text:
    Ralph D. LONG v. CITY OF HOOVER et al. Edward R. Braden v. Lee Bushway and City of Hoover et al.
    2010354 and 2010569.
    Court of Civil Appeals of Alabama.
    Sept. 20, 2002.

      Marion F. Walker and Jason M. Osborn of Berkowitz, Lefkovitz, Isom & Kushner, P.C., Birmingham, for appellant Edward R. Braden.
    Stephen B. Griffin, Hoover, for the ap-pellee city of Hoover.
    Ralph D. Long, Birmingham, for appellant/cross-appellees Ralph D. Long, Lee Bushway, William Ingram, Harold Quatt-lebaum, Paul F. Sedley, and Deborah F. Pickens.
   YATES, Presiding Judge.

Edward R. Braden was employed as a police officer with the City of Hoover from 1983 to 1994. The highest rank he achieved was police sergeant. From 1995 to 1997, he was employed as director of public safety for the City. In 1997, the City passed a resolution discontinuing the funding of Braden’s position as public safety director. Braden asserts that funding was ceased due to “political infighting.” The resolution also provided that Braden would be employed by the City at the rank of police sergeant. Braden declined the position and his employment with the City was terminated on November 5,1997.

On March 30, 1998, he sued the city-council, alleging, among other things, wrongful termination and violations of his due process rights. On November 15, 1999, the city council passed a resolution amending certain portions of its personnel policies. On December 6, 1999, the city council, by a 3 to 2 vote, passed a resolution, employing Braden as a captain in the City’s police department. Council members Barbara McCollum and Jack Wright voted against adopting the resolution. On December 22, 1999, Braden and the City entered into a settlement agreement; pursuant to the agreement Braden agreed to dismiss his claims against the City, and the City agreed to employ Braden as a police officer at the rank of captain. On January 13, 2000, Braden and the City filed a stipulation of dismissal, seeking a dismissal with prejudice all of Braden’s claims.

On December 20,1999, Ralph D. Long, a City police officer holding the rank of lieutenant, sued the City and the members of the city council in their official capacity, seeking to enjoin the City from employing Braden at the rank of captain and to request the City to employ the most qualified person as captain; he argued that by hiring Braden as captain the City was violating its civil service merit system and that he should be considered for the position. On January 5, 2000, several taxpayers sued the City and the members of the city council in their official capacity, seeking to prohibit the City from violating its civil service merit system, by enjoining enforcement of Braden’s settlement agreement.

On January 11, 2000, the trial court held a hearing on Long’s motion for a preliminary injunction. On January 12, 2000, the City and all the defendants, except Barbara McCollum, who was separately represented by Steve Griffin, moved to consolidate Long’s action and the taxpayers’ action. On February 2, 2000, McCollum filed a cross-complaint against the City and the other members of the city council alleging that if she was liable to Long, she was liable because the City and the other members of the city council had violated the City’s civil service merit system.

The City opposed the preliminary injunction, arguing, among other things, that Braden had been properly employed as a police captain pursuant to the settlement agreement. On February 15, 2000, the trial court denied Long’s motion for a preliminary injunction. On March 2, 2000, the trial court consolidated the two cases. In September 2000, Barbara McCollum was elected mayor of the City. The elections also changed the composition of the city council. Subsequently, Steve Griffin, who had been representing McCollum, filed a notice of appearance on behalf of all of the defendants. On November 15, 2000, the parties agreed to submit the case for mediation.

A letter from Long’s attorney indicates that the parties agreed to the essential terms of a settlement as a result of mediation on April 5, 2001. However, the mediator did not reduce the settlement to writing until June 1, 2001. The terms of the settlement included demoting Braden from captain to lieutenant.

On April 16, 2001, Long, who is also an attorney, filed a motion, stating that he had asked Gray to withdraw as his counsel and that he wanted to enter a notice of appearance. On April 19, 2001, Long filed an amended complaint, alleging negligence, defamation, and fraud against the members of the city council individually, certain City employees, and Braden, and seeking compensatory and punitive damages. Long’s complaint arose out of certain communications made during the hearing on the preliminary injunction relating to his service record as a police officer and his qualifications for the position of police captain. On May 22, 2001, the members of the city council, the City employees, and Braden moved to dismiss Long’s amended complaint because of failure to properly serve the defendants. On June 11, 2001, Long moved for a declaratory judgment. Following a hearing, the trial court, on June 12, 2001, found that the motion to dismiss was premature because the defendants had not been properly served with the amended complaint. The trial court denied Long’s motion for a declaratory judgment. On July 10, 2001, the City moved to enforce the June 1, 2001, settlement agreement. On August 13, 2001, the parties agreed to dismiss Long’s amended complaint without prejudice. On August 14, 2001, Long filed a second amended complaint against the city council members individually, certain City employees, and Braden, seeking compensatory and punitive damages, again based on the communications made during the litigation relating to Long’s qualifications for the position of police captain.

On August 20, 2001, the trial court rendered a “final decree” enforcing the settlement agreement reached by the parties, which was entered by the clerk of the court on August 23, 2001. On August 21, 2001, the trial court entered an order dismissing Long’s first amended complaint based upon the parties’ agreement. The court noted that Long’s second amended complaint remained pending.

On September 6, 2001, Braden moved to intervene as a matter of right pursuant to Rule 24(a), Ala. R. Civ. P.; he challenged his demotion. On September 7, 2001, he sued the City. Braden also filed a petition for a writ of mandamus with this court, seeking a stay of his demotion, which the trial court denied on September 13, 2001. On September 14, 2001, the supreme court entered an order that stated, in part:

“It is further ordered that the order of August 20, 2001, entered by Judge Jack Carl in the Circuit Court of Jefferson County, Alabama is stayed pending the disposition of this petition for writ of mandamus, but the hearing currently scheduled for September 25, 2001, on petitioner’s motion to intervene is not stayed.”

On December 28, 2001, the supreme court denied Braden’s petition for a writ of mandamus. On January 2, 2002, Braden filed a Rule 60(b), Ala. R. Civ. P., motion for relief from the August 20, 2001, judgment. On January 9, 2002, Long filed a response, and also filed a Rule 60(b) motion of his own. In his Rule 60(b) motion, Long alleged that fraud and misconduct on the part of his former attorney and Steve Griffin, an attorney for the defendants, warranted relief from the judgment. On January 10, 2002, Long filed his notice of appeal. On February 6, 2002, the trial court denied Braden’s motion to intervene, from which Braden timely appealed. The trial court did not rule on Braden’s Rule 60(b) motion or on Long’s Rule 60(b) motion. On February 27, 2002, the trial court purported to enter a summary judgment in favor of the defendants on all of the remaining claims. Long moved to consolidate his appeal with Braden’s. We granted the motion.

Long’s Appeal

The City argues that Long’s appeal is untimely, because it was not filed within 42 days of the August 20, 2001, order enforcing the settlement agreement. Long argues that he is appealing from the trial court’s error in failing to grant him relief from the judgment pursuant to Rule 60(b) and, therefore, that his appeal is timely because he is seeking relief under Rule 60(b) and not a direct appeal from the August 20, 2001, order.

