author: MURDOCK, Justice.

text:
    Ex parte Carl Brad WARD. (In re Carl Brad Ward v. State of Alabama).
    1090132.
    Supreme Court of Alabama.
    June 3, 2011.

      Carl Brad Ward, pro se.
    Troy King, atty. gen., and Robin D. Scales, asst. atty. gen., for respondent.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   MURDOCK, Justice.

In 1991, Carl Brad Ward was convicted of the murder of Jeanette Smith Little, and he was sentenced to life imprisonment. On direct appeal, the Court of Criminal Appeals affirmed the conviction and sentence. Ward v. State, 610 So.2d 1190 (Ala.Crim.App.1992).

In September 2008, Ward, acting pro se, filed the present Rule 32, Ala. R.Crim. P., petition, his second. Ward’s Rule 32 petition, as amended and “refiled,” alleged, among other things, that newly discovered material facts require his conviction to be vacated. Ward contends that he recently discovered reports of forensic tests that excluded him as a person who had handled a cigarette butt that was used at trial to link him to the crime scene. After the State responded, the circuit court summarily denied Ward’s amended petition by a written order. Ward appealed.

The Court of Criminal Appeals affirmed the circuit court’s denial of Ward’s second Rule 32 petition by an unpublished memorandum. Ward v. State (No. CR-08-1131, Sept. 25, 2009), 57 So.3d 210 (Ala.Crim.App.2009) (table). This Court granted certiorari review as to Ward’s claim of newly discovered material facts and denied review as to his other claims.

1. Facts

The Court of Criminal Appeals summarized the facts of the underlying case in its unpublished memorandum as follows:

“Ward and Kenneth Gregory Long were indicted for the capital murder of Jeanette Smith Little, who was murdered during the course of a robbery. Ward’s case was severed from Long’s, and Ward was tried first.
“The State’s evidence established that Ward, who was a ‘trusty at the Decatur City Jail, became acquainted with Little when she was briefly jailed following an arrest for [driving under the influence]. Sometime after Little was released from jail, a witness overheard Ward and Gregory Long talking about going to see Little, and discussing that she might have some money. On October 10,1990, Little’s body was found in her home. She had been dead for several days. Little had been stabbed multiple times, and her rings had been removed from her fingers after she died.
“A witness testified that Ward resembled a person that she had seen with Little around the time of Little’s death. Another witness testified that Ward and Long tried to sell him Little’s rings. The State presented additional circumstantial evidence that tied Ward to Little’s murder. The jury found Ward guilty of the lesser-included offense of murder, and Ward was sentenced to life imprisonment.”

A more detailed statement of facts is set out in the opinion disposing of Ward’s direct appeal. Ward, 610 So.2d at 1192-94.

The facts relating to Ward’s postconviction claim of newly discovered material facts are as follows:

Ward alleged in his Rule 32 petition that he was not present when his codefendant, Kenneth Gregory Long, murdered Little, that he obtained Little’s rings from Long, and that he was told that Long had gotten the rings as part of a drug deal. Ward alleged that Long died in prison and that Long allegedly confessed to another inmate that he had acted alone, that he had strangled Little to death in a jealous, drunken rage, and that he had attempted to cover up his crime by stabbing Little’s body after her death and taking her rings in order to make it appear that a robbery had occurred.

Ward alleged that he did not learn about Long’s prison statements until early 2008. Between April 2008 and August 2008, Ward made several attempts to obtain information on Little’s death from the Alabama Department of Forensic Sciences (“DFS”). On July 7, 2008, DFS responded that it had never had a death-investigation report on Little. After additional communication from Ward, DFS informed Ward on August 28, 2008, that a death-investigation report on Little’s death was available upon payment of a $10 fee. Ward paid the fee and, on September 29, 2008, he received a copy of the report (consisting of a cover letter and 26 attached “documents”). On October 10, 2008, after further correspondence, Ward received an additional 20 pages of documents relating to Little’s death.

In an affidavit submitted with his amended Rule 32 petition, Ward alleged as follows regarding the second set of documents provided to him by DFS on October 10, 2008:

“In the second set of records provided by the ADFS, I found the results of more evidence which had been withheld from my defense....
“The third issue of newly discovered material facts centers around a ‘Merit’ [brand] cigarette butt from the living room, a wooden toothpick, and human seminal stains from the victim and her clothes. The test results clearly state[ ] that all three items — the toothpick, the Merit cigarette butt, and the semen came from the same person who had A and H antigens.
“In the [newly discovered] serological [] tests of April 8, 1991 [prior to Ward’s trial in October 1991], ADFS results of blood analysis states that ‘neither Carl Ward nor Kenneth Long are indicated as the source of the semen.’ The test of November 30, 1990 matched the semen with the Merit cigarette butt and the toothpick.
“The problem here is that this evidence was never turned over to my defense. Not only was this withheld from my defense, the prosecution put a witness on the stand who testified to the Jury that I sometimes smoked ‘Merit’ cigarettes, and they presented this while knowing the Merit butt at the crime scene did not match me. This goes beyond just withholding evidence; this is unequivocal proof of prosecutorial misconduct.
“The prosecution presented to the Jury — Ward claims he wasn’t there, but here is this Merit cigarette butt at the crime scene, and here is a witness who knows Ward and .says he sometimes smokes Merit cigarettes — they presented this false prejudicial pretence [sic] while knowing for a scientific fact that the Merit cigarette butt did not match me, and, they withheld these test[ ] results from my defense so I could not rebut their insinuation to the Jury that the Merit could be mine.”

(Emphasis added.)

On February 10, 2009, the State filed a response to Ward’s petition that did not specifically refute or even address Ward’s allegations relating to the Merit cigarette butt. Ward filed a reply to the State’s response on February 23, 2009.

The circuit court did not hold an eviden-tiary hearing. Instead, on March 10, 2009, it summarily denied Ward’s Rule 32 petition by a written order that did not specifically address the evidence relating to the Merit cigarette butt.

II. Burden of Pleading Versus Burden of Proof in a Rule 32 Proceeding

“A claim may not be summarily dismissed because the petitioner failed to meet his burden of proof at the initial pleading stage, a stage at which the petitioner has only a burden to plead.” Johnson v. State, 835 So.2d 1077, 1080 (Ala.Crim.App.2001). See also Thomas v. State, 908 So.2d 308, 310 (Ala.Crim.App.2004) (to same effect). As the Court of Criminal Appeals explained in Ford v. State, 831 So.2d 641, 644 (Ala.Crim.App.2001):

“[A]t the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must provide only ‘a clear and specific statement of the grounds upon which relief is sought.’ Rule 32.6(b), Ala. R.Crim. P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala. R.Crim. P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”

With respect to the pleading requirements imposed on a petitioner, Rule 32.3 provides that the petitioner shall have the burden of pleading “facts necessary to entitle the petitioner to relief.” Rule 32.6(b) provides:

“The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.”

