author: PER CURIAM. SHAW, Judge,

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. William Kenneth SORSBY).
    CR-04-2166.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2005.
    Rehearing Denied Feb. 3, 2006.

      Troy King, atty. gen., and M. David Barber, dist. atty. for Jefferson County, Birmingham Division, for petitioner.
    James Edmund Odum, Jr., Birmingham, for respondent.
   PER CURIAM.

The State of Alabama filed this petition for a writ of mandamus directing Judge David N. Lichtenstein to grant the State’s motion to dismiss William Kenneth Sors-by’s appeal for a trial de novo. On March 8, 2005, Sorsby pleaded guilty in the Jefferson District Court to driving under the influence. On March 11, 2005, Sorsby filed a notice of appeal for a trial de novo in the Jefferson Circuit Court. On July 14, 2005, the State moved that the appeal be dismissed because, it argued, the circuit court lacked jurisdiction to consider the appeal in that when he pleaded guilty Sorsby did not reserve any issue for appeal and did not file a motion to withdraw his plea. On July 25, 2005, Judge Lichtenstein denied the State’s motion to dismiss. This petition followed. We stayed action in the circuit court pending the resolution of this mandamus petition.

Initially, we note that the State has no means of seeking review of this issue except by a petition for a writ of mandamus. As the Alabama Supreme Court stated in Ex parte Sullivan, 779 So.2d 1157, 1161 (Ala.2000): “[A] writ of mandamus is a supervisory order; thus, an appellate court may issue this writ in any situation, within recognized limits, where this writ is necessary to protect the proper judicial administration of the courts.” This case presents just such a situation.

The State contends that Rules 14.4(a)(1)(viii) and 26.9(b)(4), Ala.R.Crim. P., as amended effective August 1, 2002, grant a limited right to appeal a guilty plea and that that right was not triggered in this case because Sorsby did not reserve an issue for appeal when he entered his guilty plea nor did he file a motion to withdraw the guilty plea. It cites this Court’s opinions in Ingram v. State, 882 So.2d 374 (Ala.Crim.App.2003), Brown v. State, 868 So.2d 477 (Ala.Crim.App.2003), and Williams v. State, 854 So.2d 625 (Ala. Crim.App.2003), in support of its assertions.

In response, Sorsby argues that Rule 14.4(a)(l)(viii), Ala.R.Crim.P., does not apply to a de novo appeal for a trial de novo in the circuit court. He further argues that the only reason the State may move to dismiss such an appeal is when the defendant fails to appear in court. Last, he argues that it was unnecessary for him to file a formal motion to withdraw his guilty plea because, he says, his appeal amounted to a “de facto” withdrawal of his guilty plea.

Rule 14.4, Ala.R.Crim.P., as amended effective August 1, 2002, states:

“(a) Colloquy With Defendant. In all minor misdemeanor cases, the execution of a form similar to Form C-44B will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(viii) The fact that there is no right to appeal unless the defendant has, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue or issues, in which event appellate review shall be limited to a determination of the issue or issues so reserved

(Emphasis added.)

Rule 26.9, Ala.R.Crim.P., as amended effective August 1, 2002, states:

(a) Pronouncement of Judgment. Judgment shall be pronounced in open court. A judgment of conviction shall set forth the plea, the verdict, the findings, if any, and the adjudication. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly.
“(b) Pronouncement of Sentence. In pronouncing sentence, the court shall:
“(4) Inform the defendant as to the defendant’s right to appeal; provided, however, in cases in which the defendant has entered a plea of guilty, the court shall advise the defendant of his or her right to appeal only in those cases in which the defendant (i) has entered a plea of guilty, but before entering the plea of guilty has expressly reserved his or her right to appeal with respect to a particular issue or issues, or (ii) has timely filed a motion to withdraw the plea of guilty and the motion has been denied, either by order of the court or by operation of law. When informing the defendant of his or her right to appeal, the court shall also advise the defendant that if he or she is indigent, counsel will be appointed to represent him or her on appeal if the defendant so desires, and that a copy of the record and the reporter’s transcript will be provided at no cost to the defendant for purposes of appeal, if the appeal is from a judgment and sentence of the circuit court.”

(Emphasis added.) The last emphasized portion of the rule quoted above implies that application of this rule is not exclusive to circuit court. The rule recognizes courts other than circuit courts will be accepting guilty pleas.

When it amended Rules 14.4(a)(l)(viii) and 26.9(b)(4), Ala.R.Crim.P., the Supreme Court also amended Rule 2.2(e), Ala. R.Crim.P., to eliminate subsections (1) through (8). Rule 2.2(e), Ala.R.Crim.P., now reads:

“At arraignment on an information following receipt of a defendant’s written notice of his or her desire to plead guilty as charged or as a youthful offender upon the granting of youthful-offender status, the court shall proceed as provided in Rule 14.4. If the court does not accept the defendant’s guilty plea or denies the defendant’s application for youthful-offender status, the court shall proceed as provided by law.”

None of Rule 2.2(e), Rule 14.4(a), or Rule 26.9(b) contains any provision that limits the application of the amendments to a guilty plea entered in the circuit court — a court where a defendant has no right to an appeal for a trial de novo.

In Williams v. State, 854 So.2d 625 (Ala. Crim.App.2008), we first addressed the effect of these amendments and held that after August 1, 2002, the effective date of the amendments, a defendant has only a limited right to appeal a guilty plea and that right is triggered either by specifically reserving an issue before the entry of the guilty plea or by filing a motion to withdraw the plea. We stated: “Williams cannot proceed with this appeal because he has failed to invoke the limited right to appeal recognized in the rules as recently amended.” 854 So.2d at 627. In Ingram v. State, 882 So.2d 374 (Ala.Crim.App. 2003), we held that to invoke the limited right to appeal a defendant must file a written motion to withdraw the plea — an oral motion is not sufficient.

However, Rule 26.9(b)(4), Ala.R.Crim.P., as amended, provides that before pronouncing sentence the court shall advise the defendant that he or she has only a limited right to appeal a guilty plea, which right is triggered only when a defendant has specifically reserved a particular issue for appeal before the entry of the plea or when the defendant files a motion to withdraw his plea. The sentencing provisions in Rule 26.9, Ala.R.Crim.P., apply to all offenses.

By virtue of the authority granted to the Supreme Court by Amendment no. 328, § 6.11, Ala. Const.1901, that Court has rulemaking authority. The Supreme Court exercised that authority when it revised all of the Alabama Rules of Criminal Procedure that relate to guilty pleas. This evidenced an intent to apply the limited right to appeal a guilty plea to all guilty pleas, no matter how minor the charge to which the defendant is pleading and no matter what court is accepting the plea. The amendments embrace § 15-15-26, Ala.Code 1975, which had previously been superseded by Rule 2.2(e)(5), Ala.R.Crim. P. — a rule that was eliminated effective August 1, 2002. Section 15-15-26 states:

“After the court has heard and considered a plea of guilty by a defendant and has permitted the filing of such plea and sentenced the defendant, such defendant shall not have the right of appeal from the action of the court.”

Section 15-15-26, Ala.Code 1975, has effectively been revived.

Alabama is not alone in limiting the right to appeal a conviction based on a guilty plea. See Fla. Stat. Ann. § 924.06(3) (West)(“A defendant who pleads guilty with no express reservation of the right to appeal a legally dispositive issue, or a defendant who pleads nolo con-tendere with no express reservation of the right to appeal a legally dispositive issue, shall have no right to a direct appeal.”); Tex.R.App.P. 25.2(a)(2) (appeal of guilty plea is limited to matters raised by written motion or with the trial court’s permission to appeal); Smith v. State, 266 Ga. 687, 687, 470 S.E.2d 436, 436 (1996) (“A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea ‘only if the issue on appeal can be resolved by facts appearing in the record.’ ”); Miss. Code Ann. § 99-35-101 (“Any person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.”); Ark.R.App., Crim. Rule 1(a) (“Except as provided by A.R.Cr.P. 24.3(b) there shall be no appeal from a plea of guilty or nolo contendere.”) Some states have specifically addressed appeals for a trial de novo from guilty pleas entered in a lower court. See MontCode Ann. § 46-17-208(2)(a) (“A plea of guilty or nolo contendere in a justice’s court, city court, or other court of limited jurisdiction waives the right of trial de novo in district court.”); State v. Ball, 104 N.M. 176, 718 P.2d 686 (1986) (no right to de novo appeal from guilty plea entered in metropolitan court because defendant was not “aggrieved” party). As the Supreme Court of New Mexico stated in State v. Ball:

“The decisions of courts of other jurisdictions do little to elucidate New Mexico’s statutes, for the extent of the right to appeal from an inferior court judgment following a guilty plea depends upon widely varying statutory language. See 42 A.L.R.2d 995 (1955). Typically, the right of appeal following a guilty plea has been extended in situations in which the inferior court proceeding was procedurally inadequate, inaccurate, oppressive, or constitutionally deficient. See, e.g., North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976); Burris v. Davis, 46 Ariz. 127, 46 P.2d 1084 (1935). On the other hand, in situations in which the inferior court system meets constitutional criteria, a surprising number of decisions have held that the ‘trial de novo’ guaranteed by statute is limited in scope. See, e.g., Jenkins v. Canaan Municipal Court, 116 N.H. 616, 366 A.2d 208 (1976) (appeal after guilty plea limited to sentencing questions); State ex rel. Kansas City v. Meyers, 513 S.W.2d 414 (Mo.1974) (appeal after guilty plea limited to questions of jurisdiction, sufficiency of criminal charges, and to appellate review of validity of plea). But see, e.g., State v. Fox, 34 N.C.App. 576, 239 S.E.2d 471 (1977); State ex rel. O’Neill v. Gay, 285 S.E.2d 637 (W.Va.1981) (holding subsequently reversed by legislation forbidding appeals from guilty pleas where defendant was represented by counsel, W.Va.Code § 50-5-13 (Cum.Supp.1985)).”

104 N.M. at 182-83, 718 P.2d at 692-93.

We are also aware that in Alabama, Rule 30.1, Ala.R.Crim.P., addresses appeals to the circuit court for a trial de novo after a conviction in either a municipal court or a district court. Rule 30.1(a), Ala.R.Crim.P., states:

“A defendant convicted of an offense in a municipal court or a district court shall have the right to appeal the judgment, within fourteen (14) days of the date of the judgment or the denial of a timely filed post-judgment motion, to the circuit court for a trial de novo.”

