text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY v. Mike BIGGS, Norman Pierce, and Tommy Parker.
    2050039.
    Court of Civil Appeals of Alabama.
    April 14, 2006.

      Carvine L. Adams of The Atchison Firm, P.C., Mobile, for appellant.
    M. Vance McCrary of Gardner, Middle-brooks, Gibbons, Kittrell, Olsen, Walker & Hill, P.C., Mobile; and Sam Heldman of Gardner, Middlebrooks, Gibbons, Kittrell, Olsen, Walker & Hill, P.C., Washington, D.C., for appellees.
   THOMPSON, Judge.

Mike Biggs, Norman Pierce, and Tommy Parker (hereinafter referred to collectively as “the employees”) are bus inspectors employed by the Board of School Commissioners of Mobile County (“the Board”). In August 2004, the employees were informed by the Board that their work locations were being changed. Pursuant to that change, each employee “clocks in” for work at his previous work location and then travels by a vehicle owned by the Mobile County Public School System to his new assigned work location.

Pursuant to the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975, each of the employees submitted a letter to the Board contesting the purported “transfer” of his employment, and each of the employees requested a hearing. In a September 22, 2004, letter, the Board denied the requests for a hearing, maintaining that there had “been no transfer, only a change in the [employees’] work location[s].”

Pursuant to § 36-26-115, Ala.Code 1975, on October 13, 2004, the employees each filed with the Attorney General’s Office a petition for a hearing before an administrative law judge. The Board filed responses to the employees’ petitions. The individual petitions were assigned to three different administrative law judges.

On March 22, 2005, administrative law judge Walter S. Turner entered an order finding that Parker was entitled to written notice of the Board’s intention to “transfer” him to the new work location and that Parker was entitled to a hearing on that proposed transfer. On March 30, 2005, administrative law judge Tori L. Adams-Burks entered an order concluding that Biggs was entitled to notice and a hearing, and on April 27, 2005, administrative law judge Milt E. Belcher ruled that Pierce was also entitled to notice and a hearing on the proposed “transfer.” The Board filed separate notices of appeal to the trial court from all three of the administrative law judges’ orders. We note that the Board did not seek review of those orders by filing petitions for a common-law writ of certiorari.

Each of the Board’s three “appeals” to the trial court was assigned a separate case number, and the record on appeal contains a separate case-action summary for each case. The case-action summaries each indicate that on July 13, 2005, oral requests to consolidate the three cases were granted.

The employees argued to the trial court that § 36-26-115 of the Fair Dismissal Act provided that the decisions of the administrative law judges were final and not subject to judicial review. On September 9, 2005, the trial court entered orders in each case “dismissing” the consolidated action. The Board appealed to this court on October 19, 2005, arguing that the trial court erred in dismissing its “appeals” of the administrative law judges’ orders in this case. We note that this court has not been asked to determine whether the change in the employees’ work locations constituted “transfers” that would trigger the application of the Fair Dismissal Act, and, therefore, we do not reach that issue.

The Alabama Legislature recently revised the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975, by enacting Act No. 2004-567, Ala. Acts 2004. Act No. 2004-567 amended certain portions of the Fair Dismissal Act and added other provisions, including § 36-26-115, to the Fair Dismissal Act. In the title to Act No. 2004-567, the legislature indicated that among the purposes of the changes to the Fair Dismissal Act created by Act No. 2004-567 was the intent “to streamline the contest and appeal processes for employees.”

The amendments to the Fair Dismissal Act in Act No. 2004-567 included several significant changes. In part, the newly revised Fair Dismissal Act sets forth provisions governing the procedures for the termination of the employment of an employee covered by the Fair Dismissal Act and the procedures for suspending such an employee for more than seven days. See §§ 36-26-103, -104, -108, -109, and -110, Ala.Code 1975. The procedures for the suspension or termination of the employment of an employee subject to the Fair Dismissal Act as amended by Act No. 2004-567 contemplate that the employee receive notice and an opportunity to request a conference before the local school board. §§ 36-26-103 and -108, Ala.Code 1975.

One of the changes to the procedures for review of a termination or suspension of employment created by the new amendments to the Fair Dismissal Act altered the forum in which an employee could seek review of a school board’s decision. Under the former provisions of the Fair Dismissal Act, an employee could seek review by either a mutually agreed-upon person or a three-member employee-review panel. § 36-26-105, Ala.Code 1975 (former). Pursuant to the recent amendments to the Fair Dismissal Act, a hearing officer must be selected from a panel from the Federal Mediation and Conciliation Services’ Office of Arbitration Services. § 36-26-114, Ala. Code 1975.

Under a former provision of the Fair Dismissal Act, § 36-26-106, which set forth the procedures for a hearing process, “[t]he decision of the [employee-review] panel [was] final and binding upon the parties.” The amendments to the Fair Dismissal Act provide for appeals of the decision of the hearing officer when an employee is terminated or suspended for more than seven days; an appeal of a decision by the hearing officer shall be to this court. § 36-26-104(b), Ala.Code 1975; and § 36-26-110(b), Ala.Code 1975. The standard of review this court is to apply in reviewing the decision of a hearing officer when an employee is suspended or terminated is also specified in the new amendments to the Fair Dismissal Act. See § 36-26-104(b) and § 36-26-110(b) (providing that this court shall affirm the decision of the hearing officer absent a finding that the decision was arbitrary and capricious).

However, with regard to a transfer of the employment of an employee, the newly amended Fair Dismissal Act provides that “[t]he decision of the hearing officer shall be final.” § 36-26-107, Ala.Code 1975. In adding § 36-26-115 to the Fair Dismissal Act through its enactment of Act No. 2004-567, the Alabama Legislature created a right to a hearing before an administrative law judge for those nonprobationary employees who are denied a hearing before the local board of education. The legislature also specified that under § 36-26-115 the decision of the administrative law judge “shall be final.” § 36-26-115, Ala.Code 1975.

The foregoing comparison and discussion of various provisions of the Fair Dismissal Act demonstrates that our legislature has made a distinction in the procedures and methods of review for terminations, suspensions, and transfers of employment. The legislature has also provided those employees denied a hearing by the local school board the right to review by an administrative law judge rather than a hearing officer. § 36-26-115, Ala.Code 1975. We must presume that the legislature intended to make those distinctions in its treatment of the various forms of action that a school board may take in reference to an employee, and we must further presume that the legislature intended that each of those distinctions have effect.

“This court notes that a statute is presumed to have been enacted with a meaningful purpose. Adams v. Mathis, 350 So.2d 381, 385-86 (Ala.1977). ‘The legislature will not be presumed to have done a futile thing in enacting a statute.’ Ex parte Watley, 708 So.2d 890, 892 (Ala.1997).”