Where, as here, the State does not respond to the factual allegations in the Rule 32 petition, “ ‘the unrefuted facts set out in the petition must be taken as true.’ ” Chaverst v. State, 517 So.2d 643, 644 (Ala.Crim.App.1987) (quoting Ex parte Floyd, 457 So.2d 961, 962 (Ala.1984)). See also Thomas, 908 So.2d at 310.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.’’ Ex parte White, 792 So.2d 1097, 1098 (Ala.2001).

III. Analysis

Ward asserts (1) that the State introduced at trial a Merit brand cigarette butt found at the crime scene and testimony to the effect that Ward sometimes smoked Merit brand cigarettes; (2) that the State argued that from that evidence the jury could infer that Ward was present at the crime scene; and (3) that newly discovered forensic reports disclose that the cigarette butt introduced at trial had not in fact been handled by Ward. Ward also asserts that the cigarette butt was the only physical evidence introduced by the State allegedly linking him to the crime scene. Thus, Ward contends that the newly discovered test results conflict with the theory upon which the State asked the jury to find Ward guilty.

In order to warrant relief on a claim of newly discovered evidence, a petitioner must meet the criteria set forth in Rule 32.1(e), Ala. R.Crim. P., which provides:

“(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
“(1) The facts relied upon were not known by the petitioner or the petitioner’s counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
“(2) The facts are not merely cumulative to other facts that were known;
“(3) The facts do not merely amount to impeachment evidence;
“(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“(5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received.”

The facts must be newly discovered.

Rule 32.1(e)(1) requires that the facts relied upon not have been known by the petitioner or petitioner’s counsel at the time of trial (though they must have been in existence at that time) or at the time of an earlier collateral proceeding, and that the facts could not have been discovered earlier through the exercise of reasonable diligence. Ward alleges that the test results at issue were not known by him or his defense counsel at the time of his trial and that he did not know of the existence of the test results until he obtained the second set of documents from DFS in October 2008. The State does not refute these allegations.

The allegations of Ward’s Rule 32 petition also are sufficient to satisfy his pleading burden with respect to the requirement that the facts could not have been discovered earlier through the exercise of reasonable diligence. Ward alleged that the prosecutor withheld the test results from him and his counsel, and he alleged in detail the efforts required to obtain the test results from DFS. It is clear from the Rule 32 petition that Ward is alleging that neither he nor his counsel had reason to know or to suspect that any forensic tests had been performed on the cigarette butt. We conclude that Ward has sufficiently pleaded this element of Rule 32.1(e). Further, the State did not assert in its response before the circuit court that Ward had failed to sufficiently plead this element, and Ward therefore had no opportunity to respond to that objection in the circuit court.

In its brief to this Court, the State contends that “[ujndoubtedly, Ward could have taken the same investigative step ... [before] he filed his first Rule 32 petition that he took in 2008 when he investigated, sought, and obtained test results relevant to the Merit cigarette butt.” This contention fails because there appears to have been no reason for Ward or his counsel to have suspected before 2008 that any such test results existed or that any investigation was warranted.

In Stamps v. State, 380 So.2d 406, 409 (Ala.Crim.App.1980), the Court of Criminal Appeals quoted with approval the following passage from Westergard v. Des Moines Ry., 243 Iowa 495, 503, 52 N.W.2d 39, 44 (1952), explaining the concept of diligence in the context of a request for a new trial based on newly discovered evidence:

“ ‘The showing of diligence required is that a reasonable effort was made. The applicant is not called upon to prove he sought evidence where he had no reason to apprehend any existed. He must exhaust the probable sources of information concerning his case; he must use that of which he knows, and he must follow all clues which would fairly advise a diligent man that something bearing on his litigation might be discovered or developed. But he is not placed under the burden of interviewing persons or seeking in places where there is no indication of any helpful evidence.’ ”

(Emphasis added.) Compare Ex parte Burgess, 21 So.3d 746 (Ala.2008); Ex parte Robinson, 565 So.2d 664, 668 (Ala.1990).

Likewise, we cannot say at the pleading stage that Ward or his counsel should have suspected at trial or when he filed his first Rule 32 petition that any additional forensic test results existed or that further investigation would be anything more than a mere fishing expedition. There is no reason for a defendant to assume that forensic tests were performed on every item of evidence introduced at trial or that the prosecutor made a misleading jury argument that was contradicted by undisclosed evidence in the State’s possession. Further, Ward’s alleged difficulties in obtaining the information from DFS in 2008 (including DFS’s initial denial that any investigative report on Little’s death existed) imply that the test results were not reasonably discoverable at an earlier time, regardless of whether they might have been theoretically “available” to him or his counsel.

We cannot conclude that, as a matter of law, the forensic test results could have been discovered earlier with the exercise of reasonable diligence. On remand, Ward is entitled to an opportunity to prove his allegations.

The facts are not merely cumulative to other facts that were known.

The State argues in its brief to this Court that the cigarette-butt evidence is cumulative to other evidence introduced at trial concerning hairs found in Little’s automobile that did not match the sample of Ward’s hair. We disagree. The cigarette-butt evidence differs materially from the hair evidence because the cigarette-butt evidence was not merely negative evidence. Instead, Ward alleges that the State used the cigarette butt to create an inference that Ward was present at the crime scene. If Ward’s allegations are true, the test results excluding Ward as the source of the cigarette butt would have negated the inference from the cigarette-butt evidence that Ward was at the crime scene. Thus, we cannot conclude that the forensic test results excluding Ward as the source of the cigarette butt are merely cumulative.

The facts do not merely amount to impeachment evidence.

The newly discovered forensic evidence is not merely impeachment evidence; rather, it serves to controvert what appears from the record to be the only physical evidence linking Ward to the crime scene. The Court of Criminal Appeals in Farris v. State, 890 So.2d 188 (Ala.Crim.App.2003), determined that evidence analogous to the cigarette-butt evidence in the present case was not merely impeachment evidence because that evidence directly contradicted testimony central to the prosecution’s case. The Court of Criminal Appeals stated:

‘Black’s Law Dictionary 755 (7th ed.1999) defines “impeach” as “[t]o discredit the veracity of (a witness).” The evidence is not impeaching in that Banks did not seek to discredit the veracity of any witnesses. Rather, the results of the [medical test] served to controvert, that is, disputed the State’s witnesses’s findings and opinions, not their credibility.’”

890 So.2d at 192 (quoting Banks v. State, 845 So.2d 9, (Ala.Crim.App.2002)). See also Rule 607, Ala. R. Evid. (“Who May Impeach”; “The credibility of a witness may be attacked by any party....”).

Likewise, this Court has noted that “[w]here the newly discovered evidence ‘tends to destroy or obliterate the effect of the evidence upon which the verdict rested it is more than impeaching for ... its tendency would be to defeat the verdict returned.’ ” Register Propane Gas Co. v. Whatley, 688 So.2d 225, 229 (Ala.1996) (first emphasis added) (quoting Reynolds v. City of Birmingham, 29 Ala.App. 505, 507, 198 So. 360, 362 (1940)). See also Ex parte Robinson, 565 So.2d 664, 668 (Ala.1990) (newly discovered “pistol permit issued to the deceased tended to negate the inference that Robinson had greater access to, and greater control of, the murder weapon”). The evidence at issue here is not impeaching, but tends, if proven, to “destroy or obliterate” key physical evidence upon which the State relied.