None of the parties has questioned this court’s jurisdiction; however, we must first consider whether we have jurisdiction over this appeal, because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997), quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).

The August 20, 2001, order enforcing the settlement was not a final judgment. Long’s second amended complaint, which sought compensatory and punitive damages, was still pending. On February 27, 2002, the trial court purported to enter a summary judgment in favor of the defendants on all the pending claims.

When the trial court granted the defendants’ motion to enforce the settlement agreement, it specifically noted that Long’s second amended complaint— wherein he sued the city council members individually and added new parties — was still pending. Because claims were undecided, there was no final judgment.

A settlement agreement is conclusive of all elements of the claim except those specifically reserved by the parties. Nero v. Chastang, 358 So.2d 740 (Ala.Civ.App.1978). In Whitfield v. Murphy, 475 So.2d 480 (Ala.1985), the daughter and her mother, as her next friend, sued the city and its officers, alleging false imprisonment. At trial, the mother sought to amend her complaint to include her individual claim of false imprisonment. The trial court granted the defendants’ motion to strike the amendment. The supreme court held that the daughter’s appeal was rendered moot because she had entered into a settlement with the city. However, the mother’s settlement with the city did not render her appeal moot because the settlement agreement, by its explicit terms, preserved the mother’s separate claims and actions pending against two police officers.

An appeal ordinarily lies only from a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990); Christian v. Christian, 738 So.2d 1275, 1276 (Ala.Civ.App.1999). In other words, “A final judgment is necessary to give jurisdiction to this court on appeal.” Marsh v. Wittmeier, 280 Ala. 172, 173, 190 So.2d 920, 920 (1966). An order is generally not final unless it disposes of all claims or the rights or liabilities of all parties. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987).

The purpose of Rule 54(b), Ala. R. Civ. P., is to make final “an order which does not adjudicate the entire case but as to which there is no just reason for delay in the attachment of finality.” Foster v. Greer & Sons, Inc., 446 So.2d 605, 609 (Ala.1984), overruled on other grounds, Ex parte Andrews, 520 So.2d 507 (Ala.1987).

“Three requirements must be satisfied before Rule 54(b) can properly be applied to certify a judgment as final for purposes of appeal: 1) there must be either multiple claims for relief or multiple parties involved; 2) there must be a final decision as to one of the claims or as to the rights and liabilities of one of the parties; and 3) the court must determine that there is no just reason for delay. Williams v. Fogarty, 727 So.2d 831, 832 (Ala.Civ.App.1999); Parrish v. Blazer Fin. Servs., Inc. 682 So.2d 1383, 1385 (Ala.Civ.App.1996). Rule 54(b) certifications should be granted only in exceptional cases and should not be entered routinely. Parrish, 682 So.2d at 1385. Furthermore, if a certification of finality is not authorized by Rule 54(b), it is wholly ineffective. Williams, 727 So.2d at 832-33.”

Ann Corp. v. Aerostar World, Inc., 781 So.2d 231, 234 (Ala.Civ.App.2000).

The Alabama Supreme Court in Parsons v. Bank Leumi Le-Israel, B.M., 565 So.2d 20, 26 (Ala.1990), stated with regard to Rule 54(b):

“When the issues raised in a complaint containing multiple claims are directly related to, and intertwined with, each other to such a degree that a separate adjudication of one of those claims would pose an unreasonable risk of inconsistent results on the adjudication of the remaining claims, then, of course, the entry of a final judgment as to that claim would be an abuse of discretion by the trial court.”

Long’s appeal, although premature because it was not from a final order, divested the trial court of jurisdiction over the case. “ ‘Once an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.’ ” Horton v. Horton, 822 So.2d 431, 434 (Ala.Civ.App.2001), quoting Ward v. Ullery, 412 So.2d 796, 797 (Ala.Civ.App.1982). Long’s notice of appeal had the effect of divesting the trial court of jurisdiction to rule on his remaining claims. Therefore, the trial court’s judgment of February 27, 2002, is a nullity because of Long’s appeal.

Braden’s Appeal

Braden appeals from the denial of his motion to intervene. “ ‘Intervention ... is a method by which an outsider with an interest in a lawsuit may come in as a party on his own application.’ ” Marcum v. Ausley, 729 So.2d 845, 848 (Ala.1999), quoting Duncan v. First Nat’l Bank of Jasper, 573 So.2d 270, 274 (Ala.1990). The trial court’s denial of a motion to intervene is an appealable order. Dallas County Bd. of Educ. v. Henry, 507 So.2d 911 (Ala.1987); Thrasher v. Bartlett, 424 So.2d 605 (Ala.1982). In general, the grant or denial of a motion to intervene is within the sound discretion of the trial court and a ruling on such a motion will not be reversed on appeal absent an abuse of that discretion. Valley Forge Ins. Co. v. Alexander, 640 So.2d 925 (Ala.1994).

The purpose of intervention is to “ ‘anticipate future litigation, to discourage a multiplicity of lawsuits, and to relieve the intervenor from the possible prejudice of stare decisis in subsequent litigation involving the same questions of law and fact.’ ” Mars Hill Baptist Church of Anniston, Alabama, Inc. v. Mars Hill Missionary Baptist Church, 761 So.2d 975, 979 (Ala.1999), quoting Root v. City of Mobile, 592 So.2d 1051, 1053 (Ala.1992). In an .appeal from the denial of a motion to intervene, the appellate court does, not rule on the merits of the underlying case; however, the court must discuss the underlying case in addressing the propriety of intervention. Valley Forge, supra, 640 So.2d at 929, fn. 3.

Rule 24(a), Ala. R. Civ. P., which governs intervention as a matter of right, states in pertinent part:

“(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

A “practical” rather than a “technical” approach measures the doctrine of intervention as a matter of right pursuant to Rule 24(a)(2). Randolph County v. Thompson, 502 So.2d 357, 363 (Ala.1987), citing State ex rel. Wilson v. Wilson, 475 So.2d 194, 196 (Ala.Civ.App.1985).

In the present case, the trial court treated the motion as one for permissive intervention. The court determined that because the parties had entered into a settlement agreement, which the court upheld in an order issued on August 20, 2001, Braden’s motion to intervene was untimely. The court stated that Braden knew of Long and the taxpayers’ lawsuits challenging the validity of his own settlement agreement appointing him as captain and that he should have intervened before Long and the taxpayers settled their lawsuits with the City.