State v. Pettaway, 794 So.2d 1153, 1156 (Ala.Civ.App.2001). See also Alidor v. Mobile County Comm’n, 291 Ala. 552, 558, 284 So.2d 257, 261 (1973) (“Courts will attempt to give meaning to a legislative enactment and it is presumed that the Legislature did not do a vain and useless thing.”).

Before the trial court, the employees argued that the trial court lacked jurisdiction to consider the Board’s appeal. In making that argument, the employees maintained that the last sentence in § 36-26-115 of the Fair Dismissal Act bars a right of appeal by either party of an administrative law judge’s decision under that section. The statute at issue reads as follows:

“An employee who has attained non-probationary status and has been denied a hearing before the local board of education as required by Section 36-26-102, 36-26-105, 36-26-108, or 36-26-111 shall have the right to appeal directly to the Chief Administrative Law Judge of the Office of Administrative Hearings, Division of Administrative Law Judges, Office of the Attorney General for relief. The Chief Administrative Law Judge shall appoint an administrative law judge to address the issue raised in the appeal. The appeal shall state facts sufficient to allow the judge to determine tentatively whether or not the local board of education has complied with Section 36-26-102, 36-26-105, 36-26-108, or 36-26-111. The local board may answer or deny in writing the facts set out in the employee appeal and, if it fails to so deny, the facts set out in the appeal must be taken as true. The judge shall review the employee’s request and the local board’s answer or denial and shall determine, with or without a hearing, whether or not the local board of education has complied with Section 36-26-102, 36-26-105, 36-26-108, or 36-26-111. Based upon its findings, the judge shall do one of the following: (1) Order a hearing before the local board, (2) determine that the employee has been transferred, suspended, or dismissed in violation of the law and rescind the action taken by the local board, or (3) sustain the action taken by the local board. Action taken by the Administrative Law Judge under this section shall be final.”

§ 36-26-115, Ala.Code 1975 (as amended by Act No. 2004-567, effective July 1, 2004) (emphasis added).

This court has stated that “the legislature may prohibit an appeal in a particular type of case.” Ex parte Smith, 394 So.2d 45, 47 (Ala.Civ.App.1981); see also Fields v. State ex rel. Jones, 534 So.2d 615, 616 (Ala.Civ.App.1987) (“the legislature may properly limit the right to appeal”). In § 36-26-115 the legislature provided no method of review for either party of the administrative law judge’s decision under that section. We must conclude that under § 36-26-115 the Alabama Legislature intended that the decision of an administrative law judge after a school board denies an employee a hearing is final and that there is no right to appeal that decision.

The Board maintains that in spite of the language of § 36-26-115 providing that the “[ajction taken by the Administrative Law Judge under this section shall be final,” it could seek review of the administrative law judges’ orders in the trial court pursuant to the Alabama Administrative Procedure Act (“AAPA”), § 41-22-1 et seq., Ala.Code 1975. The AAPA provides a “minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public.” § 41-22-2(a), Ala.Code 1975 (emphasis added). The AAPA defines the term “agency” as follows:

“Agency. Every board, bureau, commission, department, officer, or other administrative office or unit of the state, including the Alabama Department of Environmental Management, other than the Legislature and its agencies, the Alabama State Port Authority, the courts, the Alabama Public Service Commission, or the State Banking Department, whose administrative procedures are governed by Sections 5-2A-8 and 5-2A-9. The term shall not include boards of trustees of postsecondary institutions, counties, municipalities, or any agencies of local governmental units, unless they are expressly made subject to this chapter by general or special law.”

§ 41-22-3(1) (emphasis added). The Commentary to § 41-22-3 reiterates that the AAPA does not apply to “schools, counties, cities or their agencies.” Thus, some of the entities that are specifically excluded from the application of the AAPA include local boards and agencies, agencies of the legislature, and postsecondary schools.

“[T]he AAPA governs state agencies— not local entities such as the [City of Dothan Personnel] Board. See §§ 41-22-2 and 41-22-3(1), Ala.Code 1975. See also Ex parte Boyette, 728 So.2d 644 (Ala.1998) (holding that Boyette’s appeal from a county personnel board decision was governed by a special enabling act and not by the AAPA).”

City of Dothan Pers. Bd. v. DeVane, 860 So.2d 881, 883 (Ala.Civ.App.2002). See also Tatum v. Freeman, 893 So.2d 1213 (Ala.Civ.App.2004) (concluding that a post-secondary institution was excluded from the coverage of the AAPA by the definition of “agency” in § 41-22-3(1) and citing the commentary to § 41-22-3 providing that the AAPA does not apply “to schools, counties, cities or their agencies”); King v. Calhoun Cmty. Coll., 742 So.2d 795, 796 (Ala.Civ.App.1999) (“However, § 41-22-3 exempts the College from the application of the AAPA.”); and Medical Laundry Serv., a Div. of OPLCO, Inc. v. Board of Adjustment for the State of Alabama, 486 So.2d 1305 (Ala.Civ.App.1986) (noting that the State Board of Adjustment is an agency of the legislature, and, as such, it is not subject to the AAPA).

The Board is an agency of Mobile County that is governed by the Fair Dismissal Act. The Fair Dismissal Act provides methods of review, under certain circumstances, of a decision by the Board or a hearing officer. The Board is a local agency; it is not a state agency subject to the application of the AAPA. Accordingly, the AAPA, which governs state agencies, does not apply to the Board or to disputes arising from action taken by the Board or proceedings before the Board. The Board is “excluded from the AAPA’s coverage.” Tatum v. Freeman, 893 So.2d at 1220.

In its brief on appeal, the Board points out that this court has allowed a trial court to review the decision of an employee-review panel under the former provisions of the Fair Dismissal Act pursuant to a petition for a writ of certiorari. See Hughes v. Britnell, 554 So.2d 1041 (Ala.Civ.App.1989). However, there is no indication in the record on appeal that the Board raised this issue before the trial court. This court may not hold a trial court in error on issues that the parties did not present to that court. Lee v. YES of Russellville, Inc., 858 So.2d 250, 257 (Ala.2003) (“The trial court will not be placed in error on the basis of issues never presented to it.”); and Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (noting the “ ‘long-standing, well established rule that [in order to secure a reversal] the appellant has an affirmative duty of showing error upon the record’ ”). Therefore, given the arguments made to this court and the trial court, we decline to determine the issue whether an administrative law judge’s decision under § 36-26-115 is subject to review in the courts through a petition for a writ of certiorari.

AFFIRMED.

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

MURDOCK and BRYAN, JJ., concur in the result, without writing.

      . The act known as the "Fair Dismissal Act” is located in the Alabama Code under the title "Dismissal Procedures for Nonteacher, Non-classified, etc., Employees in Certain School Systems, Institutions, Etc.”

