text:
    Willie D. HORTON v. Billy Joe RASBERRY.
    2010115 and 2010116.
    Court of Civil Appeals of Alabama.
    Aug. 9, 2002.
    Rehearing Denied Jan. 24, 2003.

      James M. Patton of Patton & Veigas, P.C., Birmingham, for appellant.
    Jesse P. Evans III and Charles T. Grimes of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham; and Conrad M. Fowler, Jr., of Wallace, Ellis, Fowler & Head, Columbiana, for appellee.
   MURDOCK, Judge.

Willie D. Horton appeals from a summary judgment entered in a consolidated action in which he, as a beneficiary, and other similarly situated beneficiaries challenged the will of Bertha G. Cofer, deceased, questioning her testamentary capacity at the time she executed the will. We reverse the trial court’s judgment in favor of Billy Joe Rasberry, the personal representative of Bertha Cofer’s estate.

Bertha Cofer executed her will on December 4, 1990; she died on January 28, 1999. On March 3, 1999, Rasberry filed a petition for the probate of Cofer’s will in the probate court, attaching a copy of the will to his petition, and a petition for the issuance to him of letters testamentary. The probate court granted his petitions on April 28, 1999.

On August 23, 1999, various named heirs of Bertha Cofer filed an action in the circuit court contesting Cofer’s will by alleging a lack of testamentary capacity. Thereafter, on September 10, 1999, Willie D. Horton filed a second action in the circuit court challenging the will’s validity on the basis of testamentary capacity. Specifically, the action filed by Willie D. Horton was based on the fact that Cofer had incorrectly stated in her will that she had five children when in fact she had six, and then proceeded to divide her estate among the five named children. Horton and the other beneficiaries alleged that the will itself served as prima facie evidence of Cofer’s incapacity at the time she executed it.

On February 28, 2000, the trial court consolidated the will-contest action filed by Willie D. Horton with the initial action that was filed by the other beneficiaries (for clarity and convenience Willie Horton and the other beneficiaries who filed the initial action will be referred to collectively as the “contestants”).

In February 2002, Rasberry filed a motion for a summary judgment. After a hearing, the trial court granted the summary-judgment motion. Willie Horton, on behalf of all of the contestants, filed a notice of appeal to the Supreme Court; that court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

In reviewing a summary judgment in a case involving the issue of testamentary capacity, our Supreme Court has stated:

“On a motion for summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact) and that the movant is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957 (Ala.1992); Elgin v. Alfa Corp., 598 So.2d 807 (Ala.1992). ‘The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact.’ McClendon, at 958; Elgin, at 810-11.
“Rule 56 is read in conjunction with the ‘substantial evidence rule,’ §' 12-21-12, Ala.Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). In order to defeat a defendant’s properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). When reviewing a summary judgment, this Court considers the record in a light most favorable to the nonmovant and resolves all reasonable doubts against the movant. Carter v. Innisfree Hotel, Inc., 661 So.2d 1174 (Ala.1995).”

Allen v. Sconyers, 669 So.2d 113, 115 (Ala.1995).

A testatrix must have testamentary capacity in order to execute a valid will. Specifically, she must have

“‘mind and memory sufficient to recall and remember the property she was about to bequeath, and the objects of her bounty, and the disposition which she wished to make — to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other....’”

Fletcher v. DeLoach, 360 So.2d 316, 318 (Ala.1978) (quoting Knox v. Knox, 95 Ala. 495, 503, 11 So. 125, 128 (1892) (emphasis added)). However, it is presumed that every person who has attained the age of majority has the capacity to make a valid will, and the person challenging the will bears the burden of proving a lack of testamentary capacity. Id. This may be shown either by evidence of “a permanent type of insanity prior to the execution of the will” (which is not at issue in the present case) or evidence indicating that the testatrix “did not have testamentary capacity at the time she executed the will.” Id.

Rasberry supported his summary-judgment motion with a copy of Bertha Cofer’s will, which was a self-proving will witnessed by two witnesses and notarized. See § 43-8-132(a), Ala.Code 1975. In addition, Rasberry filed a sworn affidavit in which he stated, in pertinent part, that Cofer was his mother and that he “never knew her to suffer from permanent or temporary insanity” and that it was his “belief that on ... the date Ms. Cofer made her will, ... she knew the people to whom she intended [her] property to pass at her death.”

In response to Rasberry’s summary-judgment motion, the contestants relied only on Cofer’s will itself. Specifically, they point out that Cofer expressly stated in her will that she had five children, when in fact, she had six children, and that she does not include one of her children in what purports to be a complete list of those children. The contestants argue that therefore the will itself constitutes evidence that Bertha Cofer did not know the objects of her bounty.

The question presented is whether the record contains “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgement [could] reasonably infer” (West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)) that at the time she executed her will, Cofer did not have “mind and memory sufficient to recall ... the objects of her bounty.” Fletcher, 360 So.2d at 318. Rasberry contends that the contestants, in fact, introduced no evidence indicating that Cofer was unaware of the objects of her bounty. We disagree. In this case, the terms of the will itself provide such evidence.

“Clearly the terms of the will itself may be considered in deciding whether the insanity actuated the testator’s mind in composing it. This is only an application of the general principle which obtains in the trial of will cases. Admittedly, if the instrument does not express the delusion itself — as by making the testator’s deceased wife his executrix — it cannot be said to be evidence in the sense that, standing alone and because of unjust provisions, it would support a finding of invalidity.”

J.E. Macy, Annotation, Insane Delusion as Invalidating a Will, 175 A.L.R. 882, 970 (1948) (emphasis added). As indicated by the emphasized verbiage, the instrument itself may express the delusion that prevents the testator from having testamentary capacity. The fact that the instrument in the present case does so is the difference in this case and such cases as Smith v. Vice, 641 So.2d 785 (Ala.1994), upon which Rasberry attempts to rely. Cf. Goodbar v. Lidikay, 136 Ind. 1, 35 N.E. 691 (1893) (stating that a devise of property that does not belong to a testator is admissible as bearing on the question of testamentary capacity); Re: Buckman’s Will, 64 Vt. 313, 24 A. 252 (1892) (to like effect). Cofer’s erroneous declaration as to the number of children she had and who they are goes directly to the issue whether the testatrix knew the objects of her bounty at the time she executed the will. Accordingly, we conclude that the summary judgment in this case was inappropriate.

We emphasize that this is not a case in which a testator merely elects to leave nothing to a child. In Smith v. Vice, 641 So.2d 785 (Ala.1994), for example, the Supreme Court concluded that, in light of the testatrix’s perception of her daughter’s actions in swearing out a warrant for the testatrix’s arrest, the fact that the will left nothing to the daughter did not indicate a lack of testamentary capacity. We note, however, that in Smith, unlike the present case, there is no indication that the testatrix actually affirmatively misstated in her will the number of children she had, or who they were. In other words, there was no evidence, as there is in this case, indicating that the testatrix was not even aware of one of the objects of her bounty. See also Kramer v. Weinert, 81 Ala. 414, 417, 1 So. 26, 27 (1887) (“The failure of memory, unless it be entire, or extend to the immediate family and property of the deceased testator, or [be such] that [the testator] is unable to recall and retain the constituents of the business sufficiently long for its completion, is not of itself a legal standard of testamentary capacity.” (Emphasis added.)).

Viewing all evidentiary materials in the light most favorable to the nonmovant and resolving all reasonable doubts concerning the existence of a genuine issue of material fact against the moving party, as we must (Banners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990)), we conclude that evidence was presented from which fair-minded jurors reasonably could infer that the testatrix did not know the objects of her bounty at the time she executed the will. Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings.

REVERSED AND REMANDED.

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

      . Larry Horton, Jackie R. Price, Shirley Thomas, and Wayne Davis.

      . Cofer omitted a disabled child, Jack Green Rasberry, from her will. The record does not indicate the nature or severity of Jack Green Rasberry's disability.

      . Specifically, the testatrix states in her will:
      “I have five children, namely, W.C. Horton, Billy Joe Rasberry, Betty Sue Evans, Bobby Frank Rasberry, and Willie Daniel Horton.”

      . Of course, a different standard would apply at trial to the factfinder’s consideration of such evidence as may then be before it; by reversing the trial court’s summary judgment, therefore, we do not express any opinion with respect to the ultimate resolution of the factual issue presented.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    C.D.W. v. STATE ex rel. J.O.S.
    2010526.
    Court of Civil Appeals of Alabama.
    Aug. 9, 2002.
    Rehearing Denied Sept. 27, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1020092.
    Jerry M. Blevins, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Jenniefer M. Bush, asst. atty. gen., Department of Human Resources, for appel-lee.
   PITTMAN, Judge.

C.D.W. appeals the trial court’s December 19, 2001, judgment establishing his paternity of J.O.S. (“the child”) and establishing his child-support obligation. C.D.W. filed a postjudgment motion on January 16, 2002; the trial court denied his motion on January 17, 2002. C.D.W. filed his notice of appeal on February 26, 2002.