Different result and actual innocence.

The Court of Criminal Appeals in its unpublished memorandum cited Payne v. State, 791 So.2d 383, 398 (Ala.Crim.App.2000), for the general proposition that “because of the conjunctive ‘and’ between [Rule 32.1(e) ](4) and (5), [a defendant] must meet all five prerequisites of Rule 32.1(e) in order to prevail” on a claim of newly discovered evidence. Rule 32.1(e)(4) requires that “[i]f the facts had been known at the time of trial or of sentencing, the result probably would have been different”; Rule 32.1(e)(5) requires that “[t]he facts establish that petitioner is innocent of the crime for which petitioner was convicted.... ”

The Court of Criminal Appeals concluded that the cigarette-butt evidence did not establish that Ward was innocent of the murder. That reasoning would place an almost impossible burden on a criminal defendant to show that any single item of evidence would, by itself, establish his or her innocence. A common-sense reading of Rule 32.1(e) is one that requires a showing that the newly discovered facts go to the issue of the defendant’s actual innocence (as opposed to a procedural violation not directly bearing on guilt or innocence). Otherwise, the requirement of Rule 32.1(e)(4) — a showing that “the result probably would have been different”— would add nothing to the formula for relief created by Rule 32.1(e); Rule 32.1(e)(4) would be rendered meaningless in the face of the greater requirement imputed to Rule 32.1(e)(5) that the newly discovered facts “establish” the defendant’s innocence.

When construing rules, this Court has applied the rules of construction applicable to statutes. Ex parte State ex rel. Daw, 786 So.2d 1134, 1137 (Ala.2000). Regarding statutory construction, this Court has said:

“ ‘It must be presumed,’ however, that statutes are enacted with a ‘meaningful purpose.’ Adams v. Mathis, 350 So.2d 381, 385-86 (Ala.1977). ‘The Legislature will not be presumed to have done a futile thing in enacting a statute.’ Ex parte Watley, 708 So.2d 890, 892 (Ala.1997). See also Ex parte Robinson, 361 So.2d 1113, 1114 (Ala.1978). ‘ “There is a presumption that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.” ’ Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.), cert. denied, 708 So.2d 911 (Ala.1997); McDonald v. State, 32 Ala.App. 606, 609, 28 So.2d 805, 807 (1947) (‘A legislature will not be presumed to use language without any-meaning or application.... ’).”

Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala.2000). See also Ex parte State ex rel. Daw, 786 So.2d at 1136, 1137 (stating that “rules and statutes relating to the same subject matter must be read in pari materia, thus allowing for legal harmony where possible,” and that, “[i]n construing rules of court, this Court has applied the rules of construction applicable to statutes”); Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378 (Ala.1979) (observing that parts of a statute dealing with the same subject matter should be construed in pan materia).

Clearly, the newly discovered facts at issue here relate not to some procedural violation, but to Ward’s actual guilt or innocence. As to the requirement in Rule 32.1(e)(4) that the result probably would have been different had the newly discovered evidence been presented to the jury, this calculation must be made based on the probative value of the newly discovered evidence and its relationship to the other evidence presented to the jury. See Ex parte Frazier, 562 So.2d 560, 571 (Ala.1989) (“[I]f the jury had been afforded the opportunity to consider this new information [about the true extent of a key prosecution witness’s role in the crime] in conjunction with all of the other evidence introduced at trial, it would have reached a different result.” (footnote omitted)).

The results of the forensic tests performed on the cigarette butt are of substantial probative value in relation to the other evidence bearing on the question of Ward’s guilt or innocence. The evidence against Ward was largely circumstantial; the only physical evidence in the record tying Ward to the crime scene was the cigarette butt. Moreover, the State’s theory of the case depended in material measure on its argument to the jury that the cigarette butt proved that Ward was present at the crime scene. If, as Ward has alleged, the newly discovered forensic test results contradict this theory, a material part of the State’s evidence against Ward would be “destroy[ed] or obliterate[d].” Register Propane Gas Co., 688 So.2d at 229.

In considering a claim that a criminal conviction should be vacated because of newly discovered material facts, a court must balance the principles of fundamental fairness against the finality of judgments. As then Judge Shaw noted in his concurring opinion in Dowdell v. State, 854 So.2d 1195, 1198 (Ala.Crim.App.2002):

“ ‘A criminal trial is not a lottery, a spin of the roulette wheel or a throw of the dice. The orderly processing of cases through the court is an important value, but it is not the end in itself. It is only the method by which we attempt to achieve the ultimate purpose of the criminal justice system — the fair conviction of the guilty and the protection of the innocent. That is what our constitutional guarantees are all about. Our system fails every time an innocent person is convicted, no matter how meticulously the procedural requirements governing criminal trials are followed.’
“ ‘Consistent with society’s “overriding concern with the justice of the finding of guilt,” the courts, as well as the prosecution, must be vigilant to correct a mistake.’ ”

854 So.2d at 1198 (Shaw, J., concurring in the result) (citations omitted).

In Ex paHe Frazier, supra, this Court relaxed the requirements for obtaining a new trial where perjured testimony had been used to obtain a conviction. This Court, quoting Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), noted:

“‘Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance of this high function.’”

562 So.2d at 565.

If the prosecutor withheld from Ward’s defense counsel exculpatory evidence or knowingly made arguments that were contradicted by evidence in the prosecutor’s files, that conduct would bolster Ward’s claim for relief. “While [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 87, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

TV. Conclusion

We conclude that Ward has sufficiently pleaded a claim of newly discovered material facts and that he is entitled to an opportunity to prove his allegations.

We reverse the judgment of the Court of Criminal Appeals and remand the cause to that court for it to in turn remand it to the circuit court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

MAIN and WISE, JJ., recuse themselves.

      . “Serology” is “the branch of medicine and biology that deals with blood serum, etc., esp. the immune responses induced in it by pathogens and other aritigens.” "Serological” means "pertaining to, detectable ■ or distinguishable by a specific serum immune response.” Shorter Oxford English Dictionary 2765 (5th ed.2003).

      . In addition to the claim relating to the cigarette butt, Ward's Rule 32 petition raised newly-discovered-material-fact claims relating to the cause of Little's death and to forensic tests on hairs and other items; we denied certiorari review as to those claims.

      .The State did respond with respect to forensic reports on hairs found at the scene, but it did not specifically address, or even refer to, the cigarette butt.

      . Rule 32.2(c) requires that a Rule 32 petition asserting a claim based on newly discovered material facts (Rule 32.1(e)) must be filed within the applicable one-year period under Rule 32.2(c) or within six months after the discovery of the newly discovered material facts, whichever is later. In this case. Ward filed his amended Rule 32 petition asserting this claim within six months after he received the allegedly relevant test results from DFS.

