author:
WELCH, Judge.
      WISE, Judge,

text:
    STATE of Alabama v. Rachelle Echols LIVINGSTON.
    CR-06-1846.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2008.
    Rehearing Denied May 23, 2008.

      Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellant.
    Richard K. Keith, Montgomery, for ap-pellee.
   WELCH, Judge.

The State of Alabama appeals from the order of the trial court finding that the felony indictment charging Raehelle Echols Livingston, a convicted sex offender, with failure to notify the Montgomery County Sheriffs Office of a change in her residence at least 30 days prior to her move violated the constitutional prohibition against ex post facto laws. Specifically, the trial court found that because the offense with which Livingston was indicted was a Class A misdemeanor at the time the offense was committed, the State could not properly indict her for the offense as a Class C felony.

A registered sex offender’s failure to notify the proper law-enforcement agencies more than 30 days before changing residences is a violation of § 15-20-23, Ala.Code 1975, part of the Community Notification Act, §§ 15-20-20 to -38, Ala. Code 1975. The offense was changed from a Class A misdemeanor to a Class C felony effective October 1, 2005.

The record created thus far shows the following. In 1994, Livingston was convicted of enticing a minor and of second-degree sex abuse. The parties do not dispute that as a result of Livingston’s 1994 convictions for enticing a minor and second-degree sex abuse, she was required to comply with the provisions of the Community Notification Act.

The State alleges that on July 1, 2005, Livingston’s husband signed a new lease at a different address in Montgomery, and the family moved into the home at that address in August 2005, without having notified the Montgomery County Sheriffs Office, as required by § 15-20-23. On October 25, 2005, the sheriffs office discovered that Livingston was living at the new address rather than the address for she was registered. Livingston was arrested and charged with the offense on October 27, 2005.

The Montgomery County grand jury indicted Livingston on February 10, 2006, alleging that she had failed to notify the sheriffs office of her change of address, in violation of § 15-20-23. Subsequently, the State filed a motion asking the trial court to determine whether it was going to treat Livingston’s case as a continuing offense, which would mean she could be convicted of a Class C felony rather than a Class A misdemeanor.

A hearing was held on the motion, after which the trial court entered an order classifying the charge against Livingston as a misdemeanor.

“ ‘The State has a limited right to appeal; that right is governed by § 12-12-70, Ala.Code 1975 [authorizing the State to appeal from a judgment holding a statute invalid], § 12-22-91, Ala.Code 1975 [authorizing the State to appeal when the statute under which the indictment is preferred is held to be unconstitutional]; and Rule 15.7, Ala. R.Crim. P. [authorizing the State to take a pretrial appeal from rulings suppressing evidence or from orders dismissing all or part of an indictment]. According to these provisions, the State may appeal from ... pretrial rulings ... dismissing charges State v. D.L.A., 975 So.2d 1014, 1017 (Ala.Crim.App.2007), quoting State v. Maddox, 828 So.2d 946, 947 (Ala.Crim.App.2001). See also State v. Seawright, 961 So.2d 187 (Ala.Crim.App.2006).

This case has not yet come to trial. Accordingly, the State appealed from the trial court’s order pursuant to Rule 15.7, Ala. R.Crim. P., which allows the State to appeal from a pretrial order of the circuit court if the order, among other things, “dismiss[es] an indictment, information, or complaint (or any part of an indictment, information, or complaint).” The rule goes on to say, “Such an appeal may be taken only if the prosecutor certifies to the Court of Criminal Appeals that the appeal is not brought for the purpose of delay and that the order, if not reversed on appeal, will be fatal to the prosecution of the charge.” Rule 15.7(a), Ala. R.Crim. P.

In this case, the trial court did not dismiss the indictment against Livingston in whole or in part. Contrary to the State’s assertion in its notice of appeal that the trial court’s order is fatal to the prosecution, in fact, the order does not alter in any way the elements the State must prove to show that Livingston violated § 15-20-23.

We note that the offense charged in § 15-20-23 is not a continuing offense, i.e., the offense charged in the indictment was completed at the time Livingston moved without notifying the proper authorities. See Johnson v. State, 994 So.2d 950 (Ala.Crim.App.2007). The issue before the trial court was whether the law to be applied was the law that was in existence at the time the offense occurred, alleged by the State to be in August 2005, or the law that took effect October 1, 2005, after the date the offense was alleged to have occurred. The trial court determined that the law in effect at the time of the offense applied and that, therefore, Livingston could not be punished as a felony offender. The elements the State must prove in showing that a violation of § 15-20-23 occurred remain the same regardless of whether the offense occurred before or after the date the change in the applicable penalty took effect. The trial court’s ruling does not alter the indictment against Livingston in any way.

This is not a situation in which the offense is enhanced if the State presents proof of an additional element, for example, proving a prior conviction of marijuana possession to elevate a current charge of unlawful possession of marijuana from a misdemeanor offense to first-degree unlawful possession, a felony offense. See § 13A-12-213(a)(2), Ala.Code 1975. The trial court’s order had no bearing on the offense to be tried; it is certainly not “fatal” to the prosecution. Instead, the order simply determined that, if Livingston is convicted of violating § 15-20-23, she will be sentenced for committing a Class A misdemeanor rather than for committing a Class C felony, because the offense occurred before the change in the law making the wrongful conduct a felony offense rather than a misdemeanor offense.

The issue made the basis of the State’s appeal is not one that can properly be the subject of a pretrial appeal by the State, pursuant to Rule 15.7, Ala. R.Crim. P.

For the reasons set forth above, this appeal is due to be dismissed.

APPEAL DISMISSED.

BASCHAB, P.J., and SHAW, J., concur.

McMILLAN, J., concurs in the result.

WISE, J., dissents, with opinion.

WISE, Judge,

dissenting.

I dissent from the majority’s decision to dismiss the State’s appeal from the trial court’s finding that the felony indictment returned against Livingston violated the constitutional prohibition against ex post facto laws. The majority concludes that the issue made the basis of the State’s appeal is not one that can properly be the subject of a pretrial appeal by the State under Rule 15.7, Ala.R.Crim.P.

The trial court’s action was based on its conclusion that in August 2005, when Livingston actually transferred her legal residence without first submitting proper notice of her intent to move, a violation of § 15-20-23(a), Ala.Code 1975, was a Class A misdemeanor, as opposed to the Class C felony for which she was indicted. The majority concludes that the appeal should be dismissed because the court’s order was not “fatal” to the prosecution, but merely addressed what sentence she could receive, if convicted of violating § 15-20-28.

In my opinion, the trial court’s action constituted the dismissal of the felony indictment against Livingston. Although she could still be tried for a misdemeanor offense, the court’s action was effectively “fatal” to the State’s prosecution of a felony offense. Thus, I believe that the State was entitled to file a pretrial appeal of the trial court’s order, pursuant to Rule 15.7, Ala.R.Crim.P. Further, I believe that this offense constitutes a continuing offense, and, therefore, that Livingston could be properly indicted for the felony offense. My conclusion is based on this Court’s decision in State v. Goldberg, 819 So.2d 123 (Ala.Crim.App.2001). Although Goldberg involved a conviction for failing to register as a sex offender, in violation of § 13A-11-200, Ala.Code 1975, rather than a violation of § 15-20-23, I fail to see the distinction between these two offenses that would make one — and not the other — -a continuing offense. In my opinion, Livingston’s transference of her legal residence without first submitting proper notice of her intent to move constituted a continuing offense. A sex offender’s failure to submit notice of her intent to move and the continued act of remaining at the new residence would, in my opinion, significantly impair the purpose of the statute and the Alabama Legislature’s intent in creating a registry of sex offenders; namely, monitoring the location of all convicted sex offenders within the State of Alabama. Therefore, Livingston was properly indicted for a Class C felony offense. See also Johnson v. State, 994 So.2d 950 (Ala.Crim.App.2007) (Wise, J., concurring in part and dissenting in part).