      . As stated, infra, this court has not been asked to resolve whether the Board's actions constituted "transfers” that would trigger the application of §§ 36-26-105 through -107 of the Fair Dismissal Act.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gary Davis HART II v. STATE of Alabama.
    CR-05-0056.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.
    Rehearing Denied Feb. 3, 2006.
    Certiorari Denied April 14, 2006 Alabama Supreme Court 1050659.
    Eric J. Magnuson, Minneapolis, Minnesota, for appellant.
    Submitted on appellant’s brief only.
   PER CURIAM.

The appellant, Gary Davis Hart II, appeals the circuit court’s order setting aside his sentence of death pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and sentencing him to life in the penitentiary without the possibility of parole.

In 1990, Hart was convicted of capital murder for the killing of Todd Evans during the course of a robbery. He was sentenced to death. Hart’s conviction and his sentence were affirmed on direct appeal. Hart v. State, 612 So.2d 520 (Ala.Crim.App.1992), aff'd, 612 So.2d 536 (Ala.1993).

Hart also filed a petition for postconviction relief under Rule 32, Ala.R.Crim.P. attacking his conviction. On appeal, we affirmed the denial of Hart’s Rule 32 petition. Hart v. State, 796 So.2d 446 (Ala.Crim.App.1999) (table), aff'd, 800 So.2d 140 (Ala.2000).

In August 2005, the attorney general filed a motion in the Mobile Circuit Court requesting that the circuit court vacate Hart’s death sentence based on the United States Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which prohibited the imposition of a sentence of death on any individual under the age of 18 when the offense was committed. Hart was 16 when he committed the murder. The motion stated:

“Comes now the State of Alabama, Respondent in the above-styled cause, and files its motion respectfully requesting that this Honorable Court re-sentence Gary Davis Hart, II, to life imprisonment without the possibility of parole, pursuant to United States District Court Judge Charles R. Butler, Jr.’s order instructing the State to re-sentence Hart to life imprisonment without the possibility of parole within thirty days. In support of this motion, the State submits the following;
“1. In Roper v. Simmons, 125 S.Ct. 1183, 1200 (2005), the United States Supreme Court held that the ‘Eighth and Fourteenth Amendments forbid (the) imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.’ Based on the Court’s ruling in Roper, inmates who were convicted of capital murder and sentenced to death for a capital offense that they committed when they were under the age of eighteen are no longer eligible for the death penalty.
“2. Hart’s capital murder conviction and death sentence currently are under habeas review in the United States District Court for the Southern District of Alabama. On June 8, 2005, United States District Court Judge Charles R. Butler, Jr., ordered the parties to file their respective positions on the effect of Roper on Hart’s penalty phase claims. The parties complied with the court’s order. In their pleadings, the parties agreed that the court should grant Hart habeas corpus relief if the court found, based upon its review of the evidence, that Hart was under the age of eighteen when he committed the capital murder of Todd Evans.
“3. On August 8, 2005, Judge Butler entered an order finding that Hart was, in fact, under the age of eighteen when he murdered Todd Evans. In that order, Judge Butler instructed the State to re-sentence Hart to life imprisonment without the possibility of parole within the next thirty days. See ‘Appendix.’
“4. The State agrees with Judge Butler’s finding that Hart was under the age of eighteen when he murdered Todd Evans and that he is, therefore, entitled to penalty phase relief under Roper. Roper requires this Court to enter an amended sentencing order sentencing him to life imprisonment without the possibility of parole.”

The circuit court vacated Hart’s death sentence and sentenced Hart to life imprisonment without the possibility of parole — the only other available sentence for a person who has been convicted of a capital offense. See § 13A-5-45, Ala.Code 1975. Hart filed a notice of appeal. The question presented by this case is whether Hart has the right to appeal this ruling.

Section 12-22-130, Ala.Code 1975, governs appeals from convictions. This statute states:

“A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court.”

“The right of appeal is wholly statutory. Under our statute an appeal is authorized in criminal cases only from a judgment of conviction.” Dawson v. State, 37 Ala.App. 16, 17, 66 So.2d 567, 568 (1952) (emphasis added). The Alabama Supreme Court in Allen v. State, 141 Ala. 35, 37 So. 393 (1904), addressed whether a defendant could appeal an order scheduling a date for the defendant’s execution. The Supreme Court stated:

“Section 4313 of the Criminal Code [of 1896] [now § 12-22-130, Ala.Code 1975], relating to appeals by defendants in criminal cases, reads as follows: ‘Any person convicted of a criminal offense in the circuit court, or other court from which an appeal lies directly to the Supreme Court, may appeal from the judgment of conviction to the Supreme Court.’ It will be observed that the statute authorizes an appeal only from the judgment of conviction. The present appeal is not taken from the judgment of conviction, but from the sentence of the circuit court made under section 5439 of the Criminal Code [of 1896], appointing a day for the execution of the defendant. And as no appeal lies from such an order, this court is without jurisdiction to review the case, and it follows that the appeal must be dismissed.”

141 Ala. at 36-37, 37 So. at 393.

In Dixon v. City of Mobile, 859 So.2d 462, 463 (Ala.Crim.App.2003), we likewise stated:

“ ‘The right of appeal is wholly statutory and is authorized in criminal cases from a judgment of conviction.’ McCray v. State, 46 Ala.App. 588, 589, 246 So.2d 475, 476 (Ala.Crim.App.1971). ‘Appeals lie only from judgments of conviction, and then only on those counts upon which there is a finding of guilt.’ Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980). ‘An appeal cannot be taken from an order subsequent to the judgment of conviction unless authorized by statute.’ Harris v. State, 44 Ala.App. 632, 632, 218 So.2d 285, 286 (1969).”

There is no statute that allows Hart to appeal the circuit court’s ruling vacating his sentence of death and imposing a sentence of life imprisonment without the possibility of parole. Hart has already obtained appellate review of the proceedings that lead to his capital-murder conviction.

Because there is no statutory authority for this Court to review this appeal, this appeal is dismissed.

APPEAL DISMISSED.

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

      . Rule 8(d)(1), Ala.R.App.P., states that the Supreme Court "shall at the appropriate time enter an order fixing a date of execution.”


author: BASCHAB, Judge.

text:
    Sean Robert SCOTT v. STATE of Alabama.
    CR-04-2065.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.
    Rehearing Denied Jan. 20, 2006.
    Certiorari Denied April 14, 2006 Alabama Supreme Court 1050578.

      Carl E. Chamblee, Jr., Birmingham, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On April 10, 2002, the appellant, Sean Robert Scott, was convicted in the Jefferson District Court (“the district court”) of third-degree domestic violence. The district court sentenced him to serve a term of ninety days in jail, but suspended the sentence and placed him on unsupervised probation for twenty-four months. It also ordered him to pay a $50 fine and court costs and to attend an anger management class. The appellant did not appeal his conviction.

