author: THOMPSON, Judge. MURDOCK, Judge,

text:
    HOLY FAMILY CATHOLIC SCHOOL et al. v. Charles W. BOLEY.
    2010040.
    Court of Civil Appeals of Alabama.
    April 5, 2002.
    Terry A. Moore of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for appellants.
    Jay A. York and James P. Meador, Jr., of York & Legg, Mobile, for appellee.
   THOMPSON, Judge.

Charles W. Boley suffered an on-the-job injury while working for Holy Family Catholic School (hereinafter “the employer”). Boley and the employer entered into a settlement agreement regarding Boley’s claim for workers’ compensation benefits. The settlement agreement provided, in pertinent part, that the employer would pay Boley $40,000 in settlement of all his claims arising out of the on-the-job injury, and that the employer would pay all Bo-ley’s reasonable and necessary medical expenses related to that injury. On July 20, 1992, the trial court entered a judgment that incorporated the terms of that settlement agreement.

On February 21, 2001, Boley filed a motion seeking to enforce the terms of the July 20, 1992, judgment. Boley asserted that the July 20, 1992, judgment, and § 25-5-77, Ala.Code 1975, as it read at the time of Boley’s injury, required the employer to maintain a charge account in its name at a pharmacy, required the employer to allow him to charge the cost of his prescription medication related to his on-the-job injury on the employer’s account, and required the employer to pay the pharmacy directly for those charges. On June 19, 2001, the trial court granted Bo-ley’s motion and entered an order enforcing its July 20,1992, judgment. On July 3, 2001, the employer filed a motion to amend the trial court’s June 19, 2001, order. The trial court amended its order to reflect that this action was covered by § 25-5-77, Ala.Code 1975, as it read on August 8, 1990, the date Boley was injured. The employer appealed.

On August 8, 1990, Boley injured his back while working for the employer. As has previously been discussed, the trial court’s July 20, 1992, judgment required the employer to pay Boley $40,000 and the “reasonable and necessary medical expenses incurred, arising out of or connected with [Boley’s] accident, disability or injury.” Following the trial court’s July 20, 1992, judgment, the employer arranged for Boley to charge, at an authorized pharmacy, his prescription medication related to his on-the-job injury to an account in the employer’s name. Between 1993 and 2001, the employer entered into agreements with several different pharmacies to provide an account in the employer’s name so that Boley, as well as the employer’s other workers’ compensation claimants, could obtain prescription medication related to their on-the-job injuries. The record indicates that, pursuant to each of those agreements, the authorized pharmacy was to obtain the employer’s approval before filling prescriptions related to the claimant’s workers’ compensation claim. In August 1999, the employer entered into an agreement with the Medicine Shoppe, a pharmacy, to service its charge account in Monroeville, Alabama; Boley lives near Monroeville.

The employer asserts that the Medicine Shoppe did not properly monitor the employer’s account. The employer claims that the Medicine Shoppe notified the employer that it was unable to monitor the' employer’s account effectively and that it would no longer consent to monitoring the account. The record indicates that the employer was unable to locate a pharmacy that would agree to monitor the claimants’ charges. The employer asserts that because of that and other difficulties in monitoring the charges on its accounts, it adopted a new policy in August 1999 for handling its workers’ compensation claims. The new policy applied to all of the employer’s employees and workers’ compensation claimants.

Under the new policy, the claimant would pay directly for all medications prescribed through the workers’ compensation plan, and the employer would then reimburse the claimant. Upon receiving a receipt from a covered employee or a workers’ compensation claimant, the employer’s workers’ compensation administrator would determine whether the claim was a covered expense and, if so, would then reimburse the employee or claimant on the Thursday following its receipt of the request. The new plan allowed the employee or claimant to select a pharmacy of his or her choice.

The record indicates that after the employer implemented its new policy, Boley requested that he be exempted from the new program and that he be allowed to continue to charge his approved prescription medications related to his on-the-job injury, as prescribed by his authorized physicians, on the employer’s account at the Medicine Shoppe. The employer granted Boley’s request, and it maintained its account at the Medicine Shoppe in Monroeville. The employer notified Boley that he was allowed to charge only medication prescribed by his authorized physicians and related to his on-the-job injury. The employer asserts that Boley misused the charge account and charged medications not related to his on-the-job injury to the account. Therefore, the employer states, it closed the account and notified Boley that he would have to pay for his prescriptions in advance and seek reimbursement pursuant to the employer’s new policy.

Vicki Stricklin, the employer’s workers’ compensation claims administrator, testified by affidavit that the employer received bills from the Medicine Shoppe for items charged by Boley that were not related to his on-the-job injury. According to Strick-lin, those items included birth-control pills, aspirin, bandages, and headache medication. The employer asserts that those items were not related to Boley’s on-the-job injury and that the employer never agreed to pay for those items.

Stricklin also testified that the only doctors approved to prescribe medication for Boley for his on-the-job injury were Dr. Edmund Dyas and Dr. David Walsh. According to Stricklin’s affidavit, on June 26, 2000, the employer received a bill from the Medicine Shoppe for Prazosin, a blood-pressure medication, charged by Boley and prescribed by Dr. Kenneth Aquilino. On February 1, 2001, the employer received a bill from the Medicine Shoppe for medication charged by Boley and prescribed by Dr. Kevin Welsh. Boley does not dispute that he charged the costs of medication not related to his on-the-job injury to the employer’s account at the Medicine Shoppe.

The trial court’s June 19, 2001, order states, in pertinent part, that the employer, “shall designate a pharmacy in or near Monroeville, Alabama, for the purpose of providing medication to Boley for the treatment of his job-related injuries in accordance with § 25-5-77, Ala.Code 1975, as it read in 1990, and shall pay said pharmacy directly for the provision of said medications in accordance with said Act.”

When the trial court receives ore tenus evidence in a workers’ compensation action, its findings of fact based on that testimony are entitled to a presumption of correctness on appeal, and will not be disturbed on appeal absent a determination that those findings are unsupported by substantial evidence. § 25-5-81(e)(2), Ala. Code 1975. However, when the trial court hears no oral testimony, and the evidence presented to the trial court consists of stipulations, depositions, and exhibits, the ore tenus rule does not apply. McGhee v. International Paper Co., 729 So.2d 880 (Ala.Civ.App.1999). Further, pursuant to § 25 — 5—81(e)(1), Ala.Code 1975, this court’s review of the trial court’s judgment with respect to the undisputed facts and with regard to purely legal issues is afforded no presumption of correctness on appeal. § 25-5-81(e)(l), Ala.Code 1975; McGhee, supra. In this case, the trial court’s June 19, 2001, order states that the trial court considered “the arguments of counsel ..., ... the testimony by affidavit of Boley and Vicki Stricklin, as well as the exhibits presented.” Accordingly, our review of the trial court’s judgment is de novo. See McGhee, supra.

The employer asserts on appeal, as it has throughout the course of this action, that the trial court erred in holding that § 25-5-77, Ala.Code 1975, as it read in 1990, required the employer to maintain a charge account at a pharmacy for Boley’s benefit, and that the trial court’s judgment is inequitable because of Boley’s past abuse of the account. We agree with the employer’s argument that the trial court’s June 19, 2001, order is inequitable based on the particular facts of this case.

This court has long recognized that one
“ ‘who seek[s] equity must do equity,’ and ‘one that comes into equity must come with clean hands.’ Levine v. Levine, 262 Ala. 491, 494, 80 So.2d 235, 237 (1955). The purpose of the clean hands doctrine is to prevent a party from asserting his, her, or its rights under the law when that party’s own wrongful conduct renders the assertion of such legal rights ‘contrary to equity and good conscience.’ Draughon v. General Fin. Credit Corp., 362 So.2d 880, 884 (Ala.1978).”

J & M Bail Bonding Co. v. Hayes, 748 So.2d 198, 199 (Ala.1999). The record indicates that the employer notified Boley on more than one occasion that he was only to use the employer’s charge account at the Medicine Shoppe for medication prescribed by authorized physicians and related to his on-the-job injury. However, the record indicates that on more than one occasion Boley charged items, such as birth-control medication, blood-pressure medication, and bandages, on the employer’s account at the Medicine Shoppe; those items were either prescribed by physicians not authorized by the employer or were not related to Boley’s on-the-job injury. Boley does not dispute making those charges or that those charges were not related to his on-the-job injury.

In support of the trial court’s June 19, 2001, order, Boley cites this court’s decision in Kelley v. Shelby County Health Care Authorities, 638 So.2d 898 (Ala.Civ.App.1993). This court’s decision in Kelley stands for the proposition that the employer is directly responsible for paying authorized medical expenses attributable to the employee’s on-the-job injury. The employer does not dispute its responsibility for Boley’s authorized medical expenses; rather, the employer disputes the manner in which it is required to bear that responsibility when Boley consistently charged medication unrelated to his on-the-job injury to the employer’s account.

We conclude that regardless of whether § 25-5-77, Ala.Code 1975, required the employer to pay the pharmacy directly for Boley’s covered prescription medication, Boley’s abuse of the employer’s charge account by attempting to have the employer pay for medication not related to his on-the-job injury necessitates a finding that Boley had “unclean hands” and that Boley’s assertion that the employer be required to maintain that account is “contrary to equity and good conscience.” Basic principals of equity dictate that Boley be required to comply with the requirements of the employer’s new policy. See Hayes, supra.

The judgment of the trial court is reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK, Judge,

concurring in the result.

The majority grounds its reversal of the trial court’s judgment on its application of certain equitable doctrines, including the doctrine of “unclean hands,” to the Alabama Workers’ Compensation Act, specifically Ala.Code 1975, § 25-5-77. The employer makes no mention of these equitable doctrines in its brief to this court, however, and we may not hold a trial court in error on grounds not argued on appeal. Thompson v. Skipper Real Estate Co., 729 So.2d 287, 289 n. 2 (Ala.1999); Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875 (1972). Therefore, I would not reach the issue whether the equitable doctrines discussed in the majority opinion are properly applied to the statutory provisions of the Workers’ Compensation Act.

Nonetheless, given the facts of this particular case, and on the basis of the provisions of § 25-5-77, the policies underlying those provisions, and the need to consider the rights of both the employer and the employee within the context of those provisions, I agree with the result reached by the majority in this case.