Based on the foregoing, I would not dismiss the State’s appeal. Moreover, I would reverse the trial court’s dismissal of Livingston’s felony indictment and remand this case for the Montgomery Circuit Court to reinstate the indictment charging Livingston with the aforementioned Class C felony offense and to proceed accordingly. Therefore, I must respectfully dissent.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Ex parte State of Alabama (In re STATE of Alabama v. Rachelle Echols LIVINGSTON).
    1071197.
    Supreme Court of Alabama.
    Nov. 14, 2008.

      Troy King, atty. gen., and James B. Prude, asst. atty. gen., for petitioner.
   SMITH, Justice.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

COBB, C.J., and SEE, WOODALL, and PARKER, JJ., concur.


author: WELCH, Judge.

text:
    Deangelo THOMAS v. STATE of Alabama.
    CR-07-0094.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2008.
    Edward D. Tumlin, Birmingham, for appellant.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   WELCH, Judge.

Deangelo Thomas was convicted of two counts of robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975, and one count of criminal use of a defense spray, a violation of § 13A-6-27, Ala.Code 1975. The trial court sentenced Thomas to two terms of life in prison without the possibility of parole for his robbery convictions and one term of life imprisonment for his conviction for criminal use of a defense spray. The terms are to run consecutively.

Thomas contends that he did not knowingly, intelligently and voluntarily waive his right to counsel, and that the trial court should not have let him represent himself without first warning him of the dangers of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In response, the State contends that Thomas did not preserve the issue for appellate review.

The State’s position is without merit. Deprivation of the right to counsel is a jurisdictional bar to a valid prosecution and, thus, it can be raised at any time. See Woodruff v. City of Pelham, 1 So.3d 157, 159 (Ala.Crim.App.2008) (and cases cited therein).

In Baker v. State, 933 So.2d 406, 408-09 (Ala.Crim.App.2005), this Court discussed the jurisdictional prerequisite as it relates to the issue of right to counsel as follows:

“ ‘A defendant’s decision to represent himself necessarily involves the waiver of his right to counsel. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064 (1986). In Pratt v. State, 851 So.2d 142, 144-45 (Ala.Crim.App.2002), this Court pointed out:
“ ‘ “ ‘The constitutional “right to counsel, or waiver thereof, is an essential jurisdictional prerequisite to the authority to convict an accused!, and cjonviction without this safeguard is void.” People v. Carroll, 140 Cal.App.3d 135, 140, 189 Cal.Rptr. 327, 331 (Cal.App. 2 Dist.), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983) (citing Johnson v. Zerbst [,304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ]). Unless a defendant has or waives assistance of counsel, the Sixth Amendment is a jurisdictional bar to a valid conviction and sentence. Johnson v. Zerbst; Stokes v. Singletary, 952 F.2d 1567 (11th Cir. 1992); Boruff v. United States, 310 F.2d 918 (5th Cir.1962). See also Lancaster v. State, [638 So.2d 1370, 1373] (Ala.Crim.App.1993) (“the appellant’s ... right to have counsel appointed on appeal [is a] jurisdictional matter[ ]”); Lake v. City of Birmingham, 390 So.2d 36, 38 (Ala.Crim.App.1980) (a record failing to reveal any of the circumstances surrounding the appellant’s self-representation “will not support the trial court’s judgment wherein the appellant was sentenced to a loss of liberty”).’
“‘“Berry v. State, 630 So.2d 127, 130 (Ala.Crim.App.1993) (footnote omitted). See also Custis v. United States, 511 U.S. 485, 494, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (‘ “If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty-The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.” ’) (quoting Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); Weakley v. State, 721 So.2d 235, 236 (Ala.1998) (holding that the right to counsel at arraignment is a jurisdictional matter).”
“ ‘Thus it is the lack of counsel, coupled with the absence of a knowing and intelligent waiver thereof, that acts to deny the defendant counsel and to juris-dictionally bar his prosecution.’ ”

The record in this case shows the following. After being told by Robert Sanford, Thomas’s appointed counsel, that Thomas intended to represent himself, the following conversation took place:

“THE COURT: Is that correct, Mr. Thomas, that you want to represent yourself?
“DEFENDANT THOMAS: Yes, sir.
“THE COURT: And the other statements about the settlement offers that have been rejected, is that also correct?
“DEFENDANT THOMAS: Yes, sir.
“THE COURT: Let me say this: If you are going to represent yourself — and I will allow you to do that — I am going to order that Mr. Sanford sit at the table. He won’t be trying the case. But there may be something that comes up during the case where you need to ask a procedure question, and he would be there to answer that question for you if you needed advice.
“I say that for this reason. During the course of a trial, there are certain procedural rules that all of the lawyers have to follow when they try a case. And you would still be bound by those rules.
“DEFENDANT THOMAS: I would like to speak something for the record too.
“THE COURT: Let me finish though, and then I will let you do that.
“In following those rules, if you go outside the rules and there is an objection, then I would have to stop you from whatever you were doing. And I don’t know what that might be.
“When we start a case, we bring a bunch of jurors up here. And then the lawyers typically will ask the jury questions before the actual jurors that are seated in this box are selected. That is to help you with the strikes. You would excuse so many people to leave a panel in the box.
“Now, many times when I have a defendant that represents himself, they sometimes want the lawyer to ask the jurors the questions, but then they make the decision about who gets struck and who stays. Do you see what I am saying? And that is another reason he is staying here.
“But you don’t have to let him ask those questions. You can ask the questions that touch on their qualifications to serve and touch on whether they might be prejudiced against you based on their life experiences.
“All of this is geared to try to get a jury that is going to be fair to you and fair to the State. We don’t want anybody coming in here that is ready to convict you just because you are here. And we don’t want somebody that will just discount what the State says totally just because they are the prosecution.
“We want somebody that will listen to both sides and then make a fair decision. That is what all of this is geared toward. “So he will be in the courtroom if you have a question for him. That doesn’t mean you have to ask him anything. But if you have a question, he is there. “Now, if there is an objection, if the State objects to something, then if you are asking questions, you should stop for a minute and let me rule on that objection. That is part of the normal procedure.
“And I mentioned to you yesterday when we were deciding if you were going to trial or not, since you are representing yourself, I know you can’t afford to cause any real disruptions in the courtroom that would hurt your case. “If you are hoping to try the case and keep the jury as fair minded as possible, you wouldn’t want to disrupt the proceedings. You want them to hear what you have to say and what the State has to say and cross-examination that you are allowed to conduct with any witness that they produce.
“I do want to say — and this applies to any lawyer, not just you handling your case — if there is a disruption in the courtroom, then I am going to have you removed from the courtroom and then Bob Sanford will try the rest of the case. Do you know what I mean?
“If I give you an instruction not to do something and you do it anyway, then you may forfeit — and I make the decision at the time; I am not making it right now — you might forfeit your right to stay in the courtroom, depending on what it is.
“So I hope that you will conduct yourself professionally and in an orderly manner in order to convey to the jury the best possible scenario of the fact that you feel like you are not guilty of these charges. “Now, you said you had something you wanted to say. You can stay right there.
“DEFENDANT THOMAS: Yeah. I want this on the record.
“THE COURT: Yes. She can hear you. “DEFENDANT THOMAS: On 09/24/07 before Judge Alfred Bahakel, I, the defendant, Deangelo Thomas, did dismiss my attorney, Robert Sanford, from representing me, the defendant, in this case for the purpose of neglected, ineffective and lack of care in this serious trial procedure.
“I, defendant, Deangelo Thomas, do make this open court motion to continue this procedure on the grounds that I am not a lawyer to represent myself in this serious matter.
“I thank you for allowing me to stand before this Honorable Court. That is what I want on the record.”

