author: SMITH, Justice.

text:
    Ex parte TOWN OF LOWNDESBORO and Lee Frazer. (In re Alabama Department of Environmental Management v. Town of Lowndesboro and Lee Frazer).
    1041071.
    Supreme Court of Alabama.
    May 12, 2006.
    Rehearing Denied Aug. 25, 2006.

      J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery, for petitioners.
    Troy King, atty. gen.; Scott L. Rouse, asst. atty. gen.; and Olivia H. Rowell and Paul Christian Sasser, asst, attys. gen., Department of Environmental Management.
   SMITH, Justice.

The plaintiffs below, the Town of Lowndesboro and Lee Frazer (hereinafter “the petitioners”), were awarded “interim” attorney fees and expenses in their declaratory-judgment action against the Alabama Department of Environmental Management (“ADEM”). The petitioners’ declaratory-judgment action arose out of ADEM’s approval of the construction of a landfill in Lowndes County. ADEM appealed the trial court’s order, and the Court of Civil Appeals reversed the trial court’s decision. Lowndesboro and Frazer then petitioned this Court for certiora-ri review. We granted the petition, and we now affirm the judgment of the Court of Civil Appeals.

Facts and Procedural History

In 1998, Alabama Disposal Solutions-Landfill, L.L.C. (“ADSL”), a waste-disposal company, entered into an agreement •with the Lowndes County Commission pursuant to which ADSL would operate a solid-waste landfill in Lowndes County. ADSL petitioned ADEM for a permit to operate the landfill. As part of the permitting process, ADSL was to submit a list of all persons who owned property adjacent to the landfill site. ADSL provided ADEM with such a list; however, Frazer, who owns property adjacent to the site, was not included on the list. ADEM ultimately issued a permit for the landfill. Frazer and the Town of Lowndesboro, however, appealed the issuance of the permit to the Environmental Management Commission (“EMC”), alleging that Frazer had not been given proper notice and that the presence of the landfill violated an ordinance of the Town of Lowndesboro.

In August 2000, while their appeal was pending before the EMC, the petitioners filed a declaratory-judgment action in the Montgomery Circuit Court alleging numerous statutory and regulatory violations' by both ADEM and ADSL, including an allegation that ADEM had failed to adopt a State Solid Waste Management Plan (“State Plan”) as a “final” regulation pursuant to Ala.Code 1975, § 22-27-45.

In November 2000, the circuit court entered an order staying the appeal that was then pending before the EMC. ADEM and ADSL appealed that order, and while the appeal of that order was pending, ADEM adopted a State Plan, and the circuit court lifted the stay. The Court of Civil Appeals thus dismissed the appeal as moot. See Alabama Disposal Solutions-Landfill, L.L.C. v. Town of Lowndesboro, 837 So.2d 292 (Ala.Civ.App.2002). The petitioners then filed a motion for a summary judgment in the declaratory-judgment action, arguing that the notice ADEM had provided to the public and to adjacent landowners was improper. In March 2002, the circuit court entered a summary judgment and declared the landfill permit void.

Shortly before the circuit court entered the summary judgment, the petitioners filed a motion requesting an award of attorney fees against ADEM. This request argued that, as a result of the petitioners’ efforts, ADEM had adopted a State Plan that benefited the citizens of Lowndes County and of the State. The petitioners argued that under the common-benefit doctrine they were entitled to attorney fees, which they alleged totaled $1.6 million. In December 2002, the circuit court entered an order awarding the petitioners $338,618 in interim attorney fees and expenses. ADEM appealed; the Court of Civil Appeals reversed the circuit court’s order, holding that an award of attorney fees and expenses against ADEM violated Ala. Const.1901, § 14. See Alabama Dep’t of Envtl. Mgmt. v. Town of Lowndesboro, 950 So.2d 1180 (Ala.Civ.App.2005). The petitioners then filed with this Court a petition for certiorari review.

Discussion

Article I, § 14, Alabama Constitution of 1901, provides generally that the State is immune from suit: “[T]he State of Alabama shall never be made a defendant in any court of law or equity.” Justice Maddox has previously described the long history of this provision:

“During the early years of our history as a State our rule of state governmental responsibility was directly opposite from what it is today. Our first Constitution provided:
“ ‘The general assembly shall direct, by law, in what manner, and in what courts, suits may be brought against the State.’
“Ala. Const. Art. 6, § 9 (1819).
“The constitutional mandate of 1819 remained unchanged until the Constitution of 1865 was adopted when the provision granting a right to sue the state was changed to read:
“ ‘That suits may be brought against the State, in such manner, and in such courts, as may be by law provided.’
“In 1875, the Legislature repealed all acts granting the right to sue the State, and the Constitution of 1875- contained a provision, that ‘The State of Aabama shall never be made defendant in any court of law or equity.’ Section 15, Const, of Alabama, 1875. Section 14 of the 1901 Constitution is the same as Section 15 of the 1875 Constitution. The adoption of the 1875 Constitution closed the door to litigants who had claims against the State, and the door has remained closed continuously by subsequent constitutional provisions and court decisions interpreting those provisions.
“Section 14 of the Alabama Constitution of 1901 specifically prohibits the State from being made a party defendant in any suit at law or in equity. This Court, construing Section 14, has held almost every conceivable type of suit to be within the constitutional prohibition.”

Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 23, 256 So.2d 281, 282-83 (1971) (footnote omitted).

Section 14 has been described as a “nearly impregnable” and “almost invincible” “wall” that provides the State an unwaivable, absolute immunity from suit any in any court. Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867 (Ala.2004); Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002); and Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994). When an action is one against the State or a State agency, § 14 wholly removes subject-matter jurisdiction from the courts. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003). An action is considered to be against the State “ “when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiffs recovery of money from the [S]tate.’ ” Jones, 895 So.2d at 873 (quoting Shoals Cmty. College v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis added in Jones).

The appellate courts of this State have generally held that an action may be barred by § 14 if it seeks to recover damages or funds from the State treasury. Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 937 So.2d 1018, 1023 (Ala.2006) (“Sovereign immunity bars claims against State agencies on the rationale that a damages award against a State agency would result in a monetary loss to the State treasury.”); Lyons, 858 So.2d at 262 (noting that a party could not bring an action against a State official, because “[s]uch an action impermissibly seeks funds from the State treasury”); Armory Comm’n of Alabama v. Staudt, 388 So.2d 991, 993-94 (Ala.1980) (stating that an action against the Armory Commission of Alabama was barred by § 14 because a judgment against it “would adversely affect the state treasury”); Southall v. Stricos Corp., 275 Ala. 156, 158, 153 So.2d 234, 235 (1963) (holding that § 14 prevents an action against the State when a result favorable to the plaintiff “would directly affect a contract or property right of the State”); and Moody v. University of Alabama, 405 So.2d 714, 717 (Ala.Civ.App.1981) (noting that an action was barred because a result in the plaintiffs favor “could ultimately ‘touch’ the state treasury by requiring the disbursement of state funds”). Additionally, a party may not indirectly sue the State by suing its officers or agents “ “when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.’ Patterson v. Gladwin Corp., 835 So.2d at 142 (quoting State Docks Comm’n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932)) (emphasis added in Patterson).

This case presents an issue of first impression: whether § 14 prohibits an award of attorney fees and expenses against a department or agency of the State of Alabama. The Court of Civil Appeals held that the attorney-fee award in this case did violate § 14:

“We return to the language of the Constitution. Section 14 simply states that ‘the State of Alabama shall never be made a defendant in any court of law or equity.’ We likewise return to the basic principle that an action is one against the State when, among other things, the relief sought will impact the State treasury. ... [W]e conclude that no decision of our Supreme Court stands as precedent for the proposition that the language of § 14 serves to protect the State treasury any differently from an award of attorney fees than from an award of money damages. Qualitatively, the effect on the treasury- — -and ergo the implication for the immunity of the State — would be the same in both cases.
“Corroborating the dispositive import of the basic principle against invasion of the State treasury that underlies our holding today is the recent decision of our Supreme Court in Haley v. Barbour County, [885 So.2d 788 (Ala.2004) ]. Haley involved an action by several counties and sheriffs against the commissioner of the Department of Corrections, in his official capacity, seeking an injunction requiring the commissioner to accept state inmates into Department of Corrections facilities after they had been sentenced, rather than leaving them in county jails. The trial court entered a preliminary injunction against the commissioner that required him ‘to accept a convicted state inmate within 30 days of receiving an inmate’s transcript.’ Haley, 885 So.2d at 785. Thereafter, the counties and sheriffs filed a motion for an order to show cause why the commissioner should not be held in contempt of court, in part, for his alleged violation of the preliminary injunction. The trial court determined that the commissioner had violated its preliminary injunction. It held the commissioner in civil contempt and ordered him to pay monetary sanctions to the counties.