The State filed a motion to dismiss. In its motion, it argued that C.D.W.’s notice of appeal was untimely. The State argues that the Alabama Rules of Juvenile Procedure, which provide that a postjudgment motion must be filed within 14 days of the judgment, govern the time in which a post-judgment motion and then a notice of appeal can be filed. C.D.W. argues that the Alabama Rules of Civil Procedure, which provide that a postjudgment motion must be filed within 30 days of the judgment, govern the time for these filings. We agree with the State.

The State, on behalf of the child, commenced this action against C.D.W. by filing a petition pursuant to the Alabama Uniform Interstate Family Support Act (“UIFSA”), § 30-3A-101 et seq., Ala.Code 1975. C.D.W. answered the petition and denied paternity of the child. C.D.W. argues that because the domestic relations division of the Montgomery Circuit Court was designated as the trial court throughout the entire proceedings, the proceeding is not a juvenile proceeding governed by the Alabama Rules of Juvenile Procedure; rather, C.D.W. argues that the Alabama Rules of Civil Procedure govern the proceeding.

Section 30-3A-701(b), Ala.Code 1975, a part of the UIFSA, provides:

“In a proceeding to determine parentage, a responding court of this state shall apply the Alabama Uniform Parentage Act and the procedural and substantive laws of this state, and the rules of this state on choice of law.”

Therefore, because this case involves the establishment of a child-support obligation and a paternity determination, we will examine the jurisdictional and venue provisions of the Alabama Uniform Parentage Act (“UPA”), § 26-17-1 et seq., Ala.Code 1975, as required by § 30-3A-701(b).

Section 26-17-10(a), Aa.Code 1975, a part of the UPA, states:

“The causes of action provided by this chapter shall be brought in the juvenile or family court division of the district or circuit court and wherever used in this chapter the word ‘court’ shall mean the juvenile or family court division of the district or circuit court and specifically shall include any district or circuit court judge otherwise sitting in one of these divisions.”

This court has explained that a case involving issues of paternity and child support that has been docketed with a “CS” case number in the domestic relations division of the Montgomery Circuit Court is a juvenile court ease. State ex rel. Provitt v. Coleman, 821 So.2d 1015 (Ala.Civ.App.2001), citing Steele v. McDaniel, 380 So.2d 892, 894 (Ala.Civ.App.1980) (stating that the domestic relations division of the Montgomery Circuit Court, is the juvenile court for Montgomery County).

This case, identical to Provitt, is a paternity and child-support case docketed with a “CS” case number in Montgomery Circuit Court, domestic relations division. Aso, in both Provitt and this case, this court docketed the appeal as “Appeal from Montgomery Circuit Court.” Therefore, applying § 26-17-10(a) and Provitt, we conclude that this case is a juvenile court case. We farther conclude that the Alabama Rules of Juvenile Procedure govern the filing deadlines in this case.

Rule 1(A), Ala. R. Juv. P., states: “These rules govern the procedure for all matters in the juvenile court.” Rule 1(B), Ala. R. Juv. P., states that all post-judgment motions “must be filed within 14 days after entry of judgment.” The trial court entered the final judgment on December 19, 2001. Therefore, C.D.W. had until January 2, 2002 to file his post-judgment motion. He did not file his post-judgment motion until January 16, 2002. Therefore, C.D.W.’s postjudgment motion was untimely. The trial court’s denial of the untimely postjudgment motion on January 17, 2002, was of no effect; the untimely postjudgment motion did not toll the time for filing a notice of appeal. Rule 28(C), Ala. R. Juv. P., and Rule 4(a)(1), Ala. RApp. P., require that a notice of appeal be filed within 14 days of a judgment issued by a juvenile court. C.D.W. filed his notice of appeal on February 26, 2002, more than 14 days from December 19, 2001, the date of the final judgment. Therefore, we conclude that C.D.W.’s notice of appeal is untimely, and we do not have jurisdiction over the appeal.

The State’s motion to dismiss the appeal as untimely is granted.

APPEAL DISMISSED.

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.


author: MURDOCK, Judge.

text:
    Phillip M. MARSH v. Pamela G. MARSH. Pamela G. Marsh v. Phillip M. Marsh.
    2001031.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2002.
    Rehearing Denied Dec. 6, 2002.

      Richard L. Chancey of Ezell & Chaneey, L.L.P., Phenix City, for appellant/cross-appellee Phillip M. Marsh.
    Connie Cooper, Phenix City, for appel-lee/cross-appellant Pamela G. Marsh.
   MURDOCK, Judge.

Phillip M. Marsh (“the father”) appeals from a judgment of the Russell Circuit Court modifying certain provisions of the judgment divorcing him from his former spouse, Pamela G. Marsh (“the mother”). The mother cross-appeals.

The mother and the father were divorced in 1995. Pursuant to the parties’ agreement, which was incorporated into the final divorce judgment, the parties were awarded joint physical and legal custody of the parties’ two minor children, born in 1988 and 1990, respectively; all of the children’s expenses were to be divided equally between the parties, and thus, neither party was directed to pay child support.

On June 28, 2000, the mother filed a petition for rule nisi and for a modification, alleging that the father had contemptuously refused to abide by the court’s 1995 judgment by failing to pay one-half of the children’s private-school tuition and one-half of the children’s clothing expenses. In addition to reimbursement for these expenses, the mother sought an attorney fee and one-half of the children’s medical and dental bills.

The mother also averred in her petition that a material change in circumstances had occurred since the entry of the divorce judgment. Specifically, she contended that the children were older and that they had become involved in extracurricular activities and wished to be able to spend some weekend time with their mother. In addition, the mother requested sole custody of the children, with liberal visitation privileges to be granted to the father. Finally, the mother asked that the father be required to pay child support in compliance with the guidelines set forth in Rule 32, Ala. R. Jud. Admin., and she asked permission to claim both minor children as dependents for income-tax purposes.

The father filed a response. The father then filed a counterclaim seeking sole custody of the minor children and requesting that the mother be ordered to pay child support in compliance with the .Rule 32 guidelines.

An ore tenus hearing was conducted and, on April 26, 2001, the trial court entered a final judgment. It its judgment, the trial court directed the father to reimburse the mother for one-half of the amount she had paid to an orthodontist for treatment of the minor daughter and to pay his one-half of the minor children’s private-school tuition for the 2001-2002 school year; the trial court further ordered the father to pay child support in the amount of $710 per month, retroactive to November 1, 2000. In addition, the trial court awarded the father additional visitation time on Wednesday evenings from 5:30 p.m. until 8:30 p.m., and awarded the mother the first full weekend in each month to spend with the children.

On May 23, 2001, the mother filed a timely postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., seeking to alter, amend, or vacate the judgment or, in the alternative, a new trial; she stated as grounds that the trial court had failed to rule on her petition seeking á custody modification. The trial court denied the mother’s Rule 59 motion on May 29, 2001, stating that “[a]ny portion of the [1995 divorce judgment] not addressed by the order [entered April 26, 2001] shall remain in effect.”

Also on May 29, 2001, 33 days after the final judgment was entered, the father filed a postjudgment motion expressly challenging the provisions of the trial court’s April 26, 2001, judgment that modified his visitation schedule and the provision requiring him to pay one-half of the children’s private-school tuition for the 2001-2002 school year. The trial court purported to deny the father’s post-judgment motion on June 5, 2001. On July 11, 2001, 43 days after the denial of the mother’s postjudgment motion, the father appealed; on July 12, 2001, the mother cross-appealed.

Neither party has raised an issue relating to the timeliness of the appeals; however, this court has held that “[j]uris-dictional issues are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997)(quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The timely filing of a notice of appeal is a jurisdictional act. Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985).

Rule 59(b), Ala. R. Civ. P., requires that postjudgment motions be filed within 30 days of the entry of the final judgment. The mother filed a timely postjudgment motion on May 23, 2001, which the trial court expressly denied by notation thereon on May 29, 2001. On May 29, 2001, the father filed an untimely postjudgment motion, expressly stating therein that the motion was filed as to the April 26, 2001, judgment. Although a timely post-judgment motion will toll the 42-day time period for filing a notice of appeal, an untimely filed postjudgment motion will not do so. Boykin v. International Paper Co., 777 So.2d 149 (Ala.Civ.App.2000).

“Subject to certain exceptions not here applicable, Rule 4(a)(1), Ala. R.App. P., requires that in all cases in which an appeal is permitted, the notice of appeal shall be filed within 42 days of the entry of the judgment or order appealed from. Of course, Rule 4(a)(3), Ala. R.App. P., provides that a postjudgment motion pursuant to Rules 52 and 59, Ala. R. Civ. P., will suspend the time for filing a notice of appeal until (1) the date such a motion is granted or denied, or (2) the date the motion is deemed denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P.”

Boykin, 777 So.2d at 150.

The mother’s timely postjudgment motion was expressly denied by the trial court on May 29, 2001; therefore, the father had 42 days from that date to file his notice of appeal. The final date on which the father could have filed an effective notice of appeal was July 10, 2001; the father filed his notice of appeal one day late.