      . The parties agreed that the statute applicable to this action was § 25-5-77, Ala.Code 1975, as it read at the time of Boley's injury. Section 25-5-77, Ala.Code 1975, was amended in 1992 (see Act No. 92-537, Ala. Acts 1992), and, most recently, in 1993 (see Act No. 93-614, Ala. Acts 1993).

      . The record indicates that, at the time of the July 20, 1992, judgment, the employer retained a third-party administrator to adjust its workers’ compensation claims.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Bennie HILL, Jr. v. HUNTSVILLE WEST LIMITED PARTNERSHIP.
    2010973.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.

      Jay E. Emerson, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appellant.
    Robert C. Gammons of Stephens, Milli-rons, Harrison & Gammons, P.C., Huntsville, for appellee.
   THOMPSON, Judge.

Huntsville West Limited Partnership (“Huntsville West”) sued Bennie Hill, Jr., seeking to recover amounts it alleged it was owed pursuant to a commercial lease between it and Hill. On February 4, 2002, Huntsville West moved for a summary judgment. On February 27, 2002, Hill filed a counterclaim, seeking to be reimbursed for amounts he alleged he expended in making improvements to the premises he had leased from Huntsville West. Hill later filed an opposition to Huntsville West’s motion for a summary judgment in which he addressed only the single claim argued by Huntsville West in its summary-judgment motion.

On April 24, 2002, the trial court entered an order granting Huntsville West’s motion for - a summary judgment. Hill appealed to the Alabama Supreme Court. That Court transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Although neither party has addressed the issue of the appellate courts’ jurisdiction over this matter, the issue of jurisdiction is of such magnitude that a court may take notice of it at any time and may do so ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App.1997). A final judgment is one “that con clusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). See also McCollough v. Bell, 611 So.2d 383, 385 (Ala.Civ.App.1992) (“Any decision, order, or [judgment] of the trial court which puts an end to the proceedings between the parties to a cause in that court is final and may be reviewed on appeal.”). The trial court’s April 24, 2002, order did not dispose of Hill’s counterclaim against Huntsville West. Therefore, the April 24, 2002, order was not a final judgment that would support an appeal. This court must dismiss this appeal as being taken from a nonfinal judgment. Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998).

APPEAL DISMISSED.

YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.


text:
    Robert L. JOHNSON v. HARBISON-WALKER REFRACTORIES COMPANY, INC.
    2010766.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.
    Gerald L. Miller of Redden, Mills & Clark, Birmingham, for appellant.
    John F. Whitaker and Marcus A. Jaskol-ka of Sadler Sullivan, P.C., Birmingham, for appellee.
   THOMPSON, Judge.

On June 20, 2000, Robert L. Johnson (“Johnson”) sued his employer Harbison-Walker Refractories Company, Inc. (“Har-bison-Walker”), seeking workers’ compensation benefits for an injury Johnson claims to have suffered in the line and scope of his employment. On July 3, 2001, Harbison-Walker moved for a summary judgment. The trial court, on March 21, 2002, entered a summary judgment in favor of Harbison-Walker. Johnson appealed.

On appeal, Johnson argues only that the trial court’s judgment does not comply with § 25-5-88, Ala.Code 1975. Section 25-5-88 requires that a final judgment in a workers’ compensation case contain “a statement of the law and facts and conclusions.” § 25-5-88, Ala.Code 1975. The trial court’s judgment, in its entirety, reads:

“Motion for summary judgment is argued by the parties and the Court considers the argument and deposition and finds that there is no genuine issue as to any material fact and that the Defendant [Harbison] is entitled to a judgment as a matter of law. There being no just reason for delay in granting his judgment the Order is entered and costs are costs [sic] are taxed as paid.”

Section 25-5-88 applies to a summary judgment and it requires that findings of fact and conclusions of law be included in the summary-judgment order. Carr v. Added Dimensions No. 72 Brookwood, Inc., 772 So.2d 473, 475 (Ala.Civ.App.2000).

In Casteel v. Wal-Mart Stores, Inc., 828 So.2d 331 (Ala.Civ.App.2002), this court interpreted the requirements of § 25-5-88, Ala.Code 1975. In Casteel, the trial court had entered a summary judgment in a workers’ compensation case. The summary-judgment order listed the hearing, pleadings, motions, responses, and submissions as the basis for the trial court’s decision. The trial court in Casteel recited the summary-judgment standard as the sole statement of applicable law. Casteel v. Wal-Mart Stores, Inc., supra. This Court reversed the judgment and remanded the case to the trial court, holding that the summary-judgment order failed to comply with the requirements of § 25-5-88. Casteel v. Wal-Mart Stores, Inc., supra.

“ ‘Until the trial court makes the required finding of fact and conclusions of law and enters a judgment based thereon, we cannot review its finding and judgment for error.’ ” Lee Apparel Co. v. Hart, 623 So.2d 329, 331 (Ala.Civ.App.1993) (quoting Dale Motels, Inc. v. Crittenden, 49 Ala.App. 51, 55, 268 So.2d 834, 837 (Civ.1972)). Upon determining that the trial court has not complied with § 25-5-88, Ala.Code 1975, this court must reverse the trial court’s decision, Carr v. Added Dimensions No. 72 Brookwood, Inc., supra, and on remand the trial court must enter a judgment containing findings of fact and conclusions of law in compliance with § 25-5-88, Ala.Code 1975. Carr v. Added Dimensions No. 72 Brookwood, Inc., supra.

The present case is factually similar to Casteel, supra. The trial court in the present case did not enter findings of fact or conclusions of law, or apply the law to the facts, in accordance with § 25-5-88, Ala. Code 1975. We, therefore, reverse the judgment and remand the case to the trial court to enter a judgment in compliance with § 25-5-88, Ala.Code 1975.

REVERSED AND REMANDED.

YATES, P.J., and PITTMAN, J., concur.

      . Johnson alleges that he suffered a hearing loss.

      . " '[T]he Court finds the motion well taken and due to be granted, and there being no genuine issue of material fact and Defendant Wal-Mart Stores, Inc. being entitled to judgment as a matter of law, Judgment is hereby entered....'” Casteel v. Wal-Mart Stores, Inc., 828 So.2d at 332.


author: PER CURIAM.

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Larry Eugene HUTCHERSON).
    CR-00-2567.
    Court of Criminal Appeals of Alabama.
    Nov. 9, 2001.

      William H. Pryor, Jr., atty. gen., and George A. Martin, Jr., asst. atty. gen., for petitioner.
    Glenn L. Davidson, Mobile, for respondent.
   PER CURIAM.

The State filed this petition for a writ of mandamus directing Judge John R. Lock-ett to dismiss Larry Eugene Hutcherson’s postconviction petition filed pursuant to Rule 32, Ala.R.Crim.P. In 1992, Hutcher-son was convicted of capital murder. The Alabama Supreme Court subsequently reversed his conviction. See Ex parte Hutcherson, 677 So.2d 1205 (Ala.1996). Hutcherson then pleaded guilty to capital murder and was sentenced to death by electrocution. His conviction and sentence were affirmed on direct appeal. See Hutcherson v. State, 727 So.2d 846 (Ala.Crim.App.1997), aff'd, 727 So.2d 861 (Ala.1998), cert. denied, 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). On January 5, 1999, we issued the certificate of judgment in Hutcherson’s case. On May 4, 2001, Hutcherson filed a petition for postconviction relief pursuant to Rule 32, Ala.R.Crim.P. The State moved that the petition be dismissed because it was filed more than two years after the certificate of judgment was issued and thus was, the State argued, barred by the limitations provision of Rule 32.2(c), Ala.R.Crim.P. Judge Lockett heard oral argument on the issue and took the matter under advisement. Judge Lockett has scheduled a hearing on the merits of the claims, but has not yet held the hearing. The State filed this mandamus petition, requesting us to order Judge Lockett to grant its motion to dismiss. Because a hearing on this case is imminent, we have expedited the filing of the respondent’s answer and our decision in this case. See Rule 21(a), Ala. R.Crim.P.

Before we review the merits of this mandamus petition, we must first determine if mandamus is the appropriate manner in which to seek review of the ruling in this case. The State seeks review of a pretrial ruling on a motion that sought dismissal of the petition based on the defense that the limitations period had expired. The Alabama Supreme Court has shown an increasing willingness to review by mandamus petition pretrial rulings that raise viable defenses that would bar subsequent action. See Ex parte Ziglar, 669 So.2d 133 (Ala.1995).

The Supreme Court has recognized that a petition for a writ of mandamus can be used to review issues where “the rights of the parties cannot be adequately protected by appellate review of a final judgment.” Ex parte Spears, 621 So.2d 1255, 1258 (Ala.1993). The Alabama Supreme Court in Ex parte Spears stated:

“It is now a well-established general rule in this state that if the matters complained of can ultimately be presented by an appeal, a writ of mandamus will not be issued. Ex parte Fowler, 574 So.2d 745 (Ala.1990). However, this Court, exercising its discretion, has recognized certain exceptions to this general rule in specific cases where appeals are not considered to be adequate to prevent ‘undue injury.’ See, e.g., Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912 (Ala.1991) (mandamus proper to review discovery rulings); Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988) (mandamus proper to enforce a trial court’s compliance with this Court’s mandate); Ex parte Rush, 419 So.2d 1388 (Ala.1982) (mandamus proper to enforce a statutory or constitutional right to a jury trial); Ex parte Weissinger, [247 Ala. 113, 22 So.2d 510 (1945) ] supra (mandamus proper to vacate certain interlocutory rulings in divorce cases); see, also, Ex parte Brooks, 264 Ala. 674, 89 So.2d 100 (1956); and Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955), and the cases cited therein. The rationale underlying the recognition of these exceptions has not always been crystal clear. For example, the remedy by appeal that will make mandamus review unavailable was described by this Court in one ease as ‘one competent to afford relief on the very subject matter in question, and which is equally convenient, beneficial, and effectual.’ See East v. Todd, 284 Ala. 495, 499, 226 So.2d 153, 156 (1969). Matters of expense and public interest have also been considered important factors in some cases. See, e.g., Ex parte Weis-singer, supra. On the other hand, in Ex parte Moss, 278 Ala. 628, 179 So.2d 753 (1965); and Ex parte Brooks, supra, this Court stated that expense and inconvenience were not controlling in determining whether a party had an adequate remedy by appeal.”