(R. 14-15.) The trial court then denied Thomas’s motion to continue.

We recognize that Thomas first answered affirmatively when asked by the trial court whether he wanted to represent himself. However, although his statement for the record was not the most eloquent or artfully crafted, it appears that Thomas was requesting a continuance so that another attorney could represent him in the trial of this case because he was dissatisfied with Sanford. Because of the apparent conflict in Thomas’s statement, the onus was on the trial court to ensure that Thomas’s waiver of counsel was knowingly and intelligently made.

“ ‘ “The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused— whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.”

‘Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).’”

Baker v. State, 933 So.2d 406, 409 (Ala.Crim.App.2005).

“Rule 6.1(b), Ala. R.Crim. P., provides a framework to ensure that a defendant’s waiver of counsel is knowing and intelligent. The rule provides in pertinent part as follows:
“ ‘A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the time of accepting a defendant’s waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings .... ’
“In addition to Rule 6.1, Alabama caselaw has discussed the duties of the trial court throughout criminal proceedings to ensure that a defendant fully understands his right to counsel and the consequences of waiving that right.
“ ‘ “In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his own defense, the defendant must ‘knowingly’ and ‘intelligently’ waive his right to counsel, because in representing himself he is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835. The defendant ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ Faretta, 422 U.S. at 835 (other citations omitted).” ’
“Baker v. State, 933 So.2d 406, 408-411 (Ala.Crim.App.2005).”

Woodruff, 1 So.3d at 160.

This case is factually similar to Cobble v. State, 710 So.2d 539 (Ala.Crim.App.1998), in which the defendant expressed dissatisfaction with his appointed counsel and fired her just before trial. The trial court permitted counsel to withdraw, even after finding that Cobble’s complaints about his attorney were unfounded and unsubstantiated. However, the trial court also ordered appointed counsel to be in the courtroom to assist Cobble if needed during the trial of his case. The day of trial, Cobble requested a continuance to obtain counsel to represent him at trial, but the trial court determined that Cobble had waived his right to counsel and required him to represent himself at trial. This Court reversed the trial court’s order, holding as follows:

“ ‘ “A waiver of counsel can only be ‘effectuated when the defendant asserts a clear and unequivocal’ right to self-representation.” Westmoreland v. City of Hartselle, 500 So.2d 1327, 1328 (Ala.Crim.App.1986), citing Faretta, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. If the record is not clear as to the defendant’s waiver and request of self-representation, the burden of proof is on the State. Carnley [v. Cochran ], 369 U.S. [506] at 517, 82 S.Ct. [884] at 890-91, [8 L.Ed.2d 70 (1962) ]. Presuming a waiver from a silent record is impermissible. Carnley.’
“Tomlin [v. State], 601 So.2d [124] at 128 [ (Ala.1991) ] (emphasis added); see also Stanley v. State, 703 So.2d 1027 (Ala.Crim.App.1997). In determining whether a defendant knowingly and intelligently waived his right to counsel, this court must look to the ‘totality of the circumstances’ in each particular case. Tomlin, 601 So.2d at 129.
“In the instant case, the record does not show that the appellant made a ‘clear and unequivocal’ waiver of his right to counsel. In fact, the record reveals that the trial court informed the .appellant that he would be representing himself, even after the appellant asked the trial court to appoint another attorney to represent him. The appellant never expressed a desire to represent himself at trial.
“Although we do not necessarily disagree with the trial court’s findings that the appellant was engaging in dilatory tactics by making unwarranted accusations against his trial counsel, we cannot uphold the trial court’s peremptory ruling that the appellant, as a result of these actions, knowingly waived his right to trial counsel. In Leslie v. State, 703 So.2d 1029 (Ala.Crim.App.1997); Stanley, supra, 703 So.2d at 1028; and Watkins v. State, 708 So.2d 236 (Ala. Crim.App.1997), three cases recently decided by this court which were factually similar to the instant case, we held that the trial court, instead of requiring the defendant to represent himself at trial, should have done one of the following: (1) denied the attorney’s motion to withdraw; (2) appointed a new attorney to represent the defendant at trial; (3) granted the defendant’s request for a continuance to allow him to retain counsel; or (4) determined whether the defendant wanted to represent himself and, if so, engaged the defendant in a colloquy to determine whether he understood all of the implications involved in self-representation. Any of the above actions would have been appropriate here; requiring the appellant to represent himself was not.”

Cobble v. State, 710 So.2d 539, 541-42 (Ala.Crim.App.1998).

Likewise, in this case the record does not show that Thomas made a clear and unequivocal waiver of his right to counsel. There is no evidence in the record indicating that the trial court attempted to clarify Thomas’s conflicting statements that he intended to represent himself but then he requested a continuance because he was not a lawyer and appeared to want an attorney to represent him in the trial of this case. The record does not affirmatively indicate that Thomas made a knowing, intelligent waiver of his right to counsel.

Even if we were to find that the record in this case supported a finding that Thomas knowingly and intelligently waived his right to counsel, the record does not indicate that the trial court properly advised him of the dangers and disadvantages of self-representation, and it did not advise him that he could revoke his waiver at any time during the proceedings. See Williams v. State, 958 So.2d 911, 913 (Ala. Crim.App.2006), and Leonard v. State, 484 So.2d 1185 (Ala.Crim.App.1985).

An argument might be made that the trial court’s admonitions to Thomas that he abide by the trial court’s rulings on objections and that he conduct himself in a professional manner or he would face possible expulsion from the courtroom were attempts to apprise Thomas of the dangers and disadvantages of self-representation. However, in viewing the totality of the circumstances concerning the trial court’s determination that Thomas would represent himself, we find that the trial court’s statement to Thomas was more in the nature of how the trial court expected him to comport himself rather than an effort to apprise him of the dangers and disadvantages of self-representation. Similarly, the trial court failed to advise Thomas that he could revoke his waiver of counsel at any time.

For the reasons set forth above, we must reverse the trial court’s judgment and remand this case for a new trial. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995); Williams, supra; and Cobble, supra.

REVERSED AND REMANDED.