      . In the circuit court, the State responded to Ward's allegations with counter-allegations (1) asserting generally that "all of the forensic test results were available” to Ward and his counsel before trial and (2) asserting that "the 'facts' alleged were either known ... or could have been known by the exercise of reasonable diligence."

      . The State contends in its brief to this Court that, ”[a]ccording to the prosecutor, Ward’s counsel had access to this forensic report; more than likely he did not consider it to be material to Ward's defense.” This assertion was not presented to the circuit court, and it goes to whether Ward can prove his claim, not to the sufficiency of his pleadings.


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Carl Brad WARD v. STATE of Alabama.
    CR-08-1131.
    Court of Criminal Appeals of Alabama.
    July 29, 2011.
    Carl Brad Ward, pro se.
    Troy King, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

KELLUM, Judge.

The appellant, Carl Brad Ward, appealed from the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he challenged his 1991 conviction for murder and the resulting sentence of life imprisonment. Specifically, Ward alleged that newly discovered material facts — reports of forensic tests that excluded him as a person who had handled a cigarette butt that had been used at trial to link him to the crime scene — required that his conviction be vacated. This Court affirmed, by unpublished memorandum, the circuit court’s judgment denying Ward’s petition for postconviction relief on the basis that Ward failed to meet several of the criteria under Rule 82.1(e), Ala. R.Crim. P., to warrant relief on a claim of newly discovered evidence and that Ward’s petition was insufficiently pleaded. See Ward v. State, 57 So.3d 210 (Ala.Crim.App.2009) (table).

Ward petitioned the Alabama Supreme Court for certiorari review, arguing, among other things, that he had met his burden of pleading newly discovered material facts, and thus, that he was entitled an opportunity to present evidence in order to satisfy his burden of proof. The Supreme Court granted certiorari review, and on June 8, 2011, reversed this Court’s judgment, holding that Ward had sufficiently pleaded a claim of newly discovered material facts and that he was entitled to an opportunity to prove his allegations in light of the newly discovered forensic test results on the cigarette butt found at the crime scene. Ex parte Ward, 89 So.3d 720, 721-29 (Ala.2011).

In accordance with the Supreme Court’s opinion, we remand this case to the circuit court for that court to conduct an eviden-tiary hearing on Ward’s allegation of newly discovered evidence. In lieu of an eviden-tiary hearing, the circuit court may take evidence by affidavits, written interrogatories, or depositions, as provided in Rule 32.9, Ala. R.Crim. P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Ward’s claim in accordance with Rule 32.9(d), Ala. R.Crim. P.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the circuit court, together with the circuit court’s written findings of fact.

REMANDED WITH INSTRUCTIONS.

WELCH, P.J., and WINDOM, BURKE, and JOINER, JJ., concur.

       Note from the reporter of decisions: On January 27, 2012, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: PARKER, Justice.

text:
    Ex parte Melvin Charles JARRETT. (In re Melvin Charles Jarrett v. State of Alabama).
    1090919.
    Supreme Court of Alabama.
    Sept. 30, 2011.

      Melvin Charles Jarrett, pro se.
    Troy King, atty. gen., and Ferris W. Stephens, asst. atty. gen., for respondent.

       Justice Wise was a member of the Court of Criminal Appeals when that court considered this case.

   PARKER, Justice.

Melvin Charles Jarrett petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals’ unpublished memorandum affirming the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim P. Jarrett v. State, 75 So.3d 1233 (Ala.Crim.App.2010) (table). In his petition, Jarrett challenged his 2006 guilty-plea conviction for one count of failing to comply with the requirement of the Community Notification Act, § 15-20-20 et seq., Ala.Code 1975 (“the CNA”), that he, as an adult criminal sex offender, provide notice of his intent to transfer his legal residence. We granted the writ of certio-rari; we reverse the Court of Criminal Appeals’ judgment and remand the case for proceedings consistent with this opinion.

Facts and Procedural History

Jarrett was arrested on November 10, 2005, for violating the CNA; he was indicted on April 14, 2006. On August 18, 2006, Jarrett pleaded guilty to the charge, and he was sentenced to 15 years’ imprisonment. The prison sentence was suspended for three years, during which time Jarrett was placed on probation. According to Jarrett, his probation was revoked on March 9, 2007, and he was ordered to serve the remainder of his 15-year sentence. In its unpublished memorandum, the Court of Criminal Appeals set forth the following pertinent facts and procedural history:

“On July 27, 2009, Jarrett filed the instant Rule 32[, Ala. R.Crim. P.,] petition, his first, in the Madison Circuit Court. In his petition, Jarrett claimed that the 15-year sentence imposed for his guilty-plea conviction was illegal. Specifically, Jarrett contended that at the time he committed the offense, a violation of § 15-20-23, Ala.Code 1975, was a misdemeanor, not a Class C felony, and thus, his sentence was not authorized by law. The State refuted the merits of Jarrett’s claim and argued that Jarrett’s claim was insufficiently pleaded and precluded pursuant to Rule 32.2(a)(3) and (5)[, Ala. R.Crim. P.,] because the claim could have been but was not raised at trial or on appeal. On August 31, 2009, the circuit court summarily dismissed Jarrett’s petition on the grounds that the petition was precluded pursuant to Rule 32.2(a)(3) and (5), failed to state a claim upon which relief could be granted, and was without merit. This appeal ensued.”

The Court of Criminal Appeals affirmed the circuit court’s denial of Jarrett’s Rule 32 petition, stating, as follows:

“On appeal, Jarrett reiterates his claim that his 15-year sentence for his guilty-plea conviction is illegal. Specifically, Jarrett contends that his offense was complete before October 1, 2005, the effective date of [an amendment to] § 15-20-23 [changing the violation of the CNA from a Class A misdemeanor to a Class C felony]. Accordingly, Jarrett argues that the offense was only a misdemeanor, not a Class C felony, at the time he failed to notify authorities of his intent to transfer his legal residence, and thus, his 15-year sentence is not authorized by law. Although couched in jurisdictional terms, Jarrett actually raises a nonjurisdictional challenge challenging the factual basis underlying his guilty plea. See Whitman v. State, 903 So.2d 152, 155-56 (Ala.Crim.App.2004) (‘Moreover, to the extent that this claim can be considered a challenge to the factual basis for the plea, it is well settled that the factual basis for a guilty plea is not jurisdictional and is not part of the voluntariness of the plea.’). Accordingly, this claim is precluded pursuant to Rule 32.2(a)(3) and (5)[, Ala. R.Crim. P.,] on the grounds that the claim could have been but was not raised at trial or on appeal.”

Jarrett then petitioned this Court for a writ of certiorari, which we granted.

