author: BASCHAB, Judge. WISE, Judge,

text:
    Patricia Norman BERTRAM v. STATE of Alabama.
    CR-00-2277.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 2004.
    Thomas M. Haas, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

BASCHAB, Judge.

In accordance with the Alabama Supreme Court’s opinion in Ex parte Bertram, 884 So.2d 889 (Ala.2003), we reverse the trial court’s judgment and remand this case to the trial court for proceedings that are consistent with that opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and SHAW, J., concur; WISE, J., concurs specially, with opinion, which COBB, J., joins.

WISE, Judge,

concurring specially.

I reluctantly concur with the main opinion’s reversal of Patricia Norman Bertram’s felony conviction for driving while under the influence of alcohol, as ordered by the Alabama Supreme Court. However, I write to express my agreement with the following language from Justice Stuart’s dissent in Ex parte Bertram, 884 So.2d 889 (Ala.2003):

“The Legislature’s intent in creating the offense of driving under the influence of alcohol or a controlled substance is clear and unambiguous. This State has a valid interest in deterring conduct that risks the safety and lives of its citizens. Individuals who repeatedly drive on our roadways while under the influence of alcohol or a controlled substance endanger our citizens and shall be punished. The Legislature has determined that to deter the individual from repeatedly engaging in such dangerous conduct and to protect this State’s citizens a defendant’s punishment for driving under the influence of alcohol or a controlled substance must increase with each conviction.
“The majority’s holding unnecessarily thwarts the objective of the Legislature. In my opinion the majority abandons a common-sense interpretation and practical application of the statute, inserts words into the statute that'are not mandated, and construes the language of the statute directly opposite to the intent of the Legislature and to the common understanding of a reasonable person, even the accused.
“The purpose of the language ‘violating this section’ in the independent clauses in subsections (e), (f), (g), and (h) is to identify the present offense for which a defendant is being charged — a violation of § 32-5A-191(a), Ala.Code 1975. The introductory phrases in those subsections determine the type of offense — misdemeanor or felony — and the defendant’s punishment. Indeed, the introductory phrases in those subsections provide the sentence-enhancement provisions for a conviction for driving under the influence of alcohol or a controlled substance. Ex parte Parker, 740 So.2d 432, 434 (Ala.1999). The Legislature in those introductory phrases did not limit to Alabama convictions the use for enhancement purposes of prior convictions for driving under the influence of alcohol or a controlled substance; neither did it prohibit the use of non-Alabama convictions. Cf. State v. Rea, 865 S.W.2d 923 (Tenn.Crim.App.1992) (holding that the Tennessee DUI statute did not limit the use of prior convictions for enhancement purposes to Tennessee DUI convictions only).
“The Legislature, in enacting § 32-5A-191, Ala.Code 1975, intended to prevent individuals from repeatedly driving their vehicles while under the influence of alcohol or a controlled substance. In this case, Bertram was convicted of driving under the influence of alcohol. The category of the offense and the level of punishment was determined by the number of prior convictions she had for driving under the influence of alcohol or a controlled substance. Whether the previous convictions for driving under the influence of alcohol were Alabama convictions or convictions from another state is a distinction without a difference. The language of our statute is broad enough to include the use of out-of-state convictions as sentence enhancements.”

884 So.2d at 894-96 (emphasis added). Nonetheless, because this Court is bound by the decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and “is without authority to overrule the decisions of [that] court,” Ex parte Jones, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972), we have no choice but to follow the holding of the majority in Ex parte Bertram and to reverse Bertram’s conviction and remand this case to the trial court for further proceedings consistent with that opinion.

COBB, J., concurs.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Gary Lewis MARSHALL v. STATE of Alabama.
    CR-01-0204.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.
    Rehearing Denied Aug. 16, 2002.
    Gary Lewis Marshall, pro se.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appel-lee.
   COBB, Judge.

On May 7, 1997, Gary Lewis Marshall was convicted of murder and was sentenced to life in prison. Marshall appealed both his conviction and his sentence, and this Court affirmed in an unpublished memorandum. Marshall v. State (No. CR-96-1996), 728 So.2d 713 (Ala.Crim.App.1998) (table). This Court issued a certificate of judgment on July 17, 1998. On April 21, 1998, Marshall filed his first Rule 32, Ala. R.Crim. P., petition, which the circuit court summarily denied on June 27, 2000. On November 8, 2000, Marshall appealed the circuit court’s denial of his Rule 32 petition, and this Court dismissed his appeal as untimely. Marshall v. State (No. CR-00-0307), 821 So.2d 1041 (Ala.Crim.App.2001) (table). On June 6, 2001, Marshall filed this, his second, Rule 32 petition. The State did not respond. The circuit court summarily dismissed Marshall’s second Rule 32 petition on August 20, 2001. Marshall then appealed to this Court, challenging the summary dismissal of his second Rule 32 petition.

In his second Rule 32 petition, Marshall claimed that he was due an out-of-time appeal, because, through no fault of his own, he had never received notice of the circuit court’s dismissal of his first Rule 32 petition. Specifically, he contends that he did not receive a copy of the dismissal order because the circuit court did not send him a copy, and because his counsel rendered ineffective assistance by failing to inform him that his first Rule 32 petition had been dismissed.

On the authority of Ex parte Fountain, 842 So.2d 726 (Ala.2001), and Brooks v. State, [Ms. CR-00-1134, April 26, 2002] — So.2d — (Ala.Crim.App.2002), we must reverse the circuit court’s denial of Marshall’s second Rule 32, Ala.R.Crim.P. petition.

In support of his second Rule 32 petition, Marshall claims that he attempted

“to have prison officials check the ‘legal mail log’ to further support his contention that he in fact never did receive notice of dismissal of his [first] Rule 32 from the Circuit Court of Hale County, but[] he could not obtain copies of these logs as they have names of all other inmates who received legal mail during the time frame in question.”

(C. 46.)

Marshall alleges that he finally learned of the dismissal through a member of his family some time around November 2000. The State did not in the trial court, and does not on appeal, refute Marshall’s claim. In its order dismissing the petition, the circuit court noted:

“As for the Defendant’s failure to appeal from the denial of his [first] Rule 32 petition, the Defendant has an obligation to stay informed of the status of his case. He has filed numerous pro se motions and pleadings throughout this matter[,] and it appears obvious to the Court that he could have found out that an order was entered if, in fact, no copy had been mailed to him. Accordingly, the Court finds that this petition is due to be denied.”

(C. 13-14.)

Nothing in the circuit court’s order indicates that the circuit court ever notified Marshall of the dismissal of his first Rule 32 petition. As for the “numerous pro se motions and pleadings,” Marshall contends that, while it is true that he continued to file pro se motions and pleadings, those motions and pleadings were to request information on the status of his first Rule 32 petition because he had no idea that his first petition had been dismissed.

Because Marshall has alleged that he never received a copy of the order dismissing his first Rule 32 petition, and because neither the State nor the circuit court disputed that allegation, we conclude that Marshall was not informed of the dismissal of his first Rule 32 petition. Accordingly, on the authority of Fountain and Brooks, we find that regarding his out-of-time-appeal claim, Marshall is entitled to the relief requested in his second Rule 32 petition. Therefore, the circuit court’s summary denial of Marshall’s second Rule 32 petition is reversed and the circuit court is directed to enter a new order and to promptly notify Marshall of that order so that he may appeal in accordance with established law and procedure.

Because we grant the petition on the issue of the circuit court’s failure to notify Marshall that his petition had been dismissed, we do not address his related claim of ineffective assistance of counsel.

REVERSED AND REMANDED.

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


author: PER CURIAM. JOHNSTONE, Justice

text:
    Ex parte State of Alabama. (In re Gary Lewis MARSHALL v. STATE of Alabama).
    1012217.
    Supreme Court of Alabama.
    Sept. 26, 2003.
    William H. Pryor, Jr., atty. gen., and Thomas Leverette and Cedric B. Colvin, asst, attys. gen., for petitioner.
    Gary Lewis Marshall, pro se.
   PER CURIAM.

This Court granted the State’s petition for a writ of certiorari to review the Court of Criminal Appeals’ decision reversing the circuit court’s denial of Gary Lewis Marshall’s second Rule 32, Ala. R.Crim. P., petition. The Court of Criminal Appeals concluded that, because Marshall never received notice that his first Rule 32 petition had been dismissed, he was entitled to an out-of-time appeal based on the authority of Ex parte Fountain, 842 So.2d 726 (Ala.2001), and Brooks v. State, [Ms. CR-00-1134, April 26, 2002] — So.2d — (Ala.Crim.App.2002). We reverse and remand.

I.Proceedings in the Circuit Court

On May 7, 1997, Marshall was convicted of murder and was sentenced to life in prison. The Court of Criminal Appeals affirmed his conviction and sentence, without an opinion. Marshall v. State (No. CR-96-1996), 728 So.2d 713 (Ala.Crim.App.1998) (table). Marshall filed his first Rule 32 petition in the Hale Circuit Court on April 21, 1998. The circuit court dismissed Marshall’s • petition. Marshall claims that he never received notice of the circuit court’s dismissal of this petition and that he discovered that his Rule 32 petition had been denied after the time for taking an appeal had passed. Marshall appealed the dismissal of his Rule 32 petition, arguing that his failure to appeal was through no fault of his own; the Court of Criminal Appeals dismissed his appeal as untimely, without an opinion. Marshall v. State (No. CR-00-0307, March 23, 2001) 821 So.2d 1041 (Ala.Crim.App.2001)(table).

On June 6, 2001, Marshall filed his second Rule 32 petition. The circuit court dismissed the petition (1) because the petition was not filed within the two-year limitations period established in Rule 32.2(c), Ala. R.Crim. P., as that rule then provided; and (2) because it was a successive petition, presenting grounds previously presented in Marshall’s first Rule 32 petition. The circuit court also addressed Marshall’s failure to appeal from the denial of his first Rule 32 petition:

“[T]he defendant has an obligation to stay informed of the status of his case. He has filed numerous pro se motions and pleadings throughout this matter and it appears obvious to the Court that he could have found out that an order was entered if, in fact, no copy had been mailed to him. Accordingly, the Court finds that this petition is due to be dismissed.”