On April 27, 2004, the appellant filed a Rule 32 petition in the district court, challenging his conviction. In his petition, he argued that his sentence was not authorized by law because he did not waive his right to counsel and was not represented by counsel during the trial in this case. He also argued generally that the district court’s judgment was unlawful and not authorized. The district court entered the following order:

“The court has considered the Rule 32 [petition] and in light of the decision in [Ex parte] Shelton [, 851 So.2d 96 (Ala.2000),] hereby orders that the suspended sentence be vacated and removed from the record of the court and an amended transcript be made in this matter.”

(C.R. 17.) The appellant then filed a notice of appeal to the Jefferson Circuit Court (“the circuit court”).

In the circuit court, the State filed a motion to dismiss, arguing that the district court had complied with Shelton by vacating the original suspended sentence and that the appellant was not entitled to any other relief. The circuit court conducted an evidentiary hearing, during which the appellant argued that his entire conviction, and not just his suspended sentence, was null and void. Thereafter, the circuit court entered the following order:

“A hearing was held on the Rule 32 petition. ... After hearing argument from both sides, the court is of the opinion that the motion to dismiss the Rule 32 petition is due to be granted. The facts of this case are almost identical to those in Shelton v. State [, 851 So.2d 83 (Ala.Crim.App.1998)]. Rule 32 petition is hereby dismissed.”

(C.R. 3-4.) This appeal followed.

As a threshold matter, we must determine what type of review the circuit court should have conducted in this case. In Schoenberger v. City of Decatur, 772 So.2d 483, 484-85 (Ala.Crim.App.2000), we held that, when a Rule 32 petitioner appeals a district court’s ruling on his petition to the circuit court, the circuit court should review the Rule 32 petition de novo, explaining as follows:

“Schoenberger contends on appeal that the circuit court’s refusal to review his Rule 32 petition de novo was error. We agree. Rule 32.10, Ala. R.Crim. P., provides that ‘[a]ny party may appeal a decision of a district or municipal court according to existing procedure.’ The ‘existing procedure’ for a defendant’s appeal of a municipal court decision is found in Rule 30.1(a), Ala. R.Crim. P. See Ex parte City of Fort Payne, 628 So.2d 1036 (Ala.Crim.App.1993). Rule 30.1(a) states:
“ ‘(a) Trial De Novo. A defendant convicted of an offense in a municipal court or a district court shall have the right to appeal the judgment, within fourteen (14) days of the date of the judgment or the denial of a timely filed post-judgment motion, to the circuit court for a trial de novo.’
“The phrase ‘or the denial of a timely filed post-judgment motion,’ indicates that the municipal court’s denial of a Rule 32 petition may be appealed ‘to the circuit court for a trial de novo.’ ”

Upon further review, we note that Rule 30.1(a), Ala. R.Crim. P., as set forth above, refers only to an appeal for a trial de novo from a judgment of conviction. See Committee Comments to Rule 30.1(a), Ala. R.Crim. P. (stating that “[t]he term ‘convicted’ in section (a) is used in its usual sense to connote a final judgment on a judicial finding of guilt or a plea of guilty”). We also note that, contrary to our holding in Schoenberger, the phrase “or the denial of a timely filed post-judgment motion” does not indicate that a municipal or district court’s denial of a Rule 32 petition may be appealed to the circuit court for a trial de novo. Rather, that phrase is included in Rule 30.1(a), Ala. R.Crim. P., as part of a clause that sets forth the time for filing an appeal to the circuit court for a trial de novo following a judgment of conviction in a municipal or district court. Finally, we note that Rule 30.1(a), Ala. R.Crim. P., does not make any reference to a de novo appeal in the context of a Rule 32 petition. Thus, the plain language of Rule 30.1(a), Ala. R.Crim. P., does not support the conclusion that, when a Rule 32 petitioner appeals a district court’s ruling on his petition to the circuit court, the circuit court should review the Rule 32 petition de novo. For these reasons, our holding in Schoenberger was incorrect, and we hereby expressly overrule it.

We must next determine what type of review a circuit court should conduct when a district court’s ruling on a Rule 32 petition is appealed to it. In McDaniel v. State, 397 So.2d 237, 238-39 (Ala.Crim.App.1981), we addressed a similar question in the context of an appeal to the circuit court from a district court’s revocation of probation as follows:

“Willie McDaniel appeals from an order of the Cherokee Circuit Court ‘affirming’ a district court’s determination that probation imposed for the conviction of McDaniel on an earlier offense be revoked and McDaniel thereby committed to jail to serve his sentence....
“Appellant first contends that the procedures followed by the Circuit Court in first remanding the cause to the district court for the Armstrong determination and in then only affirming the trial court’s decision were erroneous because the Circuit Court was required by statute to hold a trial de novo on the issue of the probation revocation. The State argues that appellant’s only recourse was to appeal the district court’s determination to this Court in the first place, and therefore this appeal should be dismissed as not being timely filed. The basis for appellant’s argument is § 12-12-71, Code of Alabama 1975, which states:
“‘Except as provided in section 12-12-72 and in subsection (e) of section 12-15-120, all appeals from final judgments of the district court shall be to the circuit court for trial de novo. “ ‘An appellant shall not be entitled to a jury trial in circuit court unless it is demanded in the notice of appeal, and an appellee shall have no right to a jury trial unless written demand is filed in circuit court within 14 days of service upon him of notice of appeal.’
“We do not think that this section affords appellant the right to a trial de novo from a probation revocation determined by a district court for several reasons. It seems clear that § 12-12-71 was intended to provide an avenue by which criminal defendants or civil litigants might enjoy and be guaranteed their respective constitutional rights to a trial before a jury, which is certainly not contemplated in a probation revocation proceeding. Martin v. State, 46 Ala.App. 310, 241 So.2d 339 (1970). By statute, both district and circuit courts enjoy the power to suspend imposed sentences or grant probation, see § 15-22-50, Code of Alabama 1975, and we do not see the logic in a system which would mandate that a circuit court go through the identical proceedings required of the district court when review in the nature of certiorari would be considered equally effective and certainly less duplicitous. Further, the existence of appeal is statutory, and we have not been cited to any section of the Code which expressly confers the right to a trial de novo in the circuit court, following the instance of a probation revocation by a district court. We feel that the method employed by the Circuit Court here, which was, in essence, a review of the district court’s proceedings in the nature of certiorari, was quite proper. In the absence of a statute to the contrary, such is the correct method in such instances. See, Essix v. City of Birmingham, 54 Ala.App. 348, 308 So.2d 259 (1975), and authorities cited.”

See also Stokley v. State, 709 So.2d 84 (Ala.Crim.App.1997).

