King v. StateKing v. State
- Reporters:
- ,
- Before:
- Shaw, McMillan, Cobb, Baschab, Wise
Terry King appeals the circuit court‘s summary denial of his Rule 32,
The record reflects that King filed his first Rule 32 petition on or about January 25, 2000. On July 10, 2000, King filed a petition for a writ of mandamus in this Court, requesting that we order the circuit court to rule on his petition. The State filed a response on August 8, 2000, arguing that King‘s petition had been summarily denied on March 9, 2000, and that, therefore, King‘s mandamus petition was moot. The State attached to its response the circuit court‘s order denying the petition. This Court dismissed the mandamus petition on August 9, 2000.
On August 11, 2000, King filed a “Motion for an Out-of-time Appeal” in the circuit court, arguing that he had failed to appeal the denial of his first Rule 32 petition through no fault of his own because, he said, he did not receive the circuit court‘s order denying the petition until he received the State‘s response to his mandamus petition. The circuit court denied King‘s motion on August 22, 2000.
On September 11, 2000, King filed the present Rule 32 petition, again requesting an out-of-time appeal from the summary denial of his first Rule 32 petition. He alleged, as he did in his motion for an out-of-time appeal, that he had failed to appeal the denial of his previous Rule 32 petition through no fault of his own because, he said, he did not receive the circuit court‘s order denying the petition until he received the State‘s response to his mandamus petition in August 2000, five months after the order had been entered. After receiving a response and motion to dismiss from the State, the circuit court summarily denied King‘s petition on October 31, 2000.
On appeal, the State requests that we remand this case to the circuit court for further proceedings. We agree that a remand is necessary. In Fountain v. State, 842 So.2d 719, 724 (Ala.Crim.App.2000), aff‘d. in pertinent part, rev‘d on other grounds, 842 So.2d 726 (Ala.2001), this Court recognized that a Rule 32 petitioner has the “right to petition a circuit court for an out-of-time appeal pursuant to
In his petition, King pleaded facts that, if true, would entitle him to relief, i.e., an out-of-time appeal from the denial of his first Rule 32 petition. King alleged that he did not receive the circuit court‘s order
We note that the circuit court found, as the State argued in its motion to dismiss, that King‘s claim was precluded by
There is no provision in Rule 32, or anywhere in the Alabama Rules of Criminal Procedure, providing for a “motion” for an out-of-time appeal from the denial of a previous Rule 32 petition. The proper avenue for seeking an out-of-time appeal from the denial of a Rule 32 petition is to file another Rule 32 petition in the circuit court or to file a petition for a writ of mandamus in this Court. See Ex parte Fountain, supra; Ex parte Johnson, supra; and Brooks v. State, [Ms. CR-00-1134, April 26, 2002] ___ So.2d ___ (Ala.Crim.App.2002). A simple motion, not recognized by the Rules of Criminal Procedure, filed when there is no action currently pending before the circuit court, is not sufficient to invoke that court‘s jurisdiction. Because the circuit court did not have jurisdiction to rule on King‘s motion for an out-of-time appeal, the fact that that motion was filed cannot be used to preclude as successive King‘s present Rule 32 petition requesting the same relief. Therefore, the circuit court erred in finding that King‘s claim was precluded.
Accordingly, we must remand this case to the circuit court for it to address the merits of King‘s claim that he failed to appeal the denial of his first Rule 32 petition through no fault of his own and to make specific findings of fact regarding that claim. The circuit court may either conduct an evidentiary hearing or take evidence in the form of affidavits, written interrogatories, or depositions. See
REMANDED WITH DIRECTIONS.
McMILLAN, P.J., and COBB, J., concur. BASCHAB, J., concurs specially, with opinion, which WISE, J., joins.
BASCHAB, Judge, concurring specially.
I concur with the majority‘s opinion. However, I write specially to urge the Alabama Supreme Court to revisit its decisions in Ex parte Johnson and Ex parte Fountain and to clarify what is the appropriate procedure for seeking an out-of-time appeal from the denial or dismissal of a prior Rule 32 petition.