BASCHAB, P.J., and McMILLAN and WISE, JJ., concur. SHAW, J., concurs in the result.


author: WELCH, Judge. SHAW, Judge,

text:
    Jeffery Richard DOSECK v. STATE of Alabama.
    CR-07-0198.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2008.
    Shannon A. Rash, Dothan, for appellant.
    Troy King, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   WELCH, Judge.

The appellant, Jeffery Richard Doseck, pleaded guilty to second-degree escape, a violation of § 13A-10-32, Ala.Code 1975. Doseck was sentenced, as a habitual felony offender, to 15 years’ imprisonment, 14 years of which were suspended, with one year to be served through the Houston County Department of Community Corrections and three years’ probation.

Before entering his guilty plea, Doseck expressly reserved the right to appeal the circuit court’s denial of his motion to dismiss the indictment on the ground that, based on the facts of his case, the indictment erroneously charged him with the felony offense of second-degree escape instead of the misdemeanor offense of failing to remain within the extended limits of confinement or failing to return to the place of confinement within the time prescribed, a violation of § 14-8-42, Ala.Code 1975.

At the time of his escape, Doseck was serving a sentence through the Houston County Department of Community Corrections work-release program for his conviction of the misdemeanor offense of negotiating a worthless negotiable instrument. On March 21, 2007, Doseck failed to return to the jail at the designated time of 7:00 p.m. He returned to the jail at approximately 10:00 on the following morning. He was subsequently indicted for second-degree escape.

Doseck’s motion is based upon his contention that the State cannot present sufficient evidence to sustain a conviction for escape in the second degree. This court has previously held that a lack of evidence as to the elements of the offense charged in the indictment cannot be the basis for the pretrial dismissal of an indictment. In State v. Foster, 935 So.2d 1216, 1216-17 (Ala.Crim.App.2005), this court explained its rationale as follows:

“Rule 13.5(c)(1), Ala. R.Crim. P., provides:
“ ‘A motion to dismiss the indictment may be based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure of the indictment to charge an offense.’
“The State is correct in its contention that Rule 13.5(c)(1) does not provide for the dismissal of an indictment based on the insufficiency of the evidence or, as in this case, a possible lack of evidence. See State v. Edwards, 590 So.2d 379 (Ala.Crim.App.1991) (establishment of the corpus delicti requires proof of facts by the State so entwined with the merits of the case that a decision as to whether it had been proved should not be made before trial but should be postponed until trial); State v. McClain, 911 So.2d 54 (Ala.Crim.App.2005) (trial court cannot dismiss the indictment based on a lack of evidence).”

Therefore, the indictment cannot be dismissed on the grounds Doseck raises on appeal in this case.

The dissent agrees that a motion to dismiss an indictment is not the proper avenue for challenging the sufficiency of the evidence. The dissent then states that this court has improperly considered Do-seck’s motion based on its style rather than its substance and that, in this case, the substance of the motion “was purely a question of law — whether the undisputed facts constituted felony escape or misdemeanor escape.” 8 So.3d at 1026. The dissent further asserts that “[t]he trial court, in denying Doseck’s motion, effectively ruled that, as a matter of law, his actions constituted felony escape and not misdemeanor escape, and Doseck properly reserved that ruling of law for review on appeal during the guilty-plea colloquy.” 8 So.3d at 1026. However, a trial court does not give advisory opinions on pure questions of law. Here, the trial court was asked to dismiss the indictment based on an argument that the State could not prove the facts necessary to constitute escape in the second degree, and it denied that motion. It is unclear what motion or pleading was contemplated by the dissent. Whether the trial court’s legal opinion about whether the State had properly charged Doseck with escape in the second degree, based upon what the dissent argued were essentially stipulated facts, was correct or incorrect is not material to the issue decided in this case. That issue is whether a trial court can dismiss an indictment before trial based upon an expected failure of the State to be able to prove the facts constituting the offense charged in that indictment.

The dissent would create a mechanism for examining the validity of the factual underpinning of indictments that is not contemplated by the Alabama Rules of Criminal Procedure. Rule 13.5(c)(1), Ala. R.Crim. P., “does not provide for the dismissal of an indictment based on the insufficiency of the evidence or, as in this case, a possible lack of evidence.” Foster, 935 So.2d at 1217. In his pretrial motion, Doseck asked the court to dismiss his indictment on a ground that would require the circuit court to determine whether the facts sufficed to establish the charged offense. There is no Rule of Criminal Procedure that provides a mechanism for a pretrial challenge to the sufficiency of the evidence. This court is not empowered to add such a mechanism to the Alabama Rules of Criminal Procedure.

This is not to suggest that a defendant cannot challenge an indictment on constitutional grounds or other grounds allowed by rule, by statute, or by other law. Because Doseck’s motion to dismiss the indictment was based on a challenge of the sufficiency of the evidence, the trial court properly denied the motion. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

BASCHAB, P.J., and WISE, J., concur. McMILLAN, J., concurs in the result. SHAW, J., dissents, with opinion.

SHAW, Judge,

dissenting.

I agree with the majority that a motion to dismiss an indictment is not the proper avenue for challenging the sufficiency of the evidence. However, the majority fails to acknowledge the well settled principal that “[t]he substance of a motion and not its style determines what kind of motion it is.” Evans v. Waddell, 689 So.2d 23, 24 (Ala.1997). See also Boykin v. Law, 946 So.2d 838 (Ala.2006) (treating a motion to dismiss as a motion to set aside a void judgment under Rule 60(b), Ala.R.Civ.P.); Stabler v. City of Mobile, 844 So.2d 555 (Ala.2002) (treating motion to dismiss as a motion for summary judgment); and Ex parte S.W.T., 782 So.2d 766, 767 (Ala.2000) (treating a motion requesting “ ‘an enlargement of time in which to file a post-trial motion’” as a motion requesting an extension of time for an appeal pursuant to Rule 77(d), Ala.R.Civ.P.). The fact that Jeffery Richard Doseck’s pretrial motion challenging whether his actions constituted felony escape was styled as a “Motion to Dismiss” is not dispositive of this appeal, as the majority concludes.

Although Doseck’s motion was styled as a motion to dismiss, and in it Doseck requested dismissal of the indictment against him, as Doseck noted in his rebuttal to the State’s response to his motion, “[t]he issue is whether or not an individual who violates the conditions of work release [by not returning to his work-release facility as scheduled] can be charged with [and convicted of] a felony when that individual is at work release due to misdemeanor convictions.” (C. 9.) Doseck admitted in his motion that he failed to return to his work-release facility at his scheduled time, i.e., he stipulated to the facts as alleged by the State. The only issue presented to the trial court was purely a question of law— whether Doseck’s undisputed actions constituted felony escape or misdemeanor escape. See, e.g., Ex parte J.C.C., 4 So.3d 1188 (Ala.2008). The trial court, in denying Doseck’s motion, effectively ruled that, as a matter of law, his actions constituted felony escape and not misdemeanor escape, and Doseck properly reserved that ruling of law for review on appeal during the guilty-plea colloquy. I would not penalize Doseck for not styling his motion properly when the pure question of law presented to this Court was properly presented to the trial court, ruled on by the trial court, and properly reserved for appellate review.