The Committee Comments to this rule note that the rule applies to guilty pleas entered in the lower court. The comments also state: “This procedure follows present practice authorizing an appeal from ‘a final judgment’ under § 12-12-70 and an appeal ‘in any case ... from entry of judgment’ pursuant to § 12-40-70 and specifically supersedes Ala.Code 1975, § 15-15-26, prohibiting appeal from a guilty plea.” However, the Committee Comments do not address the recent amendments to Rules 2.2(e), 14.4(a), and 26.9(b)(4), Ala. R.Crim.P.

The Supreme Court drafted the rules limiting the right to appeal a guilty plea long after Rule 30.1, Ala.R.Crim.P., was first adopted. Where there is an inconsistency in rules relating to the same subject, we must give precedence to the later adopted rule. Cf. Baldwin County v. Jenkins, 494 So.2d 584 (Ala.1986).

This interpretation is in keeping with the stated purpose behind the adoption of the Alabama Rules of Criminal Procedure. Rule 1.2, Ala.R.Crim.P., states:

“These rules are intended to provide for the just and speedy determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individuals while preserving the public welfare.”

We fear that any other interpretation would be inconsistent with the Supreme Court’s intent and a gross waste of scant judicial resources. As the United States Supreme Court noted in Lefkowitz v. Newsome, 420 U.S. 283, 289, 95 S.Ct. 886, 43 L.Ed.2d 196 (1974):

“Once the defendant chooses to bypass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained. Cf. Fay v. Noia, 372 U.S. 391, 438 [(1963)].”

The Rules of Criminal Procedure so amended to limit the right to appeal a guilty plea apply to all guilty pleas, no matter what court accepted the plea.

Sorsby also argues that the State has no right to move to dismiss an appeal for a trial de novo unless the defendant fails to appear. He cites eases that were released before Rules 2.2(e), 14.4(a), and 26.9(b)(4), Ala.R.Crim.P., were amended and that do not address the effect of the amendments on the State’s right to move to dismiss an appeal for a trial de novo. These cases are not persuasive.

Sorsby last argues that nothing in Rule 26.9, Ala.R.Crim.P., states that the motion to withdraw a guilty plea must be in writing and thus his notice of appeal to the circuit court was a de facto motion to withdraw his plea of guilty in the district court. We are not persuaded that a notice of appeal and a motion to withdraw a guilty plea are substantively identical. A motion to withdraw a guilty plea seeks action in the court in which it is filed on the merits of the motion. A notice of appeal requires no action on the part of the lower court other than the clerk’s forwarding the notice to the appropriate court. Sorsby’s notice of appeal was not a de facto motion to withdraw his guilty plea, and we will not treat it as such.

Accordingly, Sorsby failed to preserve his right to appeal his guilty plea, and the circuit court erred in denying the State’s motion to dismiss Sorsby’s appeal for a trial de novo.

Ultimately, this issue should be decided by the Court that drafted the amendments to the Alabama Rules of Criminal Procedure — the Alabama Supreme Court. We invite the respondent to seek review of this mandamus petition in that Court.

For the foregoing reasons, this petition is due to be, and is hereby, granted. Judge Lichtenstein is directed to grant the State’s motion to dismiss Sorsby’s appeal for a trial de novo.

PETITION GRANTED; WRIT ISSUED.

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

SHAW, J., dissents, with opinion.

SHAW, Judge,

dissenting.

I cannot agree to effectively abrogate a criminal defendant’s statutory right to appeal a district court’s judgment to the circuit court for a de novo jury trial. Therefore, I must respectfully dissent.

Rule 30.1(a), Ala.R.Crim.P., provides:

“(a) Trial De Novo. A defendant convicted of an offense in a municipal court or a district court shall have the right to appeal the judgment, within fourteen (14) days of the date of the judgment or the denial of a timely filed post-judgment motion, to the circuit court for a trial de novo.”

The Committee Comments to Rule 30.1 state, in pertinent part:

“Under the Judicial Article Implementation Act, the circuit court has jurisdiction of appeals from municipal and district courts. Ala.Code 1975, § 12-11-30.
“The right to appeal from a judgment of a municipal or district court to the circuit court is purely statutory. The right is granted to those parties in a municipal court case in the Judicial Article Implementation Act, Ala.Code 1975, § 12-14-70, and in district court cases under Ala.Code 1975, §§ 12-12-70 and 12-12-71. Ala. Code 1975, § 12-12-72, provides for appeals directly to the appellate courts in certain cases. See, also, §§ 12-12-70(b) and (d).
“Pursuant to Ala.Code 1975, § 12-14-70, a defendant may appeal from the entry of a municipal court judgment in ‘any case.’ Ala.Code 1975, § 12-12-70, provides that in a criminal or quasi-criminal case tried in district court, the defendant may appeal from a final judgment. ‘For a judgment to be final, it must ... reflect a complete resolution of each and every matter in controversy.... In short, [it] must be conclusive and certain.’ Potter v. Owens, 535 So.2d 173, 174 (Ala.Civ.App.1988).
“The term ‘convicted’ in section (a) is used in its usual sense to connote a final judgment on a judicial finding of guilt or a plea of guilty; therefore, pursuant to this rule, the defendant in a criminal case shall be allowed to appeal to the circuit court for a trial de novo even after entering a plea of guilty in district or municipal court. See ABA, Standards for Criminal Justice, Criminal Appeals 21 — 1.3(a)(iii) (2d ed.1986). This procedure follows present practice authorizing an appeal from ‘a final judgment’ under § 12-12-70 and an appeal ‘in any case ... from entry of judgment’ pursuant to § 12-14-70 and specifically supersedes Ala.Code 1975, § 15-15-26, prohibiting appeal following a guilty plea.”

(Emphasis added.)

As the Committee Comments note, Rule 30,1 is a general statement of the statutory right of appeal granted a defendant convicted in the district court. See generally H. Maddox, Alabama Rules of Criminal Procedure § 30.1 (4th ed.2004). That right of appeal is set out in § 12-12-70, Ala.Code 1975, which reads, in pertinent part, as follows:

“(b) Criminal cases. — A defendant may appeal from a final judgment of the district court in a criminal or quasi-criminal case by filing notice of appeal within 14 days from the date of judgment or from the date of denial of a post-trial motion, whichever is later, together with such bond as may be fixed by the court, conditioned upon the defendant’s appearance before the circuit court; provided, however, that the court may authorize the defendant’s release on his own recognizance without any undertaking relating to or deposit of security.”

Section 12-12-71, Ala.Code 1975, sets out the right to de novo review by a jury:

“Except as provided in Section 12-12-72 and in subsection (e) of Section 12-15-120, all appeals from final judgments of the district court shall be to the circuit court for trial de novo.
“An appellant shall not be entitled to a jury trial in circuit court unless it is demanded in the notice of appeal, and' an appellee shall have no right to a jury trial unless written demand is filed in circuit court within 14 days of service upon him of notice of appeal.”

Section 12-11-30(3), Ala.Code 1975, also defines the scope of the circuit court’s appellate jurisdiction:

“Appellate. The circuit court shall have appellate jurisdiction of civil, criminal, and juvenile cases in district court and prosecutions for ordinance violations in municipal courts, except in cases in which direct appeal to the Courts of Civil or Criminal Appeals is provided by law or rule. Appeals to the circuit court shall be tried de novo, with or without a jury, as provided by law.”

(Emphasis added.)

Under Rule 30, a defendant like Sorsby, convicted of an offense in the district court, whether pursuant to a final judgment entered on a judicial finding of guilt or a plea of guilty, has the right to appeal the judgment to the circuit court for a trial de novo, whether by a jury or by the court, provided that the prerequisites set out in Rule 30.3 are satisfied. It appears to me that Sorsby timely perfected his appeal to the circuit court in accordance with Rule 30.3 and demanded a trial by jury, thereby forgoing the option provided by Rule 30.6, Ala.R.Crim.P., of stipulating to a specific question of law for the circuit court to resolve. Therefore, I see no legal basis for issuing the writ of mandamus directing the circuit court to dismiss Sorsby’s de novo appeal.

The majority holds that Rules 14.4(a)(l)(viii) and 26.9(b)(4), Ala.R.Crim. P., as amended effective August 1, 2002, limit the right to appeal a judgment entered on a guilty plea from the district court to the circuit court and that that right is not triggered, even in a case like this one where a de novo jury trial is requested, unless the defendant reserves a specific legal issue for resolution by the circuit court or moves to withdraw the guilty plea. The gravamen of the majority’s position is that by revising the rules that relate to guilty pleas, with the exception of Rule 30.1, the Alabama Supreme Court “evidenced an intent to apply the limited right to appeal a guilty plea to all guilty pleas, no matter how minor the charge to which the defendant is pleading and no matter what court is accepting the plea.” 12 So.3d at 133. Basically, the majority assumes that the Alabama Supreme Court simply overlooked Rule 30.1 when it amended Rules 2.2(e), 14.4(a), and 26.9(b)(4). I cannot make that assumption.

The right to appeal a district court conviction to the circuit court for de novo review rests on statutory grounds. See the cases collected at 1 Ala. Digest 2d Appeal & Error § 1 (1993). Likewise, the scope of the circuit court’s appellate jurisdiction is defined by statute to require de novo review. The majority assumes that the Alabama Supreme Court intended for its amendments to Rules 14.4(a) and 26.9(b)(4) also to apply to, and to modify, Rule 30.1, even though Rule 80.1 was not amended and even though the application of those amended rules to Rule 30.1 has the effect of abrogating the right to de novo review in the circuit court. I believe that the constitutionality of such action on the part of the Alabama Supreme Court would be questionable in light of Alabama’s separation-of-powers doctrine. See §§42 and 43, Ala. Constitution of 1901. This is necessarily so because requiring the reservation of a specific legal issue or the filing of a motion to withdraw the guilty plea as a prerequisite to the right of appeal to circuit court necessarily limits review in the circuit court to the specific legal issue reserved or to the issue whether the district court’s ruling on the motion to withdraw the guilty plea constituted an abuse of discretion. The authority of the circuit court to conduct a de novo review of a district court’s judgment entered on a guilty plea, whether by the circuit court itself or the empaneling of a jury, is eliminated. Although Art. VI, § 150, of the Alabama Constitution confers authority on the Supreme Court to make and to promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts, that section specifically prohibits the Court from promulgating any rule that “affectfs] the jurisdiction of circuit ... courts....” I must assume that the Supreme Court is very much aware of any constitutional restrictions on its rulemaking authority.