“On appeal, the commissioner argued that the monetary sanctions violated § 14. The Supreme Court held:

“ ‘Section 14 prohibits actions against state officers in their official capacities when those actions are, in effect, actions against the State. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003); Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992). “In determining whether an action against a state officer or employee is, in fact, one against the State, [a] [c]ourt will consider such factors as the nature of the action and the relief sought.” Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989). Such factors include whether “a result favorable to the plaintiff would directly affect a contract or property right of the State,” Mitchell, 598 So.2d at 806, whether the defendant is simply a “conduit” through which the plaintiff seeks recovery of damages from the State, Barnes v. Dale, 530 So.2d 770, 784 (Ala.1988), and whether “a judgment against the officer would directly affect the financial status of the State treasury,” Lyons, 858 So.2d at 261. Moreover, we note that claims against state officers in their official capacity are “functionally equivalent” to claims against the entity they represent. Hinson v. Holt, 776 So.2d 804, 810 (Ala.Civ.App.1998).... In this case, the commissioner represents [the Department of Corrections], which, as a department of the State, is entitled to sovereign immunity. Rodgers v. Hopper, 768 So.2d 963, 968 (Ala.2000) (holding that DOC is entitled to sovereign immunity under § 14, because a judgment against it would be paid from the treasury of the State).
“ ‘The issue presented in this case is whether, in light of § 14, the commissioner, in his official capacity, may be assessed civil sanctions for his failure to comply with the trial court’s injunc-tive orders. The parties are unable to provide this Court with any precedent directly addressing this issue; indeed, this Court has found no caselaw addressing whether § 14 prevents the trial court from assessing contempt sanctions against the State.
“‘It is clear that the particular sanctions in this case “directly affect the financial status of the state treasury.” Lyons, 858 So.2d at 261. While the counties claim that the sanctions punish the commissioner for his contempt and seek to compel compliance with the court’s orders, the effect of the trial court’s order is to impact the treasury and divest it of funds. Section Ik, however, forbids such an assault on the state treasury. See Lyons, 858 So.2d at 261; see also Patterson, 835 So.2d at 142 (holding that § 14 prevents the State from being sued, and a suit against the state “ ‘cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.’” (quoting State Docks Comm’n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932))); and Southall v. Stricos Corp., 275 Ala. 156, 158, 153 So.2d 234, 236 (1963) (holding that an action against an officer was not an action against the State, because the relief sought would not “take away any property of the State, or fasten a lien on it, or interfere with the disposition of funds in the treasury”). Thus, we hold that the trial court’s order assessing against the commissioner in his official capacity monetary sanctions for contempt violates § 14.’
“Haley, 885 So.2d at 788-89 (some emphasis original; some emphasis added; footnotes omitted). See also Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d [867] at 872-73 [(Ala.2004)] (denying a tenured professor’s claim for retrospective monetary relief against the State in conjunction with injunctive relief because the retrospective monetary relief was prohibited by § 14); State v. Pullman-Standard Car, 235 Ala. 493, 179 So. 541 (1938) (holding that § 14 prohibits the awarding of costs against the State as a defendant); cf. State v. Inman, 239 Ala. 348, 359, 195 So. 448, 458 (1940) (opinion on rehearing) (distinguishing between an award of costs against the State, as a defendant, which is ‘against the provisions of [§ 14] of the Constitution,’ and an award of costs against the State when it ‘is a party plaintiff).
“In addition to the straightforward nature of the principle applied in Haley, that case’s significance for our purposes today is further enhanced by two facts. First, the power to punish a party for contempt at issue in Haley is an inherent power of the court. See, e.g., Ex parte Wetzel, 243 Ala. 130, 132, 8 So.2d 824, 825 (1942). Likewise, our courts have held that the equitable exception to the American rule regarding attorney fees upon which Lowndesboro and Frazer base their claim is attributable to the inherent power of the court. See, e.g., Alabama Alcoholic Beverage Control Bd. v. Pelham, 855 So.2d [1070, 1083 (Ala.2003) ] (quoting Ex parte Horn, 718 So.2d [694, 702 (Ala.1998) ]). The Supreme Court’s decision in Haley stands for the proposition that the inherent nature of the trial court’s power does not extend to an invasion of the State treasury in the face of a § 14 challenge.
“Moreover, Lowndesboro and Frazer’s central argument regarding attorney fees is that an attorney-fee award that would otherwise be permissible under our law (i.e., because it falls within one of the recognized exceptions to the American rule), is not barred by § 14 of the Constitution if the underlying claim in connection with which the claim for a fee is made is not barred by § 14. In Haley, however, the underlying claim was not barred by state immunity. That fact did not prevent the Supreme Court from unequivocally ‘drawing the line’ at the plaintiffs’ attempt to extend the State’s vulnerability to suit to a form of relief that would invade the State treasury.”

ADEM v. Lowndesboro, 950 So.2d at 1199-1201.

On appeal, Lowndesboro and Frazer argue that because the underlying action falls within an exception to the bar found in § 14 the award of interim attorney fees and expenses likewise is not barred. This Court has previously noted certain exceptions to § 14:

“[Section] 14 sovereign immunity does not protect State officers and employees under circumstances where a plaintiff alleges that they acted ‘willfully, maliciously, illegally, fraudulently, in bad faith, beyond [their] authority, or under a mistaken interpretation of the law,’ Phillips [v. Thomas, 555 So.2d 81, 83 (Ala.1989) ], nor does it protect them from ‘a suit to compel the performance of a legal duty, a suit to enjoin the enforcement of an unconstitutional law, a suit to compel performance of a ministerial act, or a suit brought under the Declaratory Judgments Act.’ Mitchell [v. Davis, 598 So.2d 801, 806 (Ala.1992) ].”

Ex parte Alabama Dep’t of Transp., 764 So.2d 1263,1268 (Ala.2000).

The petitioners contend that the underlying action, which seeks a declaratory judgment, falls within an exception to § 14. Furthermore, the petitioners cite numerous cases that fell within exceptions to § 14 in which courts have awarded attorney fees against the State. See, e.g., Brown v. State, 565 So.2d 585 (Ala.1990); Slawson v. Alabama Forestry Comm’n, 631 So.2d 953 (Ala.1994); State Dep’t of Human Res. v. Kelly, 623 So.2d 738 (Ala.Civ.App.1993); Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala.1972), reversed in part, Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974); and NAACP v. Allen, 340 F.Supp. 703 (M.D.Ala.1972). Because the underlying action falls within an exception to § 14, the petitioners argue, an award of attorney fees and expenses is also not barred. We disagree.

None of these cases cited by the petitioners actually addresses whether § 14 bars an award of attorney fees against the State. As the Court of Civil Appeals noted:

“ ‘For a case to be stare decisis on a particular point of law, that issue must have been raised in the action, decided by the court, and its decision made part of the opinion of the case; accordingly, a case is not binding precedent on a point of law where the holding is only implicit or assumed in the decision but is not announced.’
“20 Am.Jur.2d Courts § 153 (1995) (footnotes omitted). As our Supreme Court recently observed, ‘[arguments based on what courts do not say, logically speaking, are generally unreliable and should not be favored by the judiciary; this is especially true when the judicia ry is faced with, as we are here, a contrary constitutional mandate.’ Ex parte James, 836 So.2d 813, 818 (Ala.2002) (emphasis added). See also Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (‘ “When questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.” ’ (quoting Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974))); and American Portland Cement Alliance v. Environmental Protection Agency, 101 F.3d 772, 776 (D.C.Cir.1996) (‘That the court has taken jurisdiction in the past does not affect the analysis because jurisdictional issues that were assumed but never expressly decided in prior opinions do not thereby become precedents.’).”

ADEM v. Lowndesboro, 950 So.2d at 1194-95.

None of the cases cited by the petitioners holds that § 14 allows an award of attorney fees and expenses against the State; indeed, this issue, even if raised in those cases, was not decided by the courts and made part of the opinion of the case. Thus, those decisions cannot be binding precedent on the issue.

The petitioners further argue that this Court held in Alabama Alcoholic Beverage Control Board v. City of Pelham, 855 So.2d 1070, 1084 (Ala.2003), that State funds could be used to award attorney fees. We stated in that case: “This Court has held that State funds may be used to award attorney fees to plaintiffs who bestow a common benefit to the named plaintiffs as well as the public. Brown [v. State, 565 So.2d 585, 591-92 (Ala.1990) ].” However, this Court also expressed concern regarding whether an award of attorney fees against the State outside of a federal law permitting such an award was permissible: “Laying to one side concerns over the applicability of Brown to this proceeding where no federally created right to an attorney fee is presented, we must determine whether the City bestowed a common benefit.” 855 So.2d at 1084 (footnote omitted). However, we were not required to address that issue in ABC Board v. Pelham, because we held that the plaintiffs were not otherwise entitled to attorney fees. While we acknowledged in ABC Board v. Pelham that, in the past, attorney fees have been awarded against the State, we went on to note concern as to whether such an award was permissible, and we resolved the case on other grounds. That decision thus does not support the proposition that this Court has approved of an attorney-fee award in the face of § 14; indeed, our decision in that case did not address § 14 at all.

The petitioners also cite State Board of Education v. Waldrop, 840 So.2d 893 (Ala.2002), for the proposition that attorney fees may be awarded against the State in spite of § 14. Again, in that decision this Court held that an award of attorney fees was inappropriate. Therefore, we were not required to address the issue whether § 14 barred such an award, and our opinion is not precedent on that issue.

Additionally, the fact that an action seeks a declaratory judgment and thus purportedly falls within an exception to § 14 does not necessarily open the doors of the State treasury to legal attack. The exception afforded declaratory-judgment actions under § 14 generally applies only when the action seeks “construction of a statute and how it should be applied in a given situation,” Aland v. Graham, 287 Ala. 226, 280, 250 So.2d 677, 679 (1971), and not when an action seeks other relief. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479 (1942) (holding that a declaratory-judgment action that seeks only a declaration to construe the law and direct the parties, and no other relief, does not violate § 14). Section 14 bars an action characterized as a declaratory-judgment action “when it is nothing more than an action for damages.” Lyons, 858 So.2d at 263. As the Court of Civil Appeals noted in Moody v. University of Alabama, 405 So.2d at 717: “[W]hile an action for declaratory judgment against the state or its agencies which seeks the interpretation of a statute is generally not prohibited, ... such an action is prohibited when, as here, a result favorable to the plaintiff would directly affect a contract or property right of the state.” See also Stark v. Troy State Univ., 514 So.2d 46, 50 (Ala.1987) (holding that a declaratory-judgment action seeking to compel officials to perform their legal duties was not barred by § 14; however, a portion of the action seeking compensatory damages could not be maintained); and Unzicker v. State, 346 So.2d 931, 933 (Ala.1977) (holding that a declaratory-judgment action against the State that would affect property in which the State had an interest was barred by § 14).