II.Proceedings in the Court of Criminal Appeals

Marshall appealed the dismissal of his second Rule 32 petition to the Court of Criminar Appeals. On appeal, he argued that, through no fault, of his own, he had never received notice of the dismissal of his first Rule 32 petition and learned of that dismissal only through a family member sometime in November 2000, well beyond the time for taking an appeal. He alleged that the circuit court did not send him a copy of the order dismissing the petition and that his counsel rendered ineffective assistance by failing to inform him that his first Rule 32 petition had been dismissed. The Court of Criminal Appeals concluded “that Marshall was not informed of the dismissal of his first Rule 32 petition,” a contention it says “neither the State nor the circuit court disputed,” and held that Marshall was entitled to an out-of-time appeal, as requested in his second Rule 32 petition. Marshall v. State, 884 So.2d 898 (Ala.Crim.App.2002). With no elaboration, the Court of Criminal Appeals rested its decision “on the authority of Fountain and Brooks,” supra. 884 So.2d at 899.

III.Petition for the Writ of Certiorari

The State filed a petition for a writ of certiorari in this Court, asserting that the decision of the Court of Criminal Appeals conflicts with decisions of this Court and of the Court of Criminal Appeals. We granted the petition to consider the State’s argument that the Court of Criminal Appeals’ decision conflicts with Ex parte Weeks, 611 So.2d 259 (Ala.1992), and Ex parte Johnson, 806 So.2d 1195 (Ala.2001). We also take this opportunity to clarify our holding in Ex parte Fountain.

IV. Analysis

A review of the cases relied upon by Marshall and the Court of Criminal Appeals is in order.

In Ex parte Fountain,: Tony Fountain, appealing the circuit court’s dismissal of his Rule 82 petition, presented only one argument to this Court, i.e., “that his right to due process was violated by the State’s failure to send him a copy of its response brief on appeal.” 842 So.2d at 729. The Court of Criminal Appeals had • affirmed the judgment of the circuit court denying Fountain’s Rule 32 petition. This Court relied upon Ex parte -Weeks, supra, in which this Court noted that procedural due process contemplates. “ ‘rudimentary requirements of fair play, which include ... information as to the claims of the opposing party, with reasonable opportunity to controvert them.’ Ex parte Fountain, 842 So.2d at 729 (quoting Ex parte Weeks, 611 So.2d at 261). This Court in Ex parte Fountain interpreted the requirement in Rule 31(a), Ala. R.App. P., that each party’s appellate brief be served on the other party to encompass “precisely the goal of fundamental fairness that is the essence of due process.” 842 So.2d at 730. Thus, we reversed the judgment of the Court of Criminal Appeals as to this issue because that court did not “afford[ ] [Fountain] his due process right to know the State’s arguments in order to formulate the reply Rule SI allows him.” 842 So.2d at 730 (emphasis added). This issue was the main, thrust of the opinion.

However, the Court of Criminal Appeals in Ex parte, Fountain had also affirmed the circuit court’s order granting Fountain an out-of-time appeal, which the circuit court granted because, like -Marshall, Fountain,alleged that he had not received notice of the dismissal of his Rule 32 petition. However, as. Judge Shaw noted in his special writing in Brooks, — So.2d at - (Shaw, J., concurring in the result, with Baschab, J., joining), the- other case relied on by the Court of Criminal Appeals in Marshall’s case, the issue whether the out-of-time appeal was properly granted was never before this Court in Ex parte Fountain. Ex parte Fountain, 842 So.2d at 727. Indeed, this Court in Ex parte Fountain made it clear that the petition for the writ of certiorari was granted peal.”

“to determine whether [Fountain’s] right to due process was violated by the State’s failure to serve him with a copy of its appellee’s brief on Fountain’s appeal of the denial of his first Rule 32, Ala. R.Crim. P., petition and by the failure of the Court of Criminal Appeals to enforce his right to a copy of the State’s brief and to accord him a fair opportunity to reply to it. We reverse and remand on that issue. The State has not sought certiorari review of the aspect of the judgment of the Court of Criminal Appeals affirming the trial court in its granting Fountain an out-of-time ap-

842 So.2d at 727 (emphasis added). The issue was not raised by Fountain’s certio-rari petition; certiorari review was not granted as to it; and it was, therefore, not before this Court in Ex parte Fountain. See Ex parte Hodges, 856 So.2d 936, 949 n. 2 (Ala.2003)(“We have addressed only those issues relating to Hodges’s sentence, because his petition for certiorari review does not raise questions relating to his conviction.”); and Ex parte MacEwan, 860 So.2d 896, 897 n. 1 (Ala.2002) (Court declined to consider the issue whether the trial court erroneously found MacEwan’s ineffective-assistance-of-counsel claim to be time-barred because the issue “was not raised by either party on this certiorari review”).

Having concluded that Ex parte Fountain provides no basis for the Court of Criminal Appeals’ decision in this case, we turn to the other case upon which the Court of Criminal Appeals relied: Brooks v. State, supra. In Brooks, the Court of Criminal Appeals relied upon the four-month-old decision in Ex parte Fountain and on Ex parte Johnson, 806 So.2d 1195 (Ala.2001), to justify its conclusion that Brooks was entitled to an out-of-time appeal from the dismissal of his Rule 32 petition if, on remand, the circuit court concluded (1) that Brooks never received notice of the circuit court’s order denying his Rule 32 petition, or (2) that the 42-day period for filing a notice of appeal, Rule 4(b)(1), Ala. R.App. P., had run before Brooks received his copy of the order. Ex parte Fountain provides no support for this conclusion; neither does Ex parte Johnson, supra.

In Ex parte Johnson, this Court found that Bonnide Johnson “was not notified that his Rule 32 petition was denied”— even though he had “asked, through the office of the circuit clerk, that he be notified of material developments in his case” — “and the 42-day period during which he could have appealed that denial has expired.” 806 So.2d at 1197. This Court relied upon and quoted Ex parte Weeks, in which this Court stated:

“ ‘Although it is generally held in Alabama that a party is under a duty to follow the status of his case, whether he is represented by counsel or acting pro se, and that, as a general rule, no duty rests upon either the court or the opposing party to advise that party of his scheduled trial date, see the cases collected at 18A Ala. Digest Trial § 9(1)(1956), a party’s right to procedural due process is nonetheless violated if he is denied his day in court because the court, acting through its clerk, assumed the duty of notifying that party of his scheduled trial date and then negligently failed to do so.’

806 So.2d at 1197 (quoting Ex parte Weeks, 611 So.2d at 262)(emphasis added). This Court in Ex parte Weeks made it clear that procedural-due-process concerns arose when the court assumed a duty of notification it did not otherwise owe the petitioner and then failed to perform that duty.

In both cases, however, the remedy for a breach of the duty to notify, and to ensure due process, was the issuance of a writ of mandamus from this Court to the circuit court. See Ex parte Weeks, 611 So.2d at 262 (mandamus issued to “direct the circuit court to reinstate Weeks’s appeal to the trial docket”); Ex parte Johnson, 806 So.2d at 1197 (Court vacated order denying Johnson’s Rule 32 petition and “directed] the trial court to enter a new order and to promptly send Johnson notification of that order”). In fact, this Court in Ex parte Weeks explained that “the extraordinary writ of mandamus is the only remedy available to [Weeks],” i.e., where a party “did not learn that his case had been dismissed until after the time for taking an appeal to the Court of Criminal Appeals had run.” 611 So.2d at 262 (emphasis added). The writ issued in Ex parte Weeks not only because Weeks had no other remedy available to him, but also “because all of the other requirements necessary for the issuance of a writ of mandamus are satisfied in this case.... ” 611 So.2d at 262. Following the precedent in Ex parte Weeks, this Court in Ex parte Johnson issued a writ of mandamus to remedy Johnson’s situation. This Court has never retreated from its stance that mandamus is the “only remedy available” in such situations, our “attempted affir-mance” in Ex parte Fountain notwithstanding.

If this Court were to hold today that Marshall may properly request an out-of-time appeal in a Rule 32 petition, we would be, first, amending Rule 32 to provide a ground for relief that the rule does not currently provide.

While this Court, and not the Court of Criminal Appeals or the Court of Civil Appeals, maintains the .authority to amend the rules of procedure, see Amend. No. 328, § 6.11, Ala. Const.1901, we decline to do so at this time and in this manner. Second, if we hold that the out-of-time appeal was properly granted in this case, we would be implicitly nullifying our explicit holding in Ex parte Weeks and our implicit holding in Ex parte Johnson that mandamus is the only remedy in such a case. In other words, our recognizing that a successive Rule 32 petition may be the vehicle for requesting an out-of-time appeal from the denial of a previous Rule 32 petition would create “another adequate legal remedy,” ostensibly one “in addition” to a writ of mandamus. See Brooks v. State, — So.2d at — (reluctantly recognizing that “the law,” as interpreted by the Court of Criminal Appeals, provides “two remedies” — one by way of a petition for writ of mandamus and one pursuant to a Rule 32 petition)(Shaw, J., concurring in the result). It follows, however, that the introduction of a remedy “in addition” to mandamus would destroy the possibility of mandamus because for that extraordinary writ to issue the petitioner must have no adequate legal remedy. See, e.g., Ex parte Weaver, 781 So.2d 944, 949 (Ala.2000). We therefore do not recognize such an “additional” remedy.

Returning again to the Court of Criminal Appeals’ decision in Brooks v. State, it is now apparent that the Brooks court erred in relying upon Ex parte Johnson (in addition to Ex parte Fountain) because Ex parte Johnson supports only the issuance of a writ of mandamus to remedy a situation like Marshall’s, not the availability of an “additional” remedy by way of a successive Rule 32 petition. That court in this case, therefore, erred in relying upon Ex parte Fountain and Brooks to support its 'decision.