Standard of Review

“[W]here the facts are not in dispute and we are presented with pure questions of law, this Court’s standard of review is de novo.” State v. American Tobacco Co., 772 So.2d 417, 419 (Ala.2000) (citing Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997), and Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994)).

Discussion

Jarrett alleges, as he did before the Court of Criminal Appeals, that his 15-year sentence imposed following his conviction, entered pursuant to a guilty plea, for violating the CNA is illegal. Specifically, Jarrett contends that his offense was complete before October 1, 2005, the effective date of the amendment to § 15-20-23, Ala.Code 1975, changing the violation of the CNA from a Class A misdemeanor to a Class C felony; the State does not dispute this claim. Accordingly, Jarrett argues that the offense to which he pleaded guilty was, at the time he committed it — i.e., at the time he failed to notify authorities of his intent to transfer his legal residence— only a misdemeanor, not a Class C felony, and, thus, he argues, his 15-year sentence is not authorized by law.

This Court has held that “ ‘a challenge to an illegal sentence is jurisdictional and can be raised at any time.’ ” Ex parte Batey, 958 So.2d 339, 341 (Ala.2006) (quoting Ginn v. State, 894 So.2d 793, 796 (Ala.Crim.App.2004)). Although Jarrett’s argument hinges on a factual determination, it is nevertheless jurisdictional in nature because it challenges the legality of his sentence. It appears that the factual portion of the indictment omitted the date on which it alleged that Jarrett violated the CNA; the record does not indicate what date the circuit court relied upon in sentencing Jarrett to 15 years’ imprisonment based on a conviction for a Class C felony. Therefore, in order to determine whether Jarrett’s jurisdictional challenge is valid, it must first be determined whether the circuit court informed Jarrett of the date of the offense it relied upon in accepting Jarrett’s guilty plea and in sentencing him to 15 years’ imprisonment. Specifically, it must be determined if the circuit court informed Jarrett that it relied upon a date of offense after October 1, 2005, the effective date of the amendment to the statute under which Jarrett was sentenced. However, if the circuit court did not inform Jarrett of the date of his offense it was relying upon, it must then determine when Jarrett’s violation of the CNA occurred— i.e., before or after October 1, 2005 — and, if necessary, resentence him accordingly.

Conclusion

Based on the foregoing, we reverse the Court of Criminal Appeals’ judgment and remand the case to the Court of Criminal Appeals for it in turn to remand the case to the circuit court to conduct an evidentia-ry hearing to determine the date Jarrett’s violation of the CNA occurred.

REVERSED AND REMANDED.

MALONE, C.J., and STUART, BOLIN, and MAIN, JJ., concur.

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

WISE, J., recuses herself.

      . We note that § 15-20-23 requires an adult criminal sex offender to give notice of the intent to transfer residence “at least 30 days prior to moving to the new location.”


text:
    Melvin Charles JARRETT v. STATE of Alabama.
    CR-09-0066.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.

      Melvin Charles Jarrett, pro se.
    Troy King, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

KELLUM, Judge.

The appellant, Melvin Charles Jarrett, appealed from the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he challenged his 2006 guilty-plea conviction for one count of failing to comply with the requirement of the Community Notification Act, § 15-20-20 et seq., Ala.Code 1975 (“the CNA”), and his resulting sentence of 15 years’ imprisonment. Specifically, Jarrett alleged in his Rule 32 petition that his 15-year sentence for violating the CNA was illegal because, he said, his offense was complete before October 1, 2005, the effective date of an amendment to § 15-20-23, Ala.Code 1975, that changed the violation of the CNA from a Class A misdemeanor to a Class C felony. This Court affirmed, without an opinion, the circuit court’s judgment denying Jarrett’s petition for postconviction relief. In our unpublished memorandum, we reasoned that, although couched in jurisdictional terms, Jarrett actually raised a non-jurisdictional challenge to the factual basis underlying his guilty plea. Thus, we concluded, Jarrett’s claim was precluded pursuant to Rule 32.2(a)(3) and (5), Ala. R.Crim. P., because it could have been, but was not, raised at trial or on appeal. See Jarrett v. State (No. CR-09-0066, Feb. 19, 2010), 75 So.3d 1233 (Ala.Crim.App.2010) (table).

Jarrett then petitioned the Alabama Supreme Court for certiorari review, arguing that the 15-year felony sentence imposed following his guilty-plea conviction for violating the CNA was illegal because his offense was complete before October 1, 2005, the effective date of the amendment to § 15-20-23, Ala.Code 1975, changing the violation of the CNA from a Class A misdemeanor to a Class C felony. The Supreme Court granted certiorari review, and on September 30, 2011, reversed this Court’s judgment, holding that Jarrett’s claim challenging the legality of his sentence was jurisdictional in nature and, therefore, that it was error to deny Jarrett’s Rule 32 petition without first conducting an evidentiary hearing. Ex parte Jarrett, 89 So.3d 730, 731-33 (Ala.2010).

Unable to ascertain from the record the date on which Jarrett allegedly violated the CNA and the date on which the circuit court had relied in sentencing Jarrett to 15 years’ imprisonment, the Supreme Court reasoned:

“[I]n order to determine whether Jarrett’s jurisdictional challenge is valid, it must first be determined whether the circuit court informed Jarrett of the date of the offense it relied upon in accepting Jarrett’s guilty plea and in sentencing him to 15 years’ imprisonment. Specifically, it must be determined if the circuit court informed Jarrett that it relied upon a date of offense after October 1, 2005, the effective date of the amendment to the statute under which Jarrett was sentenced. However, if the circuit court did not inform Jarrett of the date of his offense it was relying upon, it must then determine when Jarrett’s violation of the CNA occurred— i.e., before or after October 1, 2005— and, if necessary, resentence him accordingly.”

Ex parte Jarrett, 89 So.3d at 738.

In accordance with the Supreme Court’s opinion, we remand this case for the circuit court to conduct an evidentiary hearing on Jarrett’s allegation that his 15-year sentence was illegal. In lieu of an evidentiary hearing, the circuit court may take evidence by affidavits, written interrogatories, or depositions, as provided in Rule 32.9, Ala. R.Crim. P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Jarrett’s claim in accordance with Rule 32.9(d), Ala. R.Crim. P.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the circuit court, together with the circuit court’s written findings of fact.

REMANDED WITH INSTRUCTIONS.

WELCH, P.J., and WINDOM, BURKE, and JOINER, JJ., concur.

       Note from the reporter of decisions: On January 27, 2012, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


author: WISE, Justice.

text:
    UNIVERSITY OF SOUTH ALABAMA MEDICAL CENTER and University of South Alabama Children’s and Women’s Hospital v. MOBILE INFIRMARY ASSOCIATION, d/b/a Mobile Infirmary Medical Center, et al.
    1091560.
    Supreme Court of Alabama.
    Dec. 9, 2011.
    Rehearing Denied Feb. 17, 2012.