I would address the issue presented; therefore, I respectfully dissent.


author: McMILLAN, Judge. SHAW, Judge,

text:
    Ernest Lee BRIGGINS v. STATE of Alabama.
    CR-07-0691.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2008.

      Ernest Lee Briggins, pro se.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellee.
   McMILLAN, Judge.

The appellant, Ernest Lee Briggins, appeals from the denial of his motion to reconsider his sentence, made pursuant to § 13A-5-9.1, Ala.Code 1975. In the motion, Briggins sought reconsideration of his three concurrent sentences of life imprisonment on three prior Class B felony convictions for the unlawful distribution of a controlled substance, after having been convicted and sentenced as a habitual felony offender, on a fourth Class B felony, to life imprisonment.

Briggins filed this, his fourth, motion for reconsideration in the circuit court on November 28, 2007, alleging that his sentence should be reevaluated pursuant to § 13A-5-9, as modified by § 13A-5-9.1, and pursuant to the Supreme Court’s holding in Kirby v. State, 899 So.2d 968 (Ala.2004), simply because he was eligible for sentence reconsideration. Briggins, however, provided no grounds to support the reevaluation of his sentence other than that he was “eligible for reconsideration.”

On December 21, 2007, the trial court, with Judge Teresa Pulliam presiding, denied the motion by the following entry in its case action summary sheet:

“12-21-07 Kirby is denied as successive and on same grounds as set forth in Judge Vowell/J. Hard’s order of 6-27-7.
7s/ T. Pulliam”

Although Judge Pulliam was not the sentencing judge in Briggins’s case and was not the presiding judge of the Jefferson Circuit Court, it appears from the record that she was allowed to rule on the instant motion for resentencing based upon authorization from Judge Vowell, the presiding judge of Jefferson County, who had participated along with Judge Hard in a previous June 27, 2007, denial of Brig-gins’s motion for resentencing.

The initial order issued by the trial court, Judge Vowell and Judge Hard, on June 27, 2007, denying Briggins’s third motion for reconsideration, contained the following handwritten notation on the case action summary sheet:

“6-27-07 Kirby motion is Denied—
“Subject paroled 6/28/04, became delinquent 3/7/07 & was revoked 5/07[.]
“/s/ James Hard
/s/ Scott Vowell, Presiding Judge.” (C.7.)

It is well settled that “[a] petitioner does not have a right to have his sentence reduced pursuant to § 13A-5-9.1, Ala.Code 1975.” Hastings v. State, 938 So.2d 974, 975 (Ala.Crim.App.2005). Additionally, this Court “will not second-guess [the trial] court’s discretionary decision” in determining whether to resentence an inmate under § 13A-5-9.1. Prestwood v. State, 915 So.2d 580, 583 (Ala.Crim.App.2005).

Here, however, the trial court erred in finding that Briggins was ineligible for sentence reconsideration merely because his parole had been revoked. See White v. State, 947 So.2d 436, 437 (Ala.Crim.App.2006); Ferrell v. State, 944 So.2d 162 (Ala.Crim.App.2006). Additionally, the trial court erred in finding that Briggins was ineligible for sentence reconsideration on grounds that his motion was successive based on the grounds set forth in the trial court’s June 27, 2007, order. Cf. Ex parte Gunn, 993 So.2d 433 (Ala.2007). In Gunn, the Supreme Court held that the trial court has subject-matter jurisdiction to consider a successive § 13A-5-9.1 motion, overruling, in part, this Court’s decision in Wells v. State, 941 So.2d 1008, 1009 (Ala.Crim.App.2005), to the extent that it violates Kirby, supra. Although the Court in Gunn declined, by implication, to decide whether § 13A-5-9.1 allows or requires the trial court to limit its jurisdiction to one motion per defendant, that question is not before this Court because the trial court found the petition to be successive on insufficient grounds, that is, Briggins was a parole violator. We, therefore, remand this case to the trial court for further findings consistent with this opinion.

Due return shall be made within 45 days of the release of this opinion.

REVERSED AND REMANDED.

WISE and WELCH, JJ., concur. SHAW, J., dissents, with opinion, which BASCHAB, P.J., joins.

SHAW, Judge,

dissenting.

In neither the trial court’s December 21, 2007, order denying Ernest Lee Briggins’s current motion for reconsideration of his sentence, nor in the trial court’s June 27, 2007, order denying Briggins’s previous motion for reconsideration on which the trial court relied in part in its December 21, 2007, order, did the trial court state that Briggins was ineligible for sentence reconsideration because of the revocation of his parole, as was the case in both White v. State, 947 So.2d 436 (Ala.Crim.App.2006), and Ferrell v. State, 944 So.2d 162 (Ala.Crim.App.2006). Rather, it appears to me that the trial court, in denying both the present motion and the previous motion, found that Briggins was eligible for sentence reconsideration, but simply declined to resentence Briggins, at least in part because of his parole history.

As this Court noted in Holt v. State, 960 So.2d 726, 735 n. 3 (Ala.Crim.App.2006): “[A] circuit court is not required to resen-tence an inmate merely because it determines that the inmate is eligible for reconsideration of his or her sentence.” Whether to resentence an eligible inmate is entirely within the discretion of the trial court, see, e.g., Prestwood v. State, 915 So.2d 580 (Ala.Crim.App.2005), and nothing in § 13A-5-9.1, Ala.Code 1975, Kirby v. State, 899 So.2d 968 (Ala.2004), White, supra, or Ferrell, supra, prohibits a trial court from considering and relying on an inmate’s parole history in refusing to re-sentence that inmate. To the contrary, in White, this Court specifically recognized that “an inmate’s parole history is a factor to be considered in determining whether an inmate is a nonviolent offender and whether to resentence an eligible inmate.” 947 So.2d at 437 (emphasis added). I would affirm the trial court’s judgment; therefore, I respectfully dissent.

BASCHAB, P.J., joins.

       Note from the reporter of decisions: An October 10, 2008, entry on the Court of Criminal Appeals’ docket sheet indicates that the trial court reconsidered Briggins’s Kirby motion and denied that motion.


author: McMILLAN, Judge.

text:
    Michael Rodriquez JONES v. STATE of Alabama.
    CR-06-0980.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2008.

      Susan Graham James, Montgomery, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   On Return to Second Remand

McMILLAN, Judge.

The appellant, Michael Rodriquez Jones, appeals from the trial court’s revocation of his probation in Case No. CC-94-906.70 “Case 1” and Case No. CC-01-829.70 “Case 2”. The record and supplementary information provided by the trial court reflect the following facts:

Case 1: On July 25, 1994, Jones pleaded guilty to assault in the second degree. The trial court sentenced him to two years’ imprisonment; that sentence was split, and he was ordered to serve one year in confinement and the balance of the sentence was suspended on one year’s probation. The court also ordered him to pay $25,397 in restitution, a $50 crime victims’ assessment, court costs, and attorney fees. On July 18, 1995, the trial court placed Jones on probation. On February 5, 1996, he appeared for a probation review and tested positive for drugs. The trial court declared him delinquent, tolled his probation, and scheduled a revocation hearing. On February 7, 1996, the court set aside the delinquency order and reinstated Jones on probation on the original terms, with the added condition that he submit to evaluation at a chemical-addiction program and successfully complete the recommended program. On August 1, 1996, Jones appeared for a probation review, and the court entered an order, extending probation for one year or until all court-ordered moneys were paid. There is no further information available regarding Case 1 until July 28, 2002, when Jones failed to appear for a scheduled probation review. The trial court ordered the probation officer to notify Jones of a new review date, where he would be required to show why he should not be declared delinquent for failing to pay court-ordered moneys. The court noted that, at that time, Jones had paid $658, which left a balance, including court costs and attorney fees, of $25,019 to be paid. Penalties for failure to pay and subsequent payments resulted in a total balance owing of $31,752.60 in Case 1 on January 11, 2007.