Although the petitioners’ underlying declaratory-judgment action may not have been barred by § 14, it is clear that an award of interim attorney fees and expenses impacts the State treasury and divests it of funds in the very way forbidden by § 14. Haley v. Barbour County, 885 So.2d 783, 789 (Ala.2004). Therefore, the Court of Civil Appeals correctly held that the award of interim attorney fees was barred.

The petitioners argue that the Court of Civil Appeals’ reliance on Haley was misplaced. Although Haley holds that § 14 forbids the State from being assessed a sanction for contempt, Haley cannot be construed, the petitioners contend, to hold that § 14 bars an award of attorney fees. Specifically, the petitioners note that in Haley the trial court awarded attorney fees against the State, and the State paid those fees. Because this Court, on the appeal from the award of sanctions, did not vacate the attorney-fee award, the petitioners maintain that Haley cannot stand for the proposition that § 14 bars an award for attorney fees. We disagree.

In Haley, funds were appropriated by the legislature to bring the Department of Corrections into compliance with certain orders of the trial court in that case. See Haley, 885 So.2d at 787. Those funds were used in part to pay the plaintiffs’ attorney fees. However, the issue whether § 14 barred the trial court from awarding such fees was not raised, decided, or part of our decision in Haley. Haley thus cannot stand for the proposition that an attorney-fee award against the State is permissible under § 14. Instead, the Court of Civil Appeals held that the general principles of law regarding § 14 found in Haley — which led to the conclusion in that case that contempt sanctions against the State were barred by § 14 — were applicable in the instant case. We see no error in the Court of Civil Appeals’ analysis.

The petitioners further argue that their action “would have been cognizable” under 42 U.S.C. § 1983, and that thus an award of attorney fees in this case is appropriate under 42 U.S.C. § 1988. In support of their argument, the petitioners cite James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala.1997), which states that an award of attorney fees under 42 U.S.C. § 1983 and 42 U.S.C. § 1988 is not barred by § 14: “[T]he doctrine of State sovereign immunity does not bar an award of attorney fees pursuant to §§ 1983 and 1988. Hutto v. Finney, 437 U.S. 678, 693-94, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522 (1978). For these reasons, the trial court did not err in awarding fees pursuant to § 1988.” 713 So.2d at 950.

In James, three plaintiffs were awarded attorney fees in an action against the State. Two plaintiffs were awarded fees under 42 U.S.C. § 1988, and the third, Alabama Coalition for Equity, Inc. (“ACE”), was awarded fees under the “common-fund” theory. 713 So.2d at 947. This Court held that ACE should have been awarded fees under 42 U.S.C. § 1988. Although the trial court did not explicitly award fees under 42 U.S.C. § 1988, we noted that the award could be upheld under the well-settled theory that a correct judgment will not be reversed, even if the trial court gave a wrong reason for its judgment. 713 So.2d at 951. The petitioners urge that this Court construe the award of interim attorney fees and expenses in this case as a permissible award under § 1988, which, they argue, would not be barred by § 14.

The holding of James, however, is inapplicable here. In that case, we held that the plaintiffs’ pleadings invoked 42 U.S.C. § 1983 and 42 U.S.C. § 1988. 713 So.2d at 948. ADEM asserts that in the instant case the petitioners did not allege a cause of action under 42 U.S.C. § 1983 or any other federal law that would allow an award of attorney fees under 42 U.S.C. § 1988. The petitioners do not dispute this assertion, and nothing in the record demonstrates that the instant action was based on 42 U.S.C. § 1983 or 42 U.S.C. § 1988. Therefore, we see no facts or authority that would require the judgment of the Court of Civil Appeals to be reversed on this ground.

The petitioners further argue that if this Court holds that § 14 bars an award of attorney fees and expenses, it should apply this rule prospectively and allow the award in this case to stand. The petitioners contend that applying our ruling retroactively — thus vacating the award in this case — would amount to “changing the rules after the game has been played.” The petitioners, however, cite no authority in their initial brief in support of this argument.

“The United States Supreme Court has suggested consideration of the following factors in choosing whether to apply a judicial decision prospectively:
“ ‘First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, e.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., [392 U.S. 481, 496, 88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231 (1968) ] ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, [393 U.S. 544, 572, 89 S.Ct. 817, 835, 22 L.Ed.2d 1 (1969) ]. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, [381 U.S. 618, 629, 85 S.Ct. 1731, 1737-38, 14 L.Ed.2d 601 (1965) ]. Finally, we have weighed the inequity imposed by retroactive application, for “[wjhere a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroac-tivity.” ’ ”

McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 165 (Ala.1996) (plurality opinion) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)).

As we noted above, there is no “clear past precedent” indicating that an award of attorney fees and expenses against the State is not barred by § 14; thus, we are not required to overrule any prior caselaw. Indeed, as noted above, this case presents an issue of first impression. Moreover, several Justices have previously questioned whether § 14 immunity would bar an attorney-fee award, especially in the absence of a federal law that would arguably override such immunity. State v. Brown, 577 So.2d 1256, 1261 (Ala.1991) (Maddox, J., dissenting) (questioning whether an award of attorney fees against the State was consistent with § 14 and noting that the majority had failed to address that issue); State Bd. of Educ. v. Waldrop, 840 So.2d at 902-03 (Lyons, J., concurring specially) (expressing concern as to whether Brown v. State, 565 So.2d 585 (Ala.1990), which awarded attorney fees against the State, was consistent with § 14); ABC Bd. v. Pelham, 855 So.2d at 1084 n. 7 (noting concerns regarding whether § 14 would bar an award of attorney fees “where no federally created right to an attorney fee is presented”).

Moreover, this Court has declined to give constitutional rulings prospective-only application. In Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 439 (Ala.2001), we noted:

“In general, with regard to civil matters, prospective-only decision-making within the realm of constitutional law is disfavored. ‘Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense.’ American Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 201, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990) (Scalia, J., concurring).
“Even when this Court is not applying a rule of constitutional or statutory law, but is only addressing the effects of decisional law, our strong inclination is to avoid establishing rules that are to be applied prospectively only:
“ ‘Although circumstances occasionally dictate that judicial decisions be applied prospectively only, retroactive application of judgments is overwhelmingly the normal practice. McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156 (Ala.1996) (plurality opinion). “Retroactivity ‘is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law.... It also reflects the declaratory theory of law, ... according to which the courts are understood only to find the law, not to make it.’ ” 687 So.2d 156, quoting James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535-36, 111 S.Ct. 2439, 2443-44, 115 L.Ed.2d 481 (1991).’
“Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 352 (Ala.1997).”

797 So.2d at 439. ADEM, on the other hand, argues that prospective-only application of this case would amount to a waiver of the State’s § 14 immunity, which this Court is without jurisdiction to do.

Because prospective-only application of judgments is disfavored, especially within the realm of constitutional law, our judgment must apply retroactively. Therefore, the award of interim attorney fees and expenses in this case must be vacated.

Conclusion

The judgment of the Court of Civil Appeals is affirmed.

AFFIRMED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

      . "Other non-prohibited actions are inverse condemnation actions brought against State officials in their representative capacity and actions brought against State officials in their representative capacity and individually where it is alleged that they have acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law.” Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983).

      . The Court of Civil Appeals’ opinion thoroughly explains why the authority cited by the petitioners does not hold that attorney fees against the State are permissible under § 14, and we see no need to repeat that analysis here. See ADEM v. Lowndesboro, 950 So.2d at 1191. Additionally, neither Wyatt v. Stickney nor NAACP v. Allen, which were not discussed in the Court of Civil Appeals' decision, hold that § 14 does not bar an award of attorney fees.

      . Brown v. State was followed by State v. Brown, 577 So.2d 1256 (Ala. 1991), in which Justice Maddox, in a dissent, questioned whether an award of attorney fees against the State was consistent with § 14. 577 So.2d at 1261.

      . Moreover, Justice Lyons noted in his special concurrence in Waldrop that the plaintiff asserted his claims under the Civil Rights Act, 42 U.S.C. § 1981 et seq., and that 42 U.S.C. § 1988 could allow the recovery of attorney fees, regardless of any State constitutional provision affording immunity. Thus, Justice Lyons noted, "The question whether the liability of the State for payment of an attorney fee as recognized in Brown v. State[, 565 So.2d 585 (Ala.1990),] is properly confined to cases arising under statutes such as 42 U.S.C. § 1988 must await another day.” 840 So.2d at 903.

      . In State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 633, 11 So.2d 342, 345 (1943), superseded, in part, on other grounds, Ala.Code 1940, tit. 7, § 167 (now Ala.Code 1975, § 6-6-221), we further explained why a declaratory-judgment action is not barred by § 14:
      "But we have held that when an officer of the State is confronted with an uncertain problem of what the law means which requires certain acts on his part, or whether the law is valid, and he proposes to pursue a certain course of conduct in that connection, which would injuriously affect the interests of others who contend that he has no legal right thus to act, there is thereby created a controversy between them and the Declaratory Judgments Act furnishes a remedy for either party against the other to declare the correct status of the law. The purpose is to settle a controversy between individuals, though some of them may be State officers.”
      See also Thurlow v. Berry, 247 Ala. 631, 639, 25 So.2d 726, 733 (1946) ("This court has declared the rule to be that when a suit against a state official seeks a declaration of applicable principles of law to a certain status and direction of the parties in the premises, it does not infringe Section 14, Constitution, or violate sovereign immunity.”).