621 So.2d at 1256-57. “ ‘The test, as to whether mandamus will be issued, now seems to depend on whether the remedy by appeal is adequate to prevent undue injury rather than the availability merely of [a] remedy by appeal. Ex parte Watters, 180 Ala. 523, 61 So. 904 [ (1913) ].’ ” Ex parte Spears, 621 So.2d at 1256, quoting Ex parte Weissinger, 247 Ala. 113, 118-19, 22 So.2d 510, 515 (1913). See also Ex parte L.S.B., 800 So.2d 574 (Ala.2001).

The question is not, as Hutcherson argues, whether the State has a remedy, but whether the remedy is adequate to prevent “undue injury.” See Ex parte Spears. Therefore, we have considered the great time, resources, money, and inconvenience the State will be forced to expend to defend the merits of the petition before a trial court that possibly has no jurisdiction to entertain it. (This Court has stated that the limitations provision contained in Rule 32.2(c), Ala.R.Crim.P., creates a jurisdictional bar that prevents a trial court from entertaining an untimely filed Rule 32 petition. See Williams v. State, 783 So.2d 135 (Ala.Crim.App.2000)). We have also considered that the State may be unduly prejudiced in federal court if evidence is presented and the trial court rules on the merits of a claim that is proeedurally barred. “ ‘[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case “‘clearly and expressly’ ” states that its judgment rests on a procedural bar.’ ” Mullins v. State, 555 So.2d 1156, 1158 (Ala.Crim.App.1989), quoting Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

We believe that this case presents a classic example of the type of interlocutory ruling that our Supreme Court has held to be reviewable by mandamus petition. See Ex parte Snow, 764 So.2d 531 (Ala.1999) (the Alabama Supreme Court granted mandamus relief when a trial court failed to grant a motion for a summary judgment that alleged that the statute of limitations had expired), and Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000) (question whether trial court has subject-matter jurisdiction may be raised in a mandamus petition). Therefore, this case is properly before us by mandamus petition, and we will evaluate the merits of this petition.

The State argues that the trial court should grant its motion to dismiss the petition because, it says, all of the claims in the petition are barred by the limitations period in Rule 32.2(c), Ala.R.Crim.P., and the court, therefore, is without jurisdiction to hear the merits of the petition. Rule 32.2(c) states:

“Subject to the further provisions hereinafter set out in this section, the court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within two (2) years after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, [Ala.]R.App. P.; or (2) In the case of a conviction not appealed to the Court of Criminal Appeals, within two (2) years after the time for filing an appeal lapses. The court shall not entertain a petition based on the grounds specified in Rule 32.1(e) unless the petition is filed within the applicable two-year period specified in the first sentence of this section, or within six (6) months after the discovery of the newly discovered material facts, whichever is later; provided, however, that the two-year period during which a petition shall be brought shall in no case be deemed to have begun to run before the effective date of the precursor of this rule, i.e., April 1,1987.”

Rule 32.1(a) and Rule 32.1(f), referenced in Rule 32.2(c), refer to challenges to the constitutionality of the trial or the sentence and the failure of the petitioner to appeal his conviction and sentence. These two issues are barred if not raised within two years of the issuance by this Court of the certificate of judgment. Here, the respondent concedes that this petition was filed outside the limitations period specified in Rule 32.2(c), Ala.R.Crim.P. We issued the certificate of judgment on January 5, 1999; the postconviction petition was filed on May 4, 2001. Hutcherson argues that Judge Lockett has the authority and jurisdiction to extend the time for filing a postconviction petition if “excusable neglect” is established. Hutcherson argues .that he has shown excusable neglect because counsel stated that he thought the limitations period began to run on the date the United States Supreme Court denied certiorari review, not the date this Court issued a certificate of judgment in the case. He cites Rule 1.3(b), Ala.R.Crim.P., in support of this contention. This section provides:

“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect, but it may not, except as provided elsewhere in these rules, extend the time for making a motion for new trial, for taking an appeal, or for making a motion for a judgment of acquittal pursuant to Rule 20.”

The Rules of Criminal Procedure and prior caselaw do not support Hutcherson’s argument. Rule 1.1, Ala.R.Crim.P., defines the scope of the Rules and states, “These rules shall govern the practice and procedure in all criminal proceedings in all courts of the State of Alabama, and political subdivisions thereof, except as otherwise provided by court rule.” (Emphasis added.) “Criminal proceeding” is defined as “the prosecution of any offense as defined in Rule 1.4(s), and may be commenced only by complaint or indictment.” See Rule 1.4(h), Ala.R.Crim.P. “‘Offense’ means conduct for which a sentence to a term of imprisonment, or the death penalty, or for which a fine is provided by any law of this state or by any law, local law, or ordinance of a political subdivision of this state.” See Rule 1.4(s), Ala.R.Crim.P. Rule 32 proceedings are not “criminal proceedings.”

In previous opinions we have held that postconviction proceedings filed pursuant to Rule 32 are civil proceedings. In State v. Click, 768 So.2d 417 (Ala.Crim.App.1999), cert. denied, 531 U.S. 834, 121 S.Ct. 92, 148 L.Ed.2d 52 (2000), we stated:

“Initially, we observe that this Court has held that postconviction proceedings are civil proceedings and not criminal proceedings as Click contends. See Carroll v. State, 462 So.2d 789 (Ala.Cr.App.1984) (‘Coram nobis is treated pro-eedurally as a cross between a civil and a criminal action; it is a new civil action.’); Hobson v. State, 425 So.2d 511 (Ala.Cr.App.1982) (‘even though a coram nobis petition seeks relief from a criminal judgment, it is a civil proceeding.’); Behel v. State, 405 So.2d 51 (Ala.Cr.App.1981) (‘Coram nobis proceedings are civil in nature and the burden of proof is on the appellant to show that he [is] entitled to relief.’); Pittman v. State, 50 Ala.App. 712, 282 So.2d 332 (1973), opinion supplemented, 52 Ala.App. 708, 295 So.2d 431 (1974)(coram nobis is ‘independent civil proceeding’).^
“The United States Supreme Court has also recognized that postconviction proceedings are civil in nature. In Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), that Court stated:
“ ‘Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. See Fay v. Noia, 372 U.S. 391, 423 — [24], 83 S.Ct. 822, 841, 9 L.Ed.2d 837 (1963). It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief, cf. United States v. MacCollom, 426 U.S. 317, 323, 96 S.Ct. 2086, 2090-2091, 48 L.Ed.2d 666 (1976)....’”

768 So.2d at 419 (footnote omitted). Rule 1.3, as limited by the provisions as to scope in Rule 1.1, has no application to Rule 32 proceedings.

We note that Rule 32.4, Ala.Code 1975, states the following:

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

Rule 1.3(b) is prefaced with the following language, “When by these rules....” The rules which apply only to criminal actions initiated by an indictment or complaint do not contain the statute of limitations provision in question. Thus, Rule 1.3(b) has no field of operation even though Rule 32.4 states that the Rules of Criminal Procedure generally apply.

Moreover, the Rules of Criminal Procedure by their very subject matter have little application to Rule 32 proceedings. For example, Rule 2 addresses the commencement and prosecution of criminal proceedings; Rule 3 addresses arrest warrant or summons upon commencement of criminal proceedings; Rule 4 addresses arrest and initial appearance; Rule 5 addresses preliminary hearings; and Rule 6 addresses the right to counsel. The rules address the initial prosecution and subsequent trial of a criminal matter. Rule 16, which addresses discovery, has been held to have limited application to Rule 32 proceedings. See Ex parte Land, 775 So.2d 847 (Ala.2000) (discovery in postconviction proceedings is available if petitioner has established “good cause” for the disclosure of the requested information). We are aware of no other rule of criminal procedure that has been held to apply to Rule 32 proceedings.

Furthermore, the Alabama Supreme Court adopted the Rules of Criminal Procedure pursuant to Amendment No. 328, § 6.11, Ala. Const.1901, which provides:

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

(Emphasis added.) The statute of limitations effects both a substantive right and the jurisdiction of the court — rights that the Supreme Court cannot abridge by rule. See Ex parte Campbell, 784 So.2d 323 (Ala.2000) (statute of limitations is jurisdictional and an indictment returned after the expiration of the limitations period is void); and Hall v. State, 497 So.2d 1145 (Ala.Crim.App.1986) (statute of limitations creates a substantive and fundamental right). See also H. Maddox, Alabama Rules of Criminal Procedure, § 32.2 (3d ed. 1999) (“The statute of limitations is a jurisdictional matter.”).

Neither does prior caselaw support Hutcherson’s argument. As this Court stated in Williams v. State, 783 So.2d 135, 137 (Ala.Crim.App.2000):

“Rule 32.2(c), Ala.R.Crim.P., establishes a limitations period for filing a petition for post-conviction relief on the grounds specified in Rule 32.1(a) and (f), Ala. R.Crim.P., and its language is mandatory. See Hugh Maddox, Alabama Rules of Criminal Procedure § 32.2 (3d ed.1999). ‘The statute of limitations is a jurisdictional matter.’ Hines v. State, 516 So.2d 937, 938 (Ala.Crim.App.1987). See also Ex parte Campbell, 784 So.2d 323 (Ala.2000); Hunt v. State, 642 So.2d 999 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994). Therefore, the failure to file a Rule 32 petition within the two-year limitations period is a jurisdictional defect that can be noticed at any time and is not waived by the failure of the State to assert it.”

“We have held that the two-year limitations period in Rule 32.2(c), Ala.R.Crim.P., is mandatory and jurisdictional. See Williams v. State, 783 So.2d 135 (Ala.Crim.App.2000).” Arthur v. State, 820 So.2d 886, 889 (Ala.Crim.App.2001), cert. denied, 820 So.2d 886 (Ala.2001). We also recognized in Arthur that “[t]he courts of this State, insofar as our research shows, have never recognized an exception to the limitations period in Rule 32.2(c). This rule is mandatory, not permissive, and specifically provides that a trial court ‘shall not entertain any petition’ if that petition is filed outside the limitations period and the petition fails to raise a jurisdictional defect.” 820 So.2d at 888. Jurisdictional defects cannot be waived or excused. See Mitchell v. State, 777 So.2d 312 (Ala.Crim.App.2000), and Lancaster v. State, 638 So.2d 1370 (Ala.Crim.App.1993), after remand, 638 So.2d 1374 (Ala.Crim.App.1993), cert. quashed, 638 So.2d 1375 (Ala.1994).