Rule 2(a)(1), Ala. R.App. P., provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” We have concluded that the father’s appeal is untimely; therefore, we dismiss the appeal.

As for the mother’s cross-appeal, she filed her cross-appeal more than 42 days after the denial of her postjudgment motion, apparently relying upon Rule 4(a)(2), Ala. R.App. P., to bring a timely cross-appeal to invoke the jurisdiction of the appellate court. Rule 4(a)(2) allows a party to an appeal to file a cross-appeal within 14 days of a timely filed notice of appeal. However, because the father’s notice of appeal is untimely and the mother’s cross-appeal, standing alone, is also untimely, the cross-appeal must also be dismissed. See HealthSouth Corp. v. Brookwood, Health Services, Inc., 814 So.2d 267 (Ala.Civ.App.2000).

APPEALS DISMISSED.

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

      . The original divorce judgment provided that the children spend each weekend with their father.

      . This was the first day of the month that followed the conclusion of the hearing in this matter.

      . The trial court purported to deny the father's postjudgment motion on June 5, 2001. In the absence of a timely filed postjudgment motion or an ambiguity in the judgment, however, "a trial court generally loses jurisdiction to amend its judgment 30 days after the entry of judgment.” See Henderson v. Koveleski, 717 So.2d 803, 806 (Ala.Civ.App.1998)(citing Ex parte Owen, 420 So.2d 80, 81 (Ala.1982)).


author: YATES, Presiding Judge. THOMPSON, Judge,

text:
    Brian D. JUDD v. David Lonnie SANDEFER.
    2010491.
    Court of Civil Appeals of Alabama.
    Aug. 23, 2002.
    Ralph D. Gaines III and Brian H. Tobin of Gaines, Wolter & Kinney, P.C., Birmingham, for appellant.
    David Lonnie Sandefer, pro se.
   YATES, Presiding Judge.

David Lonnie Sandefer sued Brian D. Judd, alleging negligence and wantonness in causing an automobile accident. Judd made an offer of judgment to Sandefer in the amount of $7,500, pursuant to Rule 68, Ala.. R. Civ. P. Sandefer did not accept the offer. Following a trial, the jury returned a verdict in favor of Judd, and the court entered a judgment on that verdict. Judd then moved for payment of his expenses in defending himself against Sandefer’s claims, based on Rule 68. Following a hearing, the trial court denied the motion. Judd appeals from the denial of the motion.

In Ex parte Waterjet Systems, Inc., 758 So.2d 505, 508-09 (Ala.1999), our supreme court held:

“Rule 68, Ala. R. Civ. P., provides a basis for an award of costs, but only when ‘the judgment finally obtained by the offeree is not more favorable than the offer.’ Thus, the plain language of Rule 68 states that a final judgment in the plaintiff-offeree’s favor for an amount less than the amount of the offer is a prerequisite to the plaintiff-offeree’s liability for costs. Accord Delta Air Lines v. August, 450 U.S. 346, 351, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981)(‘[T]he plain language of [Federal] Rule 68 confines its effect [to the case] in which the plaintiff has obtained a judgment for an amount less favorable than the defendant’s settlement offer.’).
“In the present case, ... the plaintiff-offeree, did not obtain a judgment in its favor. Instead, the jury found for [the defendant], and the trial court entered a judgment in favor of [the defendant]. Thus, Rule 68 does not apply to the present case. See Delta Air Lines, supra. Accordingly, the trial court could not properly have held that Rule 68 provided a basis for an award of costs.... ”

In his brief, Judd invites this court to allow a victorious defendant to recover costs after making an offer of judgment, contending that this will better serve the purpose of Rule 68. He cites decisions from courts in other jurisdictions allowing such recovery in order to encourage settlement and to avoid protracted litigation. See Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988); Wright v. Vickaryous, 611 P.2d 20 (Alaska 1980); Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983). However, this court is bound by the decisions of our supreme court. § 12-3-16, Ala.Code 1975; State Farm Mut. Auto. Ins. Co. v. Carlton, [Ms. 2991014, May 11, 2001] - So.2d - (Ala.Civ.App.2001); Martin v. Springdale Stores, Inc., 354 So.2d 1144 (Ala.Civ.App.1978). Waterjet does not permit the recovery of costs by a victorious defendant.

AFFIRMED.

CRAWLEY, J., concurs.

THOMPSON and PITTMAN, JJ., concur specially.

THOMPSON, Judge,

concurring specially.

This court is bound to follow precedent. However, I personally fail to see the logic in permitting an unsuccessful defendant to recover costs after making an offer of judgment, but disallowing the recovery of costs in the event the defendant prevails.

PITTMAN, J., concurs.


author: MOORE, Chief Justice. HOUSTON, Justice

text:
    Ex parte Brian D. JUDD. (In re Brian D. Judd v. David Lonnie Sandefer).
    1012274.
    Supreme Court of Alabama.
    Jan. 10, 2003.
    Ralph D. Gaines III and Brian H. Tobin of Gaines, Wolter & Kinney, P.C., Birmingham, for petitioner.
    David Lonnie Sandefer, pro se.
   MOORE, Chief Justice.

WRIT DENIED.

JOHNSTONE and STUART, JJ., concur.

HOUSTON and LYONS, JJ., concur specially.

WOODALL, J., recuses himself.

HOUSTON, Justice

(concurring specially).

Rule 54(d), Alabama Rules of Civil Procedure, provides:

“(d) Costs. Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.... ”

(Emphasis added.)

Rule 68, Ala. R. Civ. P. (“Offer of Judgment”), provides an additional basis for awarding costs by allowing a nonprevail-ing party to recover some costs, in the event that that party followed the procedure outlined in Rule 68 and “the judgment finally obtained by the offeree is not more favorable than the offer” made by the nonprevailing party to the offeree. Because Rule 54(d) was not invoked as the basis for an award of costs, I concur in denying the writ.

LYONS, J., concurs.


author: BASCHAB, Judge.

text:
    Vondale PARKER v. STATE.
    CR-00-0195.
    Court of Criminal Appeals of Alabama.
    March 2, 2001.

      Vondale Parker, pro se.
    Andrew W. Redd, general counsel, and Ellen R. Leonard, asst, general counsel, Department of Corrections, for appellee.
   BASCHAB, Judge.

On December 13, 1999, the appellant, Vondale Parker, filed a petition for a writ of habeas corpus, alleging that the Alabama Department of Corrections (“DOC”) had not given him sufficient good time and jail credit. In his petition, he asserted that, on April 7, 1995, after he pled guilty to attempted second-degree arson, the trial court sentenced him to serve a term of fifteen years in prison, but split the sentence and ordered him to serve six months in prison and the remainder on probation. He also asserted that, in November 1995, he was arrested for a probation violation. He further asserted that, on February 16, 1996, the circuit court revoked his probation, and he' was sent to prison, where he allegedly earned good time at the rate of 75 days for every 30 days served. He alleged that he remained in prison until April 17, 1998, at which time he was released and again placed on probation as a result of the granting of a Rule 32 petition. Finally, he alleged that he was arrested for a probation violation in September 1998, that his probation was revoked on February 2, 1999, and that he was subsequently returned to prison. The State responded, arguing that the appellant was not entitled to good time credit because he had been serving the minimum period of confinement pursuant to a split sentence. Thereafter, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that DOC has improperly refused to give him good time credit for the time he served from February 16, 1996, until April 17, 1998, as a result of the revocation of his probation. Specifically, he contends that, during that time, he was not serving the minimum period of confinement under his split sentence and he was earning good time at the rate of 75 days for every 30 days he actually spent in prison. With regard to split sentences, § 15-18-8, Ala.Code 1975, provides, in part:

“(g) No defendant serving a minimum period of confinement ordered under the provisions of subsection (a) shall be entitled to deductions from his sentence under the Alabama Correctional Incentive Time Act, during the minimum period of confinement so ordered; provided, however, that this subsection shall not be construed to prohibit application of the Alabama Correctional Incentive Time Act to any period of confinement which may be required after the defendant has served such minimum period.”

(Emphasis added.) The State argues that the appellant is not entitled to good time credit for the challenged time period because he was serving the minimum period of confinement pursuant to a split sentence. However, it has not presented any evidence to support that argument.

AVhen the State responds to a habeas corpus petition merely by making broad, general arguments that do not address the petitioner’s specific claims, the State has failed to refute the facts alleged by the appellant and those facts must therefore be taken as true. Swicegood [v. State, 646 So.2d 158 (Ala.Crim.App.1993) ]. See also Boutwell [v. State, 488 So.2d 33 (Ala.Crim.App.1986)] (‘The State offered no facts which contradict those set out in the petition. ■ Therefore, the unrefuted facts set out in the petition must be taken as true.’).”