      .We express no opinion as to whether the underlying action is permissible under § 14, because the record before us is insufficient to allow such a determination.

      . 42 U.S.C. § 1983 provides, in pertinent part:
      “Eveiy person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...”

      . 42 U.S.C. § 1988(b), provides, in pertinent part: "In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs....” (Emphasis added.)


source: Caselaw Access Project

author:
PER CURIAM.
      BASCHAB, Judge,

license: Public Domain

text:
    Ex parte Morgan Tillman VANDIVER. (In re State of Alabama v. Morgan Tillman Vandiver).
    CR-05-1511.
    Court of Criminal Appeals of Alabama.
    Aug. 18, 2006.
    Brian Hamilton, Russellville, for petitioner.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Morgan Tillman Vandi-ver, filed this petition for a writ of mandamus directing Judge Sharon H. Hester to recuse herself from presiding over his trial. Vandiver was charged with the unlawful manufacture of controlled substances, possession of drug paraphernalia, and possession of a controlled substance.

The exhibits filed with the mandamus petition show that on December 5, 2005, Vandiver was transported from the Limestone Correctional Facility for a pretrial hearing on the three charges against him. At the hearing Vandiver physically assaulted an individual who was seated in the courtroom. Judge Hester held Vandiver in contempt of court and sent a letter to the Alabama Department of Corrections (“DOC”) detailing Vandiver’s actions and requesting that Vandiver’s custody classification be increased. Vandiver moved that Judge Hester recuse herself from hearing his case because, he argued, she had demonstrated a bias against him by her actions in writing to DOC and requesting that his custody classification be increased to the highest level. Judge Hester denied the motion; this petition for a writ of mandamus followed. Vandiver’s trial was scheduled for June 12, 2006, but was continued by the circuit court.

Vandiver argues that Judge Hester has shown a bias against him and therefore should recuse herself from presiding over his cases. He further argues that as a result of Judge Hester’s letter to DOC he was disciplined for violating a disciplinary rule of conduct and was placed on 45 days of disciplinary segregation. He cites Ex parte Eubank, 871 So.2d 862 (Ala.Crim.App.2003), in support of his assertions.

The State asserts that the circuit court correctly denied Vandiver’s motion to re-cuse because there was no showing of an extrajudicial bias that would warrant her recusal. It further argues that Ex parte Eubank is distinguishable from this case.

Canon 3.C.(1), Alabama Canons of Judicial Ethics, governs when a judge is required to recuse himself or herself from hearing a case. The Canon states, in part:

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

In Ex parte Duncan, 638 So.2d 1332 (Ala.1994), the Alabama Supreme Court stated the following concerning Canon 3. C. (1):

“Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when ‘facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.’ Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982). Specifically, the Canon 3(C) test is: “Would a person of ordinary prudence in the judge’s position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge’s impartiality?’ Matter of Sheffield, 465 So.2d 350, 356 (Ala.1984). The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality— whether there is an appearance of impropriety. Id. See Ex parte Balogun, 516 So.2d 606 (Ala.1987); see, also, Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983).”

638 So.2d at 1334. We held in Ex parte Fowler, 863 So.2d 1136, 1140 (Ala.Crim.App.2001), that “[a] situation where the impartiality of a judge might reasonably be questioned may not always involve direct personal bias on the part of the judge.”

In Ex parte Eubank, the petitioner challenged the circuit court’s ruling denying his motion to recuse after the circuit court filed a complaint against the petitioner, who happened to be an attorney, with the Alabama State Bar. In Eubank we granted the writ and directed the circuit judge to recuse herself from the case. We stated:

“Eubank argues that Judge Bahakel should recuse herself because, he argues, the fact that she filed a complaint against him with the Alabama State Bar shows that she is biased against him. Eubank cites Ex parte Rollins, 495 So.2d 636 (Ala.1986), in support of this contention. The State asserts that Eu-bank has failed to show that Judge Ba-hakel is biased against him and that Rollins is distinguishable from the present case.
“Canon 3.C.(1), Alabama Canons of Judicial Ethics, states:
“ ‘(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
‘(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.’
“In Rollins, the Alabama Supreme Court addressed the issue whether a trial judge should recuse himself after the judge filed a complaint against Rollins’s attorney with the Alabama State Bar alleging perjury, political vindictiveness, and unfitness to practice law. The Court noted that it appeared that the trial court still had negative feelings against the attorney even though the complaint was filed over two years earlier and the Alabama State Bar had dismissed the complaint. The Court found that Rollins had established that the trial judge was biased and should recuse. The Rollins Court did not specifically address whether the filing of a complaint with the State Bar against an attorney representing a client is sufficient, by itself, to mandate recusal. Neither has our research revealed any other case addressing this issue.
“Eubank has attached a copy of the letter Judge Bahakel sent to the Alabama State Bar. The letter states that Eubank continues to drink, that he is impaired, that he is a danger to himself and to the community, and that he should be suspended from practicing law. Eubank is facing charges of felony DUI — he is not the attorney representing a defendant but the defendant himself. Therefore, we believe that the facts of this case raise an even stronger inference of bias than was presented in Rollins.”

871 So.2d at 864-65. The facts in Ex parte Eubank and Ex parte Rollins, 495 So.2d 636 (Ala.1986), are clearly distinguishable from the facts presented in this case.

Judge Hester stated the following in her letter to DOC:

“The referenced individual, Morgan Tillman Vandiver, was transported to Franklin County, Alabama for purposes of a pretrial conference on December 05, 2005. While in open Court, in the presence of myself, as the presiding Circuit Judge, and remaining Court personnel, Mr. Vandiver physically attacked another individual seated in the Courtroom. Mr. Vandiver failed to cease and desist when instructed to do so by the Court and was required to be physically restrained by the Franklin County Jail Administrator.
“Mr. Vandiver’s explanation that the individual he assaulted had physically mistreated his wife, or other members of his family, does not provide justification for such contempt. [Mr. Vandiver] was immediately held in contempt of Court and as result of that contempt, I am requesting that his classification be increased to the maximum allowed under DOC regulations. Clearly, such action can not be tolerated by any individual, much less a State Inmate.
“I would greatly appreciate you forwarding to me a copy of any disciplinary reports generated as a result of this reported situation. If I can answer any questions or provide any additional information, please do not hesitate to call.”

Judge Hester informed DOC of Vandiver’s dangerous propensities based on his assaultive behavior while he was in her courtroom. Judicial bias, i.e., bias arising out of the judicial proceedings, such as that suggested by the actions of the trial judge here, without more, is generally insufficient, to require recusal under Canon 3.C.(1), Alabama Canons of Judicial Ethics. See, e.g., Ex parte Duncan, supra; and Ex parte Large, 501 So.2d 1208 (Ala.1986). In this case there has been no showing of an extrajudicial bias.

The United States Supreme Court in Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), held that knowledge gained though court proceedings is not sufficient, in itself, to support a claim of bias. The Court stated:

“The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task. As Judge Jerome Frank pithily put it: ‘Impartiality is not gullibility. Disinterestedness does not mean childlike innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.’ In re J.P. Linahan, Inc., 138 F.2d 650, 654 (C.A.2 1943). Also not subject to deprecatory characterization as ‘bias’ or ‘prejudice’ are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.”

510 U.S. at 550-51,114 S.Ct. 1147.

In order for a writ of mandamus to issue, the petitioner must establish: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court. State v. Williams, 679 So.2d 275 (Ala.Crim.App.1996). Vandiver has failed to show any extrajudicial bias on the part of Judge Hester; therefore, Van-diver has failed to satisfy the requirements for the issuance of a writ of mandamus. This petition is due to be denied.

PETITION DENIED.

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

BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

In this case, Judge Hester certainly had an interest in making sure that there was not any misbehavior in her courtroom. After Vandiver committed an assault in her courtroom, she acted properly in holding him in contempt of court and in reporting the incident to corrections officials. However, when she requested that corrections officials increase Vandiver’s custody classification, she stepped outside of her judicial role and exhibited what a reasonable person might perceive as bias against Vandiver. See Canon 3.C.(1), Alabama Canons of Judicial Ethics.

“We do not question [the judge’s] impartiality; indeed, we know that she is a fine jurist; however, the question is not whether [the appellant] has shown that [the judge] is biased, but whether there is an appearance of impropriety. See [Ex parte] Fowler, [863 So.2d 1136 (Ala.Crim.App.2001)]. ‘The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality— whether there is an appearance of impropriety.’ Duncan [v. State], 638 So.2d [1332,] 1334 [ (Ala.1994) ]. Based on the [record before us], we must answer this question in the affirmative.”

Ex parte Atchley, 951 So.2d 764, 769 (Ala.Crim.App.2006). Therefore, she should have recused from this case, and we should grant Vandiver’s petition for a writ of mandamus. Accordingly, I respectfully dissent.


author: PER CURIAM. SHAW, Judge, WISE, Judge

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Franklin E. HERRING).
    CR-05-1201.
    Court of Criminal Appeals of Alabama.
    Aug. 18, 2006.
    William H. Filmore, chief asst, district atty., Ozark, for petitioner.
    Jeffery D. Hatcher, Geneva, for respondent.
   PER CURIAM.

PETITION DENIED.

McMILLAN, P.J., and COBB, J., concur.

SHAW, J., concurs specially, with opinion, which BASCHAB, J., joins.