To me, it is nonsensical to hold, as the majority does, that Sorsby cannot obtain de novo jury review in the circuit court because he failed to reserve a specific legal issue for resolution by the circuit court or failed to move to withdraw his plea in the district court. By definition, a trial de novo means that the slate is wiped clean and a trial in the circuit court is had without any consideration being given to prior proceedings in another court. See Hulsey v. State, 866 So.2d 1180 (Ala.Crim. App.2003). Indeed, I expect that many defendants opt to plead guilty in the district court for the sole purpose of expediting the appeal process to the circuit court, where they may request a jury trial.

Given that Rule 30 has not been amended; that Rule 30.6 already provides a procedure by which a defendant convicted on a guilty plea in the district court can present specific questions of law to the circuit court; and that the restriction of the scope of a circuit court’s appellate jurisdiction raises substantial issues under Alabama’s separation-of-powers doctrine, I believe that the Supreme Court’s amendments to Rules 14.4(a) and 26.9(b)(4) were more likely intended to be procedural prerequisites to the right of appeal to an appellate court, whose function it is to resolve specific questions of law, not a means by which to abrogate de novo review of a district court conviction by a circuit court exercising statutory appellate jurisdiction. It seems to me that if the Supreme Court had intended for its amendments to Rules 14.4(a) and 26.9(b)(4) to be as broadly applicable as the majority holds, the Court would have made that intent clear by amending Rule 30.

      . Apparently, at the same time Sorsby pleaded guilty to the unlawful possession of a controlled substance and was admitted to a pretrial diversion program for drug offenders. This mandamus petition does not address this conditional plea.

      . Subsection (5) previously read: “Upon acceptance of the defendant’s plea of guilty and pronouncement and entry of judgment and sentencing, the defendant shall have a right of appeal from the action of the court."

      . The Committee Comments to this rule state that the right of allocution applies to misdemeanor offenses.

      . When a defendant appeals to circuit court for a trial de novo the defendant is " 'in-vok[ing] the circuit court's appellate jurisdiction, not its original jurisdiction.' ” Hulsey v. State, 866 So.2d 1180, 1186 (Ala.Crim.App. 2003), quoting Blue Cross & Blue Shield of Alabama, Inc. v. Butler, 630 So.2d 413, 416 (Ala. 1993).

      . In Ingram, supra, we specifically held that an oral motion to withdraw a guilty plea is not sufficient to invoke the limited right to appeal.

      . Rule 30.6 provides:
      “In an appeal to the circuit court from a district or municipal court, the parties may stipulate to the questions of law or fact involved and the circuit court may in its discretion rule on the stipulations alone; provided, however, that the right to a jury trial is waived by all parties entitled to a trial by jury.”

      . Pursuant to Rule 14.4(a)(l)(viii), when a specific issue or issues are reserved for appeal "appellate review shall be limited to a determination of the issue or issues so reserved."


source: Caselaw Access Project

author: BOLIN, Justice. LYONS, Justice STUART, Justice

license: Public Domain

text:
    Ex parte William Kenneth SORSBY. (In re Ex parte State of Alabama (In re State of Alabama v. William Kenneth Sorsby)).
    1050636.
    Supreme Court of Alabama.
    Oct. 19, 2007.

      J. Edmund Odum, Jr., Birmingham, for petitioner.
    M. David Barber, district atty., and J. Michael Philpott, deputy district atty., Birmingham, for respondent.
   BOLIN, Justice.

On March 3, 2005, William Kenneth Sorsby pleaded guilty in the District Court of Jefferson County to driving under the influence, in violation of § 32-5A-191(a)(3), Ala.Code 1975. At the time he entered his guilty plea, Sorsby did not waive his right to appeal. On March 11, 2005, Sorsby filed a notice of appeal seeking a trial de novo in the Jefferson Circuit Court. On July 14, 2005, the State moved that the appeal be dismissed, arguing that the circuit court lacked jurisdiction to consider the appeal because, when Sorsby pleaded guilty, he did not reserve any issue for appeal and he did not file a motion to withdraw his guilty plea. On July 25, 2005, the circuit court denied the State’s motion to dismiss. The State then filed a petition for a writ of mandamus asking the Court of Criminal Appeals to direct the circuit judge to grant the State’s motion to dismiss Sorsby’s appeal. The Court of Criminal Appeals granted the State’s petition and issued the writ. State v. Sorsby, 12 So.3d 130 (Ala.Crim.App.2005). Judge Shaw dissented, with an opinion. Sorsby then petitioned this Court for a writ of certiorari to review the decision of the Court of Criminal Appeals.

We granted certiorari review to address whether the Alabama Rules of Criminal Procedure limit the right to appeal a district court’s judgment to the circuit court for a trial de novo following a guilty plea when the defendant did not reserve any issue for appeal and did not file a motion to withdraw his guilty plea.

State’s petition for a writ of mandamus to the Coivrt of Criminal Appeals

The State argued before the Court of Criminal Appeals that Rule 14.4(a)(1), Ala. R.Crim. P. (addressing the reservation of issues when entering a guilty plea), and Rule 26.9(b)(4), Ala. R.Crim. P. (requiring the court to inform the defendant that he must reserve an issue or file a motion to withdraw the guilty plea if he wants to appeal), limit the right to appeal a guilty plea and that Sorsby has no right to appeal his guilty plea because he did not reserve an issue for appeal nor did he file a motion to withdraw his guilty plea. Sorsby argued that Rule 14.4(a)(1) does not apply to an appeal from a conviction in the district court for a trial de novo in the circuit court. He further argued that the only reason the State may move to dismiss an appeal to the circuit court is when the defendant fails to appear in court. Last, he argued that it was unnecessary for him to file a formal motion to withdraw his guilty plea because his appeal to the circuit court for a trial de novo amounted to a “de facto” withdrawal of his guilty plea.

The Court of Criminal Appeals held that when this Court in 2002, pursuant to its rulemaking authority under Amendment No. 328, § 6.11, Ala. Const.1901 (now § 150, Ala. Const. 1901 (Off.Recomp.)), amended Rule 2.2(e), Ala. R.Crim. P. (setting out the procedure when a case is appealed from the municipal or the district court to the circuit court), Rule 14.4(a)(1), Ala. R.Crim. P., and Rule 26.9(b)(4), Ala. R.Crim. P., it did not include in these amended rules any provision limiting the application of the amendments to a guilty plea entered in the circuit court, where a defendant has no right to an appeal for a trial de novo. In other words, the Court of Criminal Appeals held that, in amending these rules, this Court evidenced an intent to apply the limited right to appeal a guilty plea to all guilty pleas, no matter how minor the charge to which the defendant is pleading and no matter what trial court is accepting the plea. The Court of Criminal Appeals recognized that Rule 30.1, Ala. R.Crim. P., addresses appeals to the circuit court for a trial de novo after a conviction in either a municipal court or a district court and that that rule applies to guilty pleas entered in the lower court. However, the Court of Criminal Appeals noted that Rules 2.2, 14.4, and 26.9 were amended after Rule 30.1 was adopted, and that when there is an inconsistency in the rules, courts give precedence to the later adopted rule. Last, the Court of Criminal Appeals held that Sorsby’s motion to appeal his guilty plea was not a de facto motion to withdraw his guilty plea because a motion to withdraw a guilty plea seeks action in the court in which it is filed and a notice of appeal requires no action by that court other than to forward the notice of appeal to the appropriate court. The Court of Criminal Appeals recognized that this issue should be decided by this Court, which adopted the amendments to the Alabama Rules of Criminal Procedure.

In his dissent, Judge Shaw wrote that the majority of the Court of Criminal Appeals has effectively abrogated a criminal defendant’s statutory right to appeal a district court’s judgment to the circuit court for a de novo jury trial. He wrote that Rule 80.1, Ala. R.Crim. P., and the Committee Comments to that rule indicate that Rule 30.1 is a general statement of the statutory right of appeal granted a criminal defendant convicted in the district court. He contended that the majority opinion of the Court of Criminal Appeals assumes that this Court simply overlooked Rule 30.1 when it amended Rules 2.2(e), 14.4(a)(1), and 26.9(b)(4). He wrote that although this Court has the authority to promulgate rules governing the administration of all courts, this Court is prohibited from promulgating any rule that affects the jurisdiction of the circuit courts. Judge Shaw also wrote that by definition a trial de novo means that the slate is wiped clean and a trial in the circuit court is had without any consideration given to prior proceedings in another court.

Sorsby’s petition to this Court for a writ of certiorari

Sorsby argues that the Court of Criminal Appeals erred in concluding that this Court’s amendments to Rule 2.2(e), Rule 14.4(a)(1), and Rule 26.9(b)(4) limit a defendant’s right to appeal from a guilty plea entered in the district court for a trial de novo in the circuit court because, he argues, such a limitation violates the United States Constitution and the Alabama Constitution in that it places an undue burden on an individual attempting to exercise his right to a jury trial. Sorsby argues that the majority opinion of the Court of Criminal Appeals also violates §§ 12-11-30, 12-12-70, 12-12-71, and 12-14-70, Ala.Code 1975, all four of which grant a criminal defendant tried before a district or a municipal court the right to appeal the case to the circuit court for a jury trial. He argues that the Court of Criminal Appeals’ opinion effectively nullifies Rule 30.1, Ala. R.Crim. P., and unduly limits the circuit court’s jurisdiction in cases seeking a de novo appeal to the circuit court from a conviction in a district or a municipal court. Sorsby contends that the plain reading of Rules 2.2(e), 14.4(a), and 26.9(b)(4), Ala. R.Crim. P., indicates that those rules were never intended to apply to appeals seeking a trial de novo under Rule 30.1.

The State argues that the 2002 amendments to Rules 14.4 and 26.9 place reasonable limits on a defendant’s right to appeal a conviction resulting from a knowing and voluntary guilty plea. Under the rules as amended, the State argues, a criminal defendant waives his absolute right to appeal when he enters a guilty plea and may only appeal when certain statutory conditions have been met, i.e., when specific issues are reserved for appeal or a motion is filed seeking a withdrawal of the guilty plea.