V. Conclusion

We hereby decline effectively to amend Rule 32; we reaffirm our holdings in Ex parte Weeks and Ex parte Johnson; and we reiterate that the writ of manda--mus is “the only remedy available” to those who, like Marshall, through no fault of their own, fail to receive notice of the dismissal of their Rule 32 petition in time to effect a timely appeal therefrom. The Court of Criminal Appeals, therefore, erred in relying upon dicta in Ex parte Fountain, which purported to affirm as to an issue that was not before this Court, and the derivative Brooks v. State to hold that the circuit court properly granted Marshall’s request in his second Rule 32 petition for an out-of-time appeal from his first Rule 32 petition. The appropriate remedy for Marshall is to petition for a writ of mandamus.

We reverse the judgment of the Court of Criminal Appeals and remand this case to that court for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

SEE and WOODALL, JJ., concur in the result.

JOHNSTONE, J., dissents.

JOHNSTONE, Justice

(dissenting).

The big problem pertinent to the issue addressed by the main opinion is that, commonly in this state, a trial court will deny a convict’s Rule 32, Ala. R.Crim. P., petition but will not notify the convict of the denial and the convict will not receive word of the denial until after his time to appeal the denial has expired. The convict typically cannot know when to expect a ruling, since trial judges sometimes deny such petitions immediately upon receipt, sometimes withhold rulings for weeks, months, or years, sometimes conduct hearings before ruling, and sometimes deny the petitions without a hearing. For all of the sanctimonious talk of the courts about a petitioner’s duty to monitor the status of his Rule 32 petition, any notion that each of these poor devils can periodically obtain reliable information on whether the trial court has ruled, is stark fiction. If the convict is incarcerated, he is even more helpless to learn of any ruling.

Thus the big issue pertinent to the main opinion is what procedure this Court will provide for a Rule 32 petitioner to obtain an out-of-time appeal of a dénial that was not communicated to the petitioner until after the expiration of his standard time to appeal. Today’s opinion holds that the exclusive remedy is a. petition first filed in the Court of Criminal Appeals for a writ of mandamus directing the trial court to notify the petitioner of the ruling on his Rule 32 petition, like the petition for a writ of mandamus in our case of Ex parte Johnson, 806 So.2d 1195 (Ala.2001).

The petitioner in Johnson had not received notice before he filed his petition for writ of mandamus but did receive notice during the pendency of the mandamus proceedings — notice in the form of the trial judge’s mandamus answer to the effect that the Rule 32 petition already had been denied a half a year earlier. Nonetheless, the Johnson Court, holding that the'trial judge had not notified the petitioner of the denial, vacated the denial and ordered the trial judge to enter a new denial (which would start the running of the appeal time anew) and to notify the defendant of the new denial. The Johnson Court thus took the bull by the horns and granted the practical equivalent of an out-of-time appeal. However, unless this Court adapts the Johnson relief to the variations that will typically characterize these no-notiee or tardy-notice cases, convicts like the one before us will suffer the same denial of due process that the Johnson Court spared that particular litigant.

Johnson was issued by this Court two days after Marshall, the convict now before us, filed his second Rule 32 petition asking the trial judge to grant an out-of-time appeal for the denial of Marshall’s first Rule 32 petition. Thus Johnson, as a practical matter, was not available as guidance- to Marshall. Further, while the Johnson Court rightly relied on the general legal principles of Ex parte Weeks, 611 So.2d 259 (Ala.1992), the facts of Weeks are too different to have provided any practical guidance to Marshall in the case now before us. That is, Weeks timely appealed his district court drunk-driving conviction to the circuit court for a trial de novo; the circuit clerk assumed a duty to provide Weeks a notice of his trial date but did not provide the notice; the circuit judge dismissed Weeks’s appeal for his failure to appear for the trial de novo and denied Weeks’s motion to reinstate the appeal; Weeks apparently did receive timely notice of this denial, as he did not complain of a lack of such notice; Weeks petitioned the Court of Criminal Appeals for a writ of mandamus, which was denied; Weeks then petitioned this Court for one; and finally this Court granted a writ of mandamus directing the circuit judge to reinstate the appeal.

With no model to follow, Marshall should be excused for relying on Rule 32.1(f), Ala. R.Crim. P., which provides:

“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
“(f) The petitioner failed to appeal within the prescribed time and that failure was without fault on the petitioner’s part.”

While the main opinion, without citation to authority, holds that this rule does not mean what it says, the only real defect in Marshall’s reliance on it is that he filed his second Rule 32 petition after the two-year deadline then imposed by Rule 32.2(c). Nonetheless, there is no good reason why this Court should not treat Marshall’s appeal of the denial of his second Rule 32 petition as a petition for a writ of mandamus to the Court of Criminal Appeals, like that in Johnson, and grant Marshall relief analogous to that granted by the Johnson Court — a remand to the Court of Criminal Appeals with instructions that it enter an order vacating the denial of Marshall’s first Rule 32 petition and issue a writ of mandamus directing the trial judge to enter a new denial and contemporaneously to notify Marshall of the new denial.

This Court has been liberal in treating appeals as petitions for writs of mandamus. E.g., Ex parte Webb, 855 So.2d 1031 (Ala.2003); Harold Allen’s Mobile Home Factory Outlet, Inc. v. Butler, 825 So.2d 779 (Ala.2002); and Jericho Mgmt., Inc. v. Fidelity Nat’l Ins. Co. of Tennessee, 811 So.2d 514 (Ala.2001); Ex parte Messer, 797 So.2d 1079 (Ala.2001); Morrison Restaurants, Inc. v. Homestead Village of Fairhope, Ltd., 710 So.2d 905 (Ala.1998); and Henderson v. Superior Ins. Co., 628 So.2d 365 (Ala.1993). Marshall has already repeatedly and unsuccessfully asked the trial judge to notify Marshall of the disposition of his first Rule 32 petition and has received only belated and unofficial word from his family, as the Court of Criminal Appeals has observed, Marshall v. State, 884 So.2d 898, 899 (Ala.Crim.App.2002).

Accordingly, I respectfully submit that this Court should remand the case to the Court of Criminal Appeals with instructions for it to grant Marshall the Johnson relief, as I have already discussed. Therefore, I respectfully dissent from the main opinion.

      . Rule 32.2(c) was amended effective August 1, 2002, to provide a one-year limitations period.

      . The need to clarify Ex parte Fountain has not gone unnoticed by the Court of Criminal Appeals. See, e.g., King v. State, 881 So.2d 542, 544 (Baschab, J., concurring specially)(urging this Court "to revisit its decisions in Ex parte Johnson and Ex parte Fountain and to clarify what is the appropriate procedure for seeking an out-of-time appeal from the denial.or dismissal of a prior Rule 32 petition”); and Brooks v. State, [Ms. CR-00-1134, April 26, 2002] - So.2d -, - (Ala.Crim.App.2002)(Shaw, J., concurring in the result, with Baschab, J., joining)("I urge the Supreme Court to clarify its holding in Ex parte Fountain at its earliest convenience.”).

      . Naturally, Fountain did not petition for cer-tiorari review of this part of the Court of Criminal Appeals' judgment.

      . Rule 32.1, Ala. R.Crim. P., provides:
      "Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:,
      "(a) The constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.
      "(b) The court was without jurisdiction to render judgment or to impose sentence.
      "(c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.
      "(d) The petitioner is being held in custody after the petitioner's sentence , has expired.
      "(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
      "(1) The facts relied upon were not known by the petitioner or the petitioner’s counsel at the time • of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
      "(2) The facts are not merely cumulative to other facts that were known;
      "(3) The facts do not merely amount to impeachment evidence;
      "(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
      “(5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received.
      "(f) The petitioner failed to appeal within the prescribed time and that failure was without fault on the petitioner’s part.
      "A petition that challenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice.”
      • Subsection (!) contemplates the appeal from a conviction or sentence, but not an appeal from an adverse ruling in a collateral proceeding (such as a Rule 32 petition). There is, therefore, no ground under Rule 32.1 through which Marshall, and those similarly situated, may petition for an out-of-time appeal from the denial of a Rule 32 petition.

      . The Court of Criminal Appeals claimed in Brooks that it had “created a narrow exception to the 42-day rule [in Rule 4(b)(1), Ala. R.App. P.] in Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000).... ” Brooks, - So.2d at -. The Court of Criminal Appeals may not, however, amend the rules of procedure. Moreover, this Court in Ex parte Fountain did not approve this "exception” because the issue of the out-of-time appeal was never properly presented to it.


text:
    Gary Lewis MARSHALL v. STATE of Alabama.
    CR-01-0204.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 2004.
    Gary Lewis Marshall, pro se.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appel-lee.
   On Remand from the Alabama Supreme Court

COBB, Judge.

In accordance with the judgment of the Alabama Supreme Court, we dismiss the petitioner’s appeal. The proper vehicle for the petitioner’s claims is a petition for a writ of mandamus, not a petition filed pursuant to Rule 32, Ala. R. Crim. P. See Marshall v. State, 884 So.2d 900 (Ala.2003).

APPEAL DISMISSED.

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


author: McMILLAN, Presiding Judge.

text:
    Demetrius Terrence FRAZIER v. STATE.
    CR-01-1317.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.

      Sonya M. Rudenstine, Montgomery; and Lynne S. Coffin, San Francisco, California, for appellant.
    William H. Pryor, Jr., atty. gen., and Tracy Daniel, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Demetrius Terrence Frazier, appeals from the trial court’s summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. The appellant was convicted of murder made capital because it was committed during the course of a robbery in the first degree, a violation of § 13A-5-40(a)(2), Ala.Code 1975. Following the jury’s recommendation, by a vote of 10-2, that the appellant be sentenced to death, the trial court sentenced the appellant to death. This Court affirmed the judgment of conviction and the death sentence. Frazier v. State, 758 So.2d 577 (Ala.Crim.App.1999), affirmed, 758 So.2d 611 (Ala.1999). The United States Supreme Court denied certiorari review. Frazier v. Alabama, 531 U.S. 843, 121 S.Ct. 109, 148 L.Ed.2d 66 (2000).