The trial court erred in treating the motion as one for permissive intervention. Braden’s motion clearly seeks intervention as a matter of right because of his legally protectable interest in his own settlement agreement with the City on December 22, 1998. “ ‘[T]he intervenor must have an interest in the subject matter of the litigation of such a nature that he will gain or lose by the direct legal operation of the judgment.’ ” Valley Forge v. Alexander, 640 So.2d at 931, quoting Waters v. Jolly, 582 So.2d 1048, 1057 (Ala.1991). The subject matter of the litigation is Braden’s employment as police captain with the City. Braden will lose his position as captain — a position to which he was appointed pursuant to a contract with the City resulting from a settlement agreement in exchange for the dismissal of his claims against the City — if he is not allowed to intervene in the actions by Long and the taxpayers against the City. Therefore, Braden has a “direct, substantial, and legally protectable interest,” Randolph County v. Thompson, 502 So.2d at 363, pursuant to Rule 24(a)(2), Ala. R. Civ. P. Cf. Randolph County v. Thompson, 502 So.2d 357 (county was allowed to intervene as matter of right in sheriffs declaratory-judgment action seeking an appointment as a supernumerary sheriff); Ford v. Mills, 784 So.2d 315 (Ala.Civ.App.2000) (partners were allowed to intervene as a matter of right in partnership’s bankruptcy proceeding); see also Kleissler v. United States Forest Service, 157 F.3d 964 (3d Cir.1998)(school districts could intervene as a matter of right in a suit brought by environmentalists to restrict logging in a national forest, when state law provided that districts would receive revenues from timber harvesting); United States v. City of Chicago, 870 F.2d 1256 (7th Cir.1989)(white female sergeants on Chicago police force were entitled to intervene as a matter of right in a discrimination suit to challenge district court’s order approving promotions to lieutenant on the basis of “racially altered” test results).

As the supreme court noted in Valley Forge, “[t]imeliness is the first condition that must be met in order to intervene.” 640 So.2d at 928. That court also recognized that by its very nature, a motion to intervene as a matter of right is more compelling than one for permissive intervention and, therefore, the court requires less rigidity in evaluation of timeliness when the intervention is as of right. Id.

In Hale v. Osborn Coal Enterprises, Inc., 729 So.2d 853 (Ala.Civ.App.1997), contiguous or nearby landowners filed a Rule 60(b), Ala. R. Civ. P., postjudgment motion in 1996, seeking to intervene in an action in which the town and the coal-mining company had sought and received court approval of a settlement in 1993. This court held that the motion to intervene was timely where the record was devoid of any evidence that the town had published the terms of the settlement before, or after, it entered into that agreement. The landowners did not learn of the settlement and its terms until some three years after the judgment was entered. H.H.B., L.L.C. v. D & F, L.L.C., 843 So.2d 116 (Ala.2002), involved a motion to intervene by a company that owned land. Our supreme court held that the trial court did not abuse its discretion in allowing the intervention where the company, as a landowner, did not intervene until the eve of trial because it did not know that it had a right to intervene and because it did not know that a trial date had been set.

Braden’s motion to intervene was filed while claims remained pending between the parties in the action in which he sought to intervene. He filed his motion to intervene upon learning that the City had repudiated its December 22, 1999, settlement agreement with him, and therefore, was no longer representing his interest.

In determining whether a motion to intervene is timely, the trial court must consider any prejudice to the would-be intervenor if intervention is not allowed. The supreme court in Root, supra, stated:

“[B]ecause the rule itself is silent concerning what constitutes a ‘timely application,’ it has long been held that the determination of timeliness is a matter peculiarly within the sound discretion of the trial court. In exercising its discretion in this regard, the trial court must take into consideration that in a situation where intervention is sought as a matter of right, the interest of the would-be intervenor may be seriously prejudiced if he is not allowed to participate in the action.”

592 So.2d at 1053. Braden would be “seriously prejudiced” if he is not allowed to intervene; the viability of his settlement with the City is in doubt, and the claims he dismissed with prejudice will be barred if he is not allowed to participate in the action by Long and the taxpayers against the City.

While the trial court must consider whether the would-be intervenor would be seriously prejudiced if he is not allowed to participate, the court must also consider whether the fact that the would-be interve-nor failed to apply for intervention as a matter of right sooner would prejudice the existing parties if intervention is allowed. Root, 592 So.2d at 1053. It is not prejudice resulting from the intervention itself that is considered, but prejudice resulting from any delay in intervening as a matter of right as soon as the would-be intervenor knew or should have known of the interest in the case that the court should address. Rule 24(b), regarding permissive intervention specifically provides that the court should consider any undue delay or prejudice to the existing parties in determining whether to allow intervention. The United States Court of Appeals for the Fifth Circuit in Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977), recognized that no such requirement is included in Rule 24(a), intervention as a matter of right. That court held:

“Since a similar provision is not included in section (a) of the Rule, it is apparent that prejudice to the existing parties other than that caused by the would-be intervenor’s failure to act promptly was not a factor meant to be considered where intervention was sought under section (a). Therefore, to take any prejudice that the existing parties may incur if intervention is allowed into account under the rubric of timeliness would be to rewrite Rule 24 by creating an additional prerequisite to intervention as of right. Moreover, since section (b) provides that prejudice to the original parties must be considered when permissive intervention is sought, to take that same type of prejudice into account in the determining of timeliness would be to consider the same factor twice.”

558 F.2d at 265. Braden moved to intervene within 14 days of entry by the court clerk of the order demoting him from captain to lieutenant. Before then, he did not know and would have had no reason to think that the City would repudiate the settlement agreement that it had with him.

In Stallworth, supra, the Fifth Circuit Court of Appeals held that a trial court should consider unusual circumstances weighing for or against a determination that the motion to intervene was timely. Courts have recognized that a motion to intervene made at the conclusion of a case may still be timely if the proposed settlement or resolution of the case creates the circumstances requiring the intervention. In Atlantic Mutual Insurance Co. v. Northwest Airlines, Inc., 24 F.3d 958, 960 (7th Cir.1994), the United States Court of Appeals for the Seventh Circuit stated:

“We may assume that settlement of litigation by the original parties is not conclusive if a third party possessing an interest in ‘the property or transaction which is the subject of the action’ has been excluded from the negotiations. Intervention permits such an entity to prevent the original litigants from bargaining away its interests. If they beat the intervenor to the punch, the court may annul the settlement in order to give all interested persons adequate opportunity to participate in the negotiations and proceedings.”

See United States v. Yonkers Bd. of Educ., 902 F.2d 213 (2d Cir.1990)(city park board members’ motion to intervene after a court order revoked dedicated park land so land could be as a junior high school was timely, because board members could not have been aware that their interest in preserving the state legislative process was threatened until the court issued its order, however, their motion to intervene was denied because their interests were adequately represented by the city); see also Dangberg Holdings Nevada, L.L.C. v. Douglas County, 115 Nev. 129, 978 P.2d 311 (1999)(the state and the estate of the ranch seller’s daughter could intervene after a settlement between the buyer of the ranch and the county where the interve-nors acted within two months of learning of the purported settlement); Miller v. Lankenau Hosp., 152 Pa.Cmwlth. 266, 618 A.2d 1197 (1992)(department of public works was allowed to intervene more than one year after settlement in a Medicaid recipient’s malpractice action in order to assert a claim for medical benefits paid on behalf of the recipient where the department had not been properly notified of the settlement); Matter of Stanford Assocs. v. Board of Assessors of Town of Niskayuna, 39 A.D.2d 800, 332 N.Y.S.2d 286 (1972)(where the motion to intervene was made promptly after learning of the settlement, the school district was entitled to late-stage intervention in the proceeding to review property tax assessment on a shopping center even though the motion came after the settlement reducing the property tax); Shlensky v. South Parkway Bldg. Corp., 44 Ill.App.2d 135, 194 N.E.2d 35 (1963)(intervention after a final settlement was held timely where representation did not become inadequate until after remand by the supreme court of the stockholder’s derivative suit when it became apparent that stockholders were acting in their own interest father than in the interests of the corporation).