The State contends that because jurisdiction over misdemeanors originates in either the municipal court or the district court, one of those courts must find the defendant guilty before the right to appeal for a trial de novo may be invoked. One way for this to occur is when a defendant is found guilty following a bench trial. Another way is following a stipulation to the facts as alleged by the State, which essentially allows a defendant to bypass a bench trial and appeal immediately to the circuit court for a trial de novo. The State contends that a guilty plea is inherently different from either of the above scenarios because it requires an admission of guilt by the criminal defendant. Also, the State contends that a guilty plea is often the result of negotiations, which may include, for example, recommendations for a specified sentence, promises not to oppose probation, or an offer to reduce the charge to a lesser offense. The State argues that a guilty plea based on a plea agreement adds certainty and finality to a criminal case and that if a defendant were allowed to plead guilty pursuant to a plea agreement and then to have the right to an unlimited appeal from that guilty plea the certainty and finality of plea agreements negotiated at the municipal or the district court level would mean nothing.

Analysis

Section 12-12-70(b) and (d), Ala.Code 1975, provide for the right to appeal a final judgment of the district court in a criminal case. Section 12-12-71, Ala.Code 1975, provides that all appeals from final judgments of the district court shall be to the circuit court for trial de novo and allows a jury trial if the appellant demands one in the notice of appeal. Section 12-11-30(3), Ala.Code 1975; sets out the circuit court’s appellate jurisdiction, providing that the circuit court has appellate jurisdiction to try de novo a criminal conviction appealed from the district court.

In 1990, this Court, pursuant to its constitutional authority to promulgate rules governing practice and procedure in the lower courts, adopted the Alabama Rules of Criminal Procedure, which were effective January 1, 1991. Rule 30.1(a) provides that a defendant convicted of an offense in the municipal or the district court shall have the right to appeal the judgment to the circuit court within 14 days of the judgment or of the denial of a timely filed postjudgment motion. The Committee Comments to Rule 30.1 state, in pertinent part:

“Under the Judicial Article Implementation Act, the circuit court has jurisdiction of appeals from municipal and district courts. Ala.Code 1975, § 12-11-30.
“The right to appeal from a judgment of a municipal or district court to the circuit court is purely statutory. The right is granted to those parties in a municipal court case in the Judicial Article Implementation Act, Ala.Code 1975, § 12-14-70, and in district court cases under Ala.Code 1975, §§ 12-12-70 and 12-12-71. Ala.Code 1975, § 12-12-72, provides for appeals directly to the appellate courts in certain cases. See, also, §§ 12-12-70(b) and (d).
“Pursuant to Ala.Code 1975, § 12-14-70, a defendant may appeal from the entry of a municipal court judgment in ‘any case.’ Ala.Code 1975, § 12-12-70, provides that in a criminal or quasi-criminal case tried in district court, the defendant may appeal from a final judgment. ‘For a judgment to be final, it must ... reflect a complete resolution of each and every matter in controversy.... In short, [it] must be conclusive and certain.’ Potter v. Owens, 535 So.2d 173,174 (Ala.Civ.App.1988).
“The term ‘convicted’ in section (a) is used in its usual sense to connote a final judgment on a judicial finding of guilt or a plea of guilty; therefore, pursuant to this rule, the defendant in a criminal case shall be allowed to appeal to the circuit court for a trial de novo even after entering a plea of guilty in district or municipal court. See ABA, Standards for Criminal Justice, Criminal Appeals 21-1.3(a)(iii) (2d ed.1986). This procedure follows present practice authorizing an appeal from ‘a final judgment’ under § 12-12-70 and an appeal ‘in any case ... from entry of judgment’ pursuant to § 12-14.-70 and specifically supersedes Ala. Code 1975, § 15-15-26, prohibiting appeal following a guilty plea.”

(Emphasis added.)

In 2002, this Court amended certain Rules of Criminal Procedure limiting the right to appeal a judgment entered on a guilty plea. The 2002 amendment to Rule 14.4 limited appellate review of a guilty-plea proceeding. Before the 2002 amendment to Rule 2.2, Rule 2.2(e)(5) specifically provided that “upon acceptance of defendant’s plea of guilty and pronouncement and entry of judgment and sentencing, the defendant shall have a right of appeal from the action of the court.” When Rule 14.4 was amended in 2002, Rule 2.2 was amended to delete Rule 2.2(e)(1) through (6), including any reference to a defendant’s right to appeal a guilty plea. Rule 2.2(e) now reads:

“(e) Proceeding on Information.
“At arraignment on an information following receipt of a defendant’s written notice of his or her desire to plead guilty as charged or as a youthful offender upon the granting of youthful-offender status, the court shall proceed as provided in Rule 14.4. If the court does not accept the defendant’s guilty plea or denies the defendant’s application for youthful-offender status, the court shall proceed as provided by law.”

Rule 14.4, Ala. R.Crim. P., as amended effective August 1, 2002, provides:

“(a) Colloquy With Defendant. In all minor misdemeanor cases, the execution of a form similar to Form C-44B will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(viii) The fact that there is no right to appeal unless the defendant has, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue or issues, in which event appellate review shall be limited to a determination of the issue or issues so reserved

(Emphasis added.)

Rule 26.9, Ala. R.Crim. P., as amended in 2002, now reads:

“(a) Pronouncement of Judgment. Judgment shall be pronounced in open court. A judgment of conviction shall set forth the plea, the verdict, the findings, if any, and the adjudication. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly.
“(b) Pronouncement of Sentence. In pronouncing sentence, the court shall:
“(4) Inform the defendant as to the defendant’s right to appeal; provided, however, in cases in which the defendant has entered a plea of guilty, the court shall advise the defendant of his or her right to appeal only in those cases in which the defendant (i) has entered a plea of guilty, but before entering the plea of guilty has expressly reserved his or her right to appeal with respect to a particular issue or issues, or (ii) has timely filed a motion to withdraw the plea of guilty and the motion has been denied, either by order of the court or by operation of law. When informing the defendant of his or her right to appeal, the court shall also advise the defendant that if he or she is indigent, counsel will be appointed to represent him or her on appeal if the defendant so desires, and that a copy of the record and the reporter’s transcript ivill be provided at no cost to the defendant for purposes of appeal, if the appeal is from a judgment and sentence of the circuit court.”

(Emphasis added.)

This Court’s rulemaking authority as set out in Amendment No. 828, § 6.11, provides that this Court may promulgate rules governing procedure in the courts of this State. “The mandate to this Court in § 6.11 to make and promulgate ... rules governing practice and procedure in all courts is an empowerment by and from the people; it does not depend on legislative enactment for its existence or implementation.” Schoenvogel v. Venator Group Retail, Inc., 895 So.2d 225, 234 (Ala.2004). However, “such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts of venue of actions therein ....” Amendment No. 328, § 6.11. The right to appeal to the circuit court a final judgment in the district court for de novo review is based on § 12-12-70, and a defendant’s right to a jury trial in the circuit court is set out in § 12-12-71. The circuit court’s appellate jurisdiction is set out in § 12-11-30, which provides for a trial de novo of criminal misdemeanor convictions.

Rule 30.3(a), Ala. R.Crim. P., establishes the time for filing a notice of appeal from the final judgment of a municipal or a district court to the circuit court for a trial de novo in accordance with § 12-14-70(e) and § 12-12-70(b), respectively. Rule 30.6 provides that in an appeal from the district or the municipal court to the circuit court, the parties may stipulate to the questions of law or fact involved and the circuit court may in its discretion rule on the stipulations, provided that any party entitled to a jury trial has waived that right.

In this case, Sorsby timely perfected his appeal to the circuit court for a trial de novo in accordance with Rule 30.3, forgoing the option of stipulating to a question of law or fact for the circuit court to decide. Rules 2.2, 14.4, and 26.9 do not limit the right of a defendant in the district or the municipal court to appeal because Rule 30.1, in accordance with § 12-12-70, §. 12-14-70, and § 12-11-30, provides for a trial de novo, and Rule 30.6 sets out a procedure by which a defendant convicted in the district or the municipal court can limit his appeal to the circuit court to specific questions of law or fact. Requiring a defendant in a municipal or a district court to reserve a particular issue on appeal to the circuit court limits the review by the circuit court in derogation of §§ 12-12-70, 12-12-71, 12-14-70, and 12-11-30 and conflicts with Rule 30.6, which allows the defendant to waive his right to a jury trial in order to have the circuit court address a particular issue. Additionally, requiring the defendant to file a motion to withdraw his guilty plea limits the defendant’s right to de novo review in the circuit court because the circuit court’s review will be limited to whether the district or the municipal court exceeded its discretion in ruling on the motion to withdraw the guilty plea. See Ex paite Heaton, 542 So.2d 931, 933 (Ala.1989) (“The law in Alabama is clear that whether a defendant should be allowed to withdraw a plea of guilty is a matter solely within the discretion of the trial court, whose decision will not be disturbed on appeal absent an abuse of that discretion.”).

A trial de novo is “[a] new trial on the entire case — that is, on both questions of fact and issues of law — conducted as if there had been no trial in the first instance.” Black’s Law Dictionary 1544 (8th ed.1990). In Louisville & Nashville R.R. v. Lancaster, 121 Ala. 471, 473-74, 25 So. 733, 735 (1899), this Court stated:

“[After appeal from a judgment of a justice of the peace] the case is to be tried in the circuit court de novo; or, in other words, as if no trial had ever been had, and just as if it had originated in the circuit court. The appeal when taken operates to annul and vacate the entire judgment of the justice of the peace, and not a part only of the judgment. The judgment of the justice cannot upon the trial in the circuit court be looked to as a matter of evidence or of estoppel. ‘The judgment of the justice is not reversed or affirmed; but a new, distinct, and independent judgment, as may be required by the merits shown on the trial, is rendered by the city or circuit court.’ Abraham v. Alford. 64 Ala. 281 [ (1879) ]; Harsh et al. v. Heflin, 76 Ala. 499 [ (1884) ].”

(Final emphasis added.) At the district court level, whether Sorsby is found guilty following a bench trial, stipulates to the facts as alleged by the State in order to be found guilty, or pleads guilty, review in the circuit court is by trial de novo without any consideration being given to the prior proceedings in. the district court.

We note that the State contends that the certainty and finality of negotiated plea agreements would mean nothing at the municipal or the district court level if a defendant is allowed to appeal to the circuit court for de novo review after pleading guilty. The Court of Criminal Appeals has held, and we agree, that a defendant can waive his right to appeal as part of a negotiated plea agreement so long as he is fully advised of the implications of doing so and he voluntarily agrees to enter into the agreement. Watkins v. State, 659 So.2d 688 (Ala.Crim.App.1994). We also agree with the Court of Criminal Appeals’ holding that a defendant may also waive his right to appeal from the district court to the circuit court for trial de novo as part of a negotiated plea agreement so long as he is fully advised of the implications of doing so and he voluntarily agrees to enter into the agreement under which he expressly waives his right to appeal. Jones v. State, 675 So.2d 69 (Ala.Crim.App.1995).