      Thomas R. Boiler, Mobile, for appellants.
    Alan C. Christian of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellees Infirmary Health Hospitals, Inc., d/b/a Infirmary West and Infirmary Long Term Acute Care Hospital, and Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center.
    R. Alan Alexander and Annie J. Dike of Helmsing, Leach, Herlong, Newman & Rouse, Mobile, for appellee Providence Hospital.
   WISE, Justice.

The University of South Alabama Medical Center and the University of South Alabama Children’s and Women’s Hospital (“the University hospitals”) appeal from a summary judgment entered by the Mobile Circuit Court following Mobile County’s filing of a complaint seeking a judgment interpreting Act No. 83-501, Ala. Acts 1983 (“the Act”). We dismiss the appeal.

Act No. 83-501

The Act, which became effective July 14, 1983, provides, in relevant part, as follows:

“Section 2. At the determination of the County Commission, there may be hereby established the MOBILE COUNTY INDIGENT CARE BOARD, hereinafter referred to as ‘the Board’, whose composition and duties shall be as follows:
“(a) The County Commission may appoint a Mobile County Indigent Care Board which shall consist of three members who are duly qualified electors of Mobile County, but no member of such Board shall be employed by any hospital. Of the members of the Board first appointed under the provisions of this section, one shall be appointed for a term of one year, one shall be appointed for a term of three years, and one shall be appointed for a term of five years. Thereafter, their successors shall be appointed for terms of five years and may be appointed to succeed themselves as members of the Board. The County Commission shall appoint all members to the Board. In the event the County Commission does not appoint the subject Board, the duties and responsibilities of the Board herein shall be carried out by the County Commission. Members of the Board shall serve without compensation.
“(b) The Board shall meet monthly at a public place within Mobile County to certify accounts presented to the Board by providers of medical care who are providing medical care to medically indigent citizens of Mobile County and to make recommendations for payments from the Board’s account or accounts to such providers of medical care by the County Commission. The Board shall be empowered to employ appropriate personnel, for the purpose of maintaining the Board’s records and account or accounts or the County Commission may provide such personnel for the purpose of maintaining the Board’s records and account or accounts and shall be empowered to expend revenues in its account or accounts to carry out the several provisions of this Act. The Board may contract with the State Department of Pensions and Security for the purposes of evaluating and certifying persons as being medically indigent according to guidelines established by the Board. The Board shall recommend to the County Commission at each regular meeting of the County Commission reimbursement to be paid to providers of medical care to the medically indigent of Mobile County at an amount equal to the reasonable cost of said services rendered by the provider. It shall be the responsibility of the providers of medical care to verify and furnish appropriate materials for the Board to certify the accounts presented. PROVIDED, however, notwithstanding any part herein to the contrary, providers of medical care shall be reimbursed only for that part of unreimbursed care which exceeds 6 percent of that provider’s gross billings for the current fiscal year. Unreimbursed care shall not include amounts for contractual adjustments, discounts or amounts required to be provided under Hill-Burton[] or other funds supporting indigent care from any other sources. A hospital shall be reimbursed for providing hospital care to a medically indigent person at a rate equal to the average of Mobile County, Alabama hospital’s Medicare costs determined by the annual Medicare cost reports of said hospitals. Reimbursements by the Board shall not include any payment for physician services. The Board shall require a copy of a certified audit without qualification of any provider and, if applicable, its parent organization, applying for reimbursement by the Board and the cost of such audit shall be the burden of said provider. During the first fiscal year in which this Act becomes effective, specifically October 1,1982 through September 30,1983, the reasonable costs of services to the medically indigent, which services are rendered during that fiscal year, shall be eligible for reimbursement to the provider pursuant to this Act.
“Section 4. The County Commission shall establish an account or accounts within the general fund of the County for payment of such amounts recommended by the Mobile County Indigent Care Board, as set forth herein. The County Commission will place into such account or accounts an amount equal to the sum of one-half (50%) of all oil and gas severance tax revenues, designated for and distributed to the General Fund of Mobile County, and remaining after distribution of those revenues to the Mobile County Board of Health and the Mobile County Board of Education provided for by Act 870, Regular Session 1975 (Acts 1975, p. 1714), pursuant to Title 40, Chapter 20, Article 1, Code of Alabama 1975, as amended, not to include any and all net revenues held in escrow, as a result of litigation, for Mobile County which have been collected pursuant to Act No. 79-434, H. 148,1979 Regular Session and Act No. 80-708, H. 909,1980 Regular Session.
“Allocation of such revenues for indigent care shall not exceed $5,000,000.00 in fiscal year 1982-1983. In subsequent years the Board shall consider such factors as estimated population growth, unemployment rates, population age distribution and other such demographic and sociological factors as might be indicative of indigent care needs in establishing the levels of indigent care funding, provided, however, that the funds so allocated shall not be less than the funds allocated for the previous year as adjusted by change in the hospital consumer price index.
“The remainder of all revenues paid to Mobile County pursuant to any other severance tax or privilege tax on oil and gas, under any general or local law whatsoever, shall not be deemed a part of or included in the provision of this Act. Said revenues shall be used by the Mobile County Indigent Care Board to provide for the costs of medical care and treatment of medically indigent citizens of Mobile County, as set forth herein. PROVIDED, however, that if the subject revenues exceed the need for funds to reimburse for medical care for the medically indigent of Mobile County, as of the end of the fiscal year of the County Commission, then such funds will revert to the General Fund of Mobile County.
“Section 5. The County Commission also shall obligate such additional revenues from the General Fund of Mobile County in the amount of any oil and gas severance tax revenues being held in escrow designated for Mobile County and collected pursuant to Act No. 79-434, H. 148, 1979 Regular Session (Acts 1979, p. 687) and Act No. 80-708, H. 909, 1980 Regular Sessions (Acts 1980, p. 1438), and in the amount of any funds transferred from the License Commissioner of Mobile County to the General Fund of Mobile County which relates to beer taxes; such revenues to be used to the extent the Board may require same to perform properly its duties as provided in Section 2 of this Act after such funds authorized in Section 4 have been appropriated and paid out by the Board. Provided, however, that in the event that oil and gas severance tax revenues held in escrow and collected pursuant to Act No. 79-434, H. 148, 1979 Regular Session (Acts 1979, p. 687) and Act. No. 80-708, H. 909, 1980 Regular Session (Acts 1980, p. 1438) and distributed to the General Fund of Mobile County are reduced by judicial decree, the County Commission shall obligate funds from its General Fund in an amount equal to one-half (50%) of such reduction, not to exceed $750,000.00 per annum for the 1982-83 and 1983-84 fiscal years of the County Commission to the extent the Board may require same to perform properly its duties as provided in Section 2 of this act after such funds authorized in Section 4 have been appropriated and paid out by the Board.”

(Capitalization in original.)