Mintz v. State, 675 So.2d 1356, 1357-58 (Ala.Crim.App.1995). Because the State has not presented any evidence to refute the appellant’s allegation that he was not serving the minimum period of confinement under his split sentence, it appears that DOC may have improperly refused to give the appellant good time credit for time he served between February 16,1996, and April 17, 1998. Accordingly, we remand this case to the circuit court with instructions that that court conduct an evi-dentiary hearing on the appellant’s petition. If the circuit court determines that the appellant is not entitled to any additional good time credit, it shall make specific findings of fact explaining why the appellant is not entitled to the good time credit. If it determines that the appellant is entitled to good time credit for the time he spent in prison between February 16, 1996, and April 17, 1998, then the circuit court should grant the petition, and the appellant should be given the additional good time credit. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court within 56 days after the release of this opinion. The return to remand shall include the circuit court’s written findings of fact and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

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

      . Because of our disposition of this issue, we pretermit discussion of the additional issue the appellant argues in his brief to this court.


author: McMILLAN, Presiding Judge. SHAW, Judge,

text:
    Nathan CASEY v. STATE.
    CR-98-1661.
    Court of Criminal Appeals of Alabama.
    March 16, 2001.
    Rehearing Denied May 18, 2001.

      Nathan Casey, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   On Application for Rehearing

McMILLAN, Presiding Judge.

This court’s opinion of April 28, 2000, is hereby withdrawn and the following is substituted therefor.

The appellant, Nathan Casey, appeals from the trial court’s denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief. The appellant was convicted, on December 7, 1982, of first-degree robbery, and the trial court sentenced him as a habitual offender to life imprisonment without parole. On appeal, this court affirmed his conviction and his sentence. Casey v. State, 456 So.2d 1161 (Ala.Crim.App.1984).

The appellant then filed his first Rule 32 petition, contending that he had been denied effective assistance of counsel at trial and on appeal; that the trial court lacked jurisdiction to render the judgment or to impose the sentence; and that his sentence exceeded the maximum allowed by law. The trial court denied the petition, and this court affirmed the denial in an unpublished memorandum.

The appellant then filed his second Rule 32 petition, alleging again that the trial court lacked jurisdiction to render a judgment or to impose the sentence; that the United States Constitution and the Alabama Constitution required a new trial; and that newly discovered material facts required that his conviction and sentence be overturned. The trial court denied that petition because the claims were barred by the limitations period of Rule 32. The appellant appealed and this court dismissed the appeal because the appellant failed to file a brief.

The appellant subsequently filed the present Rule 32 petition, his third petition. The appellant again alleged that the Constitutions of the United States and of the State of Alabama require that he be given a new trial. He also again alleged that the trial court was without jurisdiction to render the judgment or to impose the sentence. The appellant filed a brief in support of his petition, in which he alleged that, because he had received in 1974 a full and unconditional pardon of six convictions, those six convictions could not be used, under the Habitual Felony Offender Act, to enhance his 1982 conviction for robbery. The State responded that the appellant’s petition was due to be dismissed, alleging that the petition was without merit and that it also was precluded under Rules 82.2(b) and 32.2(a)(4) and (5). The trial court summarily denied the petition, finding that the appellant’s claims lacked merit. Citing Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), aff'd, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959), and Johnson v. State, 421 So.2d 1306 (Ala.Crim.App.1982), the trial court held that a pardon does not eliminate a conviction and that the convictions as to what the appellant had been pardoned had been properly used to enhance his sentence as a habitual offender. The trial court also held that the issues raised in the petition were precluded because the petition was successive and because those issues could have been, but were not, raised at trial or on appeal.

The appellant makes the following arguments on appeal: (1) that his petition was not precluded because, he says, he stated a jurisdictional claim; (2) that he could not be sentenced as a habitual offender without violating prohibitions against ex post facto laws and rulings because, he says, he was fully and unconditionally pardoned in 1974 pursuant to a “contract” with the Alabama Board of Pardons and Paroles; and (3) that the Habitual Felony Offender Act could not be applied in sentencing him without violating ex post facto prohibitions because, he says, he did not know that any offense committed after his pardon would be impacted by the Habitual Felony Offender Act.

A review of the record reveals that the trial court’s summary denial is due to be affirmed, on the ground that the appellant failed to state a meritorious claim. Summary disposition of a petition is proper under Rule 32.7(d), Ala.R.Crim.P., if the court determines that the petition is insufficiently specific or precluded or that it fails to state a claim or that no material issue of fact or law entitles the petitioner to relief. The appellant failed to state a claim that his protection against ex post facto laws had been violated. The case cited by the appellant, State ex rel. Sokira v. Burr, 580 So.2d 1340 (Ala.1991), had not been decided when he was sentenced in 1982 as a habitual offender.

The theory behind the prohibition against ex post facto laws is that no one should be punished for conduct he has not been warned was criminal conduct. Williams v. State, 393 So.2d 492 (Ala.Crim.App.1981). Moreover, the trial court was correct in determining that a pardon that restores a defendant’s civil and political rights is irrelevant for purposes of considering prior convictions for sentence-enhancement purposes.

There are two lines of Alabama cases that discuss the effects of pardons. The first line of cases, which addresses pardons by the Alabama Pardons and Paroles Board, concerns the restoration of a defendant’s civil and political rights. In Hogan v. Hartwell, 242 Ala. 646, 7 So.2d 889, 891 (1942), the Alabama Supreme Court held that a full and unconditional pardon from the Alabama Board of Pardons and Paroles relieves “the legal consequences of a specific crime” and restores a defendant’s customary civil and political rights, including his eligibility for State elective office. This holding was effectively overruled by the Court’s subsequent affirmance of the Court of Appeals’ decision in Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), aff'd, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959). The Court of Appeals held that, because the people of Alabama have a vested social interest in their own protection, a full pardon with restoration of all civil and political rights does not vitiate or destroy a conviction of a crime of violence or restore a person’s right to possess a pistol.

In State ex rel. Sokira v. Burr, 580 So.2d at 1344, the Alabama Supreme Court stated that Mason had been erroneously decided and that Hogan was the better reasoned decision.. The Court noted that, in affirming the judgment in Mason, the Court had “apparently adopted the principle that it retained the power to decide which unconditional pardons actually re-’ stored civil and political rights and which unconditional pardons did not.” Sokira, 580 So.2d at 1343. The Court further noted that, in Randolph County v. Thompson, 502 So.2d 357 (Ala.1987), and Sumbry v. State ex rel. Grant, 562 So.2d 224 (Ala.1990), the Court had advanced the Mason holding by stating that as to convictions of “infamous crimes” a pardon did not restore to the one pardoned eligibility to hold public office. Sokira, 580 So.2d at 1344. Therefore, the Sokira Court held that a court could not choose which rights would be restored, i.e., it would not conclude that the right to possess a pistol, or the right to hold public office, was a right that should not be restored. A court cannot carve out certain rights that will not be restored, because a pardon is intended to restore each civil and political right taken away by the felony conviction.

The Sokira Court held that a pardon that restores all of a defendant’s civil and political rights removes the disabilities that accompany the prior conviction, thereby enabling the defendant in that case to hold public office. Id. The Court expressly readopted its decision in Hogan, overruled its decision in Sumbry, and overruled its decision in Randolph County to the extent that the decision in Randolph County had relied on the rationale in Mason. Sokira, 580 So.2d at 1345. The Court also expressly adopted the opinion of United States Supreme Court Justice Field in Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81, 18 L.Ed. 366 (1866). Sokira, 580 So.2d at 1344. Justice Field, writing for the United States Supreme Court, stated the following view of the effect of a pardon:

“ ‘A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out the existence of the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.... [I]t removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.
“ ‘There is only this limitation to its operation; it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment.’ ”

All of the foregoing decisions, including the opinion of Justice Field, address only the restoration of civil or political rights affected by the pardoned conviction. None involve the use of the pardoned conviction for enhancement of punishment upon the conviction of a subsequent offense. However, the second line of State Pardons and Paroles Board cases concerns the use of pardoned convictions for enhancement purposes. In Johnson v. State, 421 So.2d 1306 (Ala.Crim.App.1982), this court held that, although the Alabama Board of Pardons and Paroles had issued a certificate restoring the defendant’s civil and political rights, his nine prior convictions could be used to enhance his punishment for a subsequent offense. This Court held that the certificate did not constitute a pardon under § 15-22-36, Ala. Code 1975, as amended, because it stated only that Johnson’s civil and political rights had been restored, not that he had been pardoned for the offense.