We are aware of the dicta in our decision in Siebert v. State, 778 So.2d 842 (Ala.Crim.App.1999), cert. denied, 778 So.2d 857 (Ala.2000), that may be construed to imply that the excusable neglect provision in Rule 1.3 applies to Rule 32 proceedings. Subsequent decisions of this Court, though not specifically citing Sie-bert, have by implication invalidated any contradictory language contained in Sie-bert. See Arthur and Williams. To alleviate any future confusion we take this opportunity to specifically disapprove of any statements in Siebert that imply that the excusable neglect provision in Rule 1.3 has any application to Rule 32 proceedings.

Hutcherson also argues that we should excuse the limitations period in Rule 32 because he has been sentenced to death. We have often stated that the procedural bars of Rule 32 apply with equal force to all cases, even those involving the death penalty. See Horsley v. State, 675 So.2d 908 (Ala.Crim.App.1996), and Thompson v. State, 615 So.2d 129 (Ala.Crim.App.), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 418 (1993).

Hutcherson argues in his Rule 32 petition that he was denied a fair trial (he asserts several different constitutional grounds in support of this argument), that his guilty plea was improperly' induced; that the trial court failed to comply with the procedural requirements for accepting a guilty plea, and that he was denied the constitutional right to the effective assistance of counsel (he cites 30 different grounds in support of this contention). None of the issues are jurisdictional.. All are subject to the limitations period of Rule 32.2(c). See Tarver v. State, 761 So.2d 266 (Ala.Crim.App.2000) (constitutional claims are subject to the limitations period in Rule 32.2(c)); George v. State, 774 So.2d 608 (Ala.Crim.App.2000) (issues concerning voluntariness of guilty pleas must be raised within the limitations period set in Rule 32.2(c)).

Rule 1.3 does not apply to post-conviction proceedings initiated under Rule 32, Aa.R.Crim.P. Rule 32.2(c) is a mandatory, substantive, and jurisdictional provision that a trial court cannot excuse or waive. Thus, Judge Lockett has no authority or jurisdiction to enlarge the time for filing Hutcherson’s postconviction petition.

The State has established a clear legal right to the relief sought. The trial court should dismiss the Rule 32 petition without requiring the State to go to the considerable time and expense of mounting an attack on the merits of Hutcherson’s Rule 32 petition when the trial court has no jurisdiction to consider it. See Williams. By issuing this writ we do not wish to be understood as being critical of Judge Lockett’s actions. We are mindful that Judge Lockett could have relied on our decision in Siebert.

It is hereby ordered that this petition be and the same is hereby granted. Judge Lockett is directed to set aside his previous order and to grant the State’s motion to dismiss Hutcherson’s postconviction petition.

PETITION GRANTED.

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

SHAW, J., concurs in the result, without opinion.

      . A petition for coram nobis was the precursor to a postconviction petition filed pursuant to Rule 20, Ala.R.Crim.P.Temp, now Rule 32, Ala.R.Crim.P.

      . There is no right to counsel in a Rule 32 proceeding. See State v. Click, 768 So.2d 417 (Ala.Crim.App. 1999).

      . We noted in Arthur.

      “Federal habeas corpus proceedings, similar to our Rule 32 proceedings, has a one-year specified time limitation period within which a state inmate may file for federal habeas corpus relief. See 28 U.S.C. § 2244(d)(1). However, the United States Court of Appeals for the Eleventh Circuit and other federal circuits have recognized that ' "[section 2244] permits equitable tolling 'when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable with diligence.' ” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000) (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999) (per curiam)).’ Wyzykowski v. Department of Corrections, 226 F.3d 1213, 1216 (11th Cir.2000). This State has never, insofar as we can ascertain, recognized any exception to the filing deadline in Rule 32.2(c)."

      820 So.2d at 889-90. (Emphasis added.)


author: PER CURIAM. JOHNSTONE, Justice STUART, Justice

text:
    Ex parte Larry Eugene HUTCHERSON. (In re Ex parte State of Alabama (In re State of Alabama v. Larry Eugene Hutcherson)).
    1010421.
    Supreme Court of Alabama.
    May 10, 2002.
    Rehearing Denied Aug. 23, 2002.

      Glenn L. Davidson of Collins, Davidson, L.L.C., Mobile, for petitioner.
    William H. Pryor, Jr., atty. gen., and George A. Martin, Jr., asst. atty. gen., for respondent.
   PER CURIAM.

Larry Eugene Hutcherson pleaded guilty to capital murder and was sentenced to death in 1996. Hutcherson’s conviction and sentence were affirmed on direct appeal. Hutcherson v. State, 727 So.2d 846 (Ala.Crim.App.1997), aff'd, 727 So.2d 861 (Ala.1998). The Court of Criminal Appeals issued a certificate of judgment on January 5, 1999.

On May 4, 2001, Hutcherson filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P., challenging the validity of his conviction and sentence. When the Rule 32 petition was filed, Hutcherson’s counsel admitted that it was filed outside the two-year limitations period of Rule 32.2(c), Ala. R.Crim. P., because he misunderstood the rule. To invoke the circuit court’s jurisdiction to consider the petition, Hutcherson filed a motion for an enlargement of time pursuant to Rule 1.3(b), Ala. R.Crim. P. The State filed a motion to dismiss the petition on the ground that the petition was barred by Rule 32.2(c), Ala. R.Crim. P. The circuit court heard oral argument on the State’s motion; it then entered an order stating that it would consider the limitations-period argument at the hearing on the merits of Hutcherson’s petition.

The State filed a petition for a writ of mandamus with the Court of Criminal Appeals, requesting that court to order the circuit court to dismiss Hutcherson’s Rule 32 petition. The Court of Criminal Appeals granted the petition and issued the writ. State v. Hutcherson, 847 So.2d 378 (Ala.Crim.App.2001). The Court of Criminal Appeals held that the issuance of a writ of mandamus was appropriate because the State had no “adequate remedy” to prevent “undue injury.” 847 So.2d at 381. Hutcherson petitions this Court for a writ of mandamus ordering the Court of Criminal Appeals to vacate its order directing the circuit court to dismiss his petition.

Hutcherson’s petition is before this Court pursuant to Rule 21(e), Ala. R.App. P., which provides that a decision by a court of appeals on an original petition for a writ of mandamus may be reviewed de novo by this Court. See Ex parte Land, 775 So.2d 847 (Ala.2000).

“Mandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Horton, 711 So.2d 979 (Ala.1998); Ex parte Land, supra. “A writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner. Ex parte Slade, 382 So.2d 1127 (Ala.1980).” Ex parte Southland Bank, 514 So.2d 954, 955 (Ala.1987).

Hutcherson contends that the State’s right, pursuant to Rule 32.10, Ala. R.Crim. P., to appeal the final judgment of the circuit court in a Rule 32 proceeding provides the State with an adequate remedy at law by which to challenge the circuit court’s denial of the State’s motion to dismiss Hutcherson’s petition. Therefore, he maintains, the issuance of the writ of mandamus by the Court of Criminal Appeals was improper. We agree. “The fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal. See, e.g., Ex parte Temporary Placement Services, 508 So.2d 275 (Ala.Civ.App.1987).” Ex parte Southland Bank, 514 So.2d at 955. See also State v. Zimlich, 796 So.2d 399, 403 (Ala.2000); and Ex parte Jackson, 780 So.2d 681 (Ala.2000). The State has failed to show that it had a clear legal right to the order.

Accordingly, we grant Hutcherson’s petition and issue the writ. The Court of Criminal Appeals is directed to vacate its order directing the circuit court to dismiss Hutcherson’s petition.

PETITION GRANTED; WRIT ISSUED.

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

JOHNSTONE, J., concurs specially.

BROWN and STUART, JJ., dissent.

JOHNSTONE, Justice

(concurring specially).

I concur. I add some observations of my own.

Hutcherson has moved the trial court for a Rule 1.3(b), Ala. R.Crim. P., extension to accommodate the filing of the Rule 32 petition after the expiration of the two years prescribed by Rule 32.2(c). This issue is still pending before the trial court. The Alabama Supreme Court has never held that such an extension cannot be granted. Likewise, the Alabama Supreme Court has never held that the Rule 32.2(c) two-year deadline is jurisdictional.

The Court of Criminal Appeals specifically holds, in Siebert v. State, 778 So.2d 842, 849 (Ala.Crim.App.1999), that “[t]he application of Rule 1.3(b) [for an extension of the Rule 32.2(c) two-year deadline] is discretionary with the circuit court.” While the Court of Criminal Appeals holds in Williams v. State, 783 So.2d 135, 137 (Ala.Crim.App.2000), that “the failure to file a Rule 32 petition within the two-year limitations period is a jurisdictional defect,” this holding is not supported by any such holding of the Alabama Supreme Court but is, oddly, based largely on Sie-bert, supra, which holds the extension of the two-year limitations period to be discretionary.

Hutcherson has clearly articulated his claim of “excusable neglect” to warrant a Rule 1.3(b), Ala. R.Crim. P., extension of the two-year deadline for filing his Rule 32 petition, and he has offered proof for consideration by the trial court. Hutcherson’s Rule 32 counsel has candidly admitted his own mistake of law in interpreting Rule 32.2(c), Ala. R.Crim. P., and Rule 41(b), Ala. R.App. P., for the deadline. Hutcher-son himself is not learned in the law. He may not be bound by the errors of his counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Robinson v. Murphy, 69 Ala. 543, 547 (1881) (“The power of an attorney is not co-equal, eo-extensive, or the equivalent of that of the client.”). Whether Hutcherson is due an extension is a question of fact and law — the complex law of Strickland and Robinson and the unsettled law of Rule 1.3(b), Ala. R.Crim. P. The initial decision on this issue is the prerogative and the duty of the trial court, where the issue is presently pending.

STUART, Justice

(dissenting).

Because I believe the Court of Criminal Appeals was correct, in part, in issuing the writ of mandamus, I dissent.