Likewise, the right to a trial by a jury is not contemplated in a Rule 32 proceeding. Also, both district and circuit courts have the authority to entertain Rule 32 petitions. See generally Rules 32.1, 32.5, and 32.10, Ala. R.Crim. P. Further, neither the Code of Alabama nor the Alabama Rules of Criminal Procedure expressly confer the right to a trial de novo in the circuit court following a ruling on a Rule 32 petition by a district court. Therefore, we conclude that, on appeal from a district court’s ruling on a Rule 32 petition, a circuit court should conduct a limited review, in the nature of certiorari, of the district court’s action. See Stokley, supra; McDaniel, supra.

In this case, the circuit court entered an order in which it purported to dismiss the appellant’s Rule 32 petition. Thus, it appears at first blush that the circuit court conducted a de novo review of the petition. However, in that same order, and based on its comments set forth herein, the circuit court appears to have left the district court’s ruling on the petition intact. Viewing the record as a whole, then, the circuit court’s review was more in the nature of certiorari review of the district court proceedings, which was appropriate. We now turn to the merits of the circuit court’s ruling.

The appellant concedes that “the District Court, in vacating [his] suspended sentence and removing it from the record, did in fact comply with the precedent set forth in Shelton.” (Appellant’s brief at p. 15.) In Ex parte Shelton, 851 So.2d at 101-02, the Alabama Supreme Court stated:

“[W]e hold that the defendant in this case was entitled to representation by counsel because he was sentenced to a term of imprisonment, albeit suspended. We do not conclude that a defendant convicted of a petty or misdemeanor offense can establish a violation of his right to counsel when the defendant has not been sentenced to a term of imprisonment. ...
“Having held that a defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel, and having found that Shelton did not intelligently and understandingly waive that right and that he suffered a deprivation of that right, we affirm Shelton’s conviction but reverse that aspect of his sentence imposing 30 days of suspended jail time. The remaining aspects of the sentence are affirmed. We remand this cause to the Court of Criminal Appeals for that court to remand with instructions to the trial court to vacate that aspect of Shelton’s sentence imposing the suspended jail time.”

In Alabama v. Shelton, 535 U.S. 654, 661—62, 122 S.Ct. 1764, 1769-70, 152 L.Ed.2d 888 (2002), the United States Supreme Court affirmed the Alabama Supreme Court’s judgment, explaining as follows:

“In Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963), we held that the Sixth Amendment’s guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in Johnson v. Zerbst, 304 U.S. 458 (1938), applies to state criminal prosecutions through the Fourteenth Amendment. We clarified the scope of that right in Argersinger, holding that an indigent defendant must be offered counsel in any misdemeanor case ‘that actually leads to imprisonment.’ 407 U.S., at 33. Seven Terms later, Scott confirmed Argersinger’s ‘delimitation],’ 440 U.S., at 373. Although the governing statute in Scott authorized a jail sentence of up to one year, see id., at 368, we held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fíne, id., at 873. ‘Even were the matter res nova,’ we stated, ‘the central premise of Argersinger— that actual imprisonment is a penalty-different in kind from fines or the mere threat of imprisonment — is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel’ in nonfelony cases. Ibid.
“Subsequent decisions have reiterated the Argersinger-Scott .‘actual imprisonment’ standard. See, e.g., Glover v. United States, 531 U.S. 198, 203 (2001) (‘any amount of actual jail time has Sixth Amendment significance’); M.L.B. v. S.L.J., 519 U.S. 102, 113 (1996); Nichols v. United States, 511 U.S. 738, 746 (1994) (constitutional line is ‘between criminal proceedings that resulted in imprisonment, and those that did not’); id., at 750 (Souter, J., concurring in judgment) (‘The Court in Scott, relying on Argersinger [,] drew a bright line between imprisonment and lesser criminal penalties.’); Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18, 26 (1981). It is thus the controlling rule that ‘absent a knowing and intelligent waiver, no person may be imprisoned for any offense ... unless he was represented by counsel at his trial.’ Argersinger, 407 U.S., at 37.
“Applying the ‘actual imprisonment’ rule to the case before us, we take up first the question we asked amicus to address: Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant’s violation of the terms of probation? We conclude that it does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point ‘result[s] in imprisonment,’ Nichols, 511 U.S., at 746; it ‘end[s] up in the actual deprivation of a person’s liberty,’ Argersinger, 407 U.S., at 40. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow.”

The Supreme Court further noted:

“It is for the Alabama Supreme Court to consider before this Court does whether the suspended sentence alone is invalid, leaving Shelton’s probation term freestanding and independently effective. See Hortonville Joint School Dist. No. 1 v. Hortonville Ed. Assn., 426 U.S. 482, 488 (1976) (“We are, of course, bound to accept the interpretation of [the State’s] law by the highest court of the State.’) We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: ‘[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel.’ App. 40 (emphasis added); see Brief for Petitioner 6. We find no infirmity in that holding.”

535 U.S. at 674, 122 S.Ct. 1764. We agree that the district court complied with the Alabama Supreme Court’s decision in Ex parte Shelton when it vacated the appellant’s suspended sentence.

The appellant argues that, because he did not voluntarily waive his right to counsel when he entered his guilty plea, he is entitled to have his conviction and all remaining portions of his sentence vacated. Specifically, he contends that, “[b]y upholding the remaining sentence, ... the court is depriving [him] of certain rights and freedoms beyond those deprived by imprisonment.” (Appellant’s brief at p. 19.)

It appears that the appellant’s argument may be meritorious. In this regard, during the evidentiary hearing, the circuit court stated:

“Well, based on Shelton v. State, I’m going to grant the motion to dismiss filed by the district attorney’s office.
“As we were speaking before we went on the record, if I were on the U.S. Supreme Court or the Alabama Supreme Court, I would have voted differently. I think that it’s such an elementary right and such an important one to be advised of your right to counsel in any criminal case, that I would have done it different[ly].
“I think I’m bound by Shelton v. State. The facts appear to be very, very closely aligned. And it appears the district court followed Shelton v. State.
“Although the U.S. Supreme Court talks about deprivation of liberty, ... sometimes the offense itself, the jail time is the least of the problem, such as in the domestic violence case where an individual loses the right to bear arms. This could be a sexual abuse or an indecent exposure case, both of which are misdemeanors, and you could keep somebody from having jail time if they didn’t have counsel, but under Shelton the sentence would still stand if they were found guilty and then they’re going to register as a sex offender for the rest of their life. I don’t think a week or two in jail — I think most of them would trade that to get rid of being labeled a sex offender or to have a right to have a gun permit.
“So I think that there’s a lot of rights that are being suspended and abrogated by individuals not being apprised of their right to counsel. However, I’m on neither of those courts and don’t get a vote.
“Maybe this court’s ruling will be appealed, and you’ll be successful in getting those justices to change their mind, because I think it’s a very simple thing for the judge either in district court or a trial judge in circuit court, a two- or three-minute procedure, to make sure that the defendant’s know they have those rights and either waive them in writing or verbally. I think it’s a small undertaking to make sure that they’ve got rights to counsel, because again my personal view is, is that you’re going to be incarcerated, and that seems like a compromise for taking away a very basic right that each defendant has.”