The appellant in the present case failed to include in the record on appeal a copy of his certificate or pardon. However, even if the appellant had been granted a full pardon, his prior convictions still could be used to enhance his punishment for the subsequent offense. In Johnson v. State, 421 So.2d at 1312-13, this court stated:
“[E]ven if [the certificate] were a full pardon, it would not, in our judgment, preclude those convictions from being used to enhance the appellant’s punishment. See Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), affirmed, 267 Ala. 507, 103 So.2d 341 (1958). In Mason, the sole question raised was whether the appellant’s possession of a pistol, after conviction for a crime of violence was illegal in view of the pardon that Mason had been granted. The court observed that the question had been reviewed in cases dealing with punishment imposed under multiple offender statutes. The court cited People v. Biggs, 9 Cal.2d 508, 71 P.2d 214, 116 A.L.R. 205, and quoted the following excerpts:
“ ‘ “It is universally established that a pardon exempts the individual from the punishment which the law inflicts for the crime which he has committed; and generally speaking, it also removes any disqualifications or disabilities which would ordinarily have followed from the conviction. To say, however, that the offender is a ‘new man,’ and as ‘innocent as if he had never committed the offense,’ is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it place no restraints upon him following his conviction. The criminal character or habits of the individual, the chief postulate of habitual criminal statutes, is often as clearly disclosed by a pardoned conviction as by one never condoned.... ’
“ ‘ “With respect to the precise question before us, namely, the effect of a prior conviction which has been pardoned, the courts are in conflict; but perhaps the weight of authority, and certainly of critical opinion, is to the effect that the pardon is immaterial, and that the defendant may be adjudged a prior offender and given the increased punishment as such. See People v. Carlesi, 154 App.Div. 481, 139 N.Y.S. 309, affirmed, 208 N.Y. 547, 101 N.E. 1114; Id., 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843; People v. Murphy, 244 App.Div. 834, 279 N.Y.S. 762; Mount v. Commonwealth, 2 Duv. 93, 63 Ky. 93; Herndon v. Commonwealth, 105 Ky. 197, 48 S.W. 989, 88 Am.St.Rep. 303; State v. Edelstein, 146 Wash. 221, 262 P. 622; 16 C.J. 1342, § 3157; notes, 58 A.L.R. 20, 49; 13 Columb.L.Rev. 418; 14 Minn. L.Rev. 293; 78 U.Pa.L.Rev. 561; 28 Harv.L.Rev. 647, 655; 41 Harv.L.Rev. 918; 5 Fordham L.Rev. 166; 3 So.Cal.L.Rev. 438; 22 Journ.Crim.Law 122. As the court states in People v. Carlesi supra, 154 App.Div. 481, 139 N.Y.S. 309, 312: ‘The pardon of the defendant did not “make a new man” of him. It did not “blot out” the fact or the record of his conviction.... The pardon in this case merely restored the defendant to his civil rights. If it had been granted before his term of imprisonment had been served, it would also have relieved the defendant of that. But it did not obliterate the record of his conviction or blot out the fact that he had been convicted.... It relieved the defendant of the consequences which the law attached to his offense. But the defendant is to be punished now solely in consequence of his second offense.’
“ ‘ “The other view, holding that the pardoned offense cannot be considered, is based upon the literal application of the theory that the pardon ‘blots out guilt’ and ‘wipes out the offense,’ which is then regarded as never having been committed. See Edwards v. Commonwealth, 78 Va. 39, 49 Am.Rep. 377; State v. Martin, 59 Ohio St. 212, 52 N.E. 188, 43 L.R.A. 94, 69 Am.St.Rep. 762; Tucker v. State, 14 Okl.Cr. 54, 167 P. 637; State v. Lee, 171 La. 744, 132 So. 219; Scrivnor v. State, 113 Tex.Cr.R. 194, 20 S.W.2d 416.” ’ ”

See Bush v. State, 421 So.2d 1352 (Ala.Crim.App.1982) (citing Johnson and holding that a certificate restoring to the one pardoned civil and political rights does not preclude the use of the felony conviction to enhance punishment as a habitual offender).

In its decision in Sokira overruling Mason and adopting Justice Field’s opinion, the Alabama Supreme Court stated:

“By readopting this Court’s decision in Hogan, we recognize that a pardon that restores to an individual all civil rights and political privileges necessarily nullifies all legal punishment for the offense. In other words, if the conviction incorporates certain civil and political disqualifications, then a pardon that specifically revives all civil and political rights must certainly remove any and all legal incapacities.”

580 So.2d at 1345.

Thus, Sokira spoke strictly to the punishments and incapacities resulting from this deprivation of rights. Enhancement of a sentence upon application of the Habitual Felony Offender Act does not involve a civil or political disqualification or any legal incapacity. Moreover, a pardon is intended to be a vehicle for the restoration of rights and privileges that were denied or forfeited or affected by the conviction of a crime. There is no legal right to commit a crime vested in anyone which would be subject to restoration by a pardon. In State v. Adams, 355 So.2d 917, 922 (La.1978), the Louisiana Court held that the State’s automatic pardon provision did not preclude consideration of a felony conviction as to which one was pardoned in adjudicating a person as a habitual offender. The Court cited with approval the following comment of Chris Roy, a delegate to that State’s 1973 Constitutional Convention:

“[A] pardon simply restores your rights to vote and to citizenship, but it doesn’t change something that is or was. It doesn’t change the fact that you’re white or you’re black or orange or red or whatever you have. It simply restores you to the rights that you had before. You didn’t have a right before to commit crime, so you still don’t have one in the future to commit it .... (citation omitted).”

In the present case, the appellant had 10 prior convictions — 2 of those were not considered for enhancement because they were uncounseled, 2 others were not considered because the State withdraw its offer as to them, and the remaining 6 were pardoned by contract. It is clear that the pardons were not intended to allow the appellant, upon being convicted for an eleventh time, to come before the justice system as a first-time offender.

For the above-stated reasons, the judgment imposed by the trial court is due to be, and it is hereby, affirmed.

OPINION OF APRIL 28, 2000, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED.

COBB, BASCHAB and WISE, JJ„ concur.

SHAW, J., concurs in part and dissents in part, with opinion.

SHAW, Judge,

concurring in part and dissenting in part.

In State ex rel. Sokira v. Burr, 580 So.2d 1340, 1344-45 (Ala.1991), the Alabama Supreme Court reaffirmed its holding in Hogan v. Hartwell, 242 Ala. 646, 7 So.2d 889 (1942), overruled, Mason v. State, 267 Ala. 507, 103 So.2d 341 (1958), and specifically adopted the opinion of Justice Field in Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81, 18 L.Ed. 366 (1866):

“ A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.... [I]t removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.
“ ‘There is only this limitation to its operation; it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment.’ ”

(Emphasis added.)

This Court’s decision in Johnson v. State, 421 So.2d 1306 (Ala.Crim.App.1982), on which the majority relies, was based solely on the rationale of Mason. In Johnson, this Court, quoting Mason, noted:

“ ‘ “The other view, holding that the pardoned offense cannot be considered, is based upon the literal application of the theory that the pardon ‘blots out guilt,’ and ‘wipes out the offense,’ which is then regarded as never having been committed. See Edwards v. Commonwealth, 78 Va. 39, 49 Am.Rep. 377; State v. Martin, 59 Ohio St. 212, 52 N.E. 188, 43 L.R.A. 94, 69 Am.St.Rep. 762; Tucker v. State, 14 Okl.Cr. 54, 167 P. 637; State v. Lee, 171 La. 744, 132 So. 219; Scrivnor v. State, 113 Tex.Cr.R. 194, 20 S.W.2d 416.” ’ ”

As I read Sokira, the Alabama Supreme Court, interpreting this state’s clemency power, expressly overruled a previous decision of that Court that had referred to and apparently supported the Willistonian view of a full pardon and readopted the Garland view of a full pardon (that the pardon obliterates both the conviction and the guilt). See Ashley M. Steiner, Remission of Guilt or Removal of Punishment? The Effect of a Presidential Pardon, 46 Emory L.J. 959 (1997), discussing the various views that have been taken as to the effect of a pardon, including the view taken by Professor Samuel Williston in Does a Pardon Blot Out Guilt?, 28 Harv. L.Rev. 647, 649 (1915). “The other view” referred to in Mason, and acknowledged in Johnson, was clearly adopted by the Sokira Court. Although, as the Emory Law Journal article notes, the Garland view of a full pardon is not without its detractors, this Court does not have the benefit of writing on a clean slate; this Court is bound by decisions of the Alabama Supreme Court. Sokira is, in my view, controlling here. The foundation on which the majority bases its decision is that a full pardon does not “blot out guilt” or “wipe out the offense” for purposes of applying a statute that prescribes certain legal consequences for a person who has previously been convicted of a criminal offense. Until the Alabama Supreme Court changes its view as to the legal effect of a full pardon, and overrules or modifies Sokira, I cannot agree that the full pardon of a previous conviction is immaterial for purposes of enhancing a sentence under the Habitual Felony Offender Act. This court’s decision today, it seems to me, implicates Alabama’s separation-of-powers doctrine, Ala. Const. §§42 and 43, by doing exactly what the Sokira Court chided the Mason Court for doing — “[retaining] the power to decide which unconditional pardons actually restored civil and political rights and which unconditional pardons did not.” 580 So.2d at 1343-44; see also 580 So.2d at 1345-46 (Houston, J., concurring specially).