Case 2: Jones pleaded guilty to first-degree possession of marijuana. On August 30, 2001, the trial court sentenced him to five years’ imprisonment, suspended the sentence, and placed him on supervised probation for two years or until all conditions of the suspended sentence were met. The court also ordered him to pay a $1,000 fine, a $100 forensic-services fee, a $50 crime victims’ assessment, a $150 attorney fee, and court costs. There is no further information available regarding Case 2 until July 23, 2002, when, as in Case 1, Jones failed to appear for a probation review. The trial court ordered the probation officer to schedule a show-cause hearing, as stated earlier, based on Jones’s failure to pay court-ordered moneys. The court noted that, at that time, Jones had paid $80, which left a balance, including court costs and attorney fees, of $1,567 to be paid. On July 20, 2004; on July 12, 2005; and on July 19, 2006, the trial court entered orders that Jones’s “[probation automatically extends until all sums are paid.” Penalties and payments resulted in a total balance of $1,337.60 due in Case 2 on January 11, 2007.

Revocation: As a result of an incident at the probation office on January 5, 2007, Jones was charged with violating the terms of his probation by testing positive for marijuana and committing the new offenses of first-degree possession of marijuana and unlawful possession of a firearm. On January 11, 2007, the trial court declared him delinquent and tolled probation in both cases. The court noted that Jones “owe[d] court monies of $31,752.60 in case number CC-1994-906 and $13[3]7.60 in CC-2001-0829” and that “[h]e was making payments which is why this was not a charged violation.” On January 16, 2007, Jones appeared for a revocation hearing and moved to dismiss both cases, on the ground that his probation had expired and he was no longer under court supervision. On March 6, 2007, the trial court conducted a final revocation hearing and found that Jones had violated the conditions of his probation by failing to refrain from illegal activity, specifically, by testing positive for marijuana and by having a firearm in his possession. The court revoked his probation in both cases and ordered Jones to serve his two-year sentence in Case 1 and his five-year sentence in Case 2, concurrently with all other sentences he was serving.

Appeal: After Jones appealed to this court, we remanded the cause by order for the trial court to supplement the record with evidence as to whether Jones was still on probation on March 7, 2007, when probation in both cases was revoked. After the trial court filed its return to remand, we remanded the cause by order a second time for the trial court to supplement the record with information as to the length of time that Jones’s probation may have been tolled in Case 2. The trial court has now filed its return to the second remand, which states, in pertinent part: “Upon review of the file, we find no record where probation was tolled in Case No. CC-2001-0829.” The court states that, when Jones failed to appear on July 23, 2002, he was not declared delinquent because he was in compliance with the conditions of probation according to his probation officer and he had been making timely payments on restitution and court costs.

Jones contends that the trial court did not have jurisdiction to revoke his probation in Case 1 or Case 2 because, he argues, the probationary periods in both cases had expired before revocation proceedings began. The State contends that the probation revocations were proper because, it argues, even though more than five years had passed since the probationary period began, the court had initiated proceedings that effectively tolled, the probationary periods and Jones had not successfully completed the conditions of probation and received a formal discharge from probation. The State argues that the trial court’s implementation of an ongoing review process, which required Jones to make regular payments to avoid revocation, was sufficient to toll probation.

Section 15-22-54(a), Ala.Code 1975, sets out the probationary periods the trial court may impose for adult criminal offenders:

“The period of probation or suspension of execution of sentence shall be determined by the court, and the period of probation or suspension may be continued, extended, or terminated. However, in no case shall the maximum probation period of a defendant guilty of a misdemeanor exceed two years, nor shall the maximum probation period of a defendant guilty of a felony exceed five years. When the conditions of probation or suspension of sentence are fulfilled, the court shall, by order duly entered on its minutes, discharge the defendant.”

(Emphasis added.) When a probationer fails to fulfill all the conditions of probation and there is no formal discharge from probation by order of the court, the period of probation continues until the probationer satisfactorily fulfills the conditions of probation or he receives a formal discharge from probation, or the five-year maximum period passes. Sherer v. State, 486 So.2d 1330 (Ala.Crim.App.1986).

Case 1: Because second-degree assault is a felony offense, the trial court could impose probation for a maximum of five years. Jones’s one-year term of probation began on July 18, 1995. After it was tolled for two days, the probationary period was scheduled to expire on July 20, 1996. However, the record reflects that Jones did not pay the restitution ordered by the court. Since he had not satisfactorily fulfilled the conditions of probation, his probation did not expire and the trial court continued to have jurisdiction over this matter until the end of the five-year statutory period.

There is no record of further action in this case until July 23, 2002, when Jones failed to appear for a probation review. At that time, the trial court lacked jurisdiction to entertain the issue of revocation because the five-year probationary period had expired approximately two years earlier, on July 2, 2000. The trial court therefore did not have authority to issue the show-cause order in 2002 or the revocation order in 2007.

Case 2: Because first-degree possession of marijuana is a felony offense, the maximum period of probation was five years. Jones’s two-year probationary term began on August 30, 2001. On July 23, 2002, the trial court issued the show-cause order noted heretofore but did not toll the running of Jones’s probation. The two-year probationary term was scheduled to expire on August 30, 2003. However, because Jones did not pay his court-ordered moneys, Jones’s probation did not expire. In July 2004, 2005, and 2006, the court extended probation because the moneys still had not been paid. These extensions were proper because they were within the five-year statutory period. “At any time during a period of probation, the court, for good cause shown, may extend the term of probation up to the maximum period permitted by law.” Rule 27.3, Ala. R.Crim. P.

On January 11, 2007, the trial court entered an order, purporting to find Jones delinquent and to toll his probation. However, the statutory maximum five-year period of probation had expired approximately five months earlier, on August 30, 2006. The process for revoking probation did not begin until after the probationary period had expired.

“Just as wrongful conduct which is the basis of a revocation must generally occur during the period of probation or parole, the vast majority of American jurisdictions hold that revocation proceedings must be initiated prior to the date of the offender’s release from probation or parole. What this means is that process sufficient to begin revocation proceedings must issue before the end of the probation or parole term. Jurisdictions have adopted a variety of ways to commence revocations. The most common methods include a summons, arrest warrant, warrantless arrest, show-cause order, and a motion to revoke.”

Watkins v. State, 455 So.2d 160, 162 (Ala.Crim.App.1984), citing N. Cohen & J. Go-bert, The Law of Probation and Parole § 11.01 at 525-26 (1983) (footnotes omitted) (emphasis added). The trial court extended Jones’s probation in 2004, 2005, and 2006 but did not toll it. Therefore, the court did not have jurisdiction to rule on the issue of revocation in 2007.