We now specifically address several points raised in the Court of Criminal Appeals’ opinion. The Court of Criminal Appeals held that Rule 30.1 is inconsistent with Rules 2.2,14.4, and 26.9 following this Court’s amendments to those rules in 2002. It cites Baldwin County v. Jenkins, 494 So.2d 584 (Ala.1986), for the proposition that when there is an inconsistency in rules relating to the same subject matter, the later adopted rule controls. Baldwin County v. Jenkins invokes the well-recognized rule of statutory construction that in cases of conflicting statutes on the same subject, the latest expression of the legislature must take precedence; that rule, however, does not apply in this situation.

As the Court of Criminal Appeals also noted, Rule 1.2, Ala. R.Crim. P., states that the Rules of Criminal Procedure are intended to provide for the just and speedy determination of every criminal proceeding and are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare. “[The rule] sets forth a principle of interpretation to be used in construing ambiguous rules, not a principle of law superseding clear rules that do not achieve the stated objectives. It does not, that is to say, provide that rules shall be construed to mean something other than what they plainly say .... ” Carlisle v. United States, 517 U.S. 416, 424, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (discussing Rule 2, Fed.R.Crim.P., which provides: “These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”). Any ambiguity in applying Rules 2.2, 14.4, and 26.9 in conjunction with Rule 30.1 is easily resolved when viewed in light of the circuit court’s statutory appellate jurisdiction to conduct a trial de novo of cases charging a criminal misdemeanor. This Court cannot “abridge, enlarge, or modify” the jurisdiction of the courts.

The Court of Criminal Appeals states in its opinion that the 2002 amendments to Rules 2.2, 14.4, and 26.9 “embrace § 15-15-26, Ala.Code 1975, which had previously been superseded by Rule 2.2(e)(5), Ala. R.Crim. P. — a rule that was eliminated effective August 1, 2002. ... Section 15-15-26, Ala.Code 1975, has effectively been revived.” 12 So.3d at 133. Section 15-15-26 provided: “After the court has heard and considered a plea of guilty by a defendant and has permitted the filing of such plea and sentenced the defendant, such defendant shall not have the right to appeal from the action of the court.”

We note that § 15-1-1, Ala.Code 1975, provides: “[a]ny provisions of [Title 15] regulating procedure shall apply only if the procedural subject matter is not governed by rules of practice and procedure adopted by the Supreme Court of Alabama.” When this Court adopted the Alabama Rules of Criminal Procedure effective January 1,1991, the procedural subject matter covered by § 15-15-26 was one of those areas governed by those rules. In Ex parte Oswalt, 686 So.2d 368, 370-71 (Ala. 1996), this Court stated:

“Although a legislative act generally controls over a court rule, Section 6.11 of Amendment 328 of the Alabama Constitution of 1901 confers on this Court the authority to ‘make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts,’ subject to the rules being changed by the legislature only ‘by a general act of statewide application.’ See, also, Ex parte Foshee, 246 Ala. 604, 21 So.2d 827 (1945); Holsemback v. State, 443 So.2d 1371 (Ala.Crim.App.1983); Committee Comments to Rule 1.1, Ala. R.Crim. P. The Alabama legislature has recognized the supremacy of this Court’s Rules of Criminal Procedure over statutory provisions on the same subject, stating in § 15-1-1, Ala. Code 1975: ‘Any provision of this title [“Criminal Procedure”] regulating procedure shall apply only if the procedural subject matter is not governed by rules of practice and procedure adopted by the Supreme Court of Alabama.’ ”

Cf. Schoenvogel, 895 So.2d 225 (addressing a rule of procedure conflicting with Title 12 and holding that this Court’s constitutional authority to promulgate rules of procedure for all the courts may supersede legislatively enacted rules of practice and procedure so long as the rules promulgated by this “Court did not abridge, enlarge, or modify the substantive rights of any party and subject to the legislature’s right to change the Court-adopted rules by a general act of statewide application). Accordingly, a rule adopted by this Court could supersede § 15-15-26, and did so when we adopted Rule 2.2(e)(5) (providing for a right to appeal a guilty plea). However, this Court’s revision of Rule 2.2(e) in 2002 did not revive the absolute bar of an appeal from a guilty plea found in § 15-15-26. This is necessarily so because Rules 14.4 and 26.9, also amended in 2002, provide for a limited right to appeal from a guilty plea entered in the circuit court; thus, there is no revival of the absolute bar of an appeal from a guilty plea found in § 15-15-26. Furthermore, Rules 14.4 and 26.9 were not intended to modify the statutory right of appeal granted a defendant convicted in the municipal or the district court as set in Rule 30.1.

Conclusion

The appellate authority of the circuit court provided by statute allows for an appeal from the district or the municipal court to the circuit court for a trial de novo. Rule 14.4(a), however, requiring a defendant in the municipal or the district court to reserve a particular issue on appeal to the circuit court, limits the statutory authority of the circuit court to conduct a de novo review. Also, Rule 26.9(b)(4), requiring the defendant to file a motion to withdraw his guilty plea before he can proceed to the circuit court for a trial de novo limits his right to de novo review in the circuit court because the circuit court’s review will be limited to whether the district or the municipal court exceeded its discretion in ruling on the motion to withdraw the guilty plea. Thus, those rules, if applied to appeals from a district or a municipal court to the circuit court for a trial de novo, would affect the jurisdiction of the circuit court. Therefore, they are not to be applied to appeals from a district or a municipal court’s judgment to the circuit court for a trial de novo.

Based on the foregoing, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, WOODALL, PARKER, and MURDOCK, JJ., concur.

LYONS, STUART, and SMITH, JJ., concur specially.

COBB, C.J., recuses herself.

LYONS, Justice

(concurring specially).

I concur fully in the main opinion. I write specially to suggest that the Advisory Committee on the Alabama Rules of Criminal Procedure consider proposing an amendment to Rule 26.9(b)(4), which now provides that, in instances where the right to appeal has been properly reserved, “a copy of the record and the reporter’s transcript will be provided at no cost to the defendant for purposes of appeal, if the appeal is from a judgment and sentence of the circuit comí.” (Emphasis added.) Our holding today would appear to make the emphasized qualification unnecessary.

STUART, Justice

(concurring specially).

The amendments to Rules 2.2(e), 14.4(a)(l)(viii), and 26.9(b)(4), Ala. R.Crim. P., did not effectively abrogate a criminal defendant’s statutory right to appeal a district court’s judgment to the circuit court for a trial de novo, nor did the amendments affect the jurisdiction of the circuit court. In light of the language limiting issues that may be appealed and the type of review that may be conducted in the circuit court, the amendments to the rules clearly address pleas of guilty entered in the circuit court, not in the district court or the municipal court.

Rule 30.1, Ala. R.Crim. P., specifically provides that “[a] defendant convicted of an offense in municipal court or a district court shall have the right to appeal the judgment, within fourteen (14) days of the date of judgment or the denial of a timely filed post-judgement motion, to the circuit court for a trial de novo.” Rule 30.1, Ala. R.Crim. P., does not differentiate between a conviction from a bench trial or a conviction from a voluntary plea of guilty. Therefore, the Rules of Criminal Procedure clearly provide that a defendant who pleads guilty in a municipal or a district court has a right to appeal the judgment for a trial de novo in the circuit court.

The right to appeal for a trial de novo in the circuit court, however, is waivable:

“It is well settled that a defendant may, as part of a negotiated plea agreement, agree to waive his right to appeal ‘so long as he is fully advised on its implications and he voluntarily agrees to enter into the agreement.’ Watkins v. State, 659 So.2d 688, 689 (Ala.Crim.App.1994).... ‘[A] colloquy with the defendant that reflects that he or she was informed of the right to appeal and that he or she chose to waive this right is sufficient to show a valid and enforceable waiver.’ Watson [v. State,] 808 So.2d [77,] 80 [(Ala.Crim.App.2001)]. In addition, just like a challenge to the voluntariness of a guilty plea, the issue of the voluntariness of a waiver of the right to appeal will be reviewed on direct appeal if it is first presented to the trial court.”

Boglin v. State, 840 So.2d 926, 929 (Ala. Crim.App.2002). Moreover,

“ ‘[t]he right to appeal is by the grace of statute,’ Pettway v. State, 519 So.2d 548 (Ala.Civ.App.1987), and this court will not differentiate between a defendant’s decision to waive this right as part of plea negotiation in district court or in circuit court....
“... [A] defendant may waive his right to appeal to circuit court for a trial de novo as part of a negotiated plea agreement in district court. See Gwin v. State, 456 So.2d 845 (Ala.Cr.App.1984).”

Jones v. State, 675 So.2d 69, 71 (Ala.Crim. App.1995).

Thus, the law in this State provides that a defendant entering a guilty plea in the district or the municipal court can voluntarily waive his right to appeal from a guilty-plea conviction for a trial de novo in the circuit court as part of a negotiated plea agreement. A voluntary waiver of the right for a trial de novo in the circuit court does not impugn or modify the jurisdiction of the circuit court. Moreover, the 2002 amendments to the Rules of Criminal Procedure did not negate the enforcement of such a voluntary waiver.

My review of the materials before this Court does not indicate whether Sorsby voluntarily waived his right to appeal for a trial de novo in the circuit court as part of a negotiated plea. If he did waive the right to appeal as part of a negotiated plea and the district court determined that his waiver was voluntary, Sorsby has waived this right and the circuit court should dismiss his appeal. If Sorsby did not voluntarily waive this right as part of a negotiated plea, then Sorsby is entitled to a trial de novo in the circuit court.

SMITH, J., concurs.

      . At the same time, Sorsby pleaded guilty to the unlawful possession of a controlled substance, in violation of § 13A-12-212, and was admitted to a pretrial-diversion program. Sorsby's certiorari petition does not address this plea.


author: PER CURIAM.

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. William Kenneth SORSBY).
    CR-04-2166.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2008.
    Troy King, atty. gen., and M. David Barber, dist. atty. for Jefferson County, Birmingham Division, for petitioner.
    James Edmund Odum, Jr., Birmingham, for respondent.
   After Remand from the Alabama Supreme Court

PER CURIAM.