The Court of Criminal Appeals held that a writ of mandamus provided an appropriate vehicle for relief because, it reasoned, the State had a clear legal right to the writ and the State’s right to appeal was not an adequate remedy to prevent undue injury. To support its conclusion, the Court of Criminal Appeals noted:

1. A hearing on the merits of Hutch-erson’s Rule 32 petition at the circuit court level, when the circuit court did not have jurisdiction to entertain the petition because of the mandatory two-year limitations period, would cost the state “great time, resources, money, and inconvenience” 847 So.2d at 381; and
2. A determination on the merits of the petition might provide Hutcherson with the opportunity to pursue the merits of subsequent federal challenges to his conviction and sentence unless “ ‘ “the last state court rendering a judgment in the case ‘ “clearly and expressly” ’ states that its judgment rests on a procedural bar.” ’ ” 847 So.2d at 381, quoting Mullins v. State, 555 So.2d 1156, 1158 (Ala.Crim.App.1989), quoting other cases.

The Court of Criminal Appeals determined that a petition for a writ of mandamus was the appropriate vehicle by which the State could seek relief from the circuit court’s refusal to rule on its motion to dismiss Hutcherson’s petition. The State alleged that the circuit court lacked subject-matter jurisdiction to hear the petition because it was untimely filed. Relying on our holdings in Ex parte Spears, 621 So.2d 1255 (Ala.1993)(the test to determine whether a writ of mandamus will issue is whether the remedy by appeal is adequate to prevent undue injury); Ex parte Snow, 764 So.2d 531 (Ala.1999)(issuing a writ of mandamus when a trial court failed to enter a summary judgment in an action filed after the statute of limitations had expired); and Ex parte Flint Construction Co., 775 So.2d 805 (Ala.2000)(holding that the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus), the Court of Criminal Appeals-concluded that “this case presented] a classic example of the type of interlocutory ruling that [the] Supreme Court has held to be reviewable by mandamus petition.” 847 So.2d at 381. I agree. See also Ex parte Punturo, [Ms. 1000115, Feb. 8, 2002] — So.2d -, - (Ala.2002)(“ ‘[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.’ ” (Quoting Ex parte Flint Constr. Co., 775 So.2d at 808.)).

Initially, I note that while a Rule 32 proceeding for postconviction relief is considered to be civil in nature, see Mayes v. State, 563 So.2d 38 (Ala.Crim.App.1990), such a proceeding is distinct from a typical civil case. Rule 32, Ala. R.Crim. P., provides a defendant a method by which to seek postconviction relief; therefore, the rights to be accorded a defendant during a Rule 32 proceeding and the procedures pursuant to which such a proceeding is conducted are based upon the rule and caselaw. Consequently, the facts, circumstances, and procedures involved in a Rule 32 proceeding are clearly distinguishable from those in a civil case that relies on the proposition that where a statute-of-limitations defense is applicable, the availability of a remedy by appeal prevents the issuance of a writ of mandamus. See, e.g., Ex parte Southland Bank, 514 So.2d 954, 955 (Ala.1987).

Ex parte Southland Bank and the other cases relying on the availability of an appeal as an adequate remedy cite Ex parte Temporary Placement Services, 508 So.2d 275 (Ala.Civ.App.1987). In Ex parte Temporary Placement Services, the Court of Civil Appeals denied the petition for a writ of mandamus filed by Temporary Placement Services (“TPS”) because TPS had not shown a clear legal right to the relief sought. TPS argued that its statute-of-limitations defense mandated that the writ issue. The court, however, concluded that because the statute had been amended to extend the limitations period from one year to two years and because “there was a serious question ... whether the old one-year statute of limitations or the new two-year statute” applied to that action, TPS had not shown a clear legal right to the relief sought. 508 So.2d at 276. It is important to note that the subsequent caselaw that relies on this holding implies that a statute-of-limitations defense never provides a proper basis for issuing a writ of mandamus. See, e.g., Ex parte Jackson, 780 So.2d 681 (Ala.2000); and Ex parte Southland Bank, 514 So.2d 954. A close review of the holding in Ex parte Temporary Placement Services, however, indicates that the holding in that case rests upon the finding that there was disputable evidence concerning the applicability of the statute-of-limitations defense. In such a case, the party does not establish a clear legal right to the writ; consequently, the decision is properly deferred for later appellate review. Indeed, in civil proceedings, the defense of the statute of limitations is generally subject to waiver, and it does not necessarily implicate the court’s subject-matter jurisdiction. Therefore, generally, in a civil case a question concerning the applicability of a statute-of-limitations defense does not establish a clear right to the relief sought, and I agree with the majority that in such circumstances a writ should not issue.

The caselaw applicable to Rule 32 petitions and proceedings, however, permit a determination by the circuit court on whether a clear legal right to a dismissal is established based on the mandatory application of the two-year limitations period provided in Rule 32.2(c), Ala. R.Crim. P., and the impact of a filing beyond the two-year limitations period on the circuit court’s jurisdiction. Consequently, review by mandamus of such an issue in a Rule 32 proceeding is appropriate. Recognizing the holdings in Williams v. State, 783 So.2d 135 (Ala.Crim.App.2000), and Arthur v. State, 820 So.2d 886 (Ala.Crim.App.2001), cert. denied, 820 So.2d 886 (Ala.2001), that the two-year limitations period of Rule 32.2(c) is mandatory and jurisdictional, the Court of Criminal Appeals held that the State had a clear legal right to the relief and it issued the writ.

In Williams v. State, 783 So.2d 135 (Ala.Crim.App.2000), the Court of Criminal Appeals stated:

“Rule 32.2(c), Ala. R.Crim. P., provides, in pertinent part:
“ ‘[T]he court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within two (2) years after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, [Ala.] R.App. P....’
“(Emphasis added.) The State did not file a motion to dismiss asserting that the limitations period applied. However, in Siebert v. State, 778 So.2d 842, 847 (Ala.Crim.App.1999), cert, denied, 778 So.2d 857 (Ala.2000), we stated:
“ ‘Siebert argues on appeal that his petition should not be barred by the two-year limitations period in Rule 32.2(c) for the following reasons:
“ ‘2. The State waived this affirmative defense by failing to raise it in its first responsive pleading.
“ ‘Claim 2, asserting that Rule 32.2(c) must be raised as an affirmative defense in the first responsive pleading or it is waived, is without merit....
“ ‘... [Notwithstanding the requirement of Rule 32.3 that the State “shall have the burden of pleading any ground of preclusion,” this court has repeatedly stated that “[w]here a simple reading of a petition for post-conviction relief shows that, assuming the allegations of the petition to be true, it is obviously without merit or is precluded, the trial court may summarily dismiss the petition without requiring any response from the state.” Burton v. State, 728 So.2d 1142, 1148 (Ala.Cr.App.1998) (citing Bishop v. State, 608 So.2d 345 (Ala.1992), and Patty v. State, 652 So.2d 337 (Ala.Cr.App.1994)) (emphasis added). Thus, the trial court could have dismissed the petition on procedural grounds even without any response from the State.’
“Rule 32.2(c), Ala. R.Crim. P., establishes a limitations period for filing a petition for post-conviction relief on the grounds specified in Rule 32.1(a) and (f), Ala. R.Crim. P., and its language is mandatory. See Hugh Maddox, Alabama Rules of Criminal Procedure § 32.2 (3d ed.1999). ‘The statute of limitations is a jurisdictional matter.’ Hines v. State, 516 So.2d 937, 938 (Ala.Crim.App.1987). See also Ex parte Campbell, 784 So.2d 323 (Ala.2000); Hunt v. State, 642 So.2d 999 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994). Therefore, the failure to file a Rule 32 petition within the two-year limitations period is a jurisdictional defect that can be noticed at any time and is not waived by the failure of the State to assert it. Any previous holdings to the contrary are hereby expressly overruled. See, e.g., Howard v. State, 616 So.2d 398 (Ala.Crim.App.1993).”

783 So.2d at 136-37. (Final emphasis added.) In light of the holding in Williams, the application of Rule 32.2(c) is mandatory, the matter is jurisdictional, and the State has a clear legal right to a ruling.

Additionally, I note that there is no ambiguity with regard to the application of Rule 1.3(b), Ala. R.Crim. P., in this case. Here, the circuit court cannot, pursuant to Rule 1.3(b), grant Hutcherson’s request for an enlargement of time. Without determining whether Rule 1.8(b) is applicable to petitions for postconviction relief, Hutcherson, assuming arguendo that Rule 1.3(b) is applicable, cannot establish excusable neglect. Hutcherson’s counsel stated that he missed the filing date because he believed the time ran from the issuance of the certifícate of judgment as a result of the United States Supreme Court’s ruling. The rules, however, specifically provide that the time runs from the issuance of a certificate of judgment by the Court of Criminal Appeals. See Rule 32.2(c), Ala. R.Crim. P., and Rule 41, Ala. R.App. P.

In Siebert v. State, 778 So.2d 842, 849 (Ala.Crim.App.1999), the petitioner moved for an extension of time pursuant to Rule 1.3(b), Ala. R.Crim. P., claiming “excusable neglect because, he [said], he did not receive a copy of the certificates of judgment and because there is some ambiguity concerning the starting date for the running of the limitations period of Rule 32.” The Court of Criminal Appeals reviewed “[t]he plain language of the Rules [32.2(c), Ala. R.Crim. P., and 41, Ala. R.App. P.,] and the applicable easelaw” and held “that a Rule 32 petition must be filed within two years from the date the Court of Criminal Appeals issues the certificate of final judgment.” When this Court denied certiorari review in Siebert, Justice Johnstone, in a special concurrence, stated:

“[T]he result reached by the Court of Criminal Appeals in this case is entirely justifiable on the ground that the defendant’s Rule 32, Ala. R.Crim. P., petition was filed after the two-year deadline without any proof of an excuse that might warrant an extension of the deadline pursuant to Rule 1.3(b), Ala. R.Crim. P_
“... [T]he Rule 32 petition does not establish any excusable neglect .... ”

Ex parte Siebert, 778 So.2d 857, 857 (Ala.2000)(Johnstone, J., concurring specially).

Likewise, in the case before us today, Hutcherson has not provided any proof of an excuse that would warrant an extension pursuant to Rule 1.3(b), Ala. R.Crim. P. While Justice Johnstone’s special writing in Ex parte Siebert is not a holding of the Alabama Supreme Court, it does draw into question the viability of any contention that proof of a mere misunderstanding of the rule, especially after the holding by the Court of Criminal Appeals in Siebert, could establish excusable neglect with regard to Hutcherson’s present petition. Hutcher-son did not establish excusable neglect so as to warrant an extension. Therefore, the State has a clear legal right to a ruling in this case, regardless of the applicability of Rule 1.3(b), Ala. R.Crim. P.