Braden’s motion to intervene as a matter of right must be regarded as timely, because it was not until he learned of the August 20, 2001, order enforcing the settlement agreement that he knew his interests had been prejudiced. Now we must address whether Braden’s ability to protect his interest has been impaired and whether his interests were adequately represented by any of the existing parties to the litigation.

Braden is “so situated that the disposition of the action [by Long and the taxpayers against the City] may as a practical matter impair or impede” his ability to protect his interest in his position as captain. Rule 24(a)(2). Long and the taxpayers negotiated with the City to settle their claims regarding, among other things, Braden’s appointment as police captain. Those negotiations, along with approval of the settlement on August 20, 2001, impeded Braden’s ability to protect his interest in remaining employed as a police captain. Braden executed a release when he signed his settlement agreement regarding his wrongful-termination action. He would be barred from bringing a subsequent action on those claims. He would be unfairly disadvantaged if he is demoted from captain, contrary to his bargained-for exchange in releasing the City from liability, before being given the opportunity to assert his interest in the matter. Impairment of an interest under Rule 24(a) recognizes that the doctrine of res judicata would bar later litigation involving the same questions of law and fact. Cf. Alabama Federal Savings & Loan Ass’n v. Howard, 534 So.2d 609 (Ala.1988)(bank had an interest in guardianship proceedings warranting intervention as a matter of right where future litigation would involve the same questions of law and fact).

Braden’s interests were not adequately represented by any of the existing parties to the litigation. In Root v. City of Mobile, supra, 592 So.2d 1051, the city entered into a contract with Midsouth Land Company for a joint development of property. Midsouth later sold part of its interest in the project to C.B. Root. Root later transferred his interest to a trust. The city sued Midsouth for breach of contract. Root, on behalf of the trust, moved to intervene. The court held that the interests of the trust were “nearly identical” to that of Midsouth and, therefore, that Mid-south would adequately represent the trust’s interests. 592 So.2d at 1053. See also Richards v. Izzi, 819 So.2d 25 (Ala.2001)(class representatives were not allowed to intervene in action challenging the constitutionality of a county occupational tax exemption where their interests were adequately represented by the county and by representatives in another class action challenging the law).

In the present case, the City originally defended its appointment of Braden as police captain. At that point, Braden’s interests were adequately represented by the City. However, the change in the makeup of the city council during the course of the litigation obviously caused a change in the City’s position regarding Braden’s appointment as captain. Braden did not know, until he learned of the August 20, 2001, order demoting him, that the City was not representing his interest. Cf. Clark v. Putnam County, 168 F.3d 458 (11th Cir.1999)(six black voters were allowed to intervene in an action brought by four white voters against the county and county commission challenging the voting district plan because their interests were not adequately represented by the county commissioners); Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir.1996)(police officers’ unions were allowed to intervene in a discrimination action challenging hiring, transfer, and promotion policies'because the unions had a “sharp disalignment” of interests from the city and from the minority plaintiffs).

Conclusion

Long’s appeal from the trial court’s August 20, 2001, order was premature, and Braden’s motion to intervene should have been granted. Although we would normally remand Long’s appeal for the trial court to determine whether it would be appropriate to make the August 20, 2001, order final pursuant to Rule 54(b), Ala. R. Civ. P., or to adjudicate Long’s remaining claims, Braden should have been part of the negotiations regarding his demotion from captain to lieutenant included in the August 20, 2001, order. Therefore, we dismiss the appeal in case no. 2010354 and in case no. 2010569 we reverse the order denying Bra-den’s motion to intervene and remand the case for the trial court to allow Braden to intervene to protect his interest and to prevent the City from bargaining away his interest without an opportunity to participate in the proceedings.

2010354 — APPEAL DISMISSED.

2010569 — REVERSED AND REMANDED.

PITTMAN, J., concurs.

THOMPSON, J., concurs in the result.

      . Rule 15(a), Ala. R. Civ. P., allows a party to "amend a pleading without leave of court, but subject to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires." Because the parties were in nonbinding mediation, no trial date had been set.

      . The City moved to consolidate Braden's action filed on September 7, 2001, with the present action. The trial court never ruled on the motion, and Braden's separate action was not consolidated with the cases that are here on appeal.

      . The trial court never ruled on Long’s Rule 60(b) .motion.

      . Although Braden was made a defendant to Long's second amended complaint involving defamation claims, he was not added as a party until after Long and the taxpayers had essentially agreed to the terms of the settlement regarding Braden’s appointment as captain. We note that intervention may be granted for a limited purpose. See Marcum v. Ausley, 729 So.2d 845 (Ala.1999)(daughters were allowed to intervene in their sister’s action alleging fraud and wrongful death as to their mother for the limited purpose of protecting their interests in any proceeds from the wrongful-death claim).

      . "The Alabama Rules of Civil Procedure are based upon, and are virtually identical to, the Federal Rules of Civil Procedure. A presumption therefore arises that cases construing the federal rales are authority for construing the Alabama rules." Alabama Fed. Sav. & Loan Ass'n v. Howard, 534 So.2d 609, 614 (Ala.1988).

      . Stallworth involved a Title VII suit by black employees against their employer, Monsanto. The would-be intervenors were certain white employees. The black employees challenged Monsanto's use of departmental seniority to determine eligibility for promotions, vulnerability to layoffs and rollbacks (a rollback avoids outright layoffs by transferring employees to lower-paying job classifications), and priority for shift and job promotions. Approximately two years after the suit was filed, the court entered a consent decree based on a partial settlement, which provided for abolition of departmental seniority and a switch to a system of plant seniority plus certain residency requirements. By virtue of the consent decree, some white employees were rolled back, while other employees, white as well as black, were not. The would-be intervenors moved to intervene within three weeks of the implementation of the consent decree. The trial court denied the motion as untimely. On appeal, the Fifth Circuit Court of Appeals set out "specific guidelines to govern the process by which the timeliness issue should be resolved.” 558 F.2d at 264. Those timeliness factors are: (1) the length of time the interve-nor knew or should have known of its interest in the case before moving to intervene; (2) the prejudice to the existing parties, if intervention is granted, resulting from the interve-nor’s delay in applying for intervention as soon as he actually knew or reasonably should have known of his interest in the case; (3) prejudice to the intervenor if the motion is denied; and (4) any unusual circumstances weighing for or against a determination that the application is timely. Many courts have relied on the timeliness factors set out in Stallworth. 6 James W. Moore et ah, Moore’s Federal Practice § 24.21[3] (3d ed.1997).