Procedural History

In 2009, Mobile County filed a complaint asserting that the Act is indefinite and unclear as to which hospitals qualify for reimbursements under the Act and the amount of those reimbursements and seeking a judgment declaring the qualifications for reimbursements and the method of computing those reimbursements. The following were named as defendants: Infirmary Health Hospitals, Inc., d/b/a Infirmary West and Infirmary Long Term Acute Care Hospital (“IHH”); Mobile Infirmary Association, d/b/a Mobile Infirmary Medical Center (“Mobile Infirmary”); Providence Hospital (“Providence”); Springhill Hospitals, Inc., d/b/a Springhill Memorial Hospital; and the University hospitals. In the complaint, Mobile County alleged:

“1. [Mobile County] brings this action and invokes the jurisdiction of this Court pursuant to the provisions of § 6-6-220 et seq., Code of Alabama, 1975.
“2. [Mobile County] is a body corporate and politic, and a political subdivision of the State of Alabama.
“3. Act No. 83-501 of the Alabama Legislature (the Act) makes provision for reimbursement of the cost of medical care provided to indigent residents of Mobile County, Alabama by hospitals qualifying for reimbursement thereunder, to be paid from a portion of [Mobile County’s] oil and gas severance tax revenues.
“4. Defendants are hospitals or do business as hospitals licensed by the Alabama Department of Public Health, which provide medical care to indigent residents of Mobile County, Alabama and which qualify or may qualify in the future for reimbursement of the cost of such care pursuant to the Act.
“5. The provisions of the Act are indefinite and unclear to the extent that [Mobile County] is unable to determine which hospitals qualify for reimbursement thereunder, or the amount of reimbursement to which they are entitled.
“6. As a consequence thereof, [Mobile County] is unable to distribute oil and gas severance tax revenues now on hand totaling $5,565,000.00, which revenues will continue to accrue during the pendency of this action.
“7. There exists an actual controversy between [Mobile County] and Defendants as to the determination of the qualification of providers of indigent care for reimbursement, now or in the future, of the cost of the same; and as to the computation of the amount of reimbursement, if any, to which they are or may in the future be entitled, respectively, under the Act.
“WHEREFORE, [Mobile County] prays that this Court will
“(a) Cause this matter to be expedited in order that reimbursement may be made to qualified providers of indigent care to residents of Mobile County as expeditiously as possible;
“(b) Appoint a special master, should the Court deem it necessary, possessing the specialized skill and knowledge needed to determine the proper interpretation and meaning of the Act;
“(c) Order that the special master be compensated from oil and gas severance tax revenues now on hand, as provided by the Act;
“[ (d) ] Enter a declaratory judgment or decree determining the proper interpretation and meaning of the Act....”

The University hospitals filed an answer to the complaint, asserting that the Act is not indefinite and unclear and further asserting that Mobile County had previously provided reimbursement under the Act to hospitals providing indigent care and that it could continue to do so “based on established procedures and precedence and the plain meaning of the Act.” IHH and Mobile Infirmary filed an answer to the complaint, and Providence separately answered the complaint. In their answers, IHH, Mobile Infirmary, and Providence admitted some of the allegations in the complaint, including the allegation that there were questions about how Mobile County should interpret the Act. They also filed counterclaims against Mobile County and various cross-claims against the remaining defendant hospitals, advocating for their interpretations of the Act.

Subsequently, IHH and Mobile Infirmary filed a motion for a summary judgment, which Providence joined in part, and a supporting brief as to all claims, counterclaims, and cross-claims, asking the trial court to construe the Act in accordance with the interpretations advocated by them and by Providence. The University hospitals filed a response in opposition to IHH and Mobile Infirmary’s motion for a summary judgment. After conducting a hearing on the motion for a summary judgment, the trial court entered a summary judgment. In its extensive order, it interpreted the Act in favor of the interpretations advocated by IHH, Mobile Infirmary, and Providence. Mobile County and the University hospitals filed separate motions to alter or amend the final summary-judgment order. The trial court summarily denied the motions, and the University hospitals appealed.

The Appeal

In its brief to this Court, Providence argues that the University hospitals may not have standing to pursue this appeal because, Providence reasons, the only party as to which the trial court’s judgment is adverse and thus the only party with standing to appeal is Mobile County, and Mobile County did not appeal. In response, the University hospitals concede in their reply brief that, “[i]f the University Hospitals [do] not have standing because of [Mobile] County’s intention to not oppose the motions for summary judgment (and not appeal) then there is a legitimate question whether the County filed this Complaint for Declaratory Judgment solely for the purposes of obtaining an advisory opinion, and not because there was an actual controversy between any of the parties.” (Reply brief, at pp. 3-4.)

“It is the duty of an appellate court to consider lack of jurisdiction. Ex parte Smith, 438 So.2d 766, 768 (Ala.1983).
“ ‘ “ ‘[J]usticiability is jurisdictional,’ Ex parte State ex rel. James, 711 So.2d 952, 960 n. 2 (Ala.1998); hence, if necessary, ‘this Court is duty bound to notice ex mero motu the absence of subject matter jurisdiction.’” Baldwin County [v. Bay Minette], 854 So.2d [42] at 45 [(Ala.2003)] (quoting Stamps [v. Jefferson County Bd. of Educ.], 642 So.2d [941] at 945 n. 2 [(Ala.1994)]). If we determine that a complaint fails to state a justiciable claim, we are obliged to conclude that the trial court lacked jurisdiction over that complaint; such a complaint therefore would not require the filing of a responsive pleading.’
“Bedsole v. Goodloe, 912 So.2d 508, 518 (Ala.2005).
“The Declaratory Judgment Act, § 6-6-220 et seq., Ala.Code 1975, is not a vehicle for obtaining legal advice from the courts:
“ ‘The Declaratory Judgment Act, codified at §§ 6-6-220 through -232, Ala.Code 1975, “does not ‘ “empower courts to decide ... abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.” ’ ” Bruner v. Geneva County Forestry Dep't, 865 So.2d 1167, 1175 (Ala.2003) (quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994), quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)) (emphasis added in Stamps)....’
“Bedsole, 912 So.2d at 518.”

Etowah Baptist Ass’n v. Entrekin, 45 So.3d 1266, 1274 (Ala.2010). See also Ex parte Bridges, 925 So.2d 189, 192 (Ala.2005).

In its complaint seeking a declaratory judgment, Mobile County made bare assertions that the provisions of the Act are so indefinite and unclear that it cannot determine which hospitals qualify for reimbursement under the Act and the amount of reimbursement to which the qualifying hospitals are entitled and that there was an “actual controversy” between it and the defendant hospitals. However, at the time Mobile County filed the declaratory-judgment complaint, the Act had been in effect for approximately 25 years, and Mobile County had been implementing the provisions of the Act during the majority of that time. In its complaint, Mobile County did not indicate why, after 25 years, it was not able to determine how and to whom to now distribute the designated oil and gas severance-tax revenues. It did not indicate which portions of the Act were indefinite and unclear, and it did not specifically set forth how its interpretation of the Act was adverse to any interpretation advanced by any of the defendant hospitals. Instead, Mobile County asked the court generally “to determine the proper interpretation and meaning of the Act.”