I reject the contention that because this Court has not specifically held that the failure to file a petition within the two-year limitations period is jurisdictional or that Rule 1.3(b) is not applicable to petitions for postconviction relief, the law is unsettled. In accordance with the doctrine of stare decisis, the State, in filing its petition for a writ of mandamus, and the Court of Criminal Appeals, in granting that petition, relied upon the law as it exists today.

I note that the Court of Criminal Appeals’ issuance of the writ is not inconsistent with this Court’s holding in State v. Zimlich, 796 So.2d 399 (Ala.2000). In Zimlich, this Court, at the request of the State, directed the Court of Criminal Appeals to set aside its order granting a defendant’s petition for a writ of mandamus. This Court stated:

“‘It is well established in Alabama that a writ of mandamus, which is a drastic and extraordinary remedy, will not issue when there is an adequate remedy by appeal, and that the writ cannot be used as a substitute for appellate review. The reason for this rule was succinctly stated by then Justice Livingston in Koonce v. Arnold, 244 Ala. 513, 514, 14 So.2d 512, [512] (1943):
“ ‘ “If the matters complained of can be ultimately presented to the appellate court through the medium of an appeal from the final decree, mandamus will not ordinarily be granted. This for the reason, that appellate courts will not hear causes in piecemeal.” ’
“Ex parte Fowler, 574 So.2d 745, 747 (Ala.1990). We conclude that on his petition to the Court of Criminal Appeals Zimlich failed to establish that Judge Kendall had a duty to dismiss his indictment as barred by the statute of limitations and improperly refused to do so. ‘The fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal.’ Ex parte Southland Bank, 514 So.2d 954, 955 (Ala.1987). Zimlich did not show that he had a clear legal right to the order he sought.
“... Zimlich asserted that the Court of Criminal Appeals needed to decide whether Rule 15.5(c), Ala. R.Crim. P., applied; whether the tolling statute, § 15-3-6, Ala.Code 1975, applied and was superior to Rule 15.5(c); and whether the tolling statute permitted a subsequent indictment to increase the nature of the alleged offense from a misdemeanor to a felony. The uncertainty about the applicability of Rule 15.5(c) and § 15-5-6 and the question whether the State’s error in regard to the first indictment was the kind of ‘inadvertent technical error’ contemplated by Rule 15.5(c) (see Committee Comments to that rule) lead us to conclude that Zim-lich had no clear legal right to an order by Judge Kendall dismissing the second indictment as barred by the statute of limitations, given that Zimlich, if improperly convicted, would have had a remedy by appeal.”

796 So.2d at 403 (emphasis added). Our holding in Zimlich relied on the holding in Ex parte Southland Bank and is consistent with well-established law that when the defendant cannot show a clear legal right to the application of the statute-of-limitations defense, then the writ should not issue.

For the writ to issue, it is incumbent that the State not only have a clear legal right to the relief sought but also that an appeal will not provide an adequate remedy. The Court of Criminal Appeals held that to require the expense and inconvenience of a hearing in a case where the evidence on the circuit court’s jurisdiction was uncontroverted would create undue injury. Additionally, the court held that clear, consistent application of procedural bars to claims in light of future federal review of the case was necessary to prevent the State from suffering undue prejudice and injury.

While the expense and inconvenience of a hearing typically do not justify the issuance of a writ of mandamus, in Rule 32 proceedings, where a party shows a clear legal right to a ruling based upon lack of subject-matter jurisdiction of the circuit court, and the party may suffer subsequent prejudice, I believe undue injury occurs and an appeal does not provide adequate relief.

Hutcherson argues that expense is not an appropriate ground for concluding that the State will suffer undue injury. Hutch-erson is correct that matters of expense and inconvenience alone do not justify mandamus relief as to an issue that could be reviewed on appeal. Ex parte Spears, supra, and cases cited therein. These cases, however, do not involve the mandatory application of the limitations period that directly impacts the jurisdiction of the circuit court. In a postconviction proceeding where the application of the limitations period is mandatory, requiring the people of the State of Alabama to pay for an evidentiary hearing on the merits of the petition before the circuit court determines whether it has jurisdiction to hear the matter is a waste of judicial time and the people’s money.

Additionally, I agree with the Court of Criminal Appeals that the circuit court needs to apply the procedural bars consistently, not only to facilitate State appellate review of these proceedings, but also to prevent the State from being unduly prejudiced during federal review. Defendants have been provided a vehicle for postcon-viction review; the State, while it does not have the right to deprive a defendant of a federal remedy, has a legitimate interest in seeing that the defendant does not abuse or exploit this opportunity for postconviction review.

As the Court of Criminal Appeals determined, in this case the State has a clear legal right to a ruling on its motion to dismiss; subsequent appellate review after a hearing on the merits of the petition will not provide an adequate remedy. However, I believe the Court of Criminal Appeals exceeded'the scope of mandamus relief by reviewing the merits of Hutcherson’s Rule 32 petition, concluding that no jurisdictional matters were presented, and directing the circuit court to dismiss the petition. The circuit court, not an appellate court, is responsible for determining initially whether a petition- contains jurisdictional claims. The State is entitled to a ruling on its motion to dismiss the petition, but the circuit court must make that ruling.

A petition for the writ of mandamus allows “emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable.” Rule 21(e)(4), Ala. R.App. P. In this case the circuit court issued an interlocutory order deferring its ruling on the State’s motion to dismiss until after a hearing on the merits of the Rule 32 petition. The State has a clear legal right to a ruling on its motion to dismiss and will suffer undue injury that an appeal will not remedy if the ruling is not issued before a hearing on the merits. The State, however, has not established a right for the appellate court to enter a ruling on the merits of the motion. Therefore, I believe this Court should grant Hutcherson’s petition in part and issue a writ directing the Court of Criminal Appeals to vacate its order directing the circuit court to dismiss the petition and to order the circuit court to timely rule on the State’s motion to dismiss before it conducts a hearing on the merits of the petition.

      . Ex parte Campbell, 784 So.2d 323 (Ala. 2000), is distinguishable.

        . Rule 1.3(b), Ala. R.Crim. P., states:
      "(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect, but it may not, except as provided elsewhere in these rules, extend the time for making a motion for new trial, for taking an appeal, or for making a judgment of acquittal pursuant to Rule 20.”

      . See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).


text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Larry Eugene HUTCHERSON).
    CR-00-2567.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.
    William H. Pryor, Jr., atty. gen., and George A. Martin, Jr., asst. atty. gen., for petitioner.
    Glenn L. Davidson, Mobile, for respondent.
   After Issuance of Writ of Mandamus by the Alabama Supreme Court

PER CURIAM.

Pursuant to the Supreme Court’s opinion in Ex parte Hutcherson, 847 So.2d 386 (Ala.2002), this Court’s judgment entered on November 9, 2001, is hereby set aside.

JUDGMENT OF NOVEMBER 9, 2001, SET ASIDE.

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


author: WISE, Judge. BASCHAB, Judge,

text:
    Jeffrey Lynn KILLEN v. STATE of Alabama.
    CR-01-1402.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Rehearing Denied Sept. 27, 2002.
    Kathryn A. King, Florence, for appellant.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

COBB, J., concurs.

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

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur to affirm the appellant’s convictions and his sentences on the DUI and speeding convictions. However, the fine the trial court imposed on the appellant’s conviction for operating a commercial vehicle without maintaining a record of his duty status for each 24 hour period is less than the minimum required by law. Section 32-9A-4, Ala.Code 1975, provides, in pertinent part:

“Any person violating this chapter shall be guilty of a misdemeanor and punished by a fine of not less than twenty-five dollars ($25) nor more than two thousand dollars ($2,000) for each offense.”

Because the $20 fíne the trial court imposed was below the jurisdictional minimum, we should remand this case to the trial court for that court to impose a fine that is within the range provided by § 32-9A-4, Ala.Code 1975. Accordingly, I respectfully concur in part and dissent in part.


text:
    Ex parte Jimmy Lee BROOKS, Jr. (In re State of Alabama v. Jimmy Lee Brooks, Jr.) Ex parte Michael David Carruth. (In re State of Alabama v. Michael David Carruth).
    CR-01-1999 and CR-01-2000.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.
    L. Joel Collins, Phenix City, for petitioner Jimmy Lee Brooks.
    Jeremy W. Armstrong and Robert P. Lane, Phenix City, for petitioner Michael David Carruth.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler and Cecil G. Bren-dle, Jr., asst, attys. gen., for respondent.
   PER CURIAM.

The petitioners, Jimmy Lee Brooks, Jr., and Michael David Carruth, filed this petition for a writ of mandamus directing Judge George R. Greene to recuse himself from presiding over their capital-murder trials.

The petitioners were indicted on four counts of murder made capital because the victim, 12-year-old William Brett Bowyer, was less than 14 years of age and because the victim was murdered during the course of a kidnapping, burglary, and robbery. The petitioners were also indicted for the attempted murder of Butch Bowyer, William’s father, and for robbery and burglary. Before the petitioners were arraigned, they moved for Judge Greene to recuse himself from the cases because in all likelihood he would be called as a witness for the State. Judge Greene denied the motion without allowing any argument from counsel. Brooks and Carruth then filed this petition for a writ of mandamus and moved that we stay the proceedings in circuit court. We granted the motion for a stay pending further action by this Court.

This case is correctly before this Court by way of this petition — mandamus is the appropriate method by which to review a ruling on a motion to recuse. See Ex parte Bryant, 682 So.2d 39 (Ala.1996).

The State alleges that on February 17, 2002, Brooks and Carruth went to the Bowyer home posing as police officers and presented a search warrant purportedly signed by Judge Greene. After gaining entry into the home, Brooks and Carruth forced Butch Bowyer and his son Brett into their car and drove them to Yuchi Reservation in Russell County. The two then drove the victims back to the Bowyer home so that Butch Bowyer could get them money. The State alleges that Brooks and Carruth then took the two back to Yuchi Reservation, where they shot Brett in the head, cut Butch’s throat, and buried the two in a shallow grave. The State alleges that Butch managed to dig himself out and reach the road where he was aided by a passing motorist.