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Andy Dean DEAS v. STATE of Alabama.
    CR-01-0608.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    James Russell Pigott, Foley, for appellant.

      William H. Pryor, Jr., atty. gen., and Robin Blevins, asst. atty. gen., for appel-lee.
   COBB, Judge.

On September 19, 1997, Andy Dean Deas was convicted of two counts of capital murder, one count of intentional murder, and one count of unauthorized use of a motor vehicle. Deas was sentenced to life imprisonment without the possibility of parole on the capital murder convictions, to life in prison on the intentional murder conviction, and to one year in prison on the conviction for unauthorized use of a motor vehicle. On appeal, this Court affirmed his convictions and sentences in an unpublished memorandum. Deas v. State, (No. CR-97-0271) 741 So.2d 482 (Ala.Crim.App.1998) (table). The certificate of judgment was issued on August 27, 1999.

On June 11, 2001, Deas filed a Rule 32, Ala. R.Crim. P., petition. On November 28, 2001, the circuit court conducted a hearing, after which it denied Deas’s petition. Deas appeals the denial of his petition.

In his petition, Deas claimed that his convictions and sentences violated the constitutional guarantee against double jeopardy, as was the case with the defendant in Borden v. State, 711 So.2d 498 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998). Specifically, Deas took issue with the fact that he was convicted of and sentenced for an intentional murder that underlay one of his capital murder convictions. Deas claims on appeal that the circuit court made an erroneous finding of fact when it decided that Borden did not apply to his case because his conviction followed the release of the decision in Borden.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001).

We held in Borden:

“Because intentional murder, as defined in § 13A-6-2(a)(l), Ala.Code 1975, is an element of the capital offense of double murder, as defined in § 13A-5r40(a)(10), Ala.Code 1975, and this element must be proven to support a conviction of the capital offense, ‘intentional murder is by definition and statute a lesser-included offense of § 13A-5-40(a)(10).’ Holladay v. State, 549 So.2d 122 (Ala.Cr.App.1988), aff'd, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989). See Ala.Code 1975, § 13A-l-9(a)(l) (‘[a]n offense is an included one if ... “[i]t is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged”’). Thus, the principles of double jeopardy were violated when the appellant was convicted of the lesser included offense of intentional murder under Count II, which alleged the capital offense of murder committed by or through the use of a deadly weapon fired from outside a dwelling while the victim was inside a dwelling, and he was also convicted of the capital offense of double murder under Count I. See Coral v. State, 628 So.2d 954, 958 (Ala.Cr.App.1992) (double jeopardy was violated by defendant’s conviction of the lesser included offense of intentional murder under an indictment count alleging the capital offense of murder-robbery and also under an indictment count alleging the capital offense of murder-burglary, where same murder was an element of the capital offense and the intentional murder conviction).”

Borden, 711 So.2d at 503.

The circuit court held, as the State had argued during the hearing, that Borden did not apply to Deas’s case because the decision “was handed down one day after the jury returned its verdict in [Deas’s] case.” (C. 3-4.) Evidently, the circuit court was mistaken as to the date of Deas’s conviction, because the records in this case reveal that Deas was convicted on September 19, 1997, nearly three months after the opinion in Borden was released on June 20,1997.

Moreover, the date of Deas’s conviction was irrelevant, because this type of double jeopardy violation “implicates the trial court’s jurisdiction to render a judgment,” and issues that affect the subject matter jurisdiction of the trial court may be raised at any time. Borden, 711 So.2d at 503 (citing Rolling v. State, 673 So.2d 812, 816 (Ala.Crim.App.1995)). See also Frazier v. State, 758 So.2d 577 (Ala.Crim.App.), aff'd, 758 So.2d 611 (Ala.1999), cert. denied, 531 U.S. 843, 121 S.Ct. 109, 148 L.Ed.2d 66 (2000); and Mangione v. State, 740 So.2d 444 (Ala.Crim.App.1998).

Because Deas’s claim appears to have merit, we remand this cause for the circuit court to address Deas’s claim that he was convicted and sentenced in violation of constitutional guarantees against double jeopardy. Therefore, we pretermit any discussion of the other issues raised in Deas’s petition or on appeal, with the exception of noting that the circuit court did not erroneously deny Deas’s request for counsel because, as the State points out, “indigent defendants are not entitled to appointed counsel in post-conviction proceedings. The appointment of counsel in such proceedings is discretionary with the trial court. Ex parte Cox, 451 So.2d 235 (Ala.1983).” Pryor v. State, 599 So.2d 83, 85 (Ala.Crim.App.1992). See also Mayes v. State, 563 So.2d 38 (Ala.Crim.App.1990), and Rule 32.7(c), Ala. R.Crim. P.

Therefore, we remand this cause to the circuit court for proceedings consistent with this decision. If necessary, the circuit court may take evidence as it sees fit according to Rule 32.9(a), Ala. R.Crim. P. If it finds that Borden does indeed apply to Deas’s situation, the circuit court shall vacate Deas’s conviction and sentence for intentional murder as a lesser-included offense of one of the capital murder charges against Deas. Due return with specific findings of fact shall be made within 42 days of the release of this decision.

REMANDED WITH DIRECTIONS.

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

      . In the unpublished memorandum, this Court misstated Deas’s convictions as
      "two counts of capital murder, in violation of § 13A-5-40-(a)(10), Ala.Code 1975, wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct, two counts of murder during the course of a robbery in the first degree, in violation of § 13A-5-40 (a)(2), and theft of property in the first degree, in violation of § 13A-8-3 (b), Ala.Code 1975." We take this opportunity to correct that error.

      . While we recognize that Deas takes issue with the trial court's factual finding regarding the exact date of his conviction, the basic question here is whether Borden applies to Deas’s case. Because we are to determine whether the circuit court correctly applied the law to Deas's case, we review the dismissal of his petition de novo.


text:
    James Kenneth GOETZMAN v. STATE of Alabama.
    CR-01-1107.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.

      James Kenneth Goetzman, pro se.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for ap-pellee.
   COBB, Judge.

On August 6,1990, pursuant to a negotiated plea agreement, James Kenneth Goetzman pleaded guilty to second-degree robbery. The trial court sentenced him to 19 years in prison. On appeal, this Court affirmed Goetzman’s sentence and conviction in an unpublished memorandum. Goetzman v. State, (No. CR-90-107) 586 So.2d 301 (Ala.Crim.App.1991) (table). We issued the certificate of judgment on December 4, 1991.

On December 14, 2001, Goetzman filed a Rule 32, Ala. R.Crim. P., petition. After the State had moved- to dismiss the petition, the circuit court summarily dismissed it. This appeal followed.