WISE, J., dissents, with opinion.

SHAW, Judge,

concurring specially.

I agree with the majority’s conclusion that the trial court had jurisdiction to rule on Franklin E. Herring’s request for an appeal bond and, therefore, that the writ of prohibition should not issue. I write specially only to address the dissent and thereby to provide another perspective should the Alabama Supreme Court have the opportunity to review this issue.

Relying on the general rule that jurisdiction of one case cannot be in two courts at the same time, see the cases collected at 2 Ala. Digest 2d, Appeal and Error § 436 (1993), the dissent adopts the State’s argument that a defendant’s act of filing a notice of appeal, even when done concurrently with a request for an appeal bond, as specifically required by Rule 7.2(c)(2)®, Ala. R.Crim. P., deprives the trial court of jurisdiction to rule on the request for an appeal bond. I believe that such a holding by this Court would be contrary to the plain language of Rule 7.2(c)(2) and the expression of intent set out in the committee comments to that rule. Rule 7.2(c)(2) provides:

“(2) Any defendant who has been convicted of an offense for which the defendant has been sentenced to a term of imprisonment for twenty (20) years or less may be released on a secured appearance bond or on the defendant’s personal recognizance,
“(i) Upon application for release made concurrently with the filing of a notice of appeal, or
“(ii) If the application for probation is made, upon application for release made at any time before probation has been granted or denied.”

(Emphasis added.) The Committee Comments to Amendment to Rule 7.2 effective April 1,1995, in pertinent part, state:

“Section (c) recognizes that after conviction the defendant is no longer presumed innocent and is not entitled to admission to bail as a matter of right. If a defendant’s sentence is for twenty (20) years or less, the defendant can be admitted to bail, in the judge’s discretion, unless the judge has reason to believe that bail will not reasonably assure that the defendant will not flee, or has reason to believe that there is a real and present danger to others posed by the defendant’s being at large. Thus, Section (c) modifies Ala.Code 1975, § 12-22-170, which unconditionally allowed bail if the sentence did not exceed twenty (20) years.
“Under Rule 7.2(c)(2)®, a convicted defendant may apply for release on an appearance bond or on the defendant’s personal recognizance at the time of filing a notice of appeal. This changes former practice, whereby application for release had to be made with the filing of a notice of appeal at the time the sentence was rendered (i.e., when the sentence was pronounced); that former practice presented an unduly restrictive, unfair, and technical trap for the unwary practitioner. See Ex parte Doumer, 44 Ala.App. 77, 203 So.2d 132 (1967); Ex parte Rogers, 53 Ala.App. 245, 298 So.2d 665 (1974); Ex parte Pennington, 57 Ala.App. 128, 326 So.2d 656 (1976). For ‘Appeal as of Right — When Taken,’ see A.R.App.P., Rule 4(b). Cf. Fed.R.Crim. P., Rule 46(c).
“Rule 7.2(c)(2) allows some discretion to the trial judge in releasing the defendant on bail or on the defendant’s personal recognizance. If the defendant initially files a notice of appeal when the sentence is pronounced, but elects to waive release and to begin serving the sentence, and thereafter requests that the sentence be suspended, whether to grant bail is left to the discretion of the trial court. There are no cases on this point, and there has been some question whether the trial court retains jurisdiction over the defendant, since the defendant will have already begun serving the sentence. However, it is preferable that the trial court make the release decision, since that court is more familiar with the case, the record is usually still with the trial court, and any witnesses would be more readily available to that court.”

(Emphasis added.)

Rule 7.2(c)(2)© states that a defendant should file an application for release concurrently with the filing of the notice of appeal. The rule also clearly contemplates that the trial court will have a reasonable amount of time to rule on the bond request and to hold a hearing if one is needed, so that it may consider the relevant factors discussed in Rule 7.2(a). Here, Herring moved for an order fixing bond on appeal concurrently with the filing of his notice of appeal, as required by Rule 7.2(c)(2)©. As I read Rule 7.2(c)(2), the trial court had the authority to rule on that motion. In my view, a contrary holding would eliminate any field of operation for Rule 7.2(c)(2)® in a case like this one where no request for probation was made, because it would effectively preclude the trial court from ruling on a bond request filed concurrently with the notice of appeal.

Rule 7.2(c)(2)(ii), Ala. R.Crim. P., does state that a judge may entertain a request for an appeal bond if the request is made “at any time before probation has been granted or denied.” The dissent concludes that in a case where probation is not requested, because probation may only be granted before the execution of a sentence has begun, a request for an appeal bond may also only be granted before the execution of a sentence has begun. However, Rule 7.2(e)(2)(ii) requires only that a bond request be made before the trial court has ruled on a request for probation, i.e., before the execution of a sentence has begun. The rule does not specify or imply any time period within which the circuit court must dispose of a request for an appeal bond. Furthermore, as the dissent implicitly acknowledges, Rule 7.2(c)(2)(ii) contemplates that, because an application for probation following sentencing does not toll the time requirements of Rule 4(b), Ala. R.App. P., for filing the notice of appeal, see, e.g., Ex parte Gamble, 413 So.2d 404 (Ala.Crim.App.1982); and Woods v. State, 371 So.2d 944 (Ala.1979), a motion for an appeal bond may be filed with the circuit court after the notice of appeal is filed, provided the motion is filed before the application for probation is ruled on.

Therefore, both Rule 7.2(c)(2)(i) and (ii) contemplate that, even though a case may be in an appealable posture, and, in fact, a notice of appeal may have been filed, the trial court will retain limited jurisdiction to dispose of a motion for an appeal bond. This is consistent with the general rule, which has been stated many times, that when an appeal is taken the trial court can do nothing with respect to any matter or question that is involved in the appeal and that may be adjudged by the appellate court; however, as an exception to the general rule, it is also recognized that the trial court may proceed in matters entirely collateral to that part of the case which has been taken up by the appeal. This statement of the rule is an application of the general rule that jurisdiction of a case can be in only one court at a time. See, e.g., McKinney v. State, 549 So.2d 166 (Ala.Crim.App.1989); Reeves v. State, 419 So.2d 217 (Ala.1982); Osborn v. Riley, 331 So.2d 268 (Ala.1976); Reynolds v. Colonial Bank, 874 So.2d 497 (Ala.2003). When it approved Rule 7.2, the Alabama Supreme Court was certainly aware of the jurisdictional implications of the filing of a notice of appeal. The logical effect of Rule 7.2(c)(2), I think, is that the trial court retains limited jurisdiction to rule on a collateral request for an appeal bond subsequent to the filing of a notice of appeal. Therefore, to me, Rule 7.2(c)(2) is consistent with the general rule that jurisdiction of a case can be in only one court at a time. It concerns me that failing to treat a motion for an appeal bond as a collateral matter over which the trial court retains limited jurisdiction after the case is appealed would have the unintended consequence of either shifting the responsibility for appeal bond determinations to this Court (something which this Court is ill-equipped to handle) or requiring this Court to remand certain cases to the trial courts for rulings on motions to set, or revoke, appeal bonds. As the committee comments to Rule 7.2 note, it is preferable that the trial courts make the decision whether to release the defendant pending appeal. I believe that this Court’s interpretation of Rule 7.2 is consistent with the Alabama Supreme Court’s admonition in Rule 1.2, Ala. R.Crim. P., that the Rules of Criminal Procedure “shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare.”

BASCHAB, J., concurs.

WISE, Judge

(dissenting).

I respectfully dissent from this Court’s denial of the State’s petition for a writ of prohibition directing Judge Charles W. Fleming to set aside his order allowing Franklin E. Herring to be released on bond pending the outcome of his appeal to this Court.

In June 2005, Herring was convicted of manslaughter; he was sentenced in August 2005 to 11 years in the state penitentiary. On August 24, 2005, Herring filed a timely motion for a new trial. The motion was deemed denied by operation of law on October 3, 2005. See Rule 24.4, Ala.R.Crim.P. Herring filed a timely notice of appeal on November 1, 2005. Filed concurrently with the notice of appeal was a request that Herring be released on bond during the pendency of his appeal to this Court.

On March 23, 2006, the circuit court held a hearing on Herring’s request for an appeal bond and ordered that Herring be released. The district attorney then filed this petition for a writ of prohibition requesting that we direct Judge Fleming to set aside his March 23, 2006, order.

Section 12-22-170, Ala.Code 1975, states:

“When any question of law is reserved in case of a felony and it shall be made known to the court that the defendant desires to take an appeal to the appropriate appellate court, judgment must be entered against the defendant, but execution thereof must be stayed pending the appeal and the defendant held in custody. If the sentence is for a term not exceeding 20 years, the judge must direct the clerk of the court in which the conviction is had to admit the defendant to bail in a sum to be fixed by the judge, with sufficient surety, conditioned upon his appearance at the court, from time to time thereafter, as fixed by the court to abide such judgment as may be entered on the appeal. All proceedings for forfeiture of bail and arrest under this section shall be had and conducted as is otherwise provided in this code for such proceedings.”

After the codification of § 12-22-170, Ala. Code 1975, the Alabama Supreme Court adopted Rule 7.2(c), Ala.R.Crim.P., which became effective January 1, 1991. Rule 7.2(c), Ala.R.Crim.P., states:

“(1) A defendant who has been convicted of an offense and who for that offense has been sentenced to punishment by death, by life imprisonment, or by imprisonment for a term in excess of twenty (20) years, shall not be released.
“(2) Any defendant who has been convicted of an offense for which the defendant has been sentenced to a term of imprisonment for twenty (20) years or less may be released on a secured appearance bond or on the defendant’s personal recognizance,
“(i) Upon application for release made concurrently with the filing of a notice of appeal, or
“(ii) If the application for probation is made, upon application for release made at any time before probation has been granted or denied.”