On its face, Mobile County’s declaratory-judgment complaint does not allege any actual controversy between parties whose legal interests are adverse. Rather, it simply reflects Mobile County’s own uncertainty concerning the proper interpretation of the Act. See Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177 (Ala.2006). It is clear that Mobile County filed this action seeking to get clarification, or an advisory opinion, as to how it should implement the Act in the future. See Baldwin Cnty. v. Bay Minette, 854 So.2d 42, 47 (Ala.2003) (“Indeed, the County concedes that it began this action ‘in an effort to get some clarification regarding the competing authorities in the area.’ ... Thus, by its own admission, the County is seeking an ‘advisory opinion’ from this Court.”). However, as this Court noted in Gulf Beach Hotel, 935 So.2d at 1183, “[w]hile it might be convenient for this Court to address the issues raised by [Mobile County], this Court is not empowered by the Declaratory Judgment Act to give advisory opinions, and it will not do so.”

“There must be a bona fide existing controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory relief under the declaratory judgment statutes, and if there was no justiciable controversy existing when the suit was commenced the trial court had no jurisdiction. City of Mobile v. Scott, 278 Ala. 388, 178 So.2d 545 [(1965)]; City of Mobile v. Jax Distributing Co., 267 Ala. 289, 101 So.2d 295 [(1958)].”

State ex rel. Baxley v. Johnson, 293 Ala. 69, 73, 300 So.2d 106, 110 (1974) (emphasis added). Because there was no justiciable controversy and Mobile County sought only an advisory opinion in its declaratory-judgment complaint, the trial court did not have subject-matter jurisdiction over this action. See Ingram v. Van Dall, 70 So.3d 1191 (Ala.2011). “ ‘A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.’ Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008).” MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 394 (Ala.2011). Accordingly, we dismiss this appeal with the instructions that the trial court vacate its judgment and dismiss the case, without prejudice.

APPEAL DISMISSED WITH INSTRUCTIONS.

WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur.

      . "Hill-Burton” refers to The Hospital Survey and Construction Act of 1944, 42 U.S.C. § 291. The Hill-Burton Act provided construction assistance to public and nonprofit hospitals from its enactment through 1982. In return for the financial assistance, the hospitals were required to provide services for those unable to pay.

      . Springhill Hospitals, Inc., did not answer the complaint or otherwise participate in this litigation. The trial court interpreted its failure to respond as an indication that it did not intend to seek reimbursement under the Act.


text:
    Harry COUGHLIN and Bettye Coughlin v. Mike HALE.
    1100333.
    Supreme Court of Alabama.
    Dec. 16, 2011.
    Rehearing Denied Feb. 10, 2012.
    Harry Coughlin and Bettye Coughlin, pro se.
    Jay Murrill of Riley & Jackson, P.C., Birmingham, for appellee.
   PARKER, Justice.

Harry Coughlin and Bettye Coughlin appeal the Jefferson Circuit Court’s judgment dismissing Mike Hale from an action they filed against Hale and others. We dismiss the Coughlins’ appeal as untimely.

Facts and Procedural History

On February 29, 2008, the Coughlins sued Hale, among others, seeking money damages for numerous claims arising out of an ongoing dispute between the Cough-lins and their neighbors. The Coughlins stated in their complaint that “[a]ll of the acts complained of herein were done by the above named agents/employees of Jefferson County with the full knowledge and consent of Jefferson County.”

On March 26, 2008, Hale, among other defendants not parties to this appeal, filed a motion to dismiss in which they argued that the circuit court lacked subject-matter jurisdiction over them based upon the doctrine of sovereign immunity as established in Art. I, § 14, Alabama Constitution of 1901. On July 2, 2008, the circuit court entered an order granting the motion to dismiss as to Hale and certified its order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

On November 16, 2010, the circuit court entered its final judgment disposing of all the remaining claims against the remaining parties. On November 22, 2010, the Coughlins filed a postjudgment motion, which the circuit court denied on November 30, 2010. On December 9, 2010, the Coughlins filed a notice of appeal to this Court listing Hale as the sole appellee.

Discussion

Hale argues on appeal that “[t]he Coughlins’ appeal is not timely under [Rule 4,] Ala. R.App. P.[,] and should be dismissed.” Hale’s brief, at p. 11. Hale argues that, because they filed their appeal more than 42 days after the circuit court entered its order dismissing Hale from the action based on the doctrine of sovereign immunity, which order the circuit court certified as final pursuant to Rule 54(b), the Coughlins’ appeal is untimely. We agree.

In order to determine the timeliness of the Coughlins’ appeal, we must first determine whether the circuit court exceeded its discretion in certifying its order dismissing Hale from the action as a final judgment. Concerning judgments certified as final pursuant to Rule 54(b), this Court recently held in Loachapoka Water Authority, Inc. v. Water Works Board of Auburn, 74 So.3d 419, 422-23 (Ala.2011):

“ ‘If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.’ Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007) (emphasis added). However, this Court will not consider an appeal from a judgment certified as final under Rule 54(b) if it determines that the trial court exceeded its discretion in concluding that there is ‘no just reason for delay.’ Rule 54(b); see also Scrushy v. Tucker, 955 So.2d 988, 996 (Ala.2006) (‘Whether there was “no just reason for delay” is an inquiry committed to the sound discretion of the trial court, and, as to that issue, we must determine whether the trial court exceeded its discretion.’).
“A trial court exceeds its discretion in determining that there is ‘no just reason for delay’ when ... ‘the issues in the claim being certified and a claim that will remain pending in the trial court “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” ’ Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006) (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). See also Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala.2009) (‘ “It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.” ’ (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998))).”

The Coughlins make no argument, nor is there anything in the record, to indicate that the circuit court exceeded its discretion in determining that there was no just reason for delay and in certifying its order dismissing Hale as a defendant as a final judgment under Rule 54(b). The circuit court dismissed Hale from the Coughlins’ action because it lacked subject-matter jurisdiction over him, leaving no claim pending before the circuit court against Hale. Therefore, there was no risk that “a claim ... pending in the trial court ‘ “ ‘[was] so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” ’ ” Loachapoka Water Auth., 74 So.3d at 423 (quoting other cases).

The Coughlins filed their notice of appeal from the circuit court’s July 2, 2008, order in favor of Hale on December 9, 2010, more than two years after the judgment from which they purport to be appealing had been entered. The Coughlins’ appeal does not comply with Rule 4(a)(1), Ala. R.App. P., because it was filed more than 42 days after the circuit court entered its order dismissing Hale from the action, which it made final pursuant to Rule 54(b), Ala. R. Civ. P.; thus, their appeal is untimely.

Conclusion

Based on the foregoing, we dismiss the Coughlins’ appeal as untimely.

APPEAL DISMISSED.

MALONE, C.J., and STUART and WISE, JJ., concur.

SHAW, J., concurs in the result.

      . Mike Hale is the sheriff of Jefferson County.

      . Rule 4(a)(1), Ala. R.App. P., states:
      “Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from....”