In its brief in support of its application for rehearing, the State points out that “[t]he record before this court is void of any documentation presented by Casey to validate his claim [that] he received a full and unconditional pardon.” It asks us to remand the case for an evidentiary hearing to determine the nature of the pardon. For the foregoing reasons, I would grant the State’s application for rehearing; however, I would do so for the limited purpose of remanding this case for an evidentiary hearing and a determination as to whether Casey actually received a full pardon on six of his prior convictions, as he has alleged. See Ala. Const. Amend. No. 38, § 124, which states in part: “No pardon shall relieve from civil and political disabilities unless specifically expressed in the pardon.” Therefore, I concur to grant rehearing; however, as to the remainder of the majority opinion, I respectfully dissent.

      . The State originally offered evidence purporting to show 10 prior convictions. The offer of two of them was withdrawn, and two others were determined to have been uncoun-seled. Casey v. State, 456 So.2d 1161 (Ala.Crim.App.1984).

      . The petition cannot be affirmed as successive because no evidence of a prior judgment on the merits appears in the record on appeal. Blount v. State, 572 So.2d 498 (Ala.Crim.App.1990). The petition cannot be affirmed as precluded under Rules 32.2 (a)(4) and (5), Ala.R.Crim.P., because these grounds conflict, and pleading both is a factual impossibility. Hughley v. State, 597 So.2d 764 (Ala.Crim.App.1992).

      . In Ex parte Garland, an attorney sought to resume the practice of law without taking a special loyalty oath after he had been pardoned for engaging in a rebellion.

      . Samuel Williston, Does a Pardon Blot Out Guilt?, 28 Harv. L.Rev. 647 (1915).


author: WOODALL, Justice. STUART, Justice

text:
    Ex parte Nathan Sherman CASEY. (Re Nathan Casey v. State of Alabama).
    1001555.
    Supreme Court of Alabama.
    Feb. 22, 2002.
    Rehearing Denied May 31, 2002.

      Nathan Sherman Casey, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for respondent.
   WOODALL, Justice.

This Court granted certiorari review to determine whether convictions as to which a “full” pardon has been given can be used for sentence-enhancement purposes under the Habitual Felony Offender Act. We hold that a full pardon precludes such use of the pardoned convictions. Therefore, we reverse the judgment of the Court of Criminal Appeals, and we remand the case for further proceedings consistent with this opinion.

In 1982, Nathan Casey was convicted of first-degree robbery and was sentenced as a habitual offender to life imprisonment without parole. His sentence was enhanced upon application of the Habitual Felony Offender Act because he had six prior convictions for forgery. In 1999, Casey filed his third Rule 32, Ala. R.Crim. P., petition for postconviction relief. He alleged that the trial court lacked jurisdiction to impose the sentence and that the sentence exceeded the maximum allowed by law. Casey argued that the Alabama Board of Pardons and Paroles had granted him a “full and unconditional pardon” as to his six forgery convictions, and he argued that that pardon prevented the use of those convictions for sentence-enhancement purposes under the Habitual Felony Offender Act.

The trial court found no merit in Casey’s petition and summarily denied the petition. Casey appealed to the Court of Criminal Appeals. On April 28, 2000, the Court of Criminal Appeals released an opinion holding that the pardoned convictions could not be used for sentence enhancement under the Habitual Felony Offender Act and remanding the case to the trial court for resentencing without any enhancement based on the forgery convictions. However, on the State’s application for rehearing, the Court of Criminal Appeals withdrew its April 28, 2000, opinion and substituted a new opinion, which affirmed the judgment of the trial court. Casey v. State, 852 So.2d 168 (Ala.Crim.App.2001).

On certiorari review, this Court has determined that the April 28, 2000, opinion released by the Court of Criminal Appeals correctly identified and applied the controlling precedents. The judgment of the trial court and the opinion of the Court of Criminal Appeals on rehearing relied on Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), aff'd, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959), which was overruled by State ex rel. Sokira v. Burr, 580 So.2d 1340 (Ala.1991), and on Johnson v. State, 421 So.2d 1306 (Ala.Crim.App.1982), which was based solely on the later-rejected rationale of Mason.

In its initial opinion, written by Presiding Judge McMillan, the Court of Criminal Appeals provided the following well-reasoned and clearly written analysis of the effect of a pardon upon the use of the pardoned convictions for sentence-enhancement purposes:

“On April 3, 1999, [Casey] filed the instant petition, alleging that the Constitution of the United States and the Alabama Constitution require that he receive a new trial or new sentence proceeding, and that the trial court was without jurisdiction to- render a judgment or to impose sentence in his case. In support of his petition, [Casey] filed a memorandum alleging that, in 1974, he was granted a ‘full and unconditional pardon’ by the Alabama Board of Pardons and Paroles as to his six prior convictions, which prevented his six prior convictions from being used to enhance his 1981 conviction for first-degree robbery under the Alabama Habitual Felony Offender Act.
“In its order dismissing [Casey’s] petition, the trial court stated:
“ ‘Having considered the Petitioner’s Petition for Relief from Conviction of Sentence, the Court’s own records, and the State’s Answer to the Petitioner’s Petition, this Court finds that the claims in Casey’s Rule 32 petition are without merit and denied. Specifically, this Court finds, as follows:
“ ‘Petitioner claims that because the Petitioner received a pardon from the State Pardons and Parole Board and his civil and political rights were restored accordingly, ... those convictions should not have been used to enhance his Robbery I conviction under the Alabama Habitual Felony Offender Act, Sec. 13A-5-9, Code of Ala. 1975. The law has been long established in Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), and Johnson v. State, 421 So.2d 1306 (Ala.Cr.App.1982), that a pardon merely restores the defendant to his civil rights. Had it been granted before a term of imprisonment, it also relieves defendant of that. But it does not strike from the record his conviction or the fact that he was convicted. Therefore, the fact that Casey received a pardon on his six prior felonies is not relevant when considering those six felonies for enhancement purposes under the Habitual Felony Offender Act and, therefore, his petition on those grounds is without merit and DENIED.
“ ‘Petitioner has raised jurisdictional questions on appeal or requests for post-conviction relief concerning his sentence. The Court further finds that the issues raised in this Rule 32 [are] precluded under Rule 32.2(b) since Petitioner has raised similar grounds before and is further precluded under Rule 32.2 (a)(4) and (5) since Petitioner has raised, or addressed [those issues] or could have raised but [did not raise them] on appeal....’
“The trial court cited Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), as authority for its ruling that a pardon of prior convictions is irrelevant when considering those convictions for sentence-enhancement purposes. The holding in Mason, however, has been specifically overruled by State ex rel. Sokira v. Burr, 580 So.2d 1340 (Ala.1991); therefore, this case must be remanded to the trial court.
“In State ex rel. Sokira v. Burr, the Alabama Supreme Court addressed the question whether a defendant, who in 1962 had pleaded guilty to the crime of distilling and had been sentenced to one year and one day in the state penitentiary for that offense, with one year’s probation, and who in 1964 was pardoned with an express restoration of his civil and political rights, was disqualified from holding the office of mayor. The certificate of pardon issued by the Board of Pardons and Paroles restoring the defendant’s rights stated:
“ ‘ORDERED that all disabilities resulting from the above stated conviction be and they are hereby removed and the civil and political rights of the above named are restored.’
“Id. at 1341.
“In holding that the Board of Pardons and Paroles, through that order, expressly restored all of the defendant’s civil and political rights, and that, therefore, the defendant could hold the office of mayor, our Supreme Court reasoned:
“ ‘Chief Justice Marshall, writing for the United States Supreme Court recognized that “a pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 7 Pet. 150, 159, (32 U.S.), 8 L.Ed. 640 (1833). In Ex parte Garland, 4 Wall. 333, 380-81 (71 U.S.), 18 L.Ed. 366 (1866), Justice Field, writing for the United States Supreme Court, expressed the following view of the effect of a pardon:
“ ‘ “A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offenses.... [I]t removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.
“ ‘ “There is only this limitation to its operation; it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment.” ’