Brooks and Carruth raise two issues in this mandamus petition. They argue that Judge Greene erred in failing to recuse himself from the case because, they argue, his impartiality might reasonably be questioned. Specifically, they argue that Judge Greene will most likely be called to testify concerning the authenticity of his alleged signature on the search warrant. The petitioners cite this Court’s decision in Ex parte Fowler, [Ms. CR-00-2513, November 2, 2001] — So.2d-(Ala.Crim. App.2001), in support of this contention. The petitioners also argue that the trial court erred in denying the motion without first allowing them the opportunity to put evidence in the record. They assert that they are charged with capital offenses and that, if they are convicted, the failure of the trial court to allow them to make a record for the reviewing court will hinder the review of their case on appeal.

We stayed all action in the circuit court and allowed the respondents 21 days to answer the allegations in the petition. The State asserts that we should deny this petition because there has been no showing that Judge Greene will be called as a material witness.

Canon 3.C. of the Canons of Judicial Ethics addresses the circumstances in which a judge should recuse herself or himself from a case. This Canon, though not inclusive, lists the following situations:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
“(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.”

The State asserts that the petitioners cannot meet their burden of showing that Judge Greene should recuse himself merely by stating that he might be called as a witness. It contends that prior caselaw holds that a trial judge must be a material witness before he or she is obliged to recuse himself or herself from a case. It argues that Judge Greene is not a material witness because, it says, other witnesses can be called to testify about the authenticity of the signature. Callahan v. State, 557 So.2d 1292 (Ala.Crim.App.), aff'd, 557 So.2d 1311 (Ala.1989). We do not necessarily agree with the State’s contention. Certainly, Judge Greene is the best and most logical person to testify to the authenticity of his own signature.

However, this case does not present a fact situation governed by Canon 3.C.(l)(b), but rather a situation governed by Canon 3.C.(l)(a) — a case where the trial judge has personal knowledge of disputed evidentiary facts. By virtue of the fact that Judge Greene’s name was contained on the alleged search warrant, Judge Greene is in the position of having personal knowledge of the truth or falsity of the warrant. Brooks and Carruth are charged with four counts of capital murder — one count of murder during a burglary. It is necessary for the State to present evidence concerning their method of gaining entry into the Bowyer home. Judge Greene has personal knowledge of the unlawfulness of the petitioners’ entry into the Bowyer house. Though our research has revealed no Alabama case that specifically addresses the definition of “personal knowledge of disputed evidentiary facts,” we believe that personal knowledge of an element of the charged offense is sufficient to satisfy this definition.

As the Alabama Supreme Court stated in Ex parte Bryant, 682 So.2d 39, 41 (Ala.1996):

“The standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a ‘reasonable basis for questioning the judge’s impartiality.’ [Ex parte ] Cotton, 638 So.2d [870] at 872 [ (Ala.1994) ]. The focus of our inquiry, therefore, is not whether a particular judge is or is not biased toward the petitioner; the focus is instead on whether a reasonable person would perceive potential bias or a lack of impartiality on the part of the judge in question. In In re Sheffield, 465 So.2d 350, 357 (Ala.1984), this Court wrote:
“ ‘[T]he reasonable person/appearance of impropriety test ... may “sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” In re Murchison, 349 U.S. 133,136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). As stated in Canon 1 of the Code of Judicial Ethics, “An independent and honorable judiciary is indispensable to justice in our society,” and this requires avoiding all appearance of impropriety, even to the point of resolving all reasonable doubt in favor of recusal.’

Recusal is necessary if “another person, knowing all of the circumstances, might reasonably question the judge’s impartiality.” Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.), cert. denied, 513 U.S. 1007, 115 S.Ct. 528, 130 L.Ed.2d 432 (1994).

Brooks and Carruth have been charged with four counts of capital murder and they face the death penalty. In keeping with the words of the Alabama Supreme Court in Bryant, we must resolve all reasonable doubt in favor of recusal. 682 So.2d at 41. Because of Judge Greene’s personal knowledge of the case, he should recuse himself from any further involvement in Brooks’s and Carruth’s capital-murder trials.

For the reasons stated above, this petition is due to be, and is hereby, granted.

PETITION GRANTED; WRIT ISSUED; STAY LIFTED.

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

SHAW, J., concurs in the result.


author: PATTERSON, Retired Appellate Judge.

text:
    Niculai RUMPEL v. STATE.
    CR-01-0907.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      William R. Blanchard, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PATTERSON, Retired Appellate Judge.

Niculai Rumpel appeals from the circuit court’s summary dismissal of his postcon-viction petition filed pursuant to Rule 32, Ala. R.Crim. P. In 1999, pursuant to a plea-bargain agreement, Rumpel pleaded guilty to the following charges for which he had been indicted: three counts of first-degree sexual abuse and two counts of enticing a child for immoral purposes. He also pleaded guilty to a fourth first-degree sexual abuse, a lesser offense included in a first-degree rape indictment. For each sexual-abuse conviction, he was sentenced to 10 years’ imprisonment. For each conviction for enticing a child, he was sentenced to five years’ imprisonment. The trial court ordered that all sentences are to run concurrently and it split each sentence, ordering Rumpel to serve two years’ imprisonment followed by the balance on probation. Rumpel did not appeal these convictions and sentences.

Rumpel contends that the circuit court erred in dismissing his petition without an evidentiary hearing. In his petition, he asserted two grounds: (1) that his counsel were ineffective for failing to advise him that, as an immigrant and a resident alien, he would be subject to mandatory detention by the United States Immigration and Naturalization Service (“the INS”) and to deportation proceedings when he has served his sentences if convicted of the charges and that, had counsel so advised him, he would not have pleaded guilty; and (2) that his guilty pleas were not knowing, voluntary, and intelligent because, he argued, neither the trial court nor the “Ireland” form advised him of “the possibility or probability of deportation or other adverse immigration consequences” of pleading guilty, which, he argued, was required by due process and Rule 14.4, Ala. R.Crim. P.

Because neither the State, in its motion to dismiss Rumpel’s petition, nor anything in the record contradicts Rum-pel’s allegations of fact alleged in his petition, this court must take those factual allegations as true. See Goetzman v. State, 844 So.2d 1289 (Ala.Crim.App.2002). We start with the facts that Rumpel is an immigrant and a resident alien; that these facts were obvious to the trial court and to Rumpel’s attorneys; that Rumpel was not advised of the possible immigration consequences of a plea of guilty; and that, because of his convictions, the INS has filed a detainer to take him into custody for deportation proceedings when he is released from the Aabama Department of Corrections.

First, Rumpel contends that the circuit court erred in using the procedural bars of Rule 32.2(a)(3) and (5) in dismissing his petition. The court concluded that “the sole issue” in Rumpel’s petition was that his pleas had been unlawfully induced or that they were not voluntarily made. It found that this issue was precluded because it could have been, but was not, raised at the plea proceeding, at sentencing, or on appeal. However, Rumpel correctly points out that a challenge in a Rule 32 petition to the voluntariness of a guilty plea is not precluded by the petitioner’s failure to have raised the issue at trial or on appeal. Avery v. State, 825 So.2d 129 (Ala.Crim.App.1999). The attorney general concedes that the circuit court’s order overlooked Rumpel’s allegation of ineffective assistance of counsel, which is not subject to preclusion, as the attorney general points out. See Drake v. State, 620 So.2d 60, 61 (Ala.Crim.App.1992) (ineffective-counsel claims cannot be precluded from review in a timely-filed Rule 32 petition where they could not have been raised on appeal). We agree with Rumpel’s conclusion that the circuit court should not have denied his petition on the preclusion grounds stated.

Thus, we turn to the merits of Rumpel’s claims to determine if there is any reason for upholding the circuit court’s dismissal. See Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999) (“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.”). In doing so, we address Rumpel’s second issue on appeal: “Whether the uncontroverted factual allegations of Rumpel’s Rule 32 Petition entitled him to a hearing.” (Appellant’s brief, p. 7.) The attorney general asks us to remand this case for the circuit court to address the merits of Rumpel’s ineffective-assistance-of-counsel claim. However, taking the allegations of fact in Rumpel’s petition as undisputed, we find we are confronted with the following questions of law: before accepting a guilty plea from an alien defendant, must the trial court inform the defendant of the immigration consequences of a conviction, and is defense counsel ineffective in not so informing the defendant? We agree with Rumpel that the de novo standard of review applies: “[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, the court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). See also Scroggins v. State, 827 So.2d 878 (Ala.Crim.App.2001).

The disposition of the claims in Rumpel’s petition depends on whether immigration consequences of a guilty plea are direct or collateral consequences. “‘An accused is entitled to information concerning the direct consequences of his plea. He is not entitled to information concerning all collateral effects, or future contingencies that might arise.’ ” Fearson v. State, 662 So.2d 1225, 1226 (Ala.Crim.App.1995) (quoting Minnifield v. State, 439 So.2d 190, 192 (Ala.Crim.App.1983)). See also Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (due process simply requires that the defendant understand the “direct consequences” of his plea).

“ ‘Collateral consequences of a guilty plea are many. They may include the loss of civil service employment, of the right to vote and travel freely abroad, of the right to a driver’s license, and of the right to possess firearms.’
“United States v. Del Rosario, 902 F.2d 55, 59 (C.A.D.C.Cir.), cert. denied, 498 U.S. 942, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990) (citations omitted). See also Polk v. State, 405 So.2d 758, 761-62 (Fla.Dist.Ct.App.1981) (listing ineligibility for parole, loss of good time, and loss of rights of citizenship as collateral consequences of a guilty plea). ‘ “The distinction between direct and collateral consequences of a plea ‘turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishmentState v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1075 (1994) (citations omitted) (emphasis added).”

Robinson v. State, 730 So.2d 252, 254 (Ala.Crim.App.1998).

Rumpel acknowledges that the court in Oyekoya v. State, 558 So.2d 990, 990 (Ala.Crim.App.1989), rejected the petitioner’s postconviction challenge of his guilty plea on the ground that his counsel was ineffective for failing “to inform him of the possibility of deportation as a result of his guilty plea.” In addition to finding that the petitioner did not submit sufficient proof of the allegations of his petition, the court observed the following:

“ ‘[Counsel’s failure to advise the defendant of the collateral consequences of a guilty plea, such as deportation, cannot rise to the level of constitutionally ineffective assistance.’ United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985). See also United States v. Romero-Vilca, 850 F.2d 177, 179 (3rd Cir.1988) (‘[W]e hold that potential deportation is a collateral consequence of a guilty plea. Accordingly, we find no error in the sentencing court’s failure to inform Romero-Vilca in the Rule 11[, Fed.R.Crim.P.,] Colloquy of his possible deportation.’); Annot., 10 A.L.R.4th 8 (1981).”