Under current Alabama law there is no absolute right to bail after conviction. Rule 7.2, Ala.R.Crim.P., as applied to all defendants by Rule 1.5, Ala.R.Crim.P., superseded both Rule 9(b), Ala.R.App.P., and § 12-22-170, Ala.Code 1975.

Rule 7.2, Ala.R.Crim.P., requires that the request for bail on appeal be made contemporaneously with the filing of a notice of appeal. # Here, Herring requested bail when he filed his notice of appeal; therefore, Herring complied with Rule 7.2(i), Ala.R.Crim.P. However, no action was taken on the appeal-bond request until almost five months after the notice of appeal had been filed. Although Rule 7.2, Ala.R.Crim.P., states that a motion for an appeal bond must be filed concurrently with the notice of appeal, the Rule does not provide a specific time within which a circuit court must dispose of a motion for an appeal bond. However, Rule 7.2(2)(ii), Ala.R.Crim.P., does state that a judge may entertain a request for an appeal bond if the request is made “at any time before probation has been granted or denied.” The Alabama Supreme Court has stated that probation may be granted at any time before the execution of a sentence has begun. See State v. Green, 436 So.2d 803 (Ala.1983). See also United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928).

Based on my reading of Rule 7.2, Ala. R.Crim.P., in its entirety, I believe that the Supreme Court intended that the latest point at which a circuit court may consider a request for an appeal bond is when probation is either granted or denied or when a court’s authority to grant or deny probation has expired.

In this case, there was no request for probation. Herring was transported to a state penitentiary to begin serving his sentence after his sentence was pronounced in August 2005. According to my interpretation of Rule 7.2, Ala. R.Crim. P., Judge Fleming violated 7.2(2)(ii), by disposing of the motion for an appeal bond some five months after Herring had commenced serving his sentence.

I believe that this interpretation is in keeping with prior caselaw that addresses the effect of § 12-22-133, Ala.Code 1975. Section 12-22-133, addresses the limited jurisdiction of a lower court once a notice of appeal has been filed. This section states:

“Where an appeal is taken from the judgment of any municipal, district or circuit court in criminal cases, the trial court retains jurisdiction for the purpose of granting a motion for a new trial and also retains jurisdiction for the purpose of enforcing its judgment where the appeal is dismissed before the judgment of the appellate court is entered.”

When construing the application of § 12-22-133, Ala.Code 1975, this Court in McKinney v. State, 549 So.2d 166 (Ala.Crim.App.1989), stated:

“ ‘The rule has been stated many times that when an appeal is taken the trial court may proceed only in matters entirely collateral to that part of the case which has been taken up by the appeal, but can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.... This is an application of the general rule that jurisdiction of a case can be in only one court at a time.’ Foster v. Greer & Sons, Inc., 446 So.2d 605, 608 (Ala.1984) (citations to authority omitted); Sunshine Homes, Inc. v. Newton, 443 So.2d 921, 924 (Ala.1983). ‘After an appeal is taken, the court whence it came loses control of the subject matter or question in the case made the subject of the order, judgment, or decree from which the appeal is taken. Action in said cause should be suspended in the trial court until the appeal is effectively abandoned, dismissed, or decided.’ Lewis v. Martin, 210 Ala. 401, 409, 98 So. 685 (1923); Ex parte Pugh, 441 So.2d 126, 127 (Ala.1983). ‘The basic principle is that a case should not be pending in a lower and an appellate court at the same time.’ Walker v. Alabama Public Service Commission, 292 Ala. 548, 552, 297 So.2d 370 (1974).
“The only exceptions to this rule, with regard to criminal cases, are found in Ala.Code 1975, § 12-22-133:
“ “Where an appeal is taken from the judgment of any municipal, district, or circuit court in criminal cases, the trial court retains jurisdiction for the purpose of granting a motion for a new trial and also retains jurisdiction for the purpose of enforcing its judgment where the appeal is dismissed before the judgment of the appellate court is entered.’
“Cf Ex parte Andrews, 520 So.2d 507, 510 (Ala.1987) (in a civil case, ‘a notice of appeal filed within 30 days of judgment does not divest the trial court of jurisdiction to receive [timely filed] post-judgment motions to alter, amend, or vacate ... and to rule thereon’).
“Obviously, the appeal was not dismissed. Here, the appeal was from the denial of a petition for writ of error coram nobis and there was no motion for new trial. See Osborn v. Riley, 331 So.2d 268, 271 (Ala.1976). ‘In the absence of express statutory provisions, when an appeal is taken and perfected from the judgment of any court to a higher court, the jurisdiction vests at once in the higher court and such appeal divests the court from which it is taken of all jurisdiction.’ Green v. State, 21 Ala.App. 201, 203, 106 So. 683 (1925). See Pratte v. State, 465 So.2d 483, 484 (Ala.Cr.App.1985) (‘[T]he second sentencing of appellant by the trial court during the time this court had exclusive jurisdiction of the case [after the, sentence had been reversed and while the appeal was pending on rehearing], and before the final decision of this court was a nullity .... was invalid and void.’). See also State v. Williams, 19 Ala.App. 597, 99 So. 660 (1923) (After a defendant has appealed, the circuit court is ‘without jurisdiction to grant and fix bail under § 12-22-170, since, if the defendant has any rights under that section, he must proceed in the appellate court and not the circuit court.’)', De Bardeleben v. State, 16 Ala.App. 367, 369, 77 So. 979 (1918) (same); Ex parte Alabama State Bar, 285 Ala. 191, 194, 230 So.2d 519 (1970) (‘While the appeal suspends the execution of the sentence of the criminal court pending appeal, ... the matter of the conviction remains and continues to exist.’) Brown v. State, 250 Ala. 444, 447, 35 So.2d 518 (1948) (We think the petition to the circuit court for the writ [of error coram nobis] was properly dismissed because that court had no jurisdiction to hear it while the appeal [of the conviction] was pending and undisposed of, ... If that [circuit] court had no jurisdiction of the subject matter at that time, the dismissal was not erroneous.’).
“ ‘The general rule is that an appeal ..., when duly perfected, divests the trial court of jurisdiction of the cause and transfers such jurisdiction to the appellate court where it remains until the appellate proceeding terminates and the trial court retains jurisdiction.’ 4 Am.Jur.2d Appeal and Error § 352 (1962). See State ex rel. Attorney General v. Brewer, 19 Ala.App. 330, 331, 97 So. 777, cert. denied, 210 Ala. 229, 97 So. 778 (1923) (‘After an appeal was taken by defendant in the manner provided for by the statute, jurisdiction was transferred from the circuit court to this court, and the trial court was without authority to entertain the motion for new trial.... The action of the court in granting a new trial after the cause had been removed to the Court of Appeals was void.’).
“A court’s lack of subject-matter jurisdiction is fundamental, cannot be waived, and may be raised at any time. Ex parte City of Dothan, 501 So.2d 1136, 1139 (Ala.1986). See also Rule 16.2(d), A.R.Cr.P.Temp.”

549 So.2d at 167-68 (emphasis added; footnotes omitted).

In State v. Taylor, 681 So.2d 278 (Ala.Crim.App.1996), the attorney general filed a petition for a writ of mandamus directing the lower court to vacate its order staying execution of Taylor’s sentence. The motion was filed after this Court had affirmed Taylor’s conviction and while the case was pending on certiorari review before the United States Supreme Court. This Court, when granting the attorney general’s petition for a writ of mandamus, cited § 12-22-133, Ala.Code 1975, and stated:

“A further explanation of the trial court’s limited jurisdiction while a case is pending appeal is contained in the following excerpt from Corpus Juris Secundum:
“ ‘After jurisdiction has been transferred by the perfection of the proceedings for appellate review, the respective powers of the appellate and lower court are largely determined by the statutes regulating appellate matters in the particular jurisdiction. Usually, however, the transfer of jurisdiction gives to the appellate court the exclusive power and authority over the cause, action, or subject matter of the appellate proceeding, and the authority of the lower court with reference thereto is suspended so that it cannot proceed with the case until the appellate proceeding is heard and determined and the remittitur or mandate is regularly returned and entered on the records.
“ ‘Not only does the appellate court acquire jurisdiction in all matters pertaining to the subject matter of the appeal or writ of error itself and to the proper hearing thereof, but also with respect to all applications which, by statute, may, after the taking of the appeal ... be made to such court; and, when its jurisdiction has attached, it may permit the subsequent performance of any act to perfect the appeal which is not essential to its jurisdiction and which was unintentionally omitted.
“ ‘After jurisdiction has been transferred the lower court cannot proceed in any manner so as to affect the jurisdiction acquired by the appellate court, or defeat the right of appellant or plaintiff in error to prosecute his appeal or writ of error with effect....
“ ‘... Unauthorized proceedings in the lower court, after jurisdiction has been acquired by the appellate court, are generally held to be void ... ’
“4A C.J.S. § 607. See also 4 Am.Jur.2d Appeal and Error § 352 (1962).
“As stated above, Alabama’s § 12-22-133, Code of Alabama 1975, states that the trial court retains jurisdiction to grant a motion for a new trial and to enforce its judgment where the appeal is dismissed before the judgment of the appellate court is entered. This section clearly implies that the trial court retains no other jurisdiction of the case during the appeals process.”