The trial court lacked authority to order revocation in either of Jones’s cases. Therefore, the trial court’s order of revocation must be reversed. This cause is hereby remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SHAW, WISE, and WELCH, JJ., concur. BASCHAB, P.J., concurs in the result.

       Note from the reporter of decisions: The Court of Criminal Appeals remanded this case by order on December 12, 2007; it was resubmitted on return to remand on March 19, 2008. On April 23, 2008, the Court of Criminal Appeals again remanded this case by order.

      . The entry in the case action states that the balance is "$1,367.60." This appears to be a typographical error, because both returns to remand state that the balance is “$1337.60.”


author: BASCHAB, Presiding Judge. WISE, Judge,

text:
    STATE of Alabama v. Louis ANDERSON.
    CR-07-1171.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2008.
    Troy King, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellant.
    Roianne Houlton Conner and Timothy A. Offord, Jr., Montgomery, for appellee.
   BASCHAB, Presiding Judge.

The appellee, Louis Anderson, was indicted for unlawfully breaking and entering a motor vehicle and second-degree theft of property. On February 26, 2008, he pled guilty to unlawfully breaking and entering a motor vehicle and second-degree theft of property, and the trial court adjudicated him guilty of unlawfully breaking and entering a motor vehicle. However, based on the appellee’s statements regarding the facts of the case, the trial court reserved its adjudication of guilt on the second-degree theft of property charge so the State could present witnesses regarding the factual basis for the guilty plea. On March 21, 2008, the trial court sentenced the appellee, as a habitual offender, to serve a term of fifteen years in prison on the unlawfully breaking and entering a motor vehicle conviction. See § 13A-5-9(c)(l), Ala.Code 1975. However, because the State did not present any witnesses at that time regarding the second-degree theft of property charge, the trial court dismissed that charge. The State appealed that dismissal.

During the guilty plea proceeding, the following occurred:

“[THE APPELLEE]: I seen a car with some money in it. I broke the window. I took the bag to the car. Then I tried to go back and get the CD player, but I never — the police ran up on me, so I jumped out of the car and took off running. So that’s how—
“THE COURT: Well, how did they find the CDs and the CD player in your car?
“[THE APPELLEE]: I don’t know. But I never did took them, but I plead guilty to it.
“THE COURT: Well, no, you can’t plead guilty to it unless they found them in your car.
“[THE APPELLEE]: I took the money and—
“THE COURT: Where was the money?
“[THE APPELLEE]: $160.
“THE COURT: Where was it?
“[THE APPELLEE]: In the car.
“THE COURT: Where? How did you see it from outside the car?
“[THE APPELLEE]: It was laying on the floor.
“THE COURT: On the floor, $160. Okay. Well, how did they find the CDs and the CD player in your car?
“[THE APPELLEE]: I couldn’t tell you that, Your Honor.
“THE COURT: Well, how did the CDs and the CD player get in your car?
“[THE APPELLEE]: I’m telling you the truth. That’s how it happened, Your Honor. I broke the window. $160 was laying on the floor. I got the money, took it back to the car. I was going to go back to the car and get the CD player up out of the car, but when I was wrestling to get the CD player out of the ear, the police ran up on me. And I jumped out of the car and took off running.
“THE COURT: Okay. All right. The Court hereby finds that you understand your constitutional rights, that you enter your plea knowingly, voluntarily. The Court accepts the plea on the breaking and entering a vehicle and adjudicates you guilty of breaking and entering a vehicle. I’m going to reserve adjudication on the theft of property until the day of sentence, so have the officers here because there may be some confusion on—
“[PROSECUTOR]: Your Honor, I think he just — he testified that he got back in the car and attempted to take— now, I don’t know — I think they found—
“THE COURT: Now, if you want to do attempt — now, if you want to do attempt—
“[PROSECUTOR]: He attempted to get the radio out.
“THE COURT: If you want to do attempt, then that’s fine.
“[PROSECUTOR]: Okay.
“THE COURT: If not, have the officers here to see whether there is some confusion—
“[PROSECUTOR]: Will do.
“THE COURT: — in the testimony. That’s all.
“[PROSECUTOR]: Okay.
“THE COURT: Okay? On the day of sentencing. I’ll reserve adjudication on the theft of property second degree. There’s some question whether it will be theft of property second degree or theft of property third degree and — until March the 21st. I just need to know where were the CDs and tape player actually found.”

(R. 8-12.)

During the sentencing hearing, because the State did not call any witnesses to testify regarding the second-degree theft of property charge, the trial court dismissed that count of the indictment. The court explained that, because the appellee denied taking the CD player and CDs out of the victim’s vehicle, it wanted a law enforcement officer or other witness to testify as to where those items were found. The State objected, arguing that it had the discretion to determine whether the charge would be dismissed and that, at a minimum, the appellee had admitted to third-degree theft of property. It then asked that the trial court allow the appel-lee to withdraw his guilty plea to second-degree theft of property and be tried on that charge. However, the trial court stated that it would either allow the State to amend the charge to third-degree theft of property or dismiss that count of the indictment. After further discussion as to whether the State had had its witnesses in court at the appropriate times, the trial court dismissed the second-degree theft of property charge.

The State argues that the trial court erroneously dismissed the second-degree theft of property charge based on the insufficiency of the evidence. The ap-pellee argues that the trial court dismissed the charge because the State did not proceed with the prosecution of the charge. During the sentencing hearing, the trial court indicated that it was dismissing the charge because the State did not comply ■with its order to have a witness or "witnesses at that hearing to testify as to where the CD player and CDs were found. In essence, the trial court dismissed the second-degree theft of property charge because the State did not present evidence, during either the guilty plea proceeding or the sentencing hearing, to establish a sufficient factual basis to support the appellee’s guilty plea based on that charge. However, we have previously held that it is not appropriate to dismiss an indictment prior to trial based on a lack of evidence. See State v. McClain, 911 So.2d 54 (Ala.Crim.App.2005); State v. Foster, 935 So.2d 1216 (Ala.Crim.App.2005); State v. Edwards, 590 So.2d 379 (Ala.Crim.App.1991).

Moreover, during the sentencing hearing, the State correctly noted that it had the discretion to determine whether to pursue a lesser charge and asked that the trial court allow the appellee to withdraw his guilty plea to second-degree theft of property and be tried on that charge. As the Alabama Supreme Court explained in Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 910-11 (Ala.1992):

“In exposing and prosecuting crimes, district attorneys are members of the executive branch of state government. Dickerson v. State, 414 So.2d 998, 1008 (Ala.Crim.App.1982)- See, also, 63A Am.Jur.2d Prosecuting Attorneys § 24 (1984):
“ ‘A duty rests upon the prosecuting attorney to prosecute in his county or district, on behalf of the people, all public offenses. Where a statute so provides, the prosecuting attorney must initiate proceedings for the prosecution of persons charged with or reasonably suspected of public offenses, when he has information that such offenses have been committed. But, as a general rule, if a prosecutor has possible cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, rests entirely in his discretion. In other words, the duty to prosecute is not absolute, but qualified, requiring of the prosecuting attorney only the exercise of a sound discretion, which permits him to refrain from prosecuting whenever he, in good faith and without corrupt motives or influences, thinks that a prosecution would not serve the best interests of the state, or that, under the circumstances, a conviction could not be had, or that the guilt of the accused is doubtful or not capable of adequate proof.
“ ‘A prosecutor is not subject to judicial supervision in determining what charges to bring and how to draft accusatory pleadings; he is protected from judicial oversight by the doctrine of separation of powers. Thus, it has been held that mandamus will not lie to compel a prosecuting attorney to institute a criminal prosecution, since the acts of a prosecuting attorney are not purely ministerial acts, but involve in a large measure learning and the exercise of discretion.’