580 So.2d at 1342. The Supreme Court reasoned further:

“ ‘In Hogan [v. Hartwell, 242 Ala. 646, 7 So.2d 889 (1942) ], this Court considered whether an individual who had been convicted of a felony and subsequently had been pardoned and given “all Alabama Civil and Political Rights” was eligible to hold the office of city commissioner of Mobile. Chief Justice Gardner, writing for this Court, stated that Ala. Const. (1901), art. IV, § 60, did not forever prohibit one convicted of a felony from holding office in this State. Quoting 39 Am. Jur. 554, 556, he continued:
“ ‘ “ ‘The doctrine has generally been accepted by the courts that a full and unconditional pardon restores to the offender the customary civil rights which ordinarily belong to a citizen’ and this includes restoration to the ‘pardoned offender his eligibility for state elective office which was forfeited by his conviction.’ (Emphasis added, citation omitted [in State ex rel. Sokira].)”
“ ‘242 Ala. at 651, 7 So.2d at 892.
“ ‘... In 1958, this Court effectively reversed its holding in Hogan when it affirmed the decision of the Court of Appeals in Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), aff'd, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959). In Mason, the defendant was convicted of owning or possessing a pistol after his previous conviction of second degree murder, for which he had been pardoned. Judge Harwood, writing for the Court of Appeals, called the issue “original, as far as our decisions are concerned,” and attempted to distinguish the case from Hogan. 39 Ala.App. at 2, 103 So.2d at 338. The Court of Appeals recited what this Court had said in Hogan:
“ ‘ “ ‘ “[A] person ... is relieved from the legal consequences of a specific crime,” ’ and ... ‘ “a full and unconditional pardon restores to the offender the customary civil rights which ordinarily belong to a citizen.” ’ ”
“ ‘39 Ala.App. at 3, 103 So.2d at 339.
“ ‘However, the Court of Appeals stated that this language “constitute[d] broad generalizations and like all statements of generalities, will lead to paradoxical conclusions if mechanically and literally applied to every factual situation.” 39 Ala.App. at 3, 103 So.2d at 339. That court, construing the language of the Uniform Firearms Act, Ala. Acts 1936, Extra Session, Act No. 82, p. 51 (Ala.Code (1940), T. 14, § 174), stated that a pardon of a convicted murderer simply “involved forgiveness and not forgetfulness” and that by enacting the Firearms Act, the legislature intended to “vest in the people of Alabama a real and vital social interest designed to enhance their own protection.” 39 Ala.App. at 5, 103 So.2d at 341. In affirming this decision, this Court apparently adopted the principle that it retained the power to decide which unconditional pardons actually restored civil and political rights and which unconditional pardons did not. Justice Coleman dissented, recognizing that prior to 1939, the Ala. Const. (1901), § 124, placed the pardoning power in the governor. That section provided as follows:
“ ‘ “The governor shall have power ... to grant pardons.... Pardons in cases of felony and other offenses involving moral turpitude shall not relieve from civil and political disabilities, unless approved by the Board of Pardons and specifically expressed in the pardon.”
“ ‘After a thorough review of the Alabama cases addressing the effect of pardons that expressly restore civil and political rights, we now hold that the better reasoned decision is this Court’s previously cited case of Hogan v. Hartwell, and we adopt the opinion of United States Supreme Court Justice Field, in Ex parte Garland, where he stressed that a pardon, expressly restoring to an individual his civil and political rights, removes the disabilities that accompany a conviction. Justice Field wrote that the effect of the pardon is “to reheve the petitioner from all penalties and disabilities attached to the offense” and said that “to exclude him, by reason of that offense, from continuing in the enjoyment of a previously acquired right, is to enforce a punishment for that offense notwithstanding the pardon.” Ex parte Garland, 4 Wall. (71 U.S.) at 381.
“ ‘By readopting this Court’s decision in Hogan, we recognize that a pardon that restores to an individual all civil rights and political privileges necessarily nullifies all legal punishment for the offense. In other words, if the conviction incorporates certain civil and political disqualifications, then a pardon that specifically revives all civil and political rights must certainly remove any and all legal inca-pacities. See Ala. Const. (1901), § 124, amend. No. 38.’
“Id. at 1342-45. (Footnote omitted.)
“Applying this aforestated legal authority to the facts of this case, we conclude that a remand for resentencing is in order. However, it need be noted that:
“ ‘... “[T]he Double Jeopardy Clause allows a retrial where the reviewing court determines that a defendant’s conviction must be reversed because evidence was erroneously admitted against the defendant, even where the court also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction. Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 290, 102 L.Ed.2d 265 (1988).” Fortier v. State, 564 So.2d 1041, 1042-1043 ([Ala.Crim.App.] 1990). However, we find Lockhart distinguishable from the case at bar.
“ ‘In Lockhart, there was other evidence, aside from the inadmissible evidence, against the defendant. The defendant ... was given an enhanced sentence under an Arkansas statute which required the prosecutor to prove beyond a reasonable doubt four prior felony convictions. The prosecutor introduced evidence of four pri- or convictions; however, one of the convictions had been pardoned by the governor, and was therefore null and void. Although [the defendant] stated at the sentencing hearing that he thought the conviction had been pardoned, there was no actual objection to the introduction of the conviction. 488 U.S. at 36, 109 S.Ct. at 288. Therefore, the Court was able to conclude:
“ ‘ “Permitting retrial in this instance is not the sort of governmental oppression at which the Double Jeopardy Clause is aimed; rather, it serves the interest of the defendant by affording him an opportunity to ‘obtai[n] a fair adjudication of his guilt free from error.’ Had the defendant offered evidence at the sentencing hearing to prove that the conviction had become a nullity by reason of the pardon, the trial judge would presumably have allowed the prosecutor an opportunity to offer evidence of another prior conviction to support the habitual offender charge. Our holding today thus merely recreates the situation that would have been obtained if the trial court had excluded the evidence of the conviction because of the showing of a pardon.” 488 U.S. at 42, 109 S.Ct. at 291....’

“Hooper v. State, 585 So.2d 133, 136-37 (Ala.Cr.App.1990). See also Ex parte Grantham, 613 So.2d 1260 (Ala.1993).

“Here, the pardon restored not only the appellant’s civil and political rights, but also removed any legal disabilities incurred as a result of his prior felony convictions. Thus, the trial court erred in considering evidence of the pardoned convictions for enhancement purposes. See, e.g. Murray v. State of Louisiana, 347 F.2d 825 (5th Cir.1965). As this Court held in Love v. State, 681 So.2d 1108, 1109 (Ala.Cr.App.1996):

“ ‘ “Since the first sentence imposed on [the defendant] was invalid, the trial court had not only the power, but the duty, to sentence [the defendant] as required by law. See, Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947).”
“ ‘(Emphasis in original.) See also, Cline v. State, 571 So.2d 368, 369 (Ala.Crim.App.1990). This Court in Cline noted that, even after the defendant has begun to serve his sentence, the trial court is obligated to alter an invalid sentence; further, any increase in the sentence does not raise double jeopardy problems.’
“See also Pounders v. State, 37 Ala.App. 687, 74 So.2d 640, 641-42 (Ala.Cr.App.1954) (“Where unauthorized sentence is imposed by the trial court, on appeal the judgment of conviction may be affirmed and the case remanded for proper sentence. Upon remandment the court has full power to pronounce proper sentence and such action does not put the defendant twice in jeopardy.’).”

We adopt Judge McMillan’s analysis in the Court of Criminal Appeals’ April 28, 2000, opinion as the opinion of this Court. State ex rel. Sokira is the controlling precedent, and this Court’s holding in that case compels the conclusion that the pardon blotted out of existence Casey’s guilt with respect to the pardoned convictions, making him, in the eye of the law, a new and an innocent man. Therefore, the pardoned convictions cannot be used to enhance his sentence under the Habitual Felony Offender Act. The contrary holdings by the Court of Criminal Appeals in Bush v. State, 421 So.2d 1352 (Ala.Crim.App.1982), and Johnson v. State, supra, are overruled.

The judgment of the Court of Criminal Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, LYONS, JOHNSTONE, and HARWOOD, JJ., concur.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., dissent.

STUART, Justice

(dissenting).

I respectfully dissent. I disagree with the majority opinion for several reasons. First, the opinion relies on State ex rel. Sokira v. Burr, 580 So.2d 1340 (Ala.1991), which in turn relies on the United States Supreme Court cases of United States v. Wilson, 32 U.S. (7 Pet.) 150, 160, 8 L.Ed. 640 (1833), in which Chief Justice Marshall wrote “[a] pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed,” and Ex parte Garland, 71 U.S. (4 Wall.) 333, 380, 18 L.Ed. 366 (1866), in which Justice Field asserted:

“A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.”

Both Wilson and Ex parte Garland involved Presidential pardons, which under the United States Constitution are completely unrestricted, except as to impeachment, and may be granted at any time— before or after conviction of a crime. A pardon under the laws of the State of Alabama is fundamentally different from a Presidential pardon. Amendment No. 38 to the Alabama Constitution of 1901 removed the power to pardon from the executive branch — the governor — and gave it to the Legislature, which in turn authorized the Alabama Board of Pardons and Paroles to grant pardons, subject to the restrictions established by the Legislature. § 15-22-36, Ala.Code 1975.

Amendment No. 38 provides: “No pardon shall relieve from civil and political disabilities unless specifically expressed in the pardon.” A pardon in Alabama, unlike a Presidential pardon, is clearly not unrestricted or unconditional. To the contrary, a pardon under our State constitution, as amended, is restricted or conditional according to the terms specifically expressed in the pardon.