(R. 14-16.)

Like the circuit court, this court is bound by the decisions of the Alabama Supreme Court. See § 12-3-16, Ala.Code 1975 (providing that “[t]he decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the Supreme Court as provided by Constitutional Amendment No. 328”). Therefore, we are not in a position to reverse that court’s decision in Ex parte Shelton and grant the appellant the relief he requests.

For the above-stated reasons, we affirm the circuit court’s judgment.

AFFIRMED.

McMILLAN, P.J., and COBB and WISE, JJ., concur; SHAW, J., concurs in part and concurs in the result, with opinion.

SHAW, Judge, concurring in part and concurring in the result.

I concur to overrule Schoenberger v. City of Decatur, 772 So.2d 483 (Ala.Crim.App.2000), and to hold that, on appeal from a district court’s ruling on a Rule 32 petition, a circuit court should conduct a limited review, in the nature of certiorari review, of the district court’s action. With respect to the remainder of the opinion, I concur only in the result.


author:
SHAW, Judge.
      BASCHAB, Judge,

text:
    Mark Lynn BROWN v. STATE of Alabama.
    CR-03-1951.
    Court of Criminal Appeals of Alabama.
    Dec. 23, 2005.
    J.E. Sawyer, Jr., Enterprise, for appellant.
    Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   SHAW, Judge.

On May 14, 2003, officers with the drug task force for the Twelfth Judicial Circuit executed a search warrant at the house of Mark Lynn Brown and found the following items: weapons; a two-liter bottle containing a bi-layered liquid; a casserole dish containing a razor blade and a white flaky powder; a second casserole dish also containing a white flaky powder; a bottle of charcoal lighter fluid; a bottle containing “matches that ha[d] been soaked to extract the phosphorous out of the striker plates” (R. 36); a container of Red Devil brand lye; a glass jar containing acetone; several coffee filters; and a set of digital scales. Forensic testing revealed that both layers of the bi-layered liquid contained methamphetamine and that the powdery substance in both casserole dishes was methamphetamine. Brown was charged with, and convicted of, trafficking in methamphetamine, a violation of § 13A-12-231(11), Ala.Code 1975, and unlawful manufacture of a controlled substance, methamphetamine, in the first degree, a violation of § 13A-12-218(a), Ala.Code 1975. He was sentenced to 15 years’ imprisonment for the trafficking conviction and to 10 years’ imprisonment for the manufacturing conviction.

On appeal, Brown contends that the trial court erred in admitting into evidence a certificate of analysis from the Alabama Department of Forensic Sciences regarding the nature of the substances found in his house, because, he says, admission of the certificate violated his right to confrontation. The issue raised presents two questions for this Court. First, did Brown properly preserve the issue of the admissibility of the certificate of analysis? Second, if the issue was preserved, does the admission of a certificate of analysis pursuant to § 12-21-300 et seq., Ala.Code 1975, violate a defendant’s right to confrontation in light of the United States Supreme Court’s recent opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)? We answer the first question in the negative; therefore, we need not reach the second question.

Section 12-21-300 provides:

“(a) In any criminal case, or juvenile or family court case which is of a criminal nature, the prosecuting authority may offer a certificate of analysis as described below, in lieu of direct testimony. The court shall receive as evidence the certificate of analysis from any of the following:
“(1) A person performing an analysis or examination in any laboratory operated by the Alabama Department of Forensic Sciences or authorized by the department to conduct an analysis or examination of the type performed.
“(2) A person performing an analysis or examination in any criminalis-tics laboratory established pursuant to federal law.
“(b) To be admissible pursuant to this section, a certificate of analysis shall contain all of the following:
“(1) The date and time the evidence was delivered to the facility.
“(2) The name of the person making the delivery, and the name of the person receiving the delivery.
“(3) A brief description of the evidence.
“(4) The type of examination or analysis requested.
“(5) The name of the person making the examination or analysis.
“(6) The date or dates of the examination or analysis.
“(7) The results of the examination or analysis.
“The certificate of analysis shall give the name and address of the facility in which the examination or analysis was made, and it shall be signed by and sworn to as true and correct, under penalty of law, by the person making the examination or analysis.”

Section 12-21-301 provides:

“The party seeking to introduce a certificate of analysis shall not less than 40 days prior to the commencement of the hearing or trial, give written notice to all parties of intent to offer proof by a certificate of analysis. The notice shall include a copy of the certificate of analysis.”

Section 12-21-302 provides:

“(a) The party against whom the certificate is offered may request, not later than 30 days prior to the commencement of the hearing or trial, a hearing to show cause why a subpoena should be issued for cross-examination of the person who performed the examination or analysis.
“(b) The request shall be in writing and shall contain a certification that the requesting party intends in good faith to conduct the cross-examination. The request shall also include a statement of the basis upon which the requesting party intends to challenge the findings contained in the certificate of analysis. The court shall grant the request for subpoena only for good cause shown. Good cause shall not include a challenge to the findings contained in the certificate of analysis, unless the requesting party first establishes a legitimate basis for the challenge. If the request for subpoena is granted, and the requesting party subsequently fails to conduct the cross-examination previously certified to, the court shall assess against the requesting party, all necessary and reasonable expenses incurred for the attendance in court of the certifying witness.”

The statutory scheme found in § 12-21-300 et seq. provides a multi-layered procedure for the admission of a certificate of analysis. It requires the party seeking to introduce the certificate of analysis in lieu of live testimony from the forensic scientist who performed the analysis, in this ease the State, to give timely notice of its intent to do so and to attach to that notice a copy of the certificate it intends to introduce. It also requires the party against whom the certificate is being offered, in this case Brown, if he or she wishes to challenge the certificate, to bring the issue to the trial court’s attention before trial by filing a written request for a show-cause hearing that contains a certification that the party intends in good faith to cross-examine the scientist as well as a statement of the basis upon which the party intends to challenge the findings in the certificate. At the show-cause hearing, the party challenging the certificate must then establish a legitimate basis for challenging the certificate.