On September 26, 2001, the appellant filed a timely Rule 32 petition. On January 31, 2002, the State filed an answer to the petition, arguing that the appellant was not entitled to relief because, it argued, the petition was not sufficiently pleaded, was procedurally barred, or failed to raise any meritorious claims that would entitle the appellant to an evidentiary hearing. On February 25, 2002, the appellant filed several motions seeking discovery, which were denied by the trial court. On March 19, 2002, after receiving notice that his Rule 32 petition had been denied, the appellant filed an “Emergency Motion to Reconsider and Withdraw the Case Action Summary Sheet Denying His Rule 32 Petition.” The State responded with a motion to strike the appellant’s emergency motion, arguing that under the law of Alabama, the trial court was without jurisdiction to grant the requested relief and that the appellant’s only recourse was an appeal to this Court. The trial court granted the State’s motion to strike. On the same day the appellant filed his emergency motion, he also filed an amended Rule 32 petition, which contains the same claims raised in his original Rule 32 petition, in addition to a new claim of juror misconduct.

The appellant contends that the trial court erred in summarily dismissing his Rule 32 petition without conducting an evi-dentiary hearing. Specifically, he contends that the claims in his petition were sufficiently pleaded, were not procedurally barred, and, if proven true, stated claims that would entitle him to relief. Additionally, the appellant contends that the trial court erroneously dismissed his claims of ineffective assistance of counsel without stating in the order its reasons for the dismissal. Lastly, the appellant contends that the trial court’s order was “confusing and overbroad as to the scope, the reasons and grounds for the order, and the basis for it.”

In its order summarily denying the appellant’s petition, the trial court found that the claims were due to be dismissed because:

“(1) they fail[ed] to meet the specificity and full factual disclosure requirements of Rule 32.6(b) and Rule 32.7(d), A.R.Cr.P; (2) [they] fail[ed] to stated a claim or present a material issue of fact or law, Rule 32.7(a), A.R.Cr.P; (3) [they were] precluded by law because these claims were raised at trial, Rule 32.2(a)(2), A.R.Cr.P. (4) [they were] precluded by law because these claims could have been raised at trial but were not, Rule 32.2(a)(3), A.R.Cr.P.; or. (5) [they were] precluded by law because these claims could have been raised, on appeal but were not, Rule 32.2(a)(5), A.R.Cr.P.”

With regard to the appellant’s ineffective assistance of counsel claims, the trial court’s order stated that “it had tried this case and [found] that the petitioner’s claims of ineffective assistance of counsel had no merit.”

The trial court’s order summarily dismissing the postconviction petition does not contain any specific findings as to the appellant’s ineffective-assistance-of-counsel claims and does not state which ineffective-assistance-of-counsel claims it was referring to when it found the claims to be without merit. This lack of findings in this regard is confusing because the trial court, in its order, had previously found that all of the appellant’s other claims of ineffective assistance of counsel were due to be dismissed because they were not pleaded sufficiently or because they failed to state a claim or present a material issue of fact or law. Additionally, the postconviction petition contains’numerous paragraphs alleging ineffective-assistance-of-counsel claims that were not included in the trial court’s order. Therefore, this cause must be remanded for the trial court to enter specific findings of fact as to any ineffective assistance claims being denied on their merits, and for an evidentiary hearing, if deemed necessary.

Additionally, the trial court’s order contains contradictory findings on claims other than the ineffective-assistance-of-counsel claims, where the same claims were held to be proeedurally barred because they were raised at trial and were also found to be proeedurally barred because they could have been, but were not, raised at trial.

The trial court’s order also fails to contain the procedural bar, Rule 32.2(a)(4), Ala. R. Crim. P., regarding claims that were raised or addressed on appeal, a bar that, the State argued in its answer to the appellant’s Rule 32 petition, applied to several of his ineffective-assistance-of-counsel claims raised and addressed on direct appeal.

“The fact that the circuit judge is not required to conduct an evidentiary hearing on a petitioner’s claims of ineffective assistance of trial counsel if that judge personally observed the conduct of those counsel does not, however, reheve the judge of the responsibility of entering a sufficiently specific order addressing each of the petitioner’s claims of ineffective assistance of trial counsel.”

Holloway v. State, 848 So.2d 1017 (Ala.Crim.App.2002).

The amendment to the appellant’s petition, which alleged a new claim of juror misconduct, was filed after the appellant had knowledge that his original petition had been denied, and beyond the two-year limitations period. The certificate of final judgment was issued on December 30, 1999, and the amended petition was filed on March 19, 2002. Thus, it was precluded from review by the trial court. Rule 32.2(c), Ala. R. Crim. P.

Lastly, the appellant’s claim that the trial court’s summary dismissal of his petition without allowing him an opportunity to reply to the State’s answer is a denial of due process is without merit. “ “Where a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition without requiring a response from the district attorney.’ ” Tatum v. State, 607 So.2d 383, 384 (Ala.Crim.App.1992) (quoting, Bishop v. State, 608 So.2d 345, 347-48 (Ala.1992)).

Based on the foregoing deficiencies in the trial court’s order, we remand this cause to the trial court to conduct, if necessary, an evidentiary hearing, and to make written specific findings with regard to each of the claims presented at the hearing. The trial court should also make written specific findings of fact as to any ineffective-assistance-of-counsel claims that were denied on the merits, and clarify for the record, in a written order, any procedural bars applicable to the remaining arguments contained in the petition for postconviction relief. Should a hearing be granted, the return to remand shall include a transcript of the proceedings. Return shall be made to this Court within 70 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

SHAW and WISE, JJ„ concur. BASCHAB, J., concurs in the result. COBB, J., recuses herself.


text:
    Stephen Ray QUETGLES v. STATE of Alabama.
    CR-01-1596.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.
    Rehearing Denied April 18, 2003.

      Gordon G. Armstrong III, Mobile; and Vader A1 Pennington, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   COBB, Judge.

On March 25, 2002, Stephen Ray Quet-gles was convicted of two counts of violating § 13A-12-200.il, Ala.Code 1975, which prohibits displaying genitals. The trial court sentenced him to concurrent five-year sentences, but split the sentences and ordered Quetgles to serve two years, followed by formal probation for five years. This appeal followed.

The facts adduced at trial indicate that, on two separate occasions, undercover police officers paid the cover charge and gained entrance to “sex parties” in what was purported to be a tanning salon owned and operated by Quetgles and his common-law wife. During these “sex parties,” which Quetgles and his common-law wife conducted on Saturday evenings, each person paid a $20 cover charge for refreshments. Guests were then allowed either to participate in the orgiastic activities or simply to watch. Law enforcement officers secretly videotaped the parties twice, each time for several hours. Quetgles and his wife were arrested shortly thereafter and charged.

Quetgles argues on appeal, as he argued at trial, that the statute under which he was convicted is unconstitutional. Specifically, he contends that the statute is over-broad and that it is a content-based restriction on his First Amendment right to free expression.

Section 13A-12-200.il reads, in pertinent part, as follows:

“It shall be unlawful for any business establishment or any private club to show or allow to be shown for entertainment purposes the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state. A violation of this section shall be a Class C felony.”

Both of the arguments raised by Quet-gles have been addressed by the federal court system. In Ranch House, Inc. v. Amerson, 22 F.Supp.2d 1296 (N.D.Ala.1998), the district court upheld the constitutionality of § 13A-12-200.il in the face of, among other things, challenges to the breadth of the statute and to the statute’s effect on citizens’ First Amendment rights. On appeal, the United States Court of Appeals for the Eleventh Circuit discussed in detail the appropriate analysis to test the constitutionality of a statute that appears to proscribe speech or expression based on content:

“As we often have remarked, ‘[w]hether a statute is constitutional is determined in large part by the level of scrutiny applied by the courts.’ [Williams v. Pryor, 229 F.3d 1331, 1334 (11th Cir.2000)]. The Supreme Court in [City of Erie v. Pap’s A.M., 529 U.S. 277 (2000),] recently addressed the proper framework for evaluating what level of scrutiny should be applied to statutes that restrict nude dancing. Although no opinion in that case was joined by more than four Justices, a majority of the Court basically agreed on how these kinds of statutes should be analyzed:
“ ‘[First, a court] must decide “whether the State’s regulation is related to the suppression of expression.” If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then’ the regulation need only satisfy the “less stringent” standard of [United States v. O’Brien, 391 U.S. 367 (1968),] for evaluating restrictions on symbolic speech. If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the O’Brien test and must be justified under a more demanding standard.’
“Pap’s, 120 S.Ct. at 1391 (plurality op.) (citations omitted); see also id. at 1402 (Souter, J., concurring in part and dissenting in part) (stating agreement with the ‘analytical approach that the plurality employs in deciding this case’). The defining question, therefore, is whether [§ 13A-12-200.il, AlaUode 1975,] is a content-based regulation of protected expression.
“The Supreme Court recently reiterated that the hallmark of a content-based regulation is the government’s purpose to suppress the message conveyed by the speech or expression at issue. See Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 2491, 147 L.Ed.2d 597 (2000) (‘ “The principal inquiry in determining content neutrality, in speech cases generally ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.... As we have repeatedly explained, government regulation of expressive activity is ‘content-neutral’ if it is justified without reference to the content of regulated speech”.’) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989)). Thus, if a regulation of expression may be justified without reference to the contents of the expression, the regulation is considered content-neutral. This point is critical, because the fact that a statute refers to the content of expression does not necessarily make it content-based if it was enacted for a valid purpose other than suppressing the expression due to a disagreement with the message conveyed or a concern over the message’s direct effect on those who are exposed to it. Section 200.11 does distinguish among the forms of expression being proscribed — it is not all nudity, but rather only nudity for entertainment purposes, that the Alabama Legislature has sought to ban. Thus, in a narrow sense, § 200.11 is not ‘neutral’ as to content because it explicitly permits certain types of nude expression while restricting other types of nude expression based entirely on whether the expression is for entertainment' purposes. Ranch House emphasizes this fact heavily. As noted above, .however, both the Supreme Court and this Court have framed the inquiry more broadly, by focusing on the purpose of the legislature in enacting the challenged law.
“The most relevant line of cases illustrating this point — and the line of cases relied upon by Defendants here — involves the so-called secondary effects doctrine, as first set forth by the Supreme Court in City of Renton v. Playtime Theatres[, 475 U.S. 41 (1986)]. The ordinance at issue in Renton prohibited any ‘adult motion picture theater’ from locating ‘within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any school.’ The term ‘adult motion picture theater’ was defined as ‘[a]n enclosed building used for presenting motion picture films ... or any other such visual media, distinguished or characterized] by an emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas” ... for observation by patrons therein.’ The plaintiff argued that the ordinance was a content-based regulation of speech that should be given strict scrutiny rather than analyzed under the less exacting intermediate scrutiny applied to content-neutral ‘time, place, and manner’ laws. The Court disagreed, and in the process illustrated that a statute is not necessarily content-based simply because on its face it distinguishes among types of speech based on their contents:
“ ‘This Court has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. On the other hand, so-called “content-neutral” time, place, and manner regulations are acceptable' so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues, of communication.
“ ‘At first glance, the Renton ordinance ... does not appear to fit neatly into either the “content-based” or the “content-neutral” category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the District Court con-eluded, the' Renton ordinance is aimed not at the content of the films shown at “adult motion picture theatres,” but rather at the secondary effects of such theaters on the surrounding community. The District Court found that the City Council’s “predominate concerns” were with the secondary effects of adult theaters, and not with the content of adult films themselves.... The ordinance by its terms is designed to prevent crime, protect the city’s retail trade, maintain property values, and generally “protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,” not to suppress the expression of unpopular views.... In short, the Renton ordinance is completely consistent with our definition of “content-neutral” speech regulations as those that “are justified without reference to the content of the regulated speech.” The ordinance does not contravene the fundamental principle that underlies our concern about “content-based” speech regulations: that “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” ... ’

475 U.S. at 46-48, 106 S.Ct. at 928-29 (citations omitted [in Amerson]).

“In Renton, the Court recognized that a statute which on its face distinguishes based on content is not necessarily content-based for purposes of First Amendment analysis. The ultimate question is whether the legislature’s purpose is to suppress the content of the proscribed message because of a disagreement with that message or concern over the direct effect of that message on its observers. The secondary effects doctrine conceived by the Supreme Court is used to determine whether a statute is content-based, by looking for a legislative purpose independent of the legislature’s hostility to the underlying message. Asserting, as Ranch House does, that secondary effects analysis ‘does not apply’ to a content-based statute therefore misunderstands the proper inquiry:

“This Circuit recently illustrated how the secondary effects doctrine works and, just as importantly, why a statute that on its face refers to content is not necessarily content-based and thereby subject to strict scrutiny. In Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th Cir.1998), cert. denied, 529 U.S. 1052, 120 S.Ct. 1553, 146 L.Ed.2d 459 (2000), this Court upheld against First Amendment attack a city ordinance making it unlawful for any establishment ‘licensed to sell [liquor] under the laws of the State of Alabama, knowingly to exhibit ... or be connected with, any motion picture, show, performance, or other presentation upon the licensed premises, which, in whole or in part, depicts nudity or sexual conduct or any simulation thereof.’ The preamble to the ordinance declared that the goal of the statute was to avoid the ‘undesirable behavior’ and ‘disturbances associated with mixing alcohol and nude dancing....’ The plaintiff argued that the ordinance was content-based because it referred only to a particular type of expression: adult-oriented nude entertainment. This Court rejected that argument, explaining that ‘[t]he Supreme Court ... does not equate reference to content with suppression of content.’ Id. at 998 (adding that the Supreme Court applies an ‘intermediate level of scrutiny to ordinances which distinguish between nude and clothed entertainment, but which are aimed only at the secondary effects of nude entertainment’) (citing, inter alia, Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 n. 34, 96 S.Ct. 2440, 2453 n. 34, 49 L.Ed.2d 310 (1976) (‘[i]t is [the] secondary effect [of crime and urban deterioration] which these zoning ordinances attempt to avoid, not the dissemination of “offensive speech” ’)).

“Simply looking at the language of the statutes at issue in cases like Renton and Sammy’s demonstrates why § 200.11 is not content-based solely because that provision distinguishes between nudity for entertainment purposes and nudity generally. Contrary to Ranch House’s argument, while the fact that a statute expressly targets a particular form of nudity is certainly relevant in determining whether the statute’s purpose is to suppress that particular form of expression, see Pap’s, 120 S.Ct. at 1391, it is not necessarily dispositive of the inquiry. To answer the question fully, we need to explore other indications of the legislature’s purpose in enacting the challenged statute.

“It is at this stage of the analysis that Ranch House’s argument may become more persuasive. Invoking Renton, the Defendants claim that § 200.11 was passed not for the purpose of suppressing the message associated with nude dancing, but rather to prevent the secondary - effects of nude entertainment venues on the surrounding community. In determining whether the purpose of a law is to suppress protected speech, a court may examine a wide variety of materials, including the text of the statute, any preamble or express legislative findings associated with it, legislative history, and studies and information of which legislators were clearly aware. See, e.g., Colacurcio v. City of Kent, 163 F.3d 545, 552 (9th Cir.1998) (‘We will look to the full record to determine whether evidence indicates that the purpose of the ordinance is to suppress speech or ameliorate secondary effects. In so doing, we will rely on all “objective indicators of intent, including the face of the statute, the effect of the statute, comparison to prior law, facts surrounding enactment, the stated purpose, and the record of- proceedings.” ’ .(citation omitted [in Amerson])), cert. denied, 529 U.S. 1053, 120 S.Ct. 1553, 146 L.Ed.2d 459 (2000).

“Our task, therefore, is to examine the record and determine whether the Alabama Legislature’s purpose in restricting the display of nudity for entertainment purposes was borne of disagreement with the message conveyed by nude dancing, or rather a desire to ameliorate the perceived negative effects of nude dancing venues on the safety, health, and welfare of the surrounding community. There is little question that, if the statute were enacted for the latter purpose, it would be deemed content-neutral and only intermediate scrutiny would apply.' See Pap’s, 120 S.Ct. at 1394 (statute regulating public nudity properly evaluated as content-neutral because the legislature’s ‘interest in combating the secondary effects associated with [nude dancing] clubs is unrelated to the suppression of the erotic message conveyed by nude dancing’). The difficulty, however, is that Defendants’ claim regarding the Alabama Legislature’s purpose is not evident on this limited record.

“Rather than bolstering a secondary effects argument, as Defendants contend, the materials available to us, at least at first blush, may tend to suggest that the Legislature’s purpose was indeed to suppress nude dancing based on opposition to the message which that particular form of expression conveys. The relevant text of § 200.11, as noted above, expressly targets nude entertainment as opposed to other displays of nude expression. Moreover, the statute expressly prohibits not only nudity at topless bars and other adult-oriented establishments, but also, it seems, nudity displayed at theaters and other ‘serious’ for-profit entertainment venues not ordinarily linked to negative secondary effects.

“Although the introductory section of the bill that added § 200.11 to the Act records a concern with ‘obscene nuisances,’ see 1998 Ala. Acts 98-467, neither the specific language adding § 200.11 nor the bill itself refers to the kind of non-obscene nude dancing offered by Ranch House, or suggests that venues providing such expression constitute a public nuisance. In addition, although the amended Act contains a zoning clause (§ 200.5(4)) limiting where ‘adult-oriented enterprise^]’ may operate, the fact that such a clause is commonly justified by secondary effects does not establish that the Legislature enacted § 200.11 to combat secondary effects. Indeed, the inclusion of § 200.11 as a separate provision in the same bill as § 200.5(4) arguably suggests that the Legislature intended § 200.11 to accomplish something more than preventing secondary effects associated with nude dancing. The text of the statute, in sum, may not at first blush demonstrate a legislative purpose to combat secondary effects.

“Similarly, the express legislative findings in the bill adding § 200.11, rather than supporting a secondary effects argument, also may tend to suggest that the Alabama Legislature’s purpose was to suppress the message conveyed by nude dancing because of a disagreement with that message. The relevant legislative findings stated in the bill are as follows:

“ ‘The Legislature of Alabama finds and declares:
“ ‘(1) That in order to protect children from exposure to obscenity, prevent assaults on the sensibilities of unwilling adults by the purveyor of obscene material, and suppress the proliferation of “adult-only video stores,” “adult bookstores,” “adult movie houses,” and “adult-only entertainment,” the sale and dissemination of obscene material should be regulated without impinging on the First Amendment rights of free speech by erecting barriers to the open display of erotic and lascivious material.
“ ‘(2) That the premises in which a violation of [the Act] occurs should be declared a public nuisance.’
“1998 Ala. Acts 98-467, § 1. The first legislative finding, by its terms, applies only to displays of obscenity, not to displays of non-obscene nude entertainment. Moreover, it may be read as focusing on the content of the proscribed message and the perceived effect of that message on listeners. As such, it would tend to undermine rather than support Defendants’ secondary effects argument. See, e.g., Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988) (‘Regulations that focus on the direct impact of speech on its audience present a different situation. Listeners’ reactions to speech are not the type of “secondary effects” we referred to in Renton.’). The second legislative finding, meanwhile, adds little to the analysis. It seems to declare that establishments such as the. Club are public nuisances. It does so, however, only because those establishments permit a form of expression proscribed in different contexts by different provisions of the Act, not because of the negative effects of that expression on the surrounding community.
“Defendants have not yet countered these points. Nor have they offered any legislative history or other record evidence tending to support the claim that the Alabama Legislature enacted § 200.11 to ameliorate secondary effects associated with nude dancing. Defendants simply take the position that they are not required to make any showing regarding the Alabama Legislature’s purpose in enacting § 200.11. In essence, they say, we should simply assume that the Legislature’s purpose was to combat the negative impact on health, safety, and welfare allegedly caused by venues that provide nude dancing.
“That argument goes too far, however. We are aware of no case where a court has adopted that proposition or sustained a secondary effects argument in the absence of any indication that the relevant legislative body intended to ameliorate such effects. Secondary effects doctrine is an exception to the general rule that a statute which on its face distinguishes among particular types of speech or expression by content is subject to the strictest scrutiny. See Artistic Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306, 1308 (11th Cir.2000) (‘regulations that restrict protected expression based on its content are subject to strict scrutiny’); see also R.A. V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992) (‘The First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed.’ (citations omitted [in Amerson])). Adopting Defendants’ broad argument would permit the exception to swallow the rule, and would permit the proscription of protected speech far in excess of what the First Amendment allows. Additionally, Defendants’ argument renders meaningless the rule that ‘[wjhen the Government restricts speech the Government bears the burden of proving the constitutionality of its actions.’ United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816, 120 S.Ct. 1878, 1888, 146 L.Ed.2d 865 (2000). Under Defendants’ argument, a government would have no burden whatsoever to invoke the secondary effects doctrine and thereby obtain lesser judicial scrutiny for legislation restricting First Amendment rights.”

Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1278-83 (11th Cir.2001) (footnote omitted).

The Eleventh Circuit Court of Appeals remanded the cause to the district court for “further argument and development of the record on several critical issues,'including Defendants’ claim that § 200.11 is intended to combat the ‘secondary effects’ of nude entertainment,” 238 F.3d at 1275, stating:

“This concern about the scope of § 200.11, although raised squarely by Ranch House, has not yet been adequately addressed either by the Defendants or by the district court. Because of the importance of this issue, we are reluctant to rule without further argument from the parties and findings by the district court. On remand, therefore, the parties and the district court should consider whether § 200.11 would fail under intermediate scrutiny, let alone strict scrutiny, because it proscribes too much protected expression. We do not decide the issue today, however, and for now simply identify the problem and indicate that we think it an issue that warrants more detailed consideration. We therefore vacate the district court’s ruling rejecting Ranch House’s constitutional challenge to § 200.11 and remand for further proceedings consistent with this opinion.”

238 F.3d at 1285-86.

On remand, the district court followed the edict of the Eleventh Circuit Court of Appeals and applied the doctrine of negative secondary effects. Ranch House, Inc. v. Amerson, 146 F.Supp.2d 1180 (N.D.Ala.2001). The district court held that the State met its burden of proving that the state legislature’s predominant motive in passing the statute “was a concern about increased crime and other secondary effects.” 146 F.Supp.2d at 1202. The district court then applied an intermediate scrutiny test “to determine whether, regardless of the availability of the negative secondary effects doctrine, the statute [was] still unconstitutional.” Id. at 1203. The district court found that the statute passed constitutional muster in that “ § 200.11 restricts no more of the plaintiff’s expression than is essential to accomplish the government’s substantial interest in protecting public order and morality by combating the negative secondary effects of nude entertainment.” Id. at 1206.

As for the overbreadth argument, the district court found:

“This court concludes that the statute should be considered as applied to businesses of the kind that is operated by the plaintiff, which was the obvious purpose of the Alabama Legislature, since its concern about the secondary effects of those businesses spawned the 1998 amendments. This court is satisfied that the Alabama Supreme Court would construe the statute[ ] so that issues of overbreadth are avoided. There is the further question of whether the plaintiff can even raise the issue as to expressive activities other than its own. This court thus rejects any overbreadth challenge to § 200.11. Further, this court concludes that the plaintiff has not mounted a successful facial challenge to § 200.11. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) (successful facial challenge must establish that no set of circumstances exists under ■ which the challenged statute would be valid).”

Id. at 1208-09.

Quetgles’s arguments on appeal have been addressed and resolved in the Ranch House opinions. Therefore, we adopt in this opinion the holdings of the district court and hold further that, because § 13A-12-200.il does not violate the free speech guarantee of the First Amendment and is not overbroad, Quetgles’s arguments are without merit.

For the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . Quetgles’s argument in brief is entitled, "13A-12-200.il, CODE OF ALABAMA, AS AMENDED, IS SO VAGUE AND AMBIGUOUS THAT IT FAILS ON CONSTITUTIONAL GROUNDS.” However, in the body of his argument, he contends that the statute abridges his First Amendment right to self-expression and that the statute is overbroad. He does not offer any argument regarding the statute’s alleged vagueness. We address Quetgles’s arguments as he presents them in the body of the brief.


author: PER CURIAM.

text:
    Ex parte Stephen R. QUETGLES. (In re Stephen R. Quetgles v. State of Alabama).
    1021242.
    Supreme Court of Alabama.
    Jan. 30, 2004.
    V. A Pennington, Mobile, for petitioner.

      William H. Pryor, Jr., atty. gen., Nathan A. Forrester, deputy atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent.
   PER CURIAM.

,. . . Ihe petition for the writ of certiorari is quashed.

In quashing the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

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


author: PATTERSON, Retired Appellate Judge.

text:
    Rodney Dion GRIFFIN v. STATE.
    CR-01-1322.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.
    Rodney Dion Griffin, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PATTERSON, Retired Appellate Judge.

The appellant, Rodney Dion Griffin, appeals from the circuit court’s denial of his postconviction petition filed pursuant to Rule 32, Ala. R.Crim. P. In his petition, he contested his two convictions for third-degree robbery and his conviction for third-degree burglary. Those convictions were based on Griffin’s guilty pleas entered pursuant to a plea agreement. The agreement allowed him to plead guilty to the lesser offenses included within the offenses of first-degree robbery and second-degree burglary, allowed the fourth count (charging first-degree robbery) to be dismissed, and allowed him to avoid, which he would have been unable to do if he had been convicted by a jury of the offenses for which he had been indicted, enhanced punishment of life imprisonment without the possibility of parole. In exchange for his pleas, he was sentenced to life imprisonment for each conviction, and the sentences were to run concurrently.

On appeal, Griffin presents the following issue, supported by numerous subissues:

“Did the trial court err to reversal in denying the Appellant’s Rule 32 petition and relief without deciding the merits of all of his claims properly, misconstruing the Appellant’s issues [or] claims and holding that the Appellant’s issues [or] claims were precluded under Rule 32.2(a)(3) and (a)(5) -without holding an evidentiary hearing when there were material facts and laws in dispute?”

In his petition, Griffin asserted numerous grounds of ineffective assistance of counsel; he also asserted that the indictments were defective. In response, the State filed an answer and the affidavit of Griffin’s trial counsel. The circuit court issued a written order on the pleadings, without conducting an evidentiary hearing.

The court’s order and the State’s answer and affidavit of Griffin’s trial counsel, upon which the court based its order, fail to address adequately all of the claims raised by Griffin in his petition. For example, Griffin contends that the circuit court did not address or rule on his allegation that trial counsel was ineffective for failing to file a motion to suppress his second statement to law-enforcement officers and that, had counsel done so, he would not have pleaded guilty and would have insisted on going to trial.

In his petition, Griffin alleged that a motion to suppress would have been supported by the following facts: Griffin gave a statement to Detective Stephanie Garrett on April 1, 1999, regarding the burglary of the dwelling of Hector Ramos. During this interview, when Detective Garrett began questioning Griffin about some robberies, he “stated that he did not know anything about those robberies and requested an attorney.” Detective Garrett ceased her questioning at that time, but four days later, without initiation or invitation by Griffin, she questioned him again about the robberies; counsel was not present. He alleged that this latter statement and the information and evidence obtained pursuant to it should have been suppressed.

The State, in its response, did not refute these specific factual allegations. In denying this claim, the circuit court relied on the following passage from Griffin’s trial attorney’s affidavit:

“Although it is true that I did not file a motion to suppress at the time of entering the guilty plea[s], if the matter had proceeded to trial such a motion would have been filed during the actual trial. Based upon my experience in practicing law in the Circuit Court of Morgan County, motions to suppress are typically heard immediately prior to the taking of evidence in the trial and not prior to the scheduled trial docket. Based on this practice as well as the strength of the argument, I made a strategic decision not to file any such motion until the trial of the matter. The filing of the motion prior to the trial setting would serve no purpose other than to give the State prior notice, thereby, allowing the State to possibly be better prepared to defend any such motion. There was nothing to gain by filing any such potential motion prior to the trial docket. As such, said motion was simply not filed at the time of entering the plea[s].”

Griffin’s trial attorney emphasized, in his affidavit, that he had thoroughly researched the issue of the admissibility of Griffin’s extrajudicial statements, had discussed the issue with Griffin, and had even provided Griffin with a copy of his research. However, trial counsel did not disclose any factual or legal weaknesses of a suppression motion. The facts surrounding the statements, as described by Griffin, were not contradicted and, as stated, have merit, as indicated by the following commentary:

“[T]he [Supreme Court] in Edwards v. Arizona, [451 U.S. 477 (1981),] ... held ‘that an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.’ This result, the Court noted, is consistent with the language in Miranda [v. Arizona, 384 U.S. 436 (1966) ] that ‘[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.’ Thus the defendant’s confession in Edwards was inadmissible, for the police had visited the defendant in his cell and obtaining [sic] a waiver of Miranda rights the morning after defendant had declared he wanted an attorney. In Minnick v. Mississippi, [498 U.S. 146 (1990),] the Court added that the key here is respect for the individual’s decision to deal with the police only through counsel, and therefore the protection furnished by Edwards does not cease once the individual consults with an attorney while remaining in custody. While Edwards spoke of counsel being made ‘available’ to the person, that reference was to the counsel being present during the interrogation. ...
“Edwards is best viewed as a per se rule proscribing any interrogation of a person held in custody who has invoked his right to counsel absent the individual’s subsequent initiation of conversation .... This prophylactic character of Edwards is evidenced by Arizona v. Roberson, [486 U.S. 675 (1988),] holding that Edwards ... governs even when the later interrogation concerns a wholly unrelated crime....
“... [T]he mere passage of time between the time defendant invoked his right to counsel and the next interrogation does not make Edwards inapplicable.”