The Alabama Legislature further restricted when a pardon may be granted. Section 15-22-36(a) provides: “In all cases, except treason and impeachment and cases in which sentence of death is imposed and not commuted, as is provided by law, the Board of Pardons and Paroles shall have the authority and power, after conviction and not otherwise, to grant pardons and paroles and to remit fines and forfeitures.” This subsection expresses the Legislature’s intent that there be a conviction before there can be a pardon; nowhere in § 15-22-36(a) is the extin-guishment of a conviction provided for. Subsection (c) further restricts the power to pardon:

“(c) No pardon shall relieve one from civil and political disabilities unless specifically expressed in the pardon; and no pardon shall be granted unless the prisoner has successfully completed at least three years of permanent parole or until the expiration of his sentence if his sentence was for less than three years, except upon the unanimous affirmative vote of the board following receipt and filing of clear proof of his innocence of the crime for which he was convicted and the written approval of the judge who tried his case or district attorney or with the written approval of a circuit judge in the circuit where he was convicted if the judge who tried his case is dead or no longer serving.”

(Emphasis added.)

These two subsections — (a) and (c) — express conditions on the timing of pardons and express the legislative intent that a pardon remove the requirement that the balance of the punishment for a crime be served but not that it remove or expunge the fact of the conviction itself. Subsection (c) additionally identifies two kinds of pardons available in Alabama: a regular pardon and a pardon on the ground of innocence.

Casey argues that the pardon he received in 1974 was a “full and unconditional pardon” under Alabama law. Even a pardon on the ground of innocence is a conditional pardon. Casey’s certificate of pardon itself does not state that it is a “full and unconditional” pardon. It states:

“It having been made to appear to the Alabama State Board of Pardons and Paroles that Gregory M. Swim Alias: Sherman Casey WM # 97065 # 99759 was convicted in Pike-Houston County on August 23, 1966/November 25, 1969 of Forgery (6 Cases) was sentenced to a term of 5 years [consecutive] and was released on parole on March 15, 1971, and the maximum term of sentence has not yet expired....
“ORDERED that a pardon be granted to the above named as a result of the above stated conviction, and all prior disqualifying convictions, and it is further ordered that all civil and political rights which were lost as a result of the conviction be and they are hereby restored.”

Nowhere does the certificate of pardon state that Casey is relieved of the future consequences of the Alabama Habitual Offender Act. Further, the fact that a person lacks a conviction is not commonly thought of or referred to as a “civil or political right.” There is nothing in the. certificate of pardon or in the statutes or in Alabama caselaw as it existed in 1974 that indicates that the Board of Pardons and Paroles intended for a certificate of pardon to extinguish the defendant’s conviction and to make it unusable for purposes of sentence enhancement under the provisions of the Alabama Habitual Offender Act.

The majority opinion states: “State ex rel. Sokira is the controlling precedent, and this Court’s holding in that case compels the conclusion that the pardon blotted out of existence Casey’s guilt with respect to the pardoned convictions, making him, in the eye of the law, a new and an innocent man. Therefore, the pardoned convictions cannot be used to enhance his sentence under the Habitual Felony Offender Act.” I disagree with the holding of State ex rel. Sokira; however, even if I agreed with it, I would disagree that the holding in Sokira “compels the conclusion that the pardon blotted out of existence Casey’s guilt.” While the Court in Sokira quoted from United States v. Wilson, 32 U.S. (7 Pet.) 150, 8 L.Ed. 640 (1833), and Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866), as heretofore noted, it did not hold that an Alabama pardon “blots out of existence the guilt.” Sokira involved the issue whether Rolen Henry Burr, who had pleaded guilty to the crime of distilling in 1962 and who was sentenced to imprisonment for a year and a day in the state penitentiary and who was pardoned in 1964 with the express restoration of his civil .and political rights, was disqualified from holding the office of mayor. (Holding elective office is generally considered a political right.) Notably, Burr’s certificate of pardon was worded differently from Casey’s. It stated as follows:

“ ‘ORDERED that all disabilities re-suiting from the above stated conviction be and they are hereby removed and the civil and political rights of the above named are restored.’ ”

580 So.2d at 1341 (emphasis added). Justice Maddox, writing for the Court in Sokira, stated the Court’s holding as follows:

“After a thorough review of the Alabama cases addressing the effect of pardons that expressly restore civil and political rights, we now hold that the better reasoned decision is this Court’s previously cited case of Hogan v. Hartwell, [242 Ala. 646, 7 So.2d 889 (1942),] and we adopt the opinion of United States Supreme Court Justice Field, in Ex parte Garland, where he stressed that a pardon, expressly restoring to an individual his civil and political rights, removes the disabilities that accompany a conviction. Justice Field wrote that the effect of the pardon is ‘to relieve the petitioner from all penalties and disabilities attached to the offense,’ and said that .‘to exclude him, by reason of that offense, from continuing in the enjoyment of a previously acquired right, is to enforce a punishment for that offense notwithstanding the pardon.’ Ex parte Garland, 4 Wall. (71 U.S.) at 381.
“By readopting this Court’s decision in Hogan, we recognize that a pardon that restores to an individual all civil rights and political privileges necessarily nullifies all legal punishment for the offense. In other words, if the conviction incorporates certain civil and political disqualifications, then a pardon that specifically revives all civil and political rights must certainly remove any and all legal incapacities. See Ala. Const. (1901), § 124, amend. No. 38.”

580 So.2d at 1344-45.

Finally, the provisions of the Alabama Habitual Offender Act, § 13A-5-9, Ala. Code 1975, as originally adopted, provided for enhanced penalties “[i]n all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony....” (Emphasis added.) Section 13A-5-9 was amended effective May 25, 2000, to apply in cases where a defendant has been “previously convicted of a felony.” (Emphasis added.) The statute does not say “any” or “a” felony other than the one for which the defendant has received a pardon. This section does not punish a defendant for a past offense, but merely increases his punishment for his most recent offense. Tate v. State, 435 So.2d 190 (Ala.Crim.App.1983).

The majority makes a tremendous leap, well beyond the position taken by the Sok-ira court, in holding that Casey’s pardon “blotted out of existence Casey’s guilt” with respect to the pardoned convictions, “making him, in the eye of the law, a new and an innocent man.” It does so based not on Alabama statutes or even on Alabama caselaw but rather on 19th century United States Supreme Court cases dealing with Presidential pardons. Judge Harwood properly warned of applying such sweeping language to a different fact situation. In Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), he noted:

“The question of the effect of a pardon has often been reviewed in cases dealing with the punishment to be imposed under multiple offender statutes. One of the leading eases is People v. Biggs, 9 Cal.2d 508, 71 P.2d 214, 216, 116 A.L.R. 205. Many authorities are reviewed in the opinion in this case, and we quote the following pertinent excerpts:
“ ‘But the somewhat extravagant language occasionally employed must be contrasted with the actual decisions of the courts. It is universally established that a pardon exempts the individual from the punishment which the law inflicts for the crime which he has committed; and generally speaking, it also removes any disqualifications or disabilities which would ordinarily have followed from the conviction. To say, however, that the offender is “a new man,” and “as innocent as if he had never committed the offense,” is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it place no restraints upon him following his conviction. The criminal character or habits of the individual, the chief postulate of habitual criminal statutes, is often as clearly disclosed by a pardoned conviction as by one never condoned. The broad generalizations quoted above are, if taken too literally, logically unsound as well as historically questionable. See Williston, Does a Pardon Blot Out Guilt? 28 Har. L.Rev. 647; People v. Carlesi, 154 App. Div. 481, 139 N.Y.S. 309; 13 Columb. L.Rev. 418; In re Lavine, 2 Cal.2d 324, 41 P.2d 161; 4 Cal. L.Rev. 236.’ ”

39 Ala.App. at 3-4, 103 So.2d at 339-40.

The Sokira Court readopted this Court’s earlier decision in Hogan v. Hartwell, 242 Ala. 646, 7 So.2d 889 (1942), finding it to be better reasoned than Mason, supra. It also expressly reversed the holding of Sumbry v. State ex rel. Grant, 562 So.2d 224 (Ala.1990), in which the Court held that a pardon does not restore to one pardoned the eligibility to hold public office. The Sokira Court also distinguished Randolph County v. Thompson, 502 So.2d 357 (Ala.1987). It did not overrule the language of Randolph County that “ ‘in Alabama, a pardon eliminates neither the fact of conviction nor the moral guilt accompanying the conviction.... ’ ” 562 So.2d at 226 (quoting Randolph County, 502 So.2d at 366). Until today this has been the law of this State in cases where a pardon is granted on a basis other than innocence; it should remain the law for the reasons I have stated. I would affirm the judgment of the Court of Criminal Appeals expressed in its opinion on rehearing.

SEE, J., concurs.

      . Subsection (e)(1), which was added by Act No. 83-750, Ala. Acts 1983, enumerates the crimes for which a pardon may not be granted.


author: McMILLAN, Presiding Judge.

text:
    Nathan CASEY v. STATE.
    CR-98-1661.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Nathan Casey, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   After Remand from the Alabama Supreme Court

McMILLAN, Presiding Judge.

Pursuant to the Alabama Supreme Court’s opinion in Ex parte Casey, 852 So.2d 175 (Ala.2002), this cause is due to be remanded to the trial court with instructions to resentence the appellant in accordance with that opinion. A return to remand shall be made to this Court within 63 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.