The record reflects that on October 28, 2003, over five months before Brown’s trial began, the State, in compliance with § 12-21-301, filed notice of its intent to introduce the certificate of analysis in lieu of live testimony from the forensic scientist who performed the testing on the substances and attached to that notice a copy of the certificate it intended to introduce. Brown, however, did not comply with § 12-21-302; he did not file a written request 30 days before trial for a hearing to show cause why a subpoena should be issued for the forensic scientist. Instead, Brown waited until after the trial had begun — specifically, after opening statements but before the State’s first witness was called — and then objected to the certificate of analysis on the ground that its admission would violate his right to confrontation; the trial court overruled the objection. Brown renewed his objection when the State began questioning one of the officers who had conducted the search of Brown’s house regarding the contents of the certificate and again when the State offered the certificate into evidence; the trial court again overruled the objection.

Although Brown does not directly challenge the constitutionality of § 12-21-300 et seq., as counsel for the State recognized in oral argument the constitutionality of the statute is, at least to a limited degree, implicated by the very nature of the issue presented. In determining whether Brown properly preserved this issue for review, we must consider what impact Crawford has on the procedure set forth in § 12-21-300 et seq.

In Crawford, the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment prohibits the admission of testimonial hearsay statements in a criminal trial unless the hearsay declarant is unavailable to testify and the accused has had an opportunity to cross-examine the declarant. 536 U.S. at 68, 122 S.Ct. 2017. Crawford speaks to the issue of the meaning and scope of the Confrontation Clause; it does not, however, speak to the issues of preservation and waiver of a criminal defendant’s confrontation right. In Alabama, it is well settled that “‘questions involving constitutional rights must be seasonably raised at the trial court level.’ ” Ross v. State, 581 So.2d 495, 496 (Ala.1991), quoting Johnson v. State, 480 So.2d 14, 17-18 (Ala.Crim.App.1985). Crawford does not change this law.

In adopting § 12-21-300 et seq. the legislature clearly intended to reduce the burden on the Alabama Department of Forensic Sciences caused by the need for live testimony by its forensic scientists, and this Court is cognizant of the large number of cases currently before the department and of its limited resources. To have forensic scientists traveling across Alabama to testify in every case involving forensic evidence, even in those cases in which the opposing party has no intention of challenging the forensic evidence, would greatly reduce the amount of time those scientists have to actually conduct the examinations and analyses and would cause even more delays in the criminal justice system. It is equally apparent, however, that the legislature did not intend for certificates of analysis to be admissible in all cases, because it both limited the applicability of the statutes to certain cases and provided a method by which the opposing party could compel the attendance of the forensic scientist. Under § 12-21-302, the proper time for the opposing party to raise an objection to the admission of a certificate of analysis and to compel the attendance of the forensic scientist is at least 30 days before trial. The purpose behind this time requirement, as well as the time requirement in § 12-21-301 is apparent: to allow sufficient time to secure the presence of the forensic scientist in those cases in which his or her presence is necessary. Crawford, in addressing the admissibility of testimonial hearsay statements under the Confrontation Clause, does not affect these time requirements, and because Brown did not comply with the time requirement in § 12-21-302 — that a chai-lenge to the admissibility of the certificate of analysis be raised at least 30 days before trial—whether Crawford impacts the other provisions of § 12-21-302, i.e., that the opposing party must establish a legitimate basis for wanting to cross-examine the forensic scientist and that if the opposing party fails to conduct the cross-examination, the costs of bringing the scientist to court will be taxed to the opposing party, need not be determined in this case.

Because Brown did not comply with § 12-21-302 by challenging the certificate of analysis at least 30 days before trial, his objection to the certificate after the trial began was untimely; therefore, the issue of the admissibility of the certificate of analysis is not properly before this Court for review.

Based on the foregoing, we affirm Brown’s convictions for trafficking in methamphetamine and unlawful manufacture of methamphetámine as well as his sentence for the manufacturing conviction. We must, however, remand this case for resentencing on the trafficking conviction. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994), and we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999). For the trafficking conviction, the trial court sentenced Brown to 15 years’ imprisonment and imposed a $50,000 fine in compliance with §§ 13A-12-231(11)a and 13A-12-231(12), Ala.Code 1975. However, § 13A-12-231(13), Ala.Code 1975, further provides, in pertinent part, that “[notwithstanding any provision of law to the contrary, any person who has possession of a firearm during the commission of any act proscribed by this section shall be punished by a term of imprisonment of five calendar years which shall be in addition to, and not in lieu of, the punishment otherwise provided, and a fine of twenty-five thousand dollars ($25,000).” The undisputed evidence at trial indicated that multiple firearms were discovered in Brown’s residence at the time of the search. Accordingly, the sentence-enhancement provision in § 13A-12-231(13) must be applied to Brown’s sentence. Therefore, we remand this case for the trial court to apply the enhancement in § 13A-12-231(13) to Brown’s sentence. Due return shall be filed with this Court within 28 days of the date of this opinion.

AFFIRMED IN PART; AND REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and WISE, JJ., concur. BASCHAB, J., concurs in part and dissents in part, with opinion.

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur with the majority’s conclusion that the issue of the admissibility of the certificate of analysis is not properly before this court for review. However, I dissent because I believe the majority should also analyze whether the appellant’s convictions for both first-degree unlawful manufacture of a controlled substance (methamphetamine) and trafficking in methamphetamine violate double jeopardy principles.

      . Testimony indicated that charcoal lighter fluid, phosphorous, lye, acetone, and coffee filters are often used in the manufacturing of methamphetamine.

      . Brown also raised a second issue in his brief to this Court. However, Brown expressly abandoned that issue at oral argument be-f°re this Court; therefore, we do not address it.

      . Section 12-21-303, which is not applicable to this case, provides that "[t]his subdivision shall not apply where the defendant is charged with an offense punishable by death, nor shall this subdivision apply to the offenses enumerated in Chapter 6 of Title 13A.”

      . Section 13A-12-231(13) also provides that "the court shall not suspend the five-year additional sentence of the person or give the person a probationary sentence.” However, § 15—18—8(a)(1), Ala.Code 1975, allows a trial court to split a sentence of 20 years or less "notwithstanding any provision of law to the contrary.” As this Court recognized in Soles v. State, 820 So.2d 163 (Ala.Crim.App.2001), the phrase "notwithstanding any provision of law to the contrary” was added to § 15-18-8 in a 2000 amendment and, thus, “is the latest expression of the Legislature in this area.” 820 So.2d at 165. Therefore, § 15—18—8(a)(1) supersedes the prohibition against probation in § 13A-12-231(13).

      . Possession of the firearms was an element of the manufacturing conviction; therefore, by its verdict finding Brown guilty of unlawful manufacturing, the jury found beyond a reasonable doubt that Brown possessed firearms and the imposition of the firearm enhancement in § 13A—12—231(13) does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


author: SHAW, Judge.

text:
    Julius LaRosa GRAY v. STATE of Alabama.
    CR-05-0047.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    Julius LaRosa Gray, pro se.

      Troy King, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   SHAW, Judge.

