criminal Appeals. It ruled that the trial judge’s determination that “the information and warrant was stale in that the warrant was not executed within 72 hours of the alleged seeing of any controlled substance within the residence” was due to be upheld, but that his suppression of “only the marijuana, the pictures, and the pipe found in Vinson’s home,” without also suppressing “the gun or the statements Vinson made,” was in error because once the trial judge found the search warrant “to be invalid,” it followed that the officers “did not have a legal right to be in Vinson’s home.” 843 So.2d at 228.

Considering the “totality of the circumstances,” we are persuaded that sufficient facts, and inferences reasonably and logically derivable from those facts, were presented to the issuing judge to enable him to make the “practical, common-sense decision” that there was “a fair probability that contraband or evidence of a crime” would still be present at Vinson’s residence on November 21, 1994. Under all of these circumstances, we conclude that the Court of Criminal Appeals erred when it aceept-ed the trial court’s determination that the warrant was deficient because it was based upon stale information. Sgro, supra; Moore, supra. The judgment of the Court of Criminal Appeals is therefore reversed, and the cause is remanded to that court for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, LYONS, BROWN, WOODALL, and STUART, JJ., concur.

MOORE, C.J., concurs in the result.

SEE and JOHNSTONE, JJ., dissent.

SEE, Justice

(dissenting).

This case turns on whether the search warrant for Vinson’s home was stale. “[T]he search of the appellant’s residence was made pursuant to a warrant and thus is to be presumed valid. ‘With regard to search warrants, the general rule is that the defendant has the burden of proof in challenging the validity of the execution or service of the search warrant.’ ” Smith v. State, 588 So.2d 561, 577 (Ala.Crim.App.1991) (citations omitted).

In his original trial, Vinson asserted that the warrant was stale and the trial judge determined that he had carried his burden of proving the warrant was stale. Accordingly, the trial judge suppressed all evidence found in Vinson’s home, but not his oral statements and the gun found in his backpack when he returned to his home and found the police searching it. Vinson appealed to the Court of Criminal Appeals, again asserting that the warrant was stale. The Court of Criminal Appeals determined that Vinson had carried his burden of proving that the warrant was stale and concluded that the other evidence obtained by police as a result of their illegal search of Vinson’s home should be suppressed. The Court of Criminal Appeals therefore reversed Vinson’s convictions. The majority opinion reverses the Court of Criminal Appeals, finding that the warrant used to search Vinson’s home was not stale. Because I find that the warrant was stale, I dissent.

In Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), the United States Supreme Court spelled out the standards sufficient to support the issuance of a search warrant.

“[T]he judge or commissioner issuing a search warrant for intoxicating liquors [during Prohibition] must be satisfied ‘of the existence of the grounds of the application or that there is probable cause to believe their existence.’ He must take proof to that end. The warrant must state ‘the particular grounds or probable cause for its issue.... ’ [I]t is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.”

Id. at 210-211, 53 S.Ct. 138 (citations omitted).

The Court in Sgro determined whether a warrant that had not been executed within the 10-day time limit required by the authorizing statute could be revived by returning to the magistrate with the same information that supported the first warrant. Id. at 211, 53 S.Ct. 138. The Court stated:

“If the warrant is the old one, sought to be revived, the proceeding is a nullity, and if it is a new warrant, the commissioner must act accordingly.... The proof supplied must have appropriate relation to the application for the new warrant and must speak as of the time of the issue of that warrant. The commissioner has no authority to rely on affidavits which have sole relation to a different time and have not been brought down to date or supplemented so that they can be deemed to disclose grounds existing when the new warrant is issued.”

Id. (emphasis added).

Although the State presented ample testimony at trial to support the issuance of a warrant, the only evidence of Vinson’s possession of marijuana presented to the magistrate on November 21, 1994, was the affidavit of narcotics investigator Warren stating that the informants, Smith and Copper, had seen marijuana at Vinson’s home on November 11, 1994, and that they had purchased marijuana from him on that date. This information, without more, is not sufficient to show an ongoing enterprise such that there was probable cause to believe that Vinson would have marijuana in his home at the time the search warrant was finally executed.

An otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant, but not disclosed to the issuing magistrate. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Wayne R. LaFave, 2 Search and Seizure § 4.3 (3d ed.1996). In Nelms v. State, 568 So.2d 384 (Ala.Crim. App.1990), the Court of Criminal Appeals held that a deficient affidavit was not cured by admission of the police officer’s oral testimony at the suppression hearing, reasoning that, although the officer’s testimony at the suppression hearing included many more relevant facts than had been listed in the affidavit, it could not assume that this information was conveyed to the issuing judge. Nelms, 568 So.2d at 387. The record here provides no indication that Smith or Copper appeared before the magistrate. While the affidavit does state that “Smith and Copper further told Agent Willingham and Agent Guy Warren that they had been to Melvin Vinson’s residence on four other occasions where they were furnished marijuana ... ”, there is no indication in the affidavit of the time frame in which these purchases occurred, or that Smith and Copper routinely received more marijuana when they paid Vinson for previous purchases. When asked what, if any, other information he might have conveyed orally to the issuing judge when he sought the warrant, Agent Warren stated “I can’t remember — I don’t have anything else written down.” Without any indication in the record, we cannot assume that the magistrate considered any information other than that contained in Warren’s affidavit when he issued the warrant. Nelms, supra. Because Warren’s affidavit, by itself, did not provide sufficient information to support a finding of probable cause, I believe the Court of Criminal Appeals was correct in holding that the search of Vinson’s residence was pursuant to an invalid warrant. See United States v. Hove, 848 F.2d 137, 140 (9th Cir.1988) (“[U.S. v.] Leon[, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)] does not extend, however, to allow the consideration of facts known only to an officer and not presented to a magistrate.”). I must, therefore, respectfully dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from the main opinion of this Court and agree with the opinion of the Court of Criminal Appeals, Vinson v. State, 843 So.2d 221 (Ala.Crim.App.2000), except that I agree with the main opinion in its use of the de novo standard of review for undisputed ore ten-us testimony.

      . This case was originally assigned to another Justice. It was reassigned to Justice Har-wood on July 11, 2001.

      . Vinson's conviction for the unlawful distribution of a controlled substance resulted in a sentence of 10 years' imprisonment upon the application of the Habitual Felony Offender Act, Ala.Code 1975, § 13A-5-9. Vinson was sentenced to an additional 10 years in prison as a result of sentence enhancements for the sale of a controlled substance within three miles of a school or a public housing project, Ala.Code 1975, § 13A-12-250 and § 13A-12-270. He was also ordered to pay $100 to the Alabama Crime Victims Compensation Commission, and was fined a $1,000 drug-user fee, that fee to be retaxed upon Vinson's completion of a drug-rehabilitation program. Vinson's conviction for the unlawful possession of a pistol by someone previously convicted of a crime of violence resulted in a sentence of 5 years' imprisonment and a $100 payment to the Crime Victims Compensation Commission. The two sentences were to run concurrently.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Evidence presented at trial, but not included in the affidavit of investigator Warren, indicated that Smith and Copper had purchased marijuana from Vinson weekly between September and November and that they had a pattern of receiving more marijuana from Vinson when they paid him for past purchases.


source: Caselaw Access Project

author: SHAW, Judge. SHAW, Judge.

license: Public Domain

text:
    Edward Dwight COLEMAN v. STATE of Alabama.
    CR-00-0835.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Opinion on Return to Remand March 1, 2002.
    Rehearing Denied April 19, 2002.
    Certiorari Denied Aug. 30, 2002 Alabama Supreme Court 1011504.

      Edward Dwight Coleman, pro se.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

Edward Dwight Coleman appeals the district court’s summary denial of his Rule 32, Ala.R.Crim.P., petitions for postconviction relief, in which he attacked his June 20, 1986, guilty-plea convictions for two counts of possession of a forged instrument in the second degree, violations of § 13A-9-6, Ala.Code 1975. Coleman was sentenced to two years’ imprisonment for each conviction; the sentences were to run concurrently. He did not appeal.

On December 13, 2000, Coleman filed two Rule 32 petitions attacking his convictions. In his petitions, Coleman alleged that the district court lacked jurisdiction to accept his guilty pleas, to render judgment, and to impose sentence because, he said, the district attorney failed to comply with § 15-15-21, Ala.Code 1975, and § 15-15-22, Ala.Code 1975. On December 14, 2000, the district court summarily denied Coleman’s Rule 32 petitions.

I.

Coleman’s contention that his convictions and sentences are void because the district court did not comply with § 15-15-22 is based upon his contention that on June 20,1986, he gave notice of his intent to plead guilty, his pleas were accepted, and he was sentenced. However, we have reviewed the record and the district court did, in fact, comply with § 15-15-22, which requires the court to “fix a date for the defendant to formally make and enter his plea of guilty in open court, which date shall not be ... within three days after notice to the court of his intention to plead guilty.”