681 So.2d at 279.

In this case, Herring was sentenced on August 2, 2005, and filed a timely motion for a new trial on August 24, 2005. According to Rule 24.4, Ala.R.Crim.P., the motion was deemed denied by operation of law on October 3, 2005 — 60 days after the date of sentencing. The notice of appeal was timely filed on November 1, 2005. Because the motion for new trial had already been disposed of when the notice of appeal was filed, jurisdiction of the case was placed exclusively in this Court on November 1, 2005 — the date on which Herring filed the notice of appeal. “The general rule is that jurisdiction of one case cannot be in two courts at the same time. McKinney v. State, 549 So.2d 166 (Ala.Cr.App.1989).” Ex parte Hargett, 772 So.2d 481, 483 (Ala.Crim.App.1999). Therefore, in my opinion Judge Fleming had no jurisdiction to order Herring’s release after jurisdiction of this case was exclusively with this Court.

Furthermore, Herring had commenced serving his sentence almost five months before the circuit court granted an appeal bond. Thus, based upon my interpretation of Rule 7.2(2)(ii), Ala.R.Crim.P., Judge Fleming acted past the time for granting an appeal bond.

Nor, can I agree with the special concurrence that an appeal bond is a collateral consequence of a criminal appeal to this Court. “Collateral” is defined in Black’s Law Dictionary as “[s]upplementary; accompanying, but secondary and subordinate to.” Black’s Law Dictionary 278 (8th ed.2004). Typically, the freedom of a defendant is the very crux of an appeal to this Court; thus, I believe that release pending appeal is a direct consequence of a criminal appeal.

Also, I fear that the majority’s interpretation of this rule will adversely impact the enforcement of our judgments. After a defendant has been convicted and sentenced to a term of imprisonment, he has little motivation to comply with the terms of an appeal bond and may flee this State’s jurisdiction. Clearly, when the Supreme Court adopted Rule 7.2, Ala.R.Crim.P., it evidenced its intent in favor of a defendant’s being incarcerated pending the outcome of his appeal. Before the adoption of Rule 7.2, Ala.R.Crim.P., Section 12-22-170, Ala.Code 1975, specifically allowed for the mandatory release of a defendant if he was sentenced to a term of less than 20 years. There is no longer a mandatory presumption in favor of release after conviction.

It has been my experience while a member of this Court that the facts presented in this case represent the exception and not the rule. Trial judges normally dispose of requests for appeal bonds at the time that a notice of appeal is filed, which is typically after a sentence is pronounced in open court. Unlike the special concurrence, I believe that my interpretation of Rule 7.2, Ala.R.Crim.P., will have little, if any, impact on the number of appeal bond cases this Court will have to consider.

Neither can I agree with the special concurrence’s reliance on the Committee Comments to Rule 7.2, Ala.R.Crim.P. Although committee comments to a rule of court may be persuasive, they are not binding on a court’s interpretation of a rule. See Iverson v. Xpert Tune, Inc., 553 So.2d 82 (Ala.1989); Thomas v. Liberty Nat’l Life Ins. Co., 368 So.2d 254 (Ala.1979).

Accordingly, I believe the district attorney’s petition for a writ of prohibition is due to be granted, and I respectfully dissent from the order denying the writ.

      . In support of its petition for a writ of prohibition, the State argues that the trial court lacked jurisdiction to rule on Herring’s request for an appeal bond. As an aside, the State also takes issue with the trial court’s order:

        "Contrary to the Court's Order, no evidence was taken concerning the flight risk or danger to the community of [Herring], The hearing was oral argument and the only issue addressed by the State was that of jurisdiction. The family of the victim is very much opposed to the Defendant being released on bond on appeal.”
      (State’s brief at p. 3; emphasis added.) The trial court’s order reads, in pertinent part, as follows:
      "At the bond hearing held on March 23, 2006, the State asserts that the Circuit Court of Geneva County has lost jurisdiction for the purposes of bond. The defendant's counsel ... points out that the defendant has family support, is not a flight risk, nor is he any danger to the community.

      "The State does not disagree with the defendant’s assertions that he has family support, is no flight risk and is no danger to the community and the court finds all these assertions to be factual.”
      Whether the trial court abused its discretion by finding that Herring is not a flight risk or that his release poses no danger to any other person or to the public at large is an issue that is not presented by this petition for a writ of prohibition.

      . Rule 9(b), Ala. R.App. P„ and § 12-22-170 have been superseded by the amendment to Rule 1.5; Ala. R.Crim. P., making Rule 7.2 the governing rule. See Ex parte Ziglar, 604 So.2d 384 (Ala. 1992).

      . I note that the committee comments appear to be inconsistent with the plain language of Rule 7.2(d) with respect to whether a defendant, who has filed a notice of appeal and elected to waive release and to begin serving the sentence, can be released on bond. In any event, Herring did not waive release; instead, he stated on his notice of appeal that he was moving "for an order fixing bail on appeal and for suspension of execution of sentence....”

      . Probation may be granted at any time before the execution of a sentence has begun. State v. Green, 436 So.2d 803 (Ala. 1983).

      . Although the circuit court had lost jurisdiction to do so, it purported to deny the motion for a new trial on October 20, 2005 — after the motion had been deemed denied by operation of law 60 days after sentencing.

      . The day after Herring was released, Herring's brief was filed in this Court.

      . Rule 9(b), Ala. R.App. P., states: "Release after judgment of conviction shall be governed by Title 15, §§ 368 and 372 [now Ala. Code 1975, § 12-22-170].”

      .I believe that this view promotes finality of judgments and is consistent with Rule 1.2, Ala.R.Crim.P. Rule 1.2 states:
      "These rules are intended to provide for the just and speedy determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare.”

      . The circuit court did not stay execution of Herring’s sentence. See Patterson v. State, 43 Ala.App. 190, 185 So.2d 527 (1966).

      . I believe the Alabama Supreme Court intended that a trial judge have jurisdiction to entertain a request for bail at any time before a defendant is remanded to the custody of the Alabama Department of Corrections.

      . I urge the Alabama Supreme Court to address the problems exemplified by this case by amending Rule 7.2, Ala.R.Crim.P., to provide a time period within which a lower court may entertain a request for an appeal bond.


author: McMILLAN, Presiding Judge.

text:
    William Joseph CARR v. STATE of Alabama.
    CR-05-0741.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.
    William Joseph Carr, pro se.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

On August 23, 2005, William Joseph Carr filed two separate, identical Rule 32, Ala. R.Crim. P., petitions, challenging his May 9, 1972, convictions of grand larceny. Carr stated that he had been charged with the crimes in separate indictments and that he had pleaded guilty to both indictments in the same guilty-plea proceeding. He also stated that he was sentenced to consecutive sentences of two years’ imprisonment and that he did not appeal. The State moved to dismiss Carr’s petitions, on the ground that his claims of defective indictment were refuted by exhibits submitted by the State. The trial court summarily dismissed Carr’s petitions, on the ground that they were “without merit.”

On appeal, Carr reiterates the claim that he set out in his Rule 32 petitions: that the trial court lacked jurisdiction to render judgment or to impose sentence in either of his grand-larceny cases because the indictments did not contain the element of taking the personal property of the owner “with intent to convert it or deprive the owner of it.” Traditionally, this type of claim has been viewed by Alabama courts as a jurisdictional claim, which is never waived or precluded. However, in Ex parte Seymour, 946 So.2d 536 (Ala.2006), the Alabama Supreme Court overruled the precedent so holding, finding that such an error does not effect the jurisdiction of the circuit courts to hear the case. Therefore, Carr’s claim of error is nonjurisdictional.

Rule 32.2(c), Ala. R.Crim. P., provides that the trial court shall not entertain a petition that is not timely filed, unless the petition states a valid claim of lack of jurisdiction, excessive sentencing, or illegal custody, or alleged newly discovered evidence. Because Carr’s claims were non-jurisdictional and he did not file his petitions within the applicable limitations period, the trial court properly dismissed his petitions. When the trial court’s denial of a Rule 32 petition is correct for any reason, this court will not reverse that decision on appeal. Mead v. State, 449 So.2d 1279 (Ala.Crim.App.1984).

Carr’s claim that the trial court abused its discretion in denying his petitions without conducting an evidentiary hearing is without merit. Rule 32.7(d), Ala. R.Crim. P., permits summary disposition of a petition that is insufficiently specific or precluded or that fails to state a claim. The trial court’s dismissal of Carr’s petitions therefore is affirmed.

AFFIRMED.

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


author: SHAW, Judge.

text:
    Jajaun Martez OLIVER v. CITY OF OPELIKA.
    CR-05-0617.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.

      Margaret Young Brown, Auburn, for appellant.
    Guy F. Gunter III, Opelika, for appellee.
   SHAW, Judge.

The appellant, Jajaun Martez Oliver, was convicted in Opelika Municipal Court of menacing, a violation of § 19-353 of the Opelika Municipal Code of Ordinances. He appealed his' conviction to the Lee County Circuit Court for a trial de novo and was found guilty following a jury trial. The trial court fined him $500 and sentenced him to 180 days in the city jail, with 90 days suspended and 90 days to serve.

The sole issue on appeal is whether the evidence was sufficient to submit the menacing charge to the jury. Oliver preserved this issue in the trial court by moving for a judgment of acquittal on sufficiency grounds at the close of the City’s case and again at the close of all the evidence.

Initially, we note our well-established standard for reviewing challenges to the sufficiency of the evidence: “ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040,1042 (Ala.1978).