Julius LaRosa Gray appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked the revocation of his probation.

In December 2003 Gray pleaded guilty to third-degree robbery and was sentenced to 15 years’ imprisonment; the sentence was split, and he was ordered to serve 90 days in confinement followed by 3 years’ probation. In March 2004, Gray’s probation officer filed a delinquency report, and Gray “confessed revocation” and was ordered to serve six months in confinement. (C. 4.) Gray’s probation officer filed another delinquency report in October 2004 and a supplemental delinquency report in November 2004. After taking testimony, the trial court determined that Gray had violated the terms and conditions of his probation, and on November 17, 2004, it revoked Gray’s probation and ordered Gray to serve five years’ imprisonment. The trial court credited Gray with 7 months and 19 days of confinement, thus leaving Gray with over 4 years of confinement to serve upon revocation. Gray did not appeal the November 2004 revocation of his probation.

Gray filed his Rule 32 petition on July 14, 2005. In his petition, Gray alleged that the trial court lacked jurisdiction to order him to serve five years in prison upon the revocation of his probation in November 2004 and that that sentence exceeded the maximum authorized by law pursuant to § 15-18-8, Ala.Code 1975. After receiving a response from the State, the circuit court summarily denied the petition on August 18, 2005.

Initially, we note that Gray contends for the first time on appeal that only the sentencing judge or presiding judge of the circuit has jurisdiction to rule on a Rule 32 petition and that the circuit judge who ruled on his Rule 32 petition was neither the sentencing judge nor the presiding judge of the circuit and thus lacked jurisdiction to deny his petition. Although only the sentencing judge or the presiding judge of a circuit has jurisdiction to review a motion for resentencing filed pursuant to § 13A-5-9.1, Ala.Code 1975, see Holt v. State, [Ms. CR-04-1250, December 23, 2005] (Ala.Crim.App.2006), and the cases cited therein, nothing in Rule 32 deprives a circuit judge who is not the sentencing judge or presiding judge of jurisdiction to review a Rule 32 petition. To the contrary, Rule 32.6(d) provides that a Rule 32 petition “shall be assigned to the sentencing judge where possible, but for good cause the proceeding may be assigned or transferred to another judge.” (Emphasis added.) Thus, Rule 32.6(d) allows for a Rule 32 petition to be assigned to a judge other than the sentencing or presiding judge, and Gray’s argument to the contrary is meritless.

The State concedes, and we agree, that Gray is entitled to relief on his illegal-sentence claim because the total period of confinement imposed by the trial court exceeded the maximum period of confinement allowed for a sentence of 15 years or less under § 15-18-8. At the time of Gray’s probation revocation, § 15-18-8(a)(l) provided, in pertinent part:

“(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best....”

(Emphasis added.) Section 15-22-54(d)(2), Ala.Code 1975, provides that “[if] the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence.” Thus, “a circuit court has the authority to split a defendant’s sentence after it revokes the defendant’s probation.” Dixon v. State, 912 So.2d 292, 297 (Ala.Crim.App.2005). However, if the court chooses to split a sentence upon revocation, the total length of the confinement portion of the split sentence may not exceed the maximum allowed by § 15-18-8. See, e.g., Phillips v. State, 755 So.2d 63, 65 n. 3 (Ala.Crim.App.1999), and Havis v. State, 710 So.2d 527, 528 (Ala.Crim.App.1997).

In Phillips v. State, 932 So.2d 165 (Ala.Crim.App.2005), this Court addressed an issue similar to the issue presented here:

“Section 15-22-54(d)(2), Ala.Code 1975, provides that if the trial court revokes probation, it may, after a hearing, impose the original sentence that had been suspended or any lesser sentence. In the instant case, Phillips was sentenced under § 15-18-8, Ala.Code 1975, the Split Sentence Act. Pursuant to our recent decision in Dixon v. State, 912 So.2d 292 (Ala.Crim.App.2005), Phillips’s period of confinement could not exceed 3 years — the maximum set forth in § 15-18-8(a)(l) where the sentence imposed is not more than 15 years. See Phillips v. State, 755 So.2d 63 (Ala.Crim.App.1999); Havis v. State, 710 So.2d 527 (Ala.Crim.App.1998). Because the trial court’s revocation order imposing an additional three-year term of imprisonment for each felony conviction neglected to take into consideration the time Phillips had already served, the total period of confinement ordered exceeded the three-year maximum allowed under § 15-18-8(a)(l), Ala.Code 1975. Dixon v. State, 912 So.2d at 299. Therefore, Phillips must be resentenced.”

932 So.2d at 167 (footnote omitted).

Here, the five-year period of confinement imposed on Gray upon revocation of his probation exceeded the maximum three-year period of confinement allowed by § 15-18-8 and, although the court credited Gray with 7 months and 19 days of confinement, it appears that Gray had actually served 9 months in confinement (3 months of confinement imposed at the original sentencing and 6 months of confinement imposed upon the first revocation of Gray’s probation), and the sentence still left Gray with over 4 years of confinement to serve. Thus, the additional five years of confinement imposed upon revocation of Gray’s probation resulted in an illegal sentence, and Gray is entitled to be resen-tenced.

Based on the foregoing, we remand this case for the circuit court to grant that portion of Gray’s petition challenging the sentence imposed upon revocation of his probation, to vacate that sentence, and to resentence Gray in accordance with this opinion. In resentencing Gray, the court may either (1) impose an additional period of confinement on Gray’s split sentence, so long as the total period of confinement (including the period Gray has already served) does not exceed the three-year maximum set forth in § 15-18-8(a)(1), or (2) impose the original sentence that had been suspended. See § 15—22—54(d)(2). Return to remand shall be filed with this Court within 42 days of the release of this opinion and shall include a transcript of the remand proceedings conducted by the circuit court.

REMANDED WITH DIRECTIONS.

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

      . Although not entirely clear, it appears that Gray originally filed his petition in April 2005 and that that petition was denied by the circuit court on April 21, 2005. Gray then refiled the same petition on July 14, 2005. It is from the denial of the July 14, 2005, petition that Gray now appeals.

      . Gray also checked the following grounds for relief on the Rule 32 form: that his conviction was obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to him and that he had been denied the effective assistance of counsel. However, Gray does not pursue these claims on appeal. Therefore, we will not consider them. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) (“We will not review issues not listed and argued in brief.”).

      . Section 15-18-8 was amended effective October 1, 2005.

      . We note that Gray also argues for the first time on appeal that the trial court erred in imposing a split sentence upon revocation of his probation without first obtaining his consent. "An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.” Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997). Because this claim was not included in Gray's petition, it is not properly before this Court for review. Moreover, even if this claim were properly before us, we would find it meritless because a defendant does not have the right to reject a split sentence imposed after revocation of probation. See Dixon, supra.