The district court’s March 7, 2001, order states, in part:

“The court has reviewed the court record and files connected with these cases and finds as follows:
“1. On May 15, 1986, the defendant was arrested and charged with the above felonies.
“2. On May 22,1986, he was appointed an attorney to represent him in these matters.
“3. On June 5, 1986, he signed a written intent to plea [sic] in each case.
“4. On June 20, 1986, he entered a plea of guilty to these offenses.”

(C. Supp.5.) Our review of the record supports the above-stated findings of the district court. Thus, Coleman is not entitled to relief on this issue.

II.

Coleman also contends that his convictions and sentences are void because the district attorney failed to comply with § 15-15-21, which provides:

“When the desire of a defendant to plead guilty is made known to the court, it shall direct the district attorney of such court to prefer and file an information against such defendant, under the oath of such district attorney or some witness, which information shall accuse the defendant, with the same certainty as an indictment, of the criminal offense for which he is being held.”

(Emphasis added.) On May 24, 2001, the district court issued the following order:

“This is from an order of May 3, 2001, of the Court of Criminal Appeals to supplement the record on appeal from an order of this court denying the petition under Rule 32, [Ala.R.Crim.P.]:
“This court did not accept the plea in 1986 [another judge took the plea] but [this court] has gone through all the items in the court file. This court could not find an executed information in either case. ... All other forms for the taking of a plea are present in the court file.”

(C. Supp.4, 80) (emphasis added). Thus, the issue on appeal is whether the district court had subject-matter jurisdiction to accept Coleman’s guilty pleas, given that the court’s files do not contain an information purporting to charge the offenses.

In Ex parte Looney, 797 So.2d 427 (Ala.2001), the Alabama Supreme Court discussed whether the word “shall,” as used in § 15-15-20.1(b), Ala.Code 1975 — specifically that portion of the statute that states, “[t]he information shall be made under oath” — is imperative and mandatory. “ ‘The word “shall” is clear and unambiguous and is imperative and mandatory.’ ” Ex parte Looney, 797 So.2d at 428, quoting Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998).

In Ex parte Looney, the Alabama Supreme Court also stated:

“In accordance with the caselaw cited above, we conclude that the word ‘shall,’ as it is used in § 15-15-20.1, Ala.Code 1975, demands that the information be made under oath. The information submitted to the trial court at Looney’s plea hearing was, signed by the district attorney. However, the record contains no evidence whatever to indicate that the information was given under oath. Therefore, because it does not comply with the mandatory requirements of the statute, the information is defective.
“We conclude that because a sworn information is essential to confer on a trial court jurisdiction to accept a guilty plea, the district attorney’s failure to make the information under oath cannot be waived. Thus, Looney could raise this issue on appeal [even though he had not objected to it at the trial level].
“Because the information is defective, the trial court did not have jurisdiction to accept the plea. ‘In the absence of an indictment or information upon which this prosecution should have begun, the trial court was without jurisdiction to render judgment.’ Ross v. State, [529 So.2d 1074, 1078 (Ala.Crim.App.1988)] (citing Woodham v. State, 28 Ala.App. 62, 178 So. 464 (1938)). ‘Thus, the judgment was null and void and of no force and effect.’ Id."

797 So.2d at 429. The State attempts to distinguish Ex parte Looney on the following grounds:

“Here, however, not only would the complaint filed in the Jefferson County District Court by Sam Levio [Coleman stole some of Levio’s checks in 1986 and Lev-io filed complaints in the district court] have been executed under oath, but arrest warrant # 00051733 as issued by the Jefferson County District Court would also have been executed under oath. Therefore, unlike Looney, Coleman has failed to show that the State’s charging instrument was not filed under oath as required by Ala.Code [1975], § 15-15-20.1(b).”

(State’s brief at p. 11, n. 3) (emphasis in original). We do not agree that the cases are distinguishable on this basis. Section 15-15-20.1(a), Ala.Code 1975, states, “In any criminal proceeding for a non-capital felony offense commenced by a complaint, the defendant may give written notice ... that the defendant desires to plead guilty as charged.” (Emphasis added.) It is the receipt of this written notice of the defendant’s intent to plead guilty that triggers the filing of “[t]he information [which] shall be made under oath,” pursuant to § 15 — 15—20.1(b). Thus, § 15-15-20.1(b) requires the filing of an information “made under oath” even though the criminal proceeding was “commenced by a complaint.” Section 15-15-21 states that “the court ... shall direct the district attorney ... to ... file an information against such defendant ... which information shall accuse the defendant, with the same certainty as an indictment, of the criminal offense for which he is being held.” In Ex parte Looney a defective information was filed; in the present case, the record does not contain an information filed by the district attorney, as required by § 15-15-21.