This Court’s judgment in State v. Sorsby, 12 So.3d 130 (Ala.Crim.App.2005), granting the State’s petition for a writ of mandamus has been reversed by the Alabama Supreme Court in Ex parte Sorsby, 12 So.3d 139 (Ala.2007). Pursuant to the Supreme Court’s opinion, we now deny the State’s petition for a writ of mandamus.

PETITION DENIED.

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


author: WELCH, Judge.

text:
    Karys Dontricia MURRAY v. STATE of Alabama.
    CR-05-1048.
    Court of Criminal Appeals of Alabama.
    March 23, 2007.

      Jeffery C. Duffey, Montgomery, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WELCH, Judge.

Karys Dontricia Murray was indicted in 2004 on three counts of second-degree burglary, a violation of § 13A-7-6, Ala. Code 1975. In January 2006, Murray pleaded guilty to one count of second-degree burglary and was sentenced to 20 years’ imprisonment in accordance with the terms of a plea agreement. As part of the agreement, Murray reserved the right to appeal the conviction on the grounds that the 2004 indictment should have been dismissed because the prosecution was vindictive and he was denied his right to a speedy trial.

The 2004 indictment arose out of a 1995 incident in which Murray and others participated in the murder of Eddie Allen as Allen was working as the manager of a Burger King fast-food restaurant in Montgomery. In 1995, Murray was indicted on one count of capital murder for his role in the crime. He entered into a plea agreement with the State, and, in 1997, he pleaded guilty to felony murder and robbery. Pursuant to the plea agreement, the trial court sentenced Murray to life imprisonment for each conviction, the sentences to be served consecutively. Murray, acting in accordance with his obligations under the plea agreement, did not appeal or file any requests for postconviction relief.

Despite Murray’s adherence to the terms of the plea agreement, the State convened another grand jury to consider Murray’s case, and in March 2002, that grand jury returned an indictment against Murray charging him with murder made capital because it was committed during the course of a robbery, murder made capital because it was committed during the course of a burglary, and conspiracy to commit robbery. The State then moved to vacate Murray’s conviction and sentence for robbery, to reinstate the original indictment for capital murder, then to nolle pros that indictment.

In turn, Murray moved to dismiss the March 2002 indictment. The trial court denied his motion. Murray petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to dismiss the 2002 indictment and to reinstate his conviction and sentence for felony murder and to vacate his conviction and sentence for first-degree robbery. The Alabama Supreme Court granted Murray’s petition on the ground that the 2002 indictment violated the principle of double jeopardy. Ex parte Murray, 893 So.2d 353 (Ala. 2004). Because the trial court had already vacated Murray’s conviction and sentence for first-degree robbeiy, the Supreme Court determined that it would “not issue a writ of mandamus ordering a trial court to do something the trial court has already done.” 893 So.2d at 354.

On June 11, 2004, the grand jury returned yet another indictment against Murray arising out of the same 1995 incident — this one charging him with three counts of burglary in the second degree. Again, Murray sought to have the indictment dismissed. As grounds for dismissal, Murray asserted, in multiple motions, that the indictment violated the constitutional prohibition against double jeopardy, his right to a speedy trial, and the statutory period of limitations and that the State was engaged in vindictive prosecution against him.

The trial court entered an order dismissing the indictment on the ground that it violated double-jeopardy principles, as determined by the Supreme Court in Ex parte Murray. The State appealed the dismissal to this Court. This Court determined that, because burglary was not a lesser-included offense to the 1995 capital murder indictment or the offense to which Murray pleaded guilty, i.e., felony murder during a robbery, “Murray was not placed in jeopardy for burglary by the 1995 indictment or by the 1997 guilty plea,” and, therefore, that the principles of double jeopardy would not bar Murray’s prosecution for burglary. State v. Murray, 923 So.2d 335, 338 (Ala.Crim.App.2005). Therefore, this Court held, the trial court erred in dismissing the indictment on the ground of double jeopardy. Id.

The Court went on to note, however, that the trial court’s order dismissing the indictment did not address Murray’s other grounds — speedy trial, vindictive' prosecution, and statute of limitations — as to why the 2004 indictment should be dismissed. It further stated:

“We are unable to determine from the record whether dismissal of the indictment on any of those [grounds] would have been proper. For example, the triggering date for a speedy-trial analysis is unclear from the record; we are unable to determine whether the time for speedy-trial purposes started running in 1995 or upon his 2004 indictment; therefore, we cannot determine what portion of that time would be viewed under a speedy-trial analysis and what portion of the time would be reviewed under a due process pre-indictment delay analysis. Similarly, the trial court is in the better position to first determine whether vindictiveness should be presumed and which party bore the burden of establishing either vindictiveness or the lack thereof, as the case may be. Thus, we express no opinion as to the merits of those allegations. The trial court should issue written findings of fact as to the merits of Murray’s remaining motions to dismiss, because it appears that those motions remain pending in the circuit court. If the trial court determines that additional evidence or proceedings are necessary, the trial court should exercise its discretion accordingly.”

Murray, 923 So.2d at 339.

In response to that opinion, the trial court declined to hold further proceedings and entered an order denying Murray’s other motions for dismissal. Despite our request, the trial court did not include findings of fact in the order. We acknowledge that in Murray, we stated that the trial court “should” issue written findings of fact rather than stating that it “shall” issue such findings and left it to the trial court’s discretion as to whether additional evidence was required. We believe the opinion makes clear, however, that this Court could not conduct a proper analysis of the pending issues based upon the record before us, that is, with no written findings or evidence on the speedy-trial or vindictive-prosecution issues. In this appeal, Murray again asserts that the 2004 indictment should have been dismissed because, he says, he was denied a speedy trial and he again raises the issue of vindictive prosecution. Because the trial court did not issue written findings or hold an evidentiary hearing, however, we are still unable to do a proper analysis as to these issues.

The United States Supreme Court has set forth four factors to be considered when reviewing a speedy-trial claim: (1) the length of the delay; (2) the reason for the delay; (3) the accused’s assertion of his right to a speedy trial; and (4) the degree of prejudice the accused suffered due to the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Ex parte Walker, 928 So.2d 259 (Ala.2005), sets forth the Alabama Supreme Court’s analysis of the application of those factors.

As discussed above, the record in this case is such that we cannot do a proper analysis under Barker and Walker. We note that in Murray, we wrote that an evidentiary hearing was held on August 18, 2004, on Murray’s motions to dismiss the indictment. Murray, 923 So.2d at 337. Upon further consideration of the record, however, we find that, in fact, no evidentia-ry hearing was held. According to the scheduling order entered in this case, the proceeding on August 18, 2004, was a “pretrial status/scheduling conference” at which “all defendants and/or attorneys” were to be present. (R. 11.) We have reviewed the record of the August 18, 2004, proceeding and determined that, although the attorneys for the parties argued pending motions, no evidence was taken.

Accordingly, we remand this cause to the trial court with instructions that the court shall conduct an evidentiary hearing during which the factors set forth in Barker are to be addressed, as well as the issue of vindictive prosecution. After the hearing, the trial court shall make specific findings of fact as to the Barker factors and Murray’s claim of vindictive prosecution. The trial court shall also supply this court with a transcript of the evidentiary hearing. See State v. Stovall, 947 So.2d 1149 (Ala.Crim.App.2006) (case remanded for an evidentiary hearing on the Barker factors).

On remand, the trial court shall take all necessary action to see that the circuit clerk makes due return to this court within 70 days.

REMANDED WITH INSTRUCTIONS.

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

      . At the time of this opinion, the appeal of Murray's codefendant, Charles Peterson, is also pending before this Court.

       Note from the reporter of decisions: On June 28, 2007, the Court of Criminal Appeals dismissed the appeal on Murray’s motion.


text:
    Charles PETERSON v. STATE of Alabama.
    CR-05-0987.
    Court of Criminal Appeals of Alabama.
    March 30, 2007.
    See also 842 So.2d 734, 884 So.2d 924, and 890 So.2d 990.

      Richard K. Keith, Montgomery, for appellant.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellee.
   PER CURIAM.

On June 11, 2004, Charles Peterson was indicted for three counts of burglary in the second degree, violations of § 13A-7-6, Ala.Code 1975. He pleaded guilty to one count of burglary in the second degree, under Count I of the indictment, and he was sentenced to 20 years’ imprisonment.

The procedural history of this case is lengthy. In State v. Peterson, 922 So.2d 972 (Ala.Crim.App.2005), this Court set out that history as follows:

“Peterson was indicted in December 1995 for murder made capital because it was committed during the course of a robbery. Peterson pleaded guilty in 1997 to the lesser-included offenses of felony murder (the underlying felony being a robbery) and first-degree robbery, and he was sentenced to consecutive sentences of 30 years’ imprisonment and 20 years’ imprisonment, respectively. Peterson did not appeal his convictions and sentences.
“On July 25, 2000, Peterson filed a Rule 32, Ala.R.Crim.P., petition in which he alleged that his convictions violated double-jeopardy principles. This Court remanded the case four times for the circuit court to make specific written findings of fact with regard to Peterson’s allegations. The State conceded that his convictions violated double-jeopardy principles and that his conviction and sentence for first-degree robbery must be vacated. However, the State further argued that the terms of the plea agreement had been altered and, therefore, filed a motion requesting that the circuit court set aside both of Peterson’s convictions and sentences and reinstate the original indictment; the circuit court granted the State’s motion. The State then convened a grand jury, which returned a three-count indictment against Peterson on March 8, 2002, charging murder made capital because it was committed during the course of a robbery, murder made capital because it was committed during the course of a burglary, and conspiracy to commit robbery; upon motion by the State, the trial court nol-prossed the original 1995 one-count capital-murder indictment. On return to third remand, this Court held that the circuit court’s order on remand exceeded the scope of its jurisdiction and was therefore void; this Court again remanded for the circuit court [to] make specific findings of fact regarding Peterson’s claims. See Peterson v. State, 842 So.2d 734 (Ala.Crim. App.2002). On return to fourth remand, the circuit court submitted written findings indicating that the same robbery formed the basis for the robbery and felony-murder convictions and vacated the robbery conviction and sentence.
“Peterson filed a motion to dismiss the March 2002 three-count indictment; that motion was denied and Peterson filed a petition for a writ of mandamus, arguing that the second indictment violated the Double Jeopardy Clause. This Court denied Peterson’s mandamus petition, stating that both of his convictions were a part of a plea agreement that had resulted in a void conviction and, therefore, that ‘ “ ‘the parties [were] returned to the status quo existing before the plea agreement.’ ” ’ Ex parte Peterson, 884 So.2d 924, 928 (Ala.Crim.App. 2003) (quoting Warren v. State, 706 So.2d 1816, 1318 (Ala.Crim.App.1997), quoting in turn Brown v. State, 660 So.2d 235, 236 (Ala.Crim.App.1995)). Thus, we concluded that the State was free to proceed under the original indictment or to reindict Peterson as it had chosen to do.
“Peterson petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to dismiss the March 2002 indictment and to reinstate his guilty-plea conviction for felony murder. The Alabama Supreme Court granted Peterson’s petition, stating that because felony murder during a robbery was a lesser-included offense of the charged offense of capital murder during a robbery, the guilty plea to felony murder was a valid plea and, therefore, that jeopardy had attached, which ‘prohibited] any further prosecution of Peterson for the murder of Eddie Allen.’ Ex parte Peterson, 890 So.2d 990, 993 (Ala.2004). Thus, at the conclusion of this series of events, the 2002 indictment was dismissed, Peterson’s conviction and sentence for robbery were vacated, and his conviction and sentence for felony murder were reinstated.
“On June 11, 2004, the Montgomery County Grand Jury returned an indictment charging Peterson with three counts of second-degree burglary— count one charged a violation of § 13A-7-6(a), Ala.Code 1975, i.e., that Peterson or another participant was armed with explosives or a deadly weapon — a firearm — while committing the burglary; count two charged a violation of § 13A-7-6(b), Ala.Code 1975, i.e., that Peterson or another participant caused physical injury to Eddie Allen by shooting him with a firearm while committing the burglary; and count three charged a violation of § 13A-7-6(c), Ala.Code 1975, i.e., that Peterson or another participant used or threatened the immediate use of a dangerous instrument — a firearm— while committing the burglary. On August 3, 2004, Peterson filed a motion to dismiss the indictment on former jeopardy grounds; the State responded on August 4, 2004; and Peterson filed a reply to the State’s response on August 16, 2004. On August 16, 2004, Peterson also filed a motion to dismiss the June 2004 indictment on speedy-trial grounds, a motion to dismiss on the grounds that the State was engaged in vindictive prosecution against him, and a motion to dismiss on the grounds that the charges had been brought beyond the statutory period of limitations.
“On August 18, 2004, the trial court conducted an evidentiary hearing at which Peterson argued that the indictment against him was due to be dismissed on the. grounds that it violated principles of double jeopardy and the doctrine of collateral estoppel.[] The State argued essentially that there was no violation because burglary was not a lesser-included offense of robbery. On August 19, 2004, the trial court entered the following written order:
“ ‘This cause having come before the Court on Defendant’s Motions to Dismiss, the same having been considered, it is hereby
“ ‘Ordered Adjudged and Decreed said Motion is Granted based upon the previous opinions and instructions of the appellate courts.’ ”

922 So.2d at 973-75 (footnote omitted). Construing the trial court’s order as granting Peterson’s motion to dismiss on double-jeopardy grounds, this Court reversed the trial court’s judgment, finding that the 2004 burglary indictment was not barred by double-jeopardy principles, and remanded the case for further proceedings. This Court also held, based on Peterson’s argument at the August 18, 2004, proceeding, that Peterson’s indictment was likewise not barred by the doctrine of collateral estoppel. In remanding the case, this Court further stated:

“We note, however, that the trial court’s dismissal order does not reference the disposition of Peterson’s motions to dismiss the indictment on speedy-trial, vindictive-prosecution, and statute-of-limitations grounds. We are unable to determine from the record whether dismissal of the indictment on those motions would have been proper. For example, the triggering date for a speedy-trial analysis is unclear from the record; we are unable to determine whether the time for the speedy-trial analysis started running in 1995 or upon his 2004 indictment; therefore, we cannot determine what portion of that time would be viewed under a speedy-trial analysis, and what portion of the time would be reviewed under a due process preindictment delay analysis. Similarly, the trial court is in the better position to first determine whether vindictiveness should be presumed and which party bore the burden of establishing either vindictiveness, or the lack thereof, as the case may be. Thus, we express no opinion as to the merits of those allegations. The trial court should issue written findings of fact as to the merits of Peterson’s remaining motions to dismiss, because it appears that those motions remain pending in the circuit court. If the trial court determines that additional evidence or proceedings are necessary, the trial court should exercise its discretion accordingly.”

922 So.2d at 977. This Court issued a similar opinion in the case of Peterson’s codefendant, Karys Murray, which has a similar procedural history. See State v. Murray, 923 So.2d 335 (Ala.Crim.App. 2005).

Following this Court’s reversal of the trial court’s order granting Peterson’s motion to dismiss, the trial court issued an order on September 26, 2005, summarily denying Peterson’s remaining motions to dismiss, which alleged speedy-trial, vindictive-prosecution, and statute-of-limitations grounds. The court did not conduct a hearing on the motions, nor did it issue specific written findings of facts as this Court had urged it to do in our opinion in State v. Petersoyi, supra. On October 14, 2005, Peterson filed a petition for a writ of mandamus in this Court requesting that this Court order the trial court to issue specific written findings of fact regarding its denial of his three remaining motions to dismiss; this Court denied the petition by order on January 4, 2006, finding that in our opinion in State v. Peterson, supra, we “did not order the circuit court to make findings of fact on those outstanding motions,” but only “strongly urge[d] the circuit court to make findings.” (No. CR-05-0078) The same day, this Court denied a similar mandamus petition filed by Murray on the same ground. (No. CR-05-0079)

On January 20, 2006, Peterson entered his guilty plea to burglary in the second degree under Count I of the indictment, expressly reserving the right to appeal the trial court’s denial of his motions to dismiss the indictment on the grounds (1) that he was denied his right to a speedy trial; (2) that in prosecuting him the State was engaged in vindictive prosecution; (3) that the burglary prosecution is barred by the statute of limitations; and (4) that any further prosecution for the events surrounding Eddie Allen’s murder, as to which he had pleaded guilty in 1997, was barred by the doctrine of collateral estop-pel.

As for Peterson’s collateral-estop-pel argument, that argument was addressed and rejected by this Court in State v. Peterson, supra. Although in his brief on appeal Peterson challenges this Court’s holding that the doctrine of collateral es-toppel does not bar his prosecution for burglary, this appeal is not the proper avenue to challenge this Court’s previous holding. Peterson should have filed an application for rehearing with this Court after we issued our opinion in State v. Peterson, supra, and then sought certiorari review of our decision in the Alabama Supreme Court. He failed to do so, and we will not revisit this argument again.

As for Peterson’s remaining arguments — denial of his right to a speedy trial, vindictive prosecution, and statute-of-limitations bar — in the case of Peterson’s codefendant, Murray, we recently issued an opinion remanding Murray’s case for the trial court to conduct an evidentia-ry hearing and to issue specific written findings of fact regarding similar motions to dismiss filed by Murray. See Murray v. State, 12 So.3d 150 (Ala.Crim.App. 2007). In that opinion, this Court noted that, although we had initially characterized the August 18, 2004, proceeding as an evidentiary hearing on Murray’s motions to dismiss, that proceeding was actually a pretrial status/motion conference, and no evidence was, in fact, taken at that conference regarding Murray’s motions to dismiss. As noted above, the August 18, 2004, proceeding was consolidated with that of Peterson; thus, Peterson likewise did not receive an evidentiary hearing on his motions to dismiss. In addition, the record here, like the record in Murray’s case, is not sufficient to address Peterson’s claims.

Accordingly, based on this Court’s opinion in Murray v. State, 12 So.3d 150 (Ala. Crim.App.2007), we remand this case for the trial court to conduct an evidentiary hearing on Peterson’s motions to dismiss the indictment on the grounds (1) that he was denied his right to a speedy trial, (2) that the State is engaged in vindictive prosecution, and (3) that the burglary prosecution is barred by the statute of limitations, and to issue specific written findings of fact regarding those motions. Due return shall be filed with this Court within 70 days of the date of this opinion. The return to remand shall include the trial court’s written findings of fact, a transcript of the evidentiary hearing, and any documentary or other evidence received or relied on by the court.

REMANDED WITH DIRECTIONS

McMILLAN, WISE, and WELCH, JJ., concur. BASCHAB, P.J., and SHAW, J., dissent, without opinion.

      . Each count of the indictment charged an alternative method of proving second-degree burglary under § 13A-7-6, Ala.Code 1975. Count I charged a violation of § 13A-7-6(a)(1); Count II charged a violation of § Í3A-7-6(a)(2); and Count III charged a violation of § 13A-7-6(a)(3). Counts II and III were nol-prossed when Peterson pleaded guilty to Count I.

      . This proceeding was consolidated with that of Peterson’s codefendant, Karys Murray.

      . As noted in State v. Peterson, supra, although Peterson did not raise his collateral-estoppel argument in his written motions to dismiss, he did make the argument to the trial court at the August 18, 2004, proceeding.

      . The State argues in its brief that Peterson is 1 judicially estopped from pursuing his vindictive-prosecution and statute-of-limitations arguments because in the previous appeal in State v. Peterson, supra, Peterson conceded in his brief that these arguments were meritless. However,
      “for judicial estoppel to apply (1) ‘a party’s later position must be “clearly inconsistent” with its earlier position'; (2) the party must have been successful in the prior proceeding so that ‘judicial acceptance of an inconsistent position in a later proceeding would create "the perception that either the first or second court was misled” ' ...; and (3) the party seeking to assert an inconsistent position must ‘derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’ ”

        Ex parte First Alabama Bank, 883 So.2d 1236, 1244 (Ala.2003) (emphasis added). In this case, Peterson did not even receive a ruling, either from the trial court or from this Court, regarding his vindictive-prosecution and statute-of-limitations arguments and, thus, he was clearly not “successful in the prior proceeding.”

       Note from the reporter of decisions: On May 21, 2007, the Court of Criminal Appeals dismissed the appeal on Peterson's motion.


author: WISE, Judge. WELCH, Judge

text:
    Kenneth Tyrone MONCRIEF v. STATE of Alabama.
    CR-07-2060.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 2008.
    Kenneth Tyrone Moncrief, pro se.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

WELCH, Judge

(concurring in the result).