558 So.2d at 990-91.

However, Rumpel contends that, since this ruling in Oyekoya, Congress has drastically altered immigration laws with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, and the An-titerrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. See United States v. Amador-Leal, 276 F.3d 511, 516 (9th Cir.) (“No doubt the landscape has changed, because it is now virtually certain that an aggravated felon will be removed.”), cert. denied, 535 U.S. 1070, 122 S.Ct. 1946, 152 L.Ed.2d 849 (2002). Rumpel asserts that these changes should compel this court to reexamine the ruling in Oyekoya. He argues that, under the former federal immigration laws, he would have been eligible for relief from deportation, whereas he faces “virtually automatic” deportation under the laws enacted since Oyekoya. (Appellant’s brief, p. 10.)

In addition to pointing out that numerous states have enacted legislation requiring that the trial court advise of the possible immigration consequences of a guilty or nolo contendere plea, Rumpel relies on caselaw from other jurisdictions, including United States v. El-Nobani, 145 F.Supp.2d 906 (N.D.Ohio 2001), which he quotes at length. However, the judgment in that opinion was reversed on appeal. 287 F.Sd 417 (6th Cir.2002). In reversing the district court, the United States Court of Appeals for the Sixth Circuit stated, in part:

“Petitioner argues that his lack of awareness of the deportation consequences ... make[s] his pleas involuntary and unknowing. A ‘defendant need only be aware of the direct consequences of the plea, however; the trial court is under no constitutional obligation to inform the defendant of all the possible collateral consequences of the plea.’ King v. Dutton, 17 F.3d 151, 153 (6th Cir.1994).
“Petitioner contends that deportation is not collateral because under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546, the INS has little if any discretion to grant deportation relief for those individuals like petitioner who are convicted of certain crimes. First, although the INS has been restricted in its ability to grant certain discretionary relief in deportation proceedings, ‘there is no indication that the INS has ceased making this sort of determination on a case-by-case basis.’ Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 n. 8, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). Second, the automatic nature of the deportation proceeding does not necessarily make deportation a direct consequence of the guilty plea. A collateral consequence is one that ‘remains beyond the control and responsibility of the district court in which that conviction was entered.’ United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir.2000). While this Court has not specifically addressed whether deportation consequences are a direct or collateral consequence of a plea, it is clear that deportation is not within the control and responsibility of the district court, and hence, deportation is collateral to a conviction. United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.1988)(‘[W]e hold that potential deportation is a collateral consequence of a guilty plea.’); United States v. Quin, 836 F.2d 654, 655 (1st Cir.[1988]) (‘[DJeportation in this context is generally regarded as a collateral consequence.’); United States v. Campbell, 778 F.2d 764, 767 (11th Cir.1985) (‘[Deportation is a collateral consequence of a guilty plea.’); United States v. Russell, 686 F.2d 35, 39 (D.C.Cir.1982) (‘It has become well settled, however, that Rule 11[, Fed.R.Crim.P.,] does not require informing a defendant of the possibility of deportation.’). Thus, the fact that petitioner was unaware of the deportation consequences of his pleas does not make his pleas unknowing or involuntary.”

287 F.3d at 421.

The court in United States v. Amador-Leal, 276 F.3d at 513, was presented with the question “whether immigration consequences are collateral, as [the court had previously] held in Fruchtman v. Kenton, 531 F.2d 946 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976), or have become direct in light of the aggravated felony provisions of ... AEDPA ... and ... IIRIRA ..., such that a defendant must be advised of them in order for his plea to be voluntary.” The court had held, in Fruchtman, like the court in Elr-Nobani, that deportation is a collateral consequence because it “ “was not the sentence of the court which accepted the plea but of another agency over which the trial judge has no control and for which he has no responsibility.’ ” 531 F.2d at 949 (quoting Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974)). In reaffirming this rationale and holding that neither Rule 11, Fed.R.Crim.P., nor due process requires that a defendant be advised of immigration consequences, the court in Amador-Leal reasoned as follows:

“[Wjhether an alien will be removed is still up to the INS. There is a process to go through, and it is wholly independent of the court imposing sentence. The Supreme Court has made this clear by describing deportation as a ‘purely civil action’ separate and distinct from a criminal proceeding. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038[, 104 S.Ct. 3479, 82 L.Ed.2d 778] (1984). Removal is not part of the sentence; future immigration consequences do not bear on the ‘range of the defendant’s punishment’ imposed by the court, Torrey [v. Estelle], 842 F.2d [234,] 236 [(9th Cir. 1988)], and deportation is not punishment for the crime. See Lopez-Mendoza, 468 U.S. at 1038[, 104 S.Ct. 3479].... [I]mmigration consequences will not be felt until the court’s sentence has been served, the INS assumes control of the defendant, and the process of removal has been initiated and executed.... In short, no matter what changes have been wrought by AEDPA and IIRIRA, removal remains the result of another governmental agency’s subsequent actions.
“... As the First Circuit explained: ‘“What renders the plea’s immigration effects “collateral” is not that they arise “virtually by operation of law,” but the fact that deportation is “not the sentence of the court which accept[s] the plea but of another agency over which the trial judge has no control and for which he has no responsibility.” However “automatically” [the defendant’s] deportation — or administrative detention — might follow from his conviction, it remains beyond the control and responsibility of the district court in which that conviction was entered and it thus remains a collateral consequence thereof.’
“[United States v.] Gonzalez, 202 F.3d [20,] 27 [(1st Cir.2000)] (quoting Fruchtman [v. Kenton, 531 F.2d 946 (9th Cir.1976)]; internal cites to other cases reasoning the same way omitted).... We agree with this analysis, and reaffirm that our decision in Fruchtman remains good law in this circuit as well.”

276 F.3d at 516-17. See also United States v. Gonzalez, 202 F.3d 20, 26 (1st Cir.2000) (“collateral nature of deportation is not affected by [the 1996] expansion of the ‘aggravated felon’ category, because the immigration consequences of a plea are collateral irrespective of the reason for which an alien is deemed deportable”).

Other courts, having revisited the issue since the changes in immigration law, have reaffirmed their stance that the fact that deportation may result from a conviction is still a collateral consequence that does not bear on whether the defendant’s guilty plea was knowing and voluntary. See, e.g., People v. Davidovich, 463 Mich. 446, 618 N.W.2d 579 (2000); State v. Abdullahi, 607 N.W.2d 561 (N.D.2000); State v. Desir, 766 A.2d 374 (R.I.2001); Zigta v. Commonwealth, 38 Va.App. 149, 562 S.E.2d 347 (2002).

An indication that this court still considers immigration consequences to be collateral is our citing the ruling in Oyekoya in subsequent cases holding some other consequence to also be a collateral consequence. See, e.g., Robinson v. State, 730 So.2d at 254 (application and effects of the Community Notification Act, §§ 15-20-21 to-24, Ala.Code 1975, are collateral consequences); Danzey v. State, 703 So.2d 1019, 1020 (Ala.Crim.App.1997) (collection of DNA data is a collateral consequence).

Based on the foregoing, we find that Oyekoya is still the rule in Alabama: immigration consequences continue to be collateral consequences of a guilty plea and resulting conviction. Rumpel’s attempt to distinguish prior caselaw is unpersuasive. Whether deportation is a possibility or “virtually automatic,” the underlying collateral nature of deportation does not change: it remains an indirect consequence of a guilty plea. Pursuant to this rationale, we also reject Rumpel’s assertion that due process and Rule 14.4 require that an alien defendant be advised of potential immigration consequences to ensure that his plea is knowing, voluntary, and intelligent.

It follows that trial counsel is not ineffective in failing to so advise a defendant. See United States v. Gonzalez; People v. Davidovich, 463 Mich, at 453, 618 N.W.2d at 582; Barajas v. State, 115 Nev. 440, 991 P.2d 474 (1999). See also United States v. Banda, 1 F.3d 354 (5th Cir.1993). Compare United States v. Campbell, 778 F.2d 764, 768-69 (11th Cir.1985) (“Counsel’s affirmative misrepresentation in response to a specific inquiry from the defendant may, however, under certain circumstances, constitute ineffective assistance of counsel.”); In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr.2d 431, 19 P.3d 1171, 1185 (2001), and cases cited in n. 14. Cf. In re Yim, 139 Wash.2d 581, 989 P.2d 512 (1999) (the defendant may be entitled to relief if the trial court makes an affirmative misrepresentation on the matter).

Having so ruled, we nevertheless strongly encourage trial courts and defense counsel to ensure that an alien defendant is aware of the possible effects that a guilty plea and resulting conviction may have on his status in this country. See United States v. Amador-Leal, 276 F.3d at 517. See also United States v. Banda, 1 F.3d at 356 (counsel should advise his client on possible deportation even though such is not constitutionally required); United States v. Campbell, 778 F.2d at 769 (“It is highly desirable that both state and federal counsel develop the practice of advising defendants of the collateral consequences of pleading guilty; what is desirable is not the issue before us.”). “[Tjhere is no question that immigration consequences of a conviction are important to aliens contemplating a plea.” United States v. Amador-Leal, 276 F.3d at 517.

However, because immigration consequences are collateral, neither Rule 14.4, Rumpel’s right to due process, nor his right to effective assistance of counsel was violated. Because taking the facts as stated in Rumpel’s petition as true, he was not entitled to postconviction relief as a matter of law, and his petition was properly denied without an evidentiary hearing. Accordingly, the trial court’s judgment is affirmed.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e).

AFFIRMED.

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

      . Rule 14.4(a)(1), Ala. R.Crim. P., states that "the court shall not accept a plea of guilty without ... [ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences.” The rule restates the due-process requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See Committee Comments to Rule 14.4 ("Subsection (a)(1) requires a full colloquy to ensure that the defendant understands what the 'plea connotes and ... its consequence’ as required by Boykin ....”).

      . We find the following appropriate for purposes of this appeal: "We need not define the federal immigration consequences of [the appellant's] guilty plea to the charge[s] ... under state law, and we assume federal law subjects him to deportation and mandatory, indefinite detention because of the conviction resulting from his guilty plea." State v. Abdullahi, 607 N.W.2d 561, 566 (N.D.2000).

      . See n. 48 in Immigration & Naturalization Service v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), for a list of such statutes.