In its brief to this Court, the State points out that the district court summarily denied Coleman’s Rule 32 petitions before the State had an opportunity to file a response. Thus, the factual allegations contained in Coleman’s Rule 32 petitions remain unrefuted. The State requests that we remand the cause to the district court so that it might have an opportunity to seek to refute whether an information was, in fact, ever filed. Therefore, we remand this cause to the district court for that court to conduct an evidentiary hearing regarding whether an information was, in fact, filed by the district attorney as required by § 15-15-21. Due return shall be filed with this Court no later than 56 days from the date of this opinion. The return to remand shall include the district court’s written findings, a transcript of the evidentiary hearing, and any other evidence taken by the court.

REMANDED WITH DIRECTIONS.

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

On Return to Remand

SHAW, Judge.

On November 30, 2001, this Court remanded this case to the district court for that court to conduct an evidentiary hearing on whether an information was, in fact, filed by the district attorney as required by § 15-15-21, Ala.Code 1975. See Coleman v. State, 843 So.2d 237 (Ala.Crim.App.2001). In our November 30, 2001, opinion we noted that Edward Dwight Coleman’s Rule 32, Ala.R.Crim.P., petitions had been summarily denied before the State filed a response and that although the record did not contain an information filed by the district attorney, as required by § 15-15-21, we were remanding for a hearing to allow the State an opportunity to file a response on the issue whether an information was, in fact, ever filed.

On return to remand, the district court submitted a written order, dated January 16, 2002, which states:

“This court finds after hearing the testimony at the evidentiary hearing that as a matter of fact that an information was properly filed in these cases and that [Coleman’s] petition in each case is due to be denied.”

The court attached to its order a transcript of the evidentiary hearing and the affidavit of the district attorney. We note that the district court did an excellent job on remand.

At the evidentiary hearing, the State pointed out that because these convictions occurred in 1986, the documents contained in the files maintained by both the district court clerk’s office and the district attorney’s office no longer existed in their original form, but that relevant documents from these files had been reduced to microfilm in the district court clerk’s office and to microfiche in the district attorney’s office. It is undisputed that the microfilm files maintained in the district court clerk’s office do not contain an information for either of these cases. However the microfiche files maintained by the district attorney’s office do contain copies of the unsigned information for both cases. The Jefferson County District Attorney filed an affidavit, stating:

“1. That I have been the duly elected District Attorney since 1984 for the Tenth Judicial Circuit. In June of 1986, I was the duly elected District Attorney for said Circuit.
“2. As a matter of procedure, the Deputy District Attorney (DDA) assigned to any one of the District Courts negotiates settlements of felony cases with defense attorneys, and enters into agreements for the resolution of such cases by way of a plea agreement. When such an agreement is reached, the DDA will have the appropriate secretary prepare an ‘Information’ which is the defendant’s notice to the Court of his or her intent to plead guilty in accordance with the agreement. The legal secretary creates two (2) copies of the Information. The DDA takes one copy of the Information and signs my name in the appropriate blank and then signs their own name in the affidavit blank. Our notary witnesses this and affixes his/her seal. On the day of the plea, the DDA presents the signed and notarized copy to the Court and the unsigned copy is retained in our file. This has been our policy since I have been the District Attorney for the Tenth Circuit.
“3. Our office files on Edward Dwight Coleman were searched. Records relating to Mr. Coleman’s two 1986 convictions for Possession of a Forged Instrument in the Second Degree were located in storage and had been photographed onto microfiche. Among other things found were two documents, of which copies have been attached (Exhibits A and B). Exhibit A is the Information for Edward Dwight Coleman in DC-86-2272. Exhibit B is the Information for Edward Dwight Coleman in DC-86-2273. Both exhibits are consistent with the unsigned Information which is retained in our files when an Information plea is done in District Court. The only reason that these documents would be in our file would be if an Information had been prepared for these cases.
“4. I am not aware of any cases in my seventeen (17) years as District Attorney where a felony plea was taken in District Court without my office filing an Information with the Court. This practice is instructed to every DDA that is assigned to District Court and to every legal secretary that works in our District Court office.
“5. I know of no reason for an unsigned copy of an Information to be in one of our files unless there was a guilty plea entered in that case, except under the following circumstance. If a defendant, subsequent to entering into a plea agreement through his/her attorney, withdraws from said agreement prior to actually entering the plea, then there would be the unsigned copy still in our file, although no guilty plea was entered. However, in that event, there would be a subsequent docketing of the case, or cases, on the Grand Jury [docket] and thereafter either a record of a ‘No Bill’ by the Grand Jury, or a ‘True Bill’ and a subsequent docketing of the case in Circuit Court with a CC case number. A search of our records and those of the Circuit Clerk’s reveal no record of these cases being presented to the Grand Jury nor any docketing of them in the Circuit Court. Therefore, the only reasonable and logical explanation for the unsigned ‘Information’ copy in our file would be that the defendant entered a plea of guilty in each of the cases in question.”