2 Wayne R. LaFave et al., Criminal Procedure § 6.9(f) (2d ed.1999) (footnotes omitted).

Applying the above principles to the only factual context given us, we cannot agree with trial counsel’s conclusion that “[t]here was nothing to gain by filing any such potential motion [to suppress] prior to the trial docket.” If a suppression motion, supported by the facts presented here, had been filed, even had the trial court denied it, Griffin could still have entered guilty pleas, reserving such adverse ruling for appellate review. The facts, as pleaded, could support the conclusion that Griffin’s guilty pleas were unintelligent, i.e., founded on erroneous advice based on a mistaken assessment of the admissibility of his statement. See McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (a guilty plea is a waiver of the right to contest the admissibility of any evidence the prosecution might have offered against the defendant; accordingly, that waiver must be an intelligent act " 'done with sufficient awareness of the relevant circumstances and likely consequences’ ”), quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

As noted above, the controversy regarding the success of a motion to suppress is only one of several claims that wére not adequately addressed by the circuit court.

“Rule 32.9(d), Ala. R.Crim. P., states that the circuit court must make specific findings of fact relating to each material issue of fact presented for the court’s review in determining the merits of a Rule 32 petition. These findings of fact, which form the basis for the trial court’s denial of a petitioner’s Rule 32 petition, are necessary to afford the petitioner due process. Rule 32.9(d); Henderson v. State, 570 So.2d 879 (Ala.Cr.App.1990).”

Duncan v. State, 722 So.2d 795, 797 (Ala.Crim.App.1998).

As a final note, in reference to some of the ineffective-counsel claims that involve an assessment of the voluntariness of Griffin’s guilty pleas, there is no transcript of the guilty-pleas proceedings, including the colloquy, in the record. As this court noted in Avery v. State, 825 So.2d 129, 130 (Ala.Crim.App.1999), quoting Baker v. State, 717 So.2d 859, 861 n. 2 (Ala.Crim.App.1996): “ ‘District attorneys would be well advised when answering Rule 32 petitions presenting “voluntariness” claims to take steps to generate transcripts of the guilty plea proceedings under attack when transcripts of those proceedings do not already exist.’ ” •.

Accordingly, this case is remanded for the circuit court to again consider the merits of Griffin’s petition and to enter additional specific findings of fact. The circuit court may hold an evidentiary hearing or, in lieu of a hearing, may take evidence as provided in Rule 32.9(a). We adopt the following instructions from Harper v. State, 676 So.2d 949, 950-51 (Ala.Crim.App.1995), as applicable to this remand order:

“[T]he court may properly dispose of those allegations [that are meritorious on their face] without an evidentiary hearing under one of two sets of circumstances. First, if it has before it ‘facts supporting the position of each party [that] are fully set out in ... supporting affidavits.’ Johnson v. State, 564 So.2d 1019, 1021 (Ala.Cr.App.1989) (relying on Temp. Rule 20.9(a), Ala. R. Cr. P., now Rule 32.9(a) ...). . Second, if the events that serve as the basis of the ... allegation were observed by the same judge who rules on the Rule 32 petition. Ex parte Hill, 591 So.2d 462, 463 (Ala.1991) (wherein the court held that ‘a judge who presided over the trial or other proceeding and observed the conduct of the attorneys at the trial or other proceeding need.not hold a hearing on the effectiveness of those attorneys based upon the conduct that he observed’). See also Benefield v. State, 583 So.2d 1370, 1370 (Ala.Cr.App.1991) (wherein the court noted that meritorious allegations ‘warrant either an evidentiary hearing or an adequate explanation for their denial’). In the event that the circuit judge has personal knowledge of the actual facts underlying any of [the petitioner’s] allegations, he may deny the allegations without further proceedings on those allegations so long as he states the specific reasons for the denial in his written order. See Sheats v. State, 556 So.2d 1094 (Ala.Cr.App.1989).”

The circuit court shall take all necessary-action to see that the circuit clerk makes due return to remand at the earliest possible time and no later than 70 days from the date of this opinion. If a hearing is conducted, the return to remand shall contain a transcript of the proceedings.

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), Ala.Code 1975.

REMANDED WITH DIRECTIONS.

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

BASCHAB, J., concurs in the result.

      . The attorney general’s brief does not address the plethora of issues raised by Griffin ón appeal. He merely parrots the circuit court’s order denying Griffin's petition.

      . In the interests of judicial economy and finality of judgment, we suggest that, on return to remand, the circuit court order Griffin to provide it with a copy of his appellate briefs for the purpose of reviewing its order. With this in mind, we are giving the circuit court additional time, not normally provided, to have a return to remand filed with this court.


text:
    Ex parte Charles PETERSON. (In re State of Alabama v. Charles Peterson).
    CR-02-0874.
    Court of Criminal Appeals of Alabama.
    Aug. 1, 2003.

      Daniel Gary Hamm, Montgomery; and Richard K. Keith, Montgomery, for petitioner.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Charles Peterson, filed this petition for a writ of mandamus directing Judge Eugene Reese to grant his motion to dismiss the charges against him because of an alleged violation of the Double Jeopardy Clause. In December 1995, Peterson was indicted for capital murder for the intentional murder of Eddie Allen, the manager of a Burger King fast-food restaurant, during the course of a robbery. In 1997, pursuant to a plea agreement, Peterson’s indictment was amended and he pleaded guilty to felony murder and robbery in the first degree. Based on that guilty plea he was sentenced to 30 years in prison for the felony-murder conviction and 20 years in prison for the robbery conviction, the sentences to run consecutively.

In July 2000, Peterson filed a" postcon-viction petition attacking his convictions and sentences. The trial court denied the petition. Peterson appealed, and this Court remanded the case for the trial court to determine if the robbery conviction was based on the same set of facts as the felony-murder conviction. See Peterson v. State, 842 So.2d 734 (Ala.Crim.App.2001.). On remand, the trial court determined that the convictions were based.on the same set of facts, and it vacated the robbery conviction, as this Court had directed it to do. The State then moved that. Peterson’s felony-murder conviction be set aside. That motion was granted, and Peterson was indicted a second time in March 2002 for the capital offenses of murder during the course of a robbery and murder during the course of a burglary, and for conspiracy to commit robbery. The State filed a motion to nol-pros the first indictment charging capital murder, which had been amended when Peterson pleaded guilty to felony murder and robbery. Peterson countered by filing a motion to dismiss the second indictment, arguing that jeopardy had attached when he pleaded guilty to felony murder and robbery and that any further prosecutions for those offenses violated the Double Jeopardy Clause. The State argued that because the robbery conviction was included in the felony-murder conviction and the indictment charged only one count both convictions and sentences were due to be set aside. The trial court agreed and granted the State’s motion to nol-pros the first indictment. The trial court denied Peterson’s motion to dismiss the second indictment; this petition followed. The circuit court has stayed all proceedings in that court pending the outcome of this mandamus petition.

Apparently, Judge Reese did not make specific findings of fact for denying Peterson’s motion to dismiss the second indictment; however, Judge Reese, when denying the motion to dismiss codefendant Karys Dontricia Murray’s second indictment, made the following findings:

“This matter is before the court on the defendant’s motion to dismiss the indictment based upon a claim of former jeopardy. Upon consideration of the pleadings and argument of counsel it is hereby ordered and decreed that the defendant’s motion to dismiss the indictment based upon the ground of former jeopardy is due to be and is hereby denied.
“The defendant was first indicted by the Montgomery County Grand Jury on December 8, 1995, case no. CC-95-2373 for capital murder. Based on a plea agreement Mr. Murray pleaded guilty to felony murder and robbery I and was sentenced to two life sentences consecutive on June 16,1997.
“One of the co-defendants, Charles Peterson, was originally indicted similarly in case no. CC-95-2408, and based upon a plea agreement pleaded guilty to felony murder and robbery I, but was sentenced to 30 years plus 20 years for a total of 50 years. However, co-defendant Peterson filed a Rule 32 petition challenging his convictions on double jeopardy grounds. The Alabama Court of Criminal Appeals stated in a November 30, 2001, opinion in Peterson’s case (Criminal Appeals No. CR-00-2417) that if Peterson’s convictions for both felony murder and robbery I were based on the same robbery, then his convictions violated double jeopardy principals.
“Based upon the Peterson case referred to above the district attorney represented the defendant and Peterson’s cases to the grand jury. On or about March 8, 2002, the Montgomery County Grand Jury returned identical indictments against defendant and Mr. Peterson. In the new indictments [case no. CC-02-459 (Murray) and CC-02-248 (Peterson) ] both defendants were charged with capital murder and conspiracy to commit robbery I.
“On May 14, 2002, this Court nolle prossed Mr. Murray’s original indictment in case no. CC-95-2373.
“The State subsequently moved in case no. CC-95-2373 to vacate the original robbery I conviction and reinstate the original indictment. The state also moved to nolle pros the original indictment in case no. CC-95-2372 and represented that the state wished to prosecute the second indictment in case no. CC-02-459. The court subsequently granted those motions on September 16 and 18, 2002.
“The court finds based upon the case of Ex parte Cole, 842 So.2d 605 (Ala.2002), there is no double jeopardy in this case. (‘A reindictment after a conviction that has been held to be void does not constitute double jeopardy.’) Therefore, in order to clarify this Court’s previous orders and to specifically allow the defendant to preserve this issue for review by appeal or mandamus the court denies the motion to dismiss based upon former jeopardy.”