The City’s evidence with respect to the issue presented is best summed up by the following testimony of Opelika police officer Brandon Tech, who, the record indicates, stopped Oliver for a seat-belt violation and for failure to properly signal before executing a turn:

“[Officer Tech]: I exited my police vehicle, walked to the driver’s side window of the car I had stopped to make contact with the driver of the vehicle and inform him why he had been pulled over.
“[Prosecutor]: All right. At that point in time, did you observe the occupant of the vehicle?
“[Officer Tech]: Yes, sir, I did.
“[Prosecutor]: Is that person in court today?
“[Officer Tech]: Yes, sir, he is.
“[Prosecutor]: Could you point that person out?
“[Officer Tech]: Mr. Oliver. Right here (pointing).
“[Prosecutor]: Okay. All right. Now, was the window of [Oliver’s] vehicle up or down?
“[Officer Tech]: It was down.
“[Prosecutor]: All right. And as you were — did you engage in a conversation with [Oliver] at that time?
“[Officer Tech]: I started to. I said good evening.
“[Prosecutor]: Was there something that stopped you from engaging in the conversation?
“[Officer Tech]: That’s correct.
“[Prosecutor]: What was that?
“[Officer Tech]: I noticed in his lap, there was a silver pistol. He had it sitting in his lap with his right hand on top of the pistol with his finger extended directing [sic] sitting on top of the trigger well with the gun cocked up and pointed up out the window.
“[Prosecutor]: Let me ask you if you would step down. I don’t believe that— you are trying to demonstrate how the pistol was — was held.
“(Witness complies.)
“[Prosecutor]: Would you just take a seat here in front of the jurors?
“(Witness complies.)
“[Prosecutor]: You say that you observed a silver pistol. Is that correct?
“[Officer Tech]: Yes, sir. That’s correct.
“[Prosecutor]: And where was that pistol located?
“[Officer Tech]: It was in his lap with his hand on it like this (indicating).
“[Prosecutor]: All right.
“[Officer Tech]: It was kind of — part of it down on the inside of his leg and kind of coming up on the inside of his leg.
“[Prosecutor]: All right. And was the— was his hand on the pistol itself?
“[Officer Tech]: Yes, sir, it was.
“[Prosecutor]: What portions of the pistol were his—
“[Officer Tech]: His palm—
“[Prosecutor]: — hands touching at that time?
“[Officer Tech]: His palm was — was resting on the butt of — of the weapon and his finger was extended on the trigger well. It was not actually on the trigger itself; it was on the trigger well with the gun pointing up out the window.
“[Prosecutor]: All right. And in what direction was the barrel of the pistol pointing?
“[Officer Tech]: Directly at my face.
“[Prosecutor]: All right. Now, after you made the observations concerning the pistol, did you say anything to [Oliver]?
“[Officer Tech]: I took about a half a step back from the vehicle and drew my weapon and ordered him to drop — drop the weapon and exit the vehicle.
“[Prosecutor]: All right. You say you drew your weapon. Does that mean you removed it from your holster?
“[Officer Tech]: Yes, sir, I did.
“[Prosecutor]: And after you removed it from your holster, what did you do with the weapon at that time?
“[Officer Tech]: I pointed it directly at Mr. Oliver.
“[Prosecutor]: All right. You pointed it with one hand or did you have it held with two hands?
“[Officer Tech]: I believe I had it with two hands.
“[Prosecutor]: All right. And what directions did you give to Mr. Oliver at the time?
“[Officer Tech]: I told him to drop the weapon and exit the vehicle.
“[Prosecutor]: All right. When you meant drop, you mean remove his hands from the weapon?
“[Officer Tech]: I believe — it was remove his hands.
“[Prosecutor]: Is that what you intended?
“[Officer Tech]: Yes, sir.
“[Prosecutor]: And — and step out of the vehicle. Is that correct?
“[Officer Tech]: That is also correct.
“[Prosecutor]: All right. How did Mr. Oliver respond to those commands?
“[Officer Tech]: He kind of was looking straight ahead. He wasn’t looking at me and did nothing at first. Just kept sitting there with his hands on — on the weapon.
“[Prosecutor]: All right. And for how long did he do that, just sitting with his hands on the weapon?
“[Officer Tech]: It wasn’t long. A second. Two seconds, maybe. Three seconds.
“[Prosecutor]: All right. And then after that, what happened?
“[Officer Tech]: The second time I screamed — I said, ‘Drop the weapon or you are going to get killed,’ I think were my exact words.
“[Prosecutor]: And what did he do?
“[Officer Tech]: He raised the weapon about three or four inches with his hands still holding it; his fingers were still on the trigger well, but not on the trigger itself, and then dropped it. And then—
“[Prosecutor]: All right.
“[Officer Tech]: — put his hands up.
“[Prosecutor]: As he raised the weapon out of his lap, you had commanded him to drop the weapon. Right?
“[Officer Tech]: That’s correct.
“[Prosecutor]: Not raise it?
“[Officer Tech]: That’s correct.
“[Prosecutor]: As he raised the weapon out of his lap, in what direction was the barrel pointed?
“[Officer Tech]: The whole time the barrel was pointed directly at me.
“[Prosecutor]: All right. And how long did it take for him to raise the pistol out of his lap?
“[Officer Tech]: About three seconds before he raised it. After I had — I had originally told him to drop it.
“[Prosecutor]: All right. So he — according to you, he had his hand on the pistol approximately seven seconds total from the time you originally told him— initially told him to drop the pistol?
“[Officer Tech]: Yes, sir.”

(R. 109-14.)

Section 19-353 of the Opelika Municipal Code of Ordinances, which tracks § 13A-6-23, Ala.Code 1975, provides that “[a] person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.” Oliver argues specifically that the City failed to present any evidence from which the jury could have found “physical action” on his part that was intended to place or attempt to place Officer Tech in fear of imminent serious physical injury.

Viewing the evidence in the light most favorable to the City, we conclude that the evidence was sufficient to submit the menacing charge to the jury. Officer Tech testified that Oliver had a pistol pointed at Officer Tech’s head when he approached the driver’s side of Oliver’s vehicle and that when he ordered Oliver to drop the weapon Oliver hesitated, holding the pistol three to four inches above his lap. A reasonable inference could be drawn from the evidence that Oliver intended to frighten Officer Tech by pointing the pistol at him. There was sufficient evidence of physical action on Oliver’s part; therefore, the trial court properly denied Oliver’s motion for a judgment of acquittal.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: COBB, Judge.

text:
    Ken Murphy VINSON v. STATE.
    CR-05-1397.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.
    Ken Murphy Vinson, pro se.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   COBB, Judge.

On January 16, 2005, Ken Murphy Vinson filed a motion pursuant to § 13A-5-9.1, Ala.Code 1975, asking the circuit court to reconsider his 1993 sentence of life imprisonment imposed after a conviction for escape in the first degree, a Class B felony. See § 13A-5-9(c)(2), Ala.Code 1975. The motion was Vinson’s first motion for sentence reconsideration; it was filed in the appropriate court (the Elmore Circuit Court) and was properly assigned to the original sentencing judge, Judge John B. Bush.

After obtaining Vinson’s prison records from the Department of Corrections (“DOC”), the circuit court issued the following order:

“This matter is before the Motion for Reconsideration of Section 13A-5-9.1 and Kirby [v. State, 899 So.2d 968 (Ala.2004) ] decision.
“Upon a review of the records supplied by the Department of Corrections the Court has determined that [Vinson] was paroled on this case on June 2,1997. His parole was revoked on May 22, 2001. He was paroled again on June 14, 2004, subsequently revoked and he was sent back to continue serving his sentence.
“Section 13A-5-9.1, Code of Alabama, 1975, as amended, states in part ‘... for consideration of early parole.... ’ This Court finds that [Vinson] has already received the benefit of early parole and is therefore not eligible for relief.
“DONE and ORDERED this 20th day of May, 2006.”

(CR. 44.)

Vinson appeals claiming that the trial court was in error finding him ineligible for resentencing under § 13A-5-9.1, Ala.Code 1975. We agree.

“There are three requirements for eligibility to have a sentence reconsidered under § 13A-5-9.1: (1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the [Habitual Felony Offender Act] became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole pursuant to § 13A-5-9(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A-5-9(c)(2) ...; and (3) the inmate is a ‘nonviolent convicted offender.’ An inmate must satisfy all three requirements before he or she is eligible for reconsideration of sentence under § 13A-5-9.1.”

Holt v. State, [Ms. CR-04-1250, March 3, 2006] — So.2d—,—(Ala.Crim.App.2006) (on application for rehearing).

The record reflects on its face that Vinson satisfied the first two eligibility requirements set forth in Holt: however, the trial court must also determine whether Vinson is a nonviolent offender, and the trial court failed to make that determination. Thus, this Court’s opinion1 in Ferrell v. State, 944 So.2d 162 (Ala.Crim.App. 2006), is dispositive of this appeal. In Ferrell we stated:

“Although the circuit court found that the appellant satisfied the first two eligibility requirements set forth in Holt, it did not determine whether he was a nonviolent offender. Rather, it determined that he was not eligible for reconsideration of his sentence because he had previously been paroled. Once eligibility has been determined, the fact that an offender has previously been paroled may be a relevant and material factor to consider when deciding whether to resentence the offender. However, it is not relevant when making the initial determination of whether the offender is eligible to have his sentence reconsidered. Because the circuit court erroneously based its determination that the appellant was not eligible to have his sentence reconsidered on the fact that he had previously been paroled, it erred when it denied his motion on that ground.”

Ferrell v. State, 944 So.2d at 164.

Accordingly, as in Ferrell, 944 So.2d at 164, “we reverse the circuit court’s judgment and remand this case to the circuit court for that court to set aside its order denying [Vinson’s] motion for reconsideration and to consider [Vinson’s] motion pursuant to this court’s holding in Holt.

REVERSED AND REMANDED.

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