On July 24, 2008, Kenneth Tyrone Mon-crief filed a motion pursuant to § 13A-5-9.1, Ala. Code 1975, asking the circuit court to reconsider his sentence of life imprisonment as a habitual felony offender after his conviction for first-degree escape. • He argued that he was eligible for reconsideration, as set forth in Kirby v. State, 899 So.2d 968 (Ala.2004), and Holt v. State, 960 So.2d 726 (Ala.Crim.App.2006). The circuit court’s ruling was handwritten on the top of Moncriefs motion; it stated only “denied.” (C.R. 1.) Moncrief appealed from the circuit court’s denial of his motion.

The unpublished memorandum affirming the trial court’s denial of Moncriefs motion finds that because Moncrief admitted to three previous burglary convictions, the circuit court apparently determined that he was a violent offender and that he was thus ineligible for sentence reconsideration under § 13A-5-9.1.

I write specially because I believe that the circuit court’s ruling — “denied”—was a sufficient ruling that renders unnecessary any analysis by this Court as to the possible reasons underlying the ruling.

The eligibility requirements for sentence reconsideration are set forth in Kirby and Holt — “(1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the [Habitual Felony Offender Act] became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole pursuant to § 13A. — 5—9(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A-5-9(c)(2) ...; and (3) the inmate is a ‘nonviolent convicted offender.’ ” Holt, 960 So.2d at 734-35.

In its unpublished memorandum, this Court concludes that Moncrief is ineligible for sentence reconsideration. Because the circuit court ruled that the motion was “denied,” I do not believe this conclusion is necessary. I believe that even when an inmate is eligible for consideration to be resentenced, the circuit court’s decision is discretionary and will not be disturbed on appeal absent noncompliance with Ex parte Gunn, 993 So.2d 433, 436 (AJa.2007) (“the plain language of the statute does not limit that jurisdiction to one motion per defendant per case”). See Kirby, 899 So.2d at 974 (noting that “the state’s trial judges have the authority under the statute to determine whether a defendant is a nonviolent offender”). See also Sanders v. State, 934 So.2d 432, 434 (Ala.Crim.App. 2005) (“Whether an inmate is a violent offender is for the circuit court to determine and, in the absence of an abuse of its discretion in so determining, we will not disturb its finding on appeal.”).

“Matters resting in the sound discretion of the trial court will not be disturbed on appeal unless there is a clear abuse of discretion.” Kirby, 416 So.2d at 1012 (quoting Williamson-Johns Co. v. Johns, 355 So.2d 706, 707 (Ala.1978)). I cannot say the wide discretion afforded the circuit court when considering these motions has been clearly abused when the circuit court merely rules that such a motion is “denied.” For this reason I would affirm; I therefore concur in the result.


author: PER CURIAM. WELCH, Judge,

text:
    Jerry ASHFORD v. STATE of Alabama.
    CR-07-0750.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 2008.

      Jerry Ashford, pro se.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   PER CURIAM.

Jerry Ashford appeals from the denial of this, at least his sixth, if not seventh, motion to reconsider his sentence, made pursuant to § 13A-5-9.1, Ala.Code 1975. On August 27, 1992, Ashford was convicted of robbery in the first degree and was sentenced as a habitual offender to life imprisonment without the possibility of parole. In November 2007, Ashford filed the instant motion for sentence reconsideration, alleging that, because, he said, he was not a violent offender, his sentence should be reevaluated pursuant to § 13A-5-9.1, Ala.Code 1975, and the Supreme Court’s holding in Kirby v. State, 899 So.2d 968 (Ala.2004). On December 5, 2007, the circuit court denied the motion with the following handwritten notation in the case action summary: “Kirby [motion] is denied as successive as condemned by Wells [v. State, 941 So.2d 1008 (Ala.Crim.App. 2005),] see 3/3/05 and 12/22/06 Orders.” (C. 6.)

On appeal, Ashford claims that the trial court’s order, based on Wells, is improper because, he says, it violates the Alabama Supreme Court’s holding in Ex parte Gunn, 993 So.2d 433 (Ala.2007). In Gunn, the Alabama Supreme Court overruled Wells, insofar as Wells purported to impose a jurisdictional limitation of one motion for reconsideration of sentence per defendant per case. However, in Gunn, the Alabama Supreme Court expressly declined to address the issue whether the fact that a motion for sentence reconsideration is successive nonetheless provides a valid ground for denying the motion. The Court stated:

“This opinion should not be read as requiring the trial courts to consider second or successive motions for reconsideration under § 13A-5-9.1, Ala.Code 1975. We granted certiorari review to address only the question whether the trial courts have subject-matter jurisdiction over successive § 13A-5-9.1 motions. We do not reach the question whether the statute can or does require such reconsideration.”

Gunn, 993 So.2d at 433, n. 6.

Although a circuit court has jurisdiction to consider a successive motion for sentence reconsideration, this Court does not believe that § 13A-5-9.1 or Kirby, supra, requires a circuit court to consider a successive motion for sentence reconsideration. Nor do we read § 13A-5-9.1, Kirby, or Gunn as prohibiting a circuit court from denying a motion for sentence reconsideration solely on the basis that it is a successive motion. The intent of the legislature in enacting § 13A-5-9.1 was to afford nonviolent inmates sentenced before the 2000 amendment to the Habitual Felony Offender Act the opportunity to receive the benefits of that amendment, i.e., to afford those nonviolent inmates the opportunity for the circuit court to exercise its discretion in determining the sentence to be imposed, discretion that was not available before the amendment. Once an inmate receives that opportunity, i.e., once a circuit court properly considers an inmate’s motion for sentence reconsideration, the legislative intent in enacting § 13A-5-9.1 has been fulfilled. As this Court noted in our opinion in Wells, supra:

“ ‘[W]e must strike a proper balance between our interest in preserving the finality of judgments, and, thus, promoting the efficient administration of criminal justice, and our interest in safeguarding the rights of the accused. A careful balancing of these concerns is, in our view, necessary to foster stability and confidence in the judicial system.’ ”

941 So.2d at 1009, quoting Ex parte Frazier, 562 So.2d 560, 569 (Ala.1989). The Supreme Court likewise recognized in Gunn “the importance of striking a proper balance between safeguarding the rights of the accused and preserving the finality of judgments.” Gunn, 993 So.2d at 433. In that vein, we believe that the fact that a motion for sentence reconsideration under § 13A-5-9.1 is successive is a valid basis, in and of itself, for denying that motion, so long as at least one of the previous motions was properly considered in compliance with this Court’s opinion in Holt v. State, 960 So.2d 726 (Ala.Crim.App.2006), and we overrule this Court’s opinion in Bishop v. State, 993 So.2d 496 (Ala.Crim.App. 2007), to the limited extent it held otherwise.

In this case, the circuit court erroneously relied on this Court’s opinion in Wells in denying Ashford’s motion. However, this Court may affirm a circuit court’s judgment on grounds other than those asserted by the circuit court. In the order denying Ashford’s second motion for sentence reconsideration, the court noted that Ashford had “18 write-ups,”, i.e., 18 disciplinary citations, while he was in prison. This statement indicates that the circuit court considered all the information before it in denying that second motion, in compliance with Holt, even though that denial occurred before this Court issued its opinion in Holt.

Although there has been no finding at any point that Ashford is a violent offender and, thus, ineligible for sentence reconsideration, such a finding is not required to deny a motion for reconsideration. Whether an inmate is a nonviolent offender is an issue relating solely to whether an inmate is eligible for sentence reconsideration. However, merely because an inmate is eligible for sentence reconsideration does not mean that the inmate must be resentenced. See Holt, 960 So.2d at 735 n. 3 (“[A] circuit court is not required to resentence an inmate merely because it determines that the inmate is eligible for reconsideration of his or her sentence.”). See also Prestwood, v. State, 915 So.2d 580 (Ala.Crim.App.2005). Based on the record in this case, it appears that in denying Ashford’s second motion for sentence reconsideration the circuit court found that Ashford was eligible for sentence reconsideration, but simply chose not to resentence Ashford because of his prison record. Thus, Ashford has received the opportunity for sentence reconsideration to which he is entitled under § 13A-5-9.1.

Because Ashford’s second motion for reconsideration was properly considered and denied, the circuit court’s judgment denying Ashford’s present motion for sentence reconsideration on the ground that it was successive is affirmed.

AFFIRMED.

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

WELCH, Judge,

dissenting.

I agree with the majority that a circuit court may properly deny a motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975, on the basis that such motion is successive, so long as at least one of the previous motions was properly considered in compliance with this Court’s opinion in Holt v. State, 960 So.2d 726 (Ala. Crim.App.2006). However, in this case, the Court erroneously relied on this Court’s opinion in Wells v. State, 941 So.2d 1008 (Ala.Crim.App.2005), in denying Ash-ford’s motion.

This case does not present a situation in which the circuit court believed it had jurisdiction to consider the motion but refused to do so on the basis that the motion was successive. Rather, the circuit court, based on earlier caselaw, was of the belief that it was precluded from considering the motion because it was without jurisdiction. I do not believe that a previous motion properly considered and denied cures the circuit court’s erroneous reliance on Wells, supra. Because the circuit court erroneously thought it did not have jurisdiction to rule on Ashford’s motion to reconsider, it did not reach the merits, if any, to Ash-ford’s motion to reconsider. I would reverse the circuit court’s judgment and remand this cause for the circuit court to review the motion and to enter judgment accordingly. Therefore, I respectfully dissent.

      . The record reflects that Ashford's first motion to reconsider was denied on November 15, 2004, and his appeal from that denial was dismissed by this Court as untimely on January 11, 2005; his second motion was denied on March 3, 2005; his third motion was denied on February 7, 2006; his fourth motion was denied on June 14, 2006; and his fifth motion was denied on December 19, 2006. In addition, the case-action summary indicates that a motion to reconsider was also denied on December 22, 2006, but it is unclear if that was the same motion that had previously been denied on December 19, 2006, or if it was a sixth motion to reconsider.

      . This is not to say, of course, that only those motions for sentence reconsideration that were decided after this Court's decision in Iiolt can be viewed as having been properly considered. To the contrary, even before this Court's decision in Holt, many circuit courts were evaluating the "totality of the circumstances,” as later directed by this Court in Holt, in ruling on motions for sentence reconsideration. So long as there is no indication that the previous motion was denied on a clearly improper basis, a successive motion can be properly denied solely on the ground that it is successive.

      . After further review of § 13A-5-9.1, as well as the Supreme Court opinions in Kirby and Gunn, supra, we believe that this Court in Bishop erroneously expanded the Supreme Court's limited holding in Gunn that a circuit court has jurisdiction to consider a successive motion for reconsideration to hold that a circuit court may never deny a motion for reconsideration on the ground that it is successive.