Peterson cites Ex parte Cole, 842 So.2d 605 (Ala.2002), on remand, 842 So.2d 609 (Ala.Crim.App.2002), in support of his contention that his felony-murder conviction would stand even though his robbery conviction was set aside. Therefore, he argues that the trial court erred in setting aside the felony-murder conviction and that that error was compounded when he was indicted a second time for the same offense. The State argues that the entire plea is void because, it argues, the trial court had no jurisdiction to accept a guilty plea that was based on an illegal plea. It contends that the trial court cannot separate the convictions and uphold one portion of the charge.

The defendant in Cole was indicted in a two-count indictment for robbery in the first degree and assault in the first degree. Cole pleaded guilty to robbery in the second degree and assault in the second degree. The Court held that when Cole pleaded guilty to assault ’ in the second degree, he pleaded guilty to a charge that was not included in the first-degree assault charge because the indictment failed to allege facts that fit within the definition of the offense of assault in the second degree. The Supreme Court upheld the robbery conviction but ordered that the assault conviction be vacated. The Court stated:

“Cole’s conviction for first-degree assault, however, is unchallenged and therefore remains valid. Because the indictment charging him with first-degree robbery was improperly amended to charge second-degree robbery, Cole’s original indictment charging first-degree robbery remains valid. The State may try Cole on this charge, or if the factual circumstances would support a conviction for another degree or robbery, the State may reindict Cole for the proper offense.... A reindictment after a conviction that has been held to be void does not constitute double jeopardy because, if a court is without jurisdiction, there can be no valid conviction; hence there is no jeopardy.”

842. So.2d at 609. The Alabama Supreme Court in Cole did uphold one conviction and set aside the other conviction. However, Cole is distinguishable from this case. In Cole, the defendant, pleaded guilty to two separate charges based on two separate counts in an indictment.

Here, Peterson pleaded guilty to two charges that arose out of a one-count indictment that was improperly amended when Peterson pleaded guilty. The indictment was amended to charge an offense that was not part of the original one-count capital murder indictment! The facts of this case are more akin to those presented to this Court in Hammond v. State, 665 So.2d 970 (Ala.Crim.App.1995). In Hammond, the defendant was indicted for the capital offense of robbery/murder and pleaded guilty to solicitation to commit unlawful distribution of a controlled substance. In upholding the court’s setting aside of the guilty plea and Hammond’s subsequent reindictment for the correct offense, this Court stated:

“The original capital murder-robbery indictment in this case was a valid indictment. In carrying out the plea agreement, the state attempted to amend the indictment by adding a separate count charging ‘solicitation to distribute a controlled substance,’ Ala.Code 1975, § 13A-12-202. The amendment purporting to add this charge was void. An indictment may be amended by order of the court with the consent of the defendant in all eases, except to change the offense or to charge new offenses not contemplated by the original indictment. Ross v. State, 529 So.2d 1074 (Ala.Cr.App.1988); Ala.R.Cr.P. 13.5. In this case, the added charge is a substantial change from the indictment returned by the grand jury and charges a new offense not included in the original charge. Thus, all proceedings stemming from the amendment of the indictment had no legal effect and were void.
“When the appellant challenged the proceedings in his post-conviction petitions, the trial court had no choice but to set aside this conviction and sentence. The appellant argues that once the proceedings stemming from the amendment were determined to be void, the original capital charge should not have been restored to the docket because, he argues, the indictment, as amended, was void and a re-indictment by the grand jury was necessary before the state could proceed under the capital charge. He relies on Ex parte Wesley, 481 So.2d 1162 (Ala.1985). However, we agree with the state that there was no amendment to the original indictment, only an unsuccessful attempt to amend the indictment by adding a count that was a nullity. Under these facts, when the guilty plea proceedings and the judgment based thereon were recognized as void and were set aside, it was proper for the trial court to order the original capital charge to be restored to the docket for trial. Williams v. State, 494 So.2d 819 (Ala.Cr.App.1986). Even if a charge has been nolle prossed, which is not the case here, further proceedings on that charge at a later time are not barred, and a person is not placed in double jeopardy when the state seeks to prosecute him on a previously dismissed charge, after his guilty plea to another charge has been vacated. Williams v. State, and cases cited therein. We think that Ex parte Wesley, upon which the appellant relies, is factually distinguishable from this case.”

665 So.2d at 974 (footnote omitted; emphasis added). As we further stated in King v. State, 689 So.2d 931 (Ala.Crim.App.1997), “when the trial court accepts a defendant’s guilty plea to an offense for which the defendant has not been indicted, the court’s judgment is void because the court lacked jurisdiction.” 689 So.2d at 932. “[T]he trial court cannot enforce such an agreement if it had no jurisdiction to accept the plea agreement and the pleas based on that agreement.” 689 So.2d at 932 (footnote omitted).. As we stated in Warren v. State, 706 So.2d 1316, 1318 (Ala.Crim.App.1997), quoting Brown v. State, 660 So.2d 235, 236 (Ala.Crim.App.1995), “ ‘Any conviction entered by the court pursuant to the appellant’s plea is set aside and the parties are returned to the status quo existing before the plea agreement.’ ”

For a writ of mandamus to issue the petitioner must show (1) a clear legal right in the petitioner to the relief 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 Mardis, 628 So.2d 605, 606 (Ala.1993).

Because Peterson has failed to establish a clear legal right to the relief sought Peterson has failed to satisfy the prerequisites for the issuance of this writ. Here, the entire guilty plea was due to be set aside because it was based on an illegally amended indictment. Therefore, the parties were put in the posture of never having entered a plea to any charges in the indictment. The State could proceed on the original indictment or it could reindict Peterson — which it chose to do. See Cole, supra.

Peterson has failed to satisfy the prerequisites for the issuance of this writ of mandamus. This petition is due to be, and is hereby, denied.

PETITION DENIED.

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

SHAW, J., not sitting.

      . We did not address the validity of the entire plea agreement because the record in Peterson did not contain a copy of the indictment.

      . The State argued at the hearing on the motion to set aside the felony-murder conviction that because the robbery conviction was the basis of the charge that resulted in the felony-murder conviction, if the robbery conviction was set aside then both convictions were due to be set aside. A court can notice a jurisdictional defect at any time and has a duty to correct the defect. See Carpenter v. State, 782 So.2d 848 (Ala.Crim.App.2000).

      . Peterson’s codefendant, Karys Dontricia Murray, filed a similar mandamus petition, CR-02-1149, with this Court. This Court denied that petition by order on August 1, 2003.


text:
    Paul BRYANT v. STATE.
    CR-02-1556.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Paul Bryant, pro se.
    Andrew W. Redd, gen. counsel, and Albert Sim Butler, asst. gen. counsel, Department of Corrections, for appellee.
   McMILLAN, Presiding Judge.

The appellant, Paul Bryant, appeals from Escambia Circuit Court’s denial of his petition for a writ of habeas corpus seeking relief from the results of a prison disciplinary proceeding. The prison hearing officer found Bryant guilty of possessing prison contraband and recommended 45 days’ loss of all privileges, 2 years’ loss of good time and transfer to a higher-level institution. Bryant contends that the decision was arbitrary and capricious and that it was not based upon any evidence.

Loss of good-time credit involves a liberty interest protected by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In order to comply with due process, there must be “some evidence” from which the conclusion of the administrative tribunal could be deduced. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Robinson v. State, 636 So.2d 1264, 1265 (Ala.Crim.App.1993). Here, the sole witness for the State was the arresting officer, James Travis. According to the hearing officer, Travis testified as follows:

“COI Travis stated under oath that on 2-11-03 at approximately 8:45 a.m. with the assistance of COI Fillmore Inmate Bryant was pat searched at Cleverdon Farms and COI Fillmore did seize from Inmate Bryant[’]s possession a small plastic bag containing a green leafy substance believed to be marijuana.”

The State filed as an exhibit the affidavit of the warden of the correctional facility in which Bryant was incarcerated. The affidavit stated, in pertinent part:

“Inmate Bryant was found guilty of possession of contraband based on the fact that the green leafy substance is not allowed in the possession of Department of Corrections inmates. The conspicuous place the substance was found and the fact that the officers are trained to identify controlled substances supports the officer’s belief that the green substance was marijuana. The substance has been sent Forensic Science[s] to be tested.”

Scientific testing of suspected contraband is not required in order to meet the “some evidence” standard. Robinson v. State, 636 So.2d 1264, 1265 (Ala.Crim.App.1993). However, an arresting officer’s “[m]ere conclusions that a substance is marijuana ... are not enough to sustain a disciplinary based upon possession of marijuana.” Headley v. State, 720 So.2d 996, 998 (Ala.Crim.App.1998). In order to sustain the disciplinary finding:

“All that is necessary is a statement by the arresting officer that his opinion of the nature of the substance is based on his experience or that he has examined the substance and has no doubt that the substance is contraband. There must, however, be something in the record as to why the officer thinks the substance is a controlled one.”

Robinson v. State, 636 So.2d at 1265. In Robinson, the necessary showing was not made because there was no indication in the record that the officer who claimed the prisoner was in possession of marijuana seeds had expertise or special knowledge that he was relying upon and the record did not show that any examination of the seeds was done to show that they were in fact marijuana. Here, it was not clear which officer believed that the substance found on Bryant was marijuana. There was no evidence concerning the specific qualifications of either officer with regard to identifying marijuana, and there was no specific factual basis for the conclusion that the substance was marijuana. See Headley v. State, 720 So.2d at 998.

Because the record was insufficient, to establish the requisite “some evidence,” the trial court erred in denying the appellant’s petition without an evidentiary hearing. Therefore, we remand this case to the trial court with instructions to hold an evidentiary hearing to determine whether the arresting officer was qualified to state an opinion on the nature of the substance found on the appellant’s person. A return should be filed with this court no later than 42 days after the release of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, and SHAW, JJ., concur. WISE, J., dissents, without opinion.