Underwood v. StateUnderwood v. State
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On February 13, 2002, Sonja Renall Underwood was convicted of attempted murder and first-degree robbery, violations of
Because we remand this cause to the trial court with directions, we pretermit discussion of any of Underwood‘s substantive issues until the trial court files a return to our remand order.
Underwood argues that his trial counsel rendered ineffective assistance because, he says, counsel knew that he was mentally ill, yet failed to request a psychiatric evaluation. In addressing this argument, we take the opportunity to revisit some of our caselaw concerning Rule 24.4, Ala. R.Crim. P., and our treatment of cases in which a motion for a new trial has been denied by operation of law.
We have held that, absent express consent of the parties on the record that a hearing on a motion for a new trial be continued, the trial court lacked jurisdiction to conduct a hearing more than 60 days after sentence is pronounced, regardless of the fact that both the State and the defendant participated in the hearing and that neither party complained about a lack of express consent of the parties on the record. See Edgar v. State, 646 So.2d 681, 683 (Ala.Crim.App.1993), aff‘d in part and rev‘d in part, 646 So.2d 683 (Ala.1994), quoting Box v. Box, 536 So.2d 83 (Ala.Civ. App.1988). See also Rogers v. State, 819 So.2d 643 (Ala.Crim.App.2001); Similton v. State, 672 So.2d 1363 (Ala.Crim.App. 1995). However, the Alabama Supreme Court has held that this Court nonetheless has the authority to reinstate the trial court‘s jurisdiction over the matter in order that the trial court can conduct a hearing on a motion for a new trial that, although it had been denied by operation of law, nonetheless appeared to have had merit. See Ex parte Edgar, 646 So.2d 683 (Ala.1994).
In this case, the trial court conducted an evidentiary hearing, although the motion for a new trial had already been denied by
If we are to discount the evidence presented during the hearing on the motion for a new trial, we are left with Underwood‘s assertion that his trial counsel rendered ineffective assistance by failing to request a mental-competency evaluation based on the fact that Underwood was diagnosed with paranoid schizophrenia some 10-15 years before the offense in question and the fact that Underwood had, as a teenager, been committed to the Riverbend Center for Mental Health. Nothing in the record refutes his facts, and nothing in the record refutes his allegation that he was not mentally competent to stand trial.
In a case such as this, rather than send this cause back to the trial court for it to conduct the very same hearing it has already conducted, in the interest of judicial economy, we prefer to remand this cause for the trial court to determine whether the proceedings were extended beyond the 60 days allowed in Rule 24.4 by express agreement of the parties. Compare, e.g., D.W.L. v. State, 821 So.2d 246 (Ala.Crim.App.2001) (record certified in response to an order from this Court); W.R.C. v. State, 681 So.2d 1100 (Ala.Crim. App.1995) (remanded with directions to certify the record in an opinion), and Brown v. State, 534 So.2d 324 (Ala.Crim. App.1986) (remanded with directions to certify the record in an opinion), all standing for the proposition that the act of certification of the record under Rule 28(A)(1), Ala. R. Juv. P., may be performed after the record has been transmitted to the appellate court.
Although the record is silent, and Rule 24.4 requires that the express consent be on the record, we consider the parties’ implied consent, that is, their failure to object to the untimeliness of the hearing, as evidence of their express consent to carry the motion for a new trial past the sixtieth day. Although this implied consent is not sufficient according to Rule 24.4, this Court chooses to authorize a more workable procedure for dealing with a hearing on a motion for a new trial conducted after the expiration of the 60-day period in Rule 24.4. Simply remanding this cause another hearing on the same subject with the same witnesses would be a waste of judicial resources.
Therefore, we remand this cause for the circuit court to determine whether the motion
REMANDED WITH DIRECTIONS.*
McMILLAN, P.J., and WISE, J., concur. BASCHAB, J., concurs in the result, with opinion. SHAW, J., concurs in the result, with opinion.
BASCHAB, Judge, concurring in the result.
Because this case is factually indistinguishable from Edgar v. State, 646 So.2d 683 (Ala.1994), we do not have the authority to “authorize a more workable procedure for dealing with a hearing on a motion for a new trial conducted after the expiration of the 60-day period in Rule 24.4[, Ala. R.Crim. P].” 879 So.2d at 613. The Alabama Supreme Court promulgated Rule 24.4, Ala. R.Crim. P., and decided Edgar, and we are bound by its decisions. See
“[A] motion for a new trial filed pursuant to Rule 24, Ala. R.Crim. P., is deemed denied by operation of law if not ruled on within 60 days from the date of sentencing or if not continued to a date certain upon agreement of the parties and entered of record before the 60-day time period expires.
“A nunc pro tunc order `cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said.’ McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995). The trial court‘s order attempted to correct a jurisdictional defect, i.e., to restore jurisdiction to the trial court after the posttrial motion had been denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025 (Ala.1999). The circuit court‘s order was void. Any order attempting to extend the 60-day period provided by Rule 24.4, Ala. R.Crim. P., must be entered before the 60-day period expires. Ex parte Caterpillar, Inc., supra [708 So.2d 142 (Ala.1997)].”
(Emphasis added.) Finally, parties to an action cannot impliedly consent to, and thereby waive, a jurisdictional defect. Based on the Alabama Supreme Court‘s decision in Edgar, we should remand this case to the trial court for that court to conduct a new hearing. Therefore, I concur in the result.
I agree to remand this case to the trial court, although not for the reason stated by the majority. Based on the record certified to this Court, which contains no indication of an express agreement between the prosecutor and the defendant or the defendant‘s counsel to carry the motion past the sixtieth day to a date certain, I would remand this case for the trial court to conduct another evidentiary hearing on the motion for a new trial in accordance with the Alabama Supreme Court‘s opinion in Edgar v. State, 646 So.2d 683 (Ala.1994), a case materially indistinguishable from the present case.
Furthermore, I note that to the extent the majority may be instructing the trial court to “consider the parties’ implied consent, that is