“Article III, § 48, Constitution of Alabama 1901, provides in pertinent part:

‘“[T]he judicial [branch of government] shall never exercise the legislative and executive powers .... ’

“In Finch v. State, 271 Ala. 499, 508, 124 So.2d 825, 829 (1960), this Court recognized:

“ ‘Great care must be exercised by the courts not to usurp the functions of other departments of government. § 43, Constitution 1901. No branch of the government is so responsible for the autonomy of the several governmental units and branches as the judiciary. Accordingly, we have held that courts cannot and will not interfere with the discretion vested in other units or branches of government.
“This Court is precluded by Art. Ill, § 43, of the Alabama Constitution from interfering with [the prosecutor’s] exercise of discretion in this regard.”

Also, in Dickerson v. State, 414 So.2d 998, 1008 (Ala.Crim.App.1982), abrogated on other ground by Ex parte Bohannon, 564 So.2d 854 (Ala.1988), we stated:

“[I]t is obvious that the office of district attorney falls under the purview of the executive rather than the judicial branch of government. While the office of district attorney may be enumerated in § 6.20(a) of Amendment No. 328 to the 1901 Alabama Constitution, the district attorney is not a judicial officer or a part of the judicial branch of government because of his office....
“The district attorney is a public officer representing the sovereign power of the people and has been defined as ‘the foremost representative of the executive branch of government in the enforcement of the criminal law in his county.’ 27 C.J.S. District and Prosecuting Attorneys § 1(a) (1959). He is only an officer of the court to the extent that all attorneys are officers of the court. People v. Rodriguez, 13 Misc.2d 1004, 178 N.Y.S.2d 993 (1958), cert. denied, 362 U.S. 984, 80 S.Ct. 959, 4 L.Ed.2d 1009 (1960).
“Amendment 328 does not give the judicial branch any power, authority, or control over the office of district attorney. No rule of judicial administration governs the office. Even the powers and duties of the district attorney make no reference to control and regulation by the judicial branch. Section 12-17-184, Code of Alabama 1975.
“It is the obligation of the attorney general and the district attorney to expose and prosecute crimes. In re White, 58 Ala.App. 377, 300 So.2d 420, cert. denied, 293 Ala. 778, 300 So.2d 439 (1974). Such is not the primary function of the judicial branch of government.”

Because this case involved a guilty plea rather than a trial, the trial court should not have dismissed the indictment based on lack of evidence to support the plea after the appellee disputed the factual basis for his guilty plea and the State did not present other witnesses to establish the factual basis for the plea. See McClain, supra; Foster, supra; Edwards, supra. Rather, it should have simply refused to accept the appellee’s plea to that charge and allowed the State to determine, in its discretion, whether to amend the charge to third-degree theft of property or to proceed to trial. See Dutton, supra; Dickerson, supra. We understand the trial court’s frustration. Nevertheless, we must conclude that it exceeded its authority when it dismissed the second-degree theft of property charge against the appellee. Therefore, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, SHAW, and WELCH, JJ., concur. WISE, J., dissents, with opinion.

WISE, Judge,

dissenting.

I respectfully dissent from the majority’s decision to reverse the trial court’s dismissal of the second-degree theft-of-property charge against Anderson. This case is before us based on the State’s appeal of the trial court’s order, pursuant to Rule 15.7, Ala.R.Crim.P. In my opinion, however, the facts of this case do not meet the criteria for an appeal under Rule 15.7.

It is well settled that

“ ‘the State has a limited right to appeal; that right is governed by § 12-12-70, Ala.Code 1975 [authorizing the State to appeal from a judgment holding a statute invalid], § 12-22-91, Ala.Code 1975 [authorizing the State to appeal when the statute under which the indictment is preferred is held to be unconstitutional]; and Rule 15.7, Ala. R.Crim. P. [authorizing the State to take a pretrial appeal from rulings suppressing evidence or from orders dismissing all or part of an indictment]. According to these provisions, the State may appeal from ... pretrial rulings ... dismissing charges....’”

State v. D.L.A., 975 So.2d 1014, 1017 (Ala.Crim.App.2007), quoting State v. Maddox, 828 So.2d 946, 947 (Ala.Crim.App.2001). See also State v. Seawright, 961 So.2d 187 (Ala.Crim.App.2006). However, it is equally well settled that “once jeopardy has attached the State no longer has a right to appeal.” State v. Savage, 961 So.2d 181, 183 (Ala.Crim.App.2006). Further “[i]n relation to a guilty plea, jeopardy attaches when a guilty plea is entered and a court of competent jurisdiction accepts that plea.” Id.

Here, Anderson pleaded guilty to one count of unlawfully breaking and entering a motor vehicle and one count of second-degree theft of property. However, after hearing Anderson’s statements regarding the facts of the case the trial court accepted Anderson’s guilty plea to unlawfully breaking and entering a motor vehicle, but declined to adjudicate Anderson guilty of second-degree theft of property. Subsequently, the trial court dismissed the theft charge against Anderson. In my opinion, because the trial judge did not dismiss the theft charges until after Anderson had attempted to plead guilty to the charge, jeopardy had already attached, and the State no longer had a right to appeal the circuit court’s dismissal of the second-degree theft-of-property charge. Given these circumstances, the proper course of action for the State would have been to petition this Court for a writ of mandamus pursuant to Rule 21, Ala.R.App.P., rather than a pretrial appeal pursuant to Rule 15.7, Ala.R.Crim.P., because a petition for a writ of mandamus is the proper avenue for the State to seek redress of claims when there is no other relief available. See Ex parte Sullivan, 779 So.2d 1157 (Ala.2000) (recognizing that the State could by mandamus petition seek review of the trial court’s dismissal of an indictment after jeopardy attached); and State v. Savage, 961 So.2d 181 (Ala.Crim.App.2006) (granting State’s mandamus petition challenging trial court’s dismissal of indictment after jeopardy had attached). Because this appeal is before this Court pursuant to Rule 15.7, Ala.R.Crim.P., rather than pursuant to the mandamus procedures .provided in Rule 21, Ala.R.App.P., I believe that we have no recourse but to dismiss this appeal. Accordingly, I must respectfully dissent.


author: PER CURIAM. SHAW, Judge,

text:
    Jackie Ronnie JONES v. STATE of Alabama.
    CR-06-1593.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2008.
    James Radford Berry, Albertville, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB, P.J., and WISE and WELCH, JJ., concur.

McMILLAN, J., concurs in the result.

SHAW, J., dissents, with opinion.

SHAW, Judge,

dissenting.

For the reasons stated in my dissent in Doseck v. State, 8 So.3d 1024, 1026 (Ala.Crim.App.2008), I respectfully dissent.