In his petition, Goetzman claimed 1) that the indictment was void because it did not contain a detailed description of the property that was allegedly taken, or the date, time, or physical location of the theft of property; 2) that the indictment was void because, although it included facts to support a conviction for first-degree robbery, it did not include facts to support a conviction for second-degree robbery; 3) that the indictment was void because he did not, in fact, steal money from the victim listed in the indictment; and 4) that his sentence for 19 years is more than the 15-year sentence he agreed to in his plea agreement.

On appeal, Goetzman reiterates his claims and contends that the circuit court should not have dismissed the petition without first holding an evidentiary hearing.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).

Rule 32.7(d), Ala. R.Crim. P., provides for the summary disposition of a Rule 32 petition only

“[i]f the court determines that the petition is not sufficiently specific [in violation of Rule 32.6(b), Ala. R.Crim. P.], or is precluded [under Rule 32.2, Ala. R.Crim. P.], or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by further proceedings .... ”

Claims 1, 3, and 4, although couched in jurisdictional terms, are not jurisdictional and, therefore, are precluded by the two-year period of limitations in Rule 32.2(c), Ala. R.Crim. P.

However, Goetzman’s second claim regarding the trial court’s jurisdiction to accept his guilty plea to second-degree robbery when the indictment contained no facts to support such a conviction implicates the jurisdiction of the trial court. See Ex parte Cole, 842 So.2d 605 (Ala.2002) (“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — -an essential element of the offense of second-degree robbery — the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea.”). Therefore, it cannot be precluded.

Moreover, the claim appears to have merit. Goetzman included a copy of. the indictment filed against him as an attachment to his petition and in the record on appeal:

“JAMES KENNETH GOETZMAN, whose name is to the grand jury otherwise unknown, did, in the course of committing a theft of Seven Thousand Thirty Four Dollars of the lawful currency of the United States of American, a more particular description and denomination of which is to the grand jury otherwise unknown, the property of Brandi Jackson, or another person present, with the intent to overcome her physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with the property, while the said JAMES KENNETH GOETZMAN, was armed with a deadly weapon or dangerous instrument, to-wit: a pistol in violation of Section 13A-8^11 of the Alabama Code, against the peace and dignity of the Sate of Alabama.”

(C.R.38.) Because the State does not dispute Goetzman’s assertion that his indictment reads as stated, and because nothing in the record indicates otherwise, we accept his assertion true. Bates v. State, 620 So.2d 745, 746 (Ala.Crim.App.1992) (“ ‘When the State does not respond to a petitioner’s allegations, the unrefuted statement of facts must be taken as true.’ ” (quoting Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991))).

“If at these guilty-plea proceedings, the indictment was ‘amended,’ the State was required to comply with Rules 13.5(a) and 13.2(c)[, Ala. R.Crim. P.] and to confine its ‘amendment’ to lesser offenses necessarily included within the offense of first-degree robbery. In this respect, a defendant charged with first-degree robbery by an indictment that describes the defendant’s conduct as occurring in the presence of another aiding him could plead guilty to second-degree robbery as a lesser-included offense, because robbery in the second degree requires the use of force or the threatened use of force while the defendant is ‘aided by another person actually present.’ § 13A-8-42, Ala.Code 1975....
“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery — the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained Cole’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a). That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment.”

Cole, 842 So.2d at 608-09.

Nothing in the record before us indicates, and the State does not assert, that the trial court obtained Goetzman’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present.

We therefore remand this cause to the circuit court in order for it to determine whether the trial court obtained Goetz-man’s consent to amend the indictment. The indictment would not have been amended simply by virtue of the facts pleaded guilty to by Goetzman. If, as in Cole, Goetzman did not consent to the amendment of the indictment to include facts broad enough to encompass both first- and second-degree robbery, the first-degree robbery indictment in this case would “fail[] to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant—an essential element of the offense of second-degree robbery....” Id. If the circuit court determines that the indictment was not amended with Goetzman’s consent, then it shall vacate Goetzman’s guilty plea for second-degree robbery.

However, Goetzman’s original indictment for first-degree robbery would remain valid. Cole, swpra. The State may try Goetzman on this charge or may rein-dict Goetzman for the proper offense. “A reindictment after a conviction that has been held to be void does not constitute double jeopardy because, if a court is without jurisdiction, there can be no valid conviction; hence there is no jeopardy.” Cole, 842 So.2d at 609.

Therefore, we remand this cause for the circuit court to proceed in a manner consistent with this opinion. The circuit court shall make specific findings of fact, and due return shall be made to this Court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P. J., and SHAW and WISE, JJ„ concur. BASCHAB, J., concurs in the result.


author: WISE, Judge.

text:
    Tyrone GRAVES v. ALABAMA BOARD OF PARDONS AND PAROLES.
    CR-01-0809.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Tyrone Graves, pro se.
    Gregory O. Griffin, Sr., chief counsel, Alabama Board of Pardons and Paroles, for appellee.
   WISE, Judge.

The appellant, Tyrone Graves, appeals from the circuit court’s dismissal of his petition for a writ of certiorari, wherein he sought judicial review of the action of the Alabama Board of Pardons and Paroles (hereinafter “the Board”) denying parole on his murder conviction. The appellant is currently serving a term of 20 years’ imprisonment.

The appellant’s sole contention in his petition and on appeal is that the Board erroneously relied on false information when denying him parole. Specifically, the appellant contends that the Board relied on false information that he did not have a high school degree; that he had not participated in any prison programs; and that he had gotten into trouble while in prison.

In Tedder v. Alabama Board of Pardons & Paroles, 677 So.2d 1261, 1263-64 (Ala.Crim.App.1996), this Court stated:

“ ‘The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as punishment for crimes. Holley v. State, 397 So.2d 211, 216 (Ala.Crim.App.), cert. denied, 397 So.2d 217 (Ala.1981). Obtaining an early release through parole, like obtaining a pardon, is wholly contingent upon either the grace of the detaining authority or some affirmative statutory entitlement. United States v. Chagra, 669 F.2d 241, 264 (5th Cir.1982). While no constitutional or inherent right of a convicted person to be conditionally released prior to the expiration of a valid sentence exists, Greenholtz v. [Inmates of] Nebraska [Penal and Correctional Complex], 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979), a prisoner has the right to be properly considered for parole. Christopher v. U.S. Board of Parole, 589 F.2d 924 (7th Cir.1978); Wallace v. Turner, 525 F.Supp. 1072 (S.D.Fla.1981). The paroling authority must comply with constitutional requirements and may not determine parole eligibility on improper grounds. Wallace v. Turner, supra. A parole should not be denied for false, insufficient, or capricious reasons.’

(Emphasis added.)

After reviewing the record on appeal, we are unable to determine whether the Board’s denial of the appellant’s request for parole was based on false or insufficient information or for capricious reasons. We acknowledge that there are no constitutional or statutory provisions requiring the Board to detail its reasons for denying parole. See Tedder, 677 So.2d at 1264. We note, however, that in Tedder, we upheld the Board’s decision based, in part, on the inclusion in the record of affidavits by members of the Board that refuted the petitioner’s claim that the Board’s decision was based on false or insufficient information, or capricious reasons.