The district court judge who took the pleas in 1986 testified to the following at the evidentiary hearing:

“THE COURT: All right. I have Judge McCormick, who is a Circuit Court Judge and was a District Court Judge in 1986.
“Judge, do you remember the case of Edward Dwight Coleman?
“JUDGE MCCORMICK: Absolutely not.
“THE COURT: Did you take guilty pleas on information in 1986?
“JUDGE MCCORMICK: Yes, I did.
“THE COURT: Can you tell me anything about your procedure in taking guilty pleas?
“JUDGE MCCORMICK: Well, to the best of my knowledge and belief, I would have taken a plea based on an information and an information being in the file and having been filed by the district attorney’s attorney at that time. I would not have taken a plea without a formal pleading or notice.
“[COLEMAN’S ATTORNEY]: Your Honor, is it in the realm of possibility, could it possibly have happened that the information was prepared, brought to your Court, utilized, and then improperly filed or not filed at all or not signed properly? Could any of those things happen? Is it within the realm of possibility that they could have happened?
“JUDGE MCCORMICK: Anything is possible, but it’s not likely that I would have taken a plea without having a formal charge of some sort.
“[COLEMAN’S ATTORNEY]: Yes, Your Honor. But then it is possible that the paperwork could have been somewhat snafued just after the plea was taken?
“JUDGE MCCORMICK: Sometime after the plea the information may have gotten away from the file in some way because we handle so much paperwork.
“[COLEMAN’S ATTORNEY]: Right. Do you think there’s any chance, any possibility whatsoever that the paperwork was assumed to be there on these particular cases and weren’t?
“JUDGE MCCORMICK: I don’t think so. I think that it would have been brought to my attention or someone else’s attention at the time. Of course it’s been a long time and I don’t have any personal recollection of this case or any other ease during that period. I think as a matter of procedure that we would have known that, if there was an information that was missing at the time of the plea.
“[COLEMAN’S ATTORNEY]: In these two particular cases involving Mr. Coleman it is perhaps just coincidental or it may be an astounding coincidence that there is not a properly signed information in either of these cases. If there had been a situation where the paperwork had simply been lost, it might be more reasonable to believe that one piece of paper had slipped out of one of these courts files, but doesn’t it seem a little unusual to you — do you have any potential explanation as to why both of these informations would be missing from two separate court files?
“JUDGE MCCORMICK: I have no explanation for that. I think it would be more unusual for either the deputy DA handling the case or for defense counsel or myself not to notice that the charging papers weren’t in the file at the time of the pleas.”

(Transcript of evidentiary hearing, pp. 20-24.)

The judge who accepted the pleas in 1986 testified that while he did not have any personal recollection of these cases, he “would not have taken a plea without a formal pleading or notice.” (Transcript of evidentiary hearing, p. 21.) The district attorney testified as to his office’s procedure in 1986 regarding the preparation and filing of an information — that it was the policy of the district attorney’s office to prepare two copies of the information; that the DDA assigned the case would present the signed and notarized copy of the information to the court and retain the unsigned copy of the information in the district attorney’s file; that the microfiche files maintained by the district attorney’s office contain an unsigned information that had been prepared in both of these cases; and that the unsigned copies of the information were attached to the district attorney’s affidavit. Additionally, these cases are 16 years old and the only documents in the district court clerk’s office relating to the cases are on microfilm and it is possible that the information was, in fact, contained in the files, but was not put on microfilm.

When viewing the evidence in its entirety, we find that it supports the district court’s determination that “an information was properly filed in these cases and [Coleman’s] petition in each case is due to be denied.” The district court’s judgment is affirmed.

AFFIRMED.

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

      . Section 15-15-20.1(b) provides, in part:
      "Upon receipt of the written notice from the defendant stating his or her desire to plead guilty, the court shall direct the district attorney to prefer and file an information against the defendant. The information shall be made under oath of the district attorney or a witness, and shall accuse the defendant with the same specificity as required in an indictment of the offense or offenses for which the defendant is charged.”
      (Emphasis added.)