Therefore, we must remand this cause to the circuit court with directions that it take all necessary actions to address the merits of this claim and that it make specific written findings of fact concerning the appellant’s claim. See Tucker v. Alabama Board of Pardons & Paroles, 781 So.2d 358, 360 (Ala.Crim.App.2000)(case remanded to circuit court where record did not address whether appellant’s file contained false information that the Board may have considered when denying parole).

The circuit court is directed to take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time within 42 days from the release of this opinion. The return to remand should include a transcript of the remand proceedings, if any, and a copy of the circuit court’s written order.

This cause is remanded to the circuit court for proceedings consistent with this opinion.

REMANDED WITH DIRECTIONS.

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


author: SHAW, Judge.

text:
    Wayne Lamont WILSON v. STATE of Alabama.
    CR-01-0256.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.

      Wayne Lamont Wilson, pro se.
    William H. Pryor, Jr., atty, gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   SHAW, Judge.

Wayne Lamont Wilson appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his January 1999 conviction for murder and his resulting sentence of life imprisonment. This Court affirmed Wilson’s conviction and sentence on direct appeal in an unpublished memorandum issued on November 12, 1999. See Wilson v. State (No. CR-98-1981), 796 So.2d 456 (Ala.Crim.App.1999) (table). The Alabama Supreme Court denied certiorari review (No. 1990617, April 14, 2000), 787 So.2d 724 (Ala.2000) (table), and this Court issued a certificate of judgment on April 14, 2000.

Wilson filed the present petition on July 17, 2001, contending (1) that his trial counsel and appellate counsel had rendered ineffective assistance, and (2) that newly discovered evidence exists that requires that his conviction be vacated. The State filed a response, and the circuit court summarily denied the petition.

I.

Wilson raises the following ineffective-assistance-of-counsel claims: (1) that his trial counsel did not object when the oath allegedly was not administered to the prospective jurors before voir dire examination; (2) that his trial counsel did not move to suppress the statement Wilson made to the police; (3) that his trial counsel did not object to the introduction of the statement Wilson made to the police on the grounds that no predicate had been laid and that there had been no showing this statement had been given voluntarily; (4) that his trial counsel did not investigate and present the defense of intoxication; and (5) that his appellate counsel did not raise for appellate review Wilson’s Batson objection.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Furthermore, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052.

Although Wilson contended in his Rule 32 petition that he received ineffective assistance of trial counsel on issues involving the statement Wilson made to the police and the defense of intoxication, he failed to allege with sufficient specificity how these “errors” by his trial counsel were necessarily deficient and how they might have prejudiced his defense to the extent required to substantiate a claim under Strickland.

As to Wilson’s claim that his appellate counsel had rendered ineffective assistance when his appellate counsel did not raise for appellate review Wilson’s Batson objection, Wilson failed to allege with sufficient specificity how this “error” by his appellate counsel was necessarily deficient and how such “error” might have prejudiced him to the extent required to substantiate a claim under Strickland.

As to Wilson’s claim that his trial counsel had rendered ineffective assistance because counsel did not object when the trial court allegedly did not administer the oath to the jury venire before voir dire examination, we must remand this cause to the circuit court to make findings as are necessary to determine whether, in fact, the venire was properly sworn. See Hamlett v. State, 815 So.2d 499 (Ala.2000). We have examined the record from the direct appeal and find that while it clearly shows that the trial court administered an oath to the petit jury after jury selection had taken place, the record is silent as to whether the trial court administered an oath to the jury venire prior to voir dire examination. See Hamm v. State, 439 So.2d 829 (Ala.Crim.App.1983). We recognize that this is a defective-oath situation, which presents a nonjurisdictional issue subject to the procedural bars in Rule 32.2, not a no-oath-at-all situation, which presents a jurisdictional issue. See Brooks v. State, 845 So.2d 849 (Ala.Crim.App.2002). However, Wilson’s claim is not that the trial court lacked jurisdiction to render the judgment or to impose the sentence because the venire was not sworn, which is nonjurisdic-tional and waivable, but that his trial counsel rendered ineffective assistance when he did not object. Thus, whether the venire had been, in fact, administered the oath has a direct bearing on this particular ineffeetive-assistanee-of-trial-counsel claim. See Fortner v. State, 825 So.2d 876 (Ala.Crim.App.2001). Therefore, it is necessary for this cause to be remanded to the circuit court to make such findings as are necessary to determine whether the venire was properly sworn.

II.

Wilson contends that newly discovered evidence exists that requires that his conviction and sentence be vacated. The “newly discovered evidence” is that a “deal” had been made with two of the State’s witnesses in return for their testimony against Wilson and that that “deal,” Wilson says, was not disclosed to him at the time of trial. In Harris v. State, 778 So.2d 256, 257 (Ala.Crim.App.2000), this Court stated:

“The appellant also claims that he has recently discovered that his codefend-ants and the State entered into a ‘deal.’ However, under Rule 32.1(e)(3), Ala. R.Crim.P., such a discovery amounts only to impeachment evidence; it does not constitute newly discovered evidence.”

Thus, Wilson’s discovery did not constitute newly discovered evidence and the circuit court properly denied his petition on this claim.

Based upon the foregoing, the judgment of the circuit court summarily denying Wilson’s Rule 32 petition is affirmed as to all issues except that issue dealing with Wilson’s claim of ineffective assistance of counsel regarding the administration of oath to the jury venire. This cause is remanded on that issue, with instructions.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

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

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


text:
    O.P. HOLLIS v. STATE of Alabama.
    CR-01-0060.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.

      Aimee C. Smith, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   COBB, Judge.

On October 28, 1997, O.P. Hollis pleaded guilty to the possession burglary tools and two counts of second-degree theft of property. The trial court imposed, for each conviction, a sentence of 15 years in prison; it then split the sentences and ordered Hollis to serve 2 years on each charge to be followed by probation. The remaining portions of the sentences were suspended. The trial court ordered the three sentences to run concurrently.

On August 11, 2000, Hollis was indicted for first-degree theft of property. On September 26, 2001, pursuant to a negotiated plea agreement, Hollis pleaded guilty to first-degree theft of property. The trial court sentenced him, as an habitual offender, to serve 20 years in prison. See § 13A-5-9(c)(2), Ala.Code 1975. The trial court split the sentence, ordered Hollis to serve four years in prison, and suspended the remainder of the sentence. Additionally, during the sentencing proceedings, the trial court revoked Hollis’s probation in his three prior convictions and reinstated the remaining portions of his concurrent 15-year sentences, “modified” the sentences, split those sentences, and ordered Hollis to serve four years in prison on each count, to run concurrently with the four years he was to serve on his most recent first-degree-theft-of-property conviction. The trial court also gave Hollis credit for time served for the two years he had served in prison before he was released on probation, effectively reinstating the suspended portion of his sentence. The trial court ordered that the four-year “to serve” portions of Hollis’s reinstated sentences be credited with the two years he had already served. This appeal followed.

Hollis argues on appeal that the trial court erroneously modified the suspended portions of his prior 15-year sentences. Specifically, he claims that § 15-18-8(a)(l), Ala.Code 1975, allows the trial court only to order him to serve 3 years, rather than 4 years, of a 15-year sentence. The State argues that Hollis’s illegal-sentencing claim is not properly before this Court because Hollis did not preserve it by first raising it in the trial court.

Initially, we note that a trial court does not have jurisdiction to impose a sentence not provided for by statute. Therefore, as an issue concerning subject-matter jurisdiction, “ ‘[a]n illegal sentence may be challenged at any time.’ ” Johnson v. State, 722 So.2d 799, 800 (Ala.Crim.App.1998) (quoting J.N.J., Jr. v. State, 690 So.2d 519, 520 (Ala.Crim.App.1996)). See also Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994) (“Matters concerning unauthorized sentences are jurisdictional and, therefore, can be reviewed even if they have not been preserved.”).

Second, § 15-18-8(c), Ala.Code 1975, provides:

“Regardless of whether the defendant has begun serving the minimum period of confinement ordered under the provisions of subsection (a), the court shall retain jurisdiction and authority throughout said period to suspend that portion of the minimum sentence that remains and place the defendant on probation, notwithstanding any provision of the law to the contrary and the court may revoke or modify any condition of probation or may change the period of probation.”

(Emphasis added.) See also Davis v. State, 644 So.2d 44, 44 (Ala.Crim.App.1994) (“Because Davis had already served the minimum period of confinement, the trial court was without jurisdiction to consider the untimely motion for modification; therefore the order denying the motion was void and unappealable. § 15 — 18—8(c), Ala.Code 1975. See also Massey v. State, 587 So.2d 448 (Ala.Crim.App.1991) (trial court loses all jurisdiction to modify sentence if the request to modify a sentence is not filed within 30 days of sentencing).”).

Although the trial court retained jurisdiction over the split sentences throughout Hollis’s period of confinement, it no longer had jurisdiction over the sentences after he was released. Therefore, it was not within the purview of the trial court to alter or amend Hollis’s original sentences. Its only sentencing option was to impose that portion of the sentence that had been suspended at the original hearing — 13 years. See § 15-22-54(e)(2), Ala. Code 1975. The trial court did not have jurisdiction to alter or amend the reinstated balance sentence of 13 years, that is, to suspend or split the remaining 13-year sentence.

For the reasons stated above, this cause is remanded for the trial court to vacate its sentencing order of September 26, 2001. The trial court is to reinstate the balance of Hollis’s original sentences — 13 years in each case, to run concurrently, and is not to otherwise modify or alter the sentence in this case. The trial court shall make due return to this court of its amended sentencing order within 42 days of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, PH., and SHAW and WISE, JJ., concur; BASCHAB, J., concurs in the result.

      . We point out that, even if the circuit court had had jurisdiction, that is, even if these proceedings had occurred while Hollis was still serving his original minimum period of confinement, see, e.g., Henderson v. State, 766 So.2d 217 (Ala.Crim.App.2000), the trial court imposed too many years’ confinement when it, upon revocation of Hollis's probation in these cases, reinstated the sentences, split them again with four years to serve concurrently in each case, and suspended the remainders. Section 15 — 18—8(a)(1) states, in pertinent part:
      "(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
      "(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the kn-posed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best....”
      The 4-year period of confinement alone exceeded the statutory maximum of 3 years allowed for a sentence up to 15 years. Additionally, the four-year period of confinement, added to the two years that Hollis had already served, yields a total confinement period of six years, twice that allowed by statute. See Phillips v. State, 755 So.2d 63 (Ala.Crim.App.1999) (citing Havis v. State, 710 So.2d 527 (Ala.Crim.App.1997), and § 15-18-8(a), Ala. Code 1975). Therefore, the trial court, in again splitting Hollis’s three sentences from his 1997 convictions upon revocation of his probation, could sentence him to serve only a maximum of one year, because one year brings Hollis's total time of confinement on each of these charge to three years, the maximum allowed by statute.


author: BASCHAB, Judge.

text:
    Tremane CARTHEN v. STATE of Alabama.
    CR-01-1087.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Kelly Dean Vickers, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Tremane Carthen, pled guilty to first-degree assault, a violation of § 13A-6-20(a)(3), Ala.Code 1975. The trial court sentenced him to serve a term of fifteen years in prison. The appellant filed a motion to withdraw his guilty plea, which the trial court denied by stating, “[S]aid Motion is DENIED in that this Court is without jurisdiction because more than 30 days have elapsed since date of sentence.” (S.R.4.) The appellant filed a motion to vacate the order denying his motion to withdraw his guilty plea, asserting that he had timely filed the motion, and the trial court summarily denied the motion. This appeal followed.

The appellant argues that the trial court improperly denied his motion to withdraw his guilty plea as untimely filed. “A motion to withdraw a guilty plea is the functional equivalent of a motion for a new trial.” Wallace v. State, 701 So.2d 829, 830 (Ala.Crim.App.1997). “A motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced.” Rule 24.1(b), Ala. R.Crim. P. Finally, with regard to computation of time, Rule 1.3(a), Ala. R.Crim. P., provides, in pertinent part:

“In computing any period of time of more than twenty-four (24) hours prescribed by these rules, by order of court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be included, unless that day is a Saturday, Sunday, legal holiday, or day on which the appropriate clerk’s office is closed pursuant to Rule 5(B) or (C), Alabama Rules of Judicial Administration (A.R.J.A.), in which case the period shall run until the end of the next day which is not a Saturday, Sunday, or a legal holiday, or a day on which the clerk’s office is closed pursuant to Rule 5(B) or (C), A.R.J.A-As used in this rule, ‘legal holiday’ includes New Years Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or as prescribed in Ala.Code 1975, § 1-3-8.”

(Emphasis added.)

The trial court sentenced the appellant on January 17, 2002, and the appellant filed his motion to withdraw his guilty plea on February 19, 2002. The thirtieth day after the trial court sentenced the appellant was February 16, 2002—a Saturday, and the following Monday, February 18, 2002, was Washington’s Birthday—a legal holiday. When the appellant filed his motion on the day after the legal holiday, his motion was timely, and the trial court retained jurisdiction to rule on the motion. Therefore, the trial court improperly concluded that it did not have jurisdiction to rule on the appellant’s motion to withdraw his guilty plea.

Accordingly, we remand this case to the trial court with instructions that that court rule on the appellant’s motion to withdraw his guilty plea. On remand, the trial court may require the State to respond specifically to the motion, may conduct an evi-dentiary hearing on the motion, and may grant any relief it deems necessary. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the trial court’s order and, if applicable, the State’s response and/or a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

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

      . Because of our disposition of this issue, we pretermit discussion at this time of the remaining issues the appellant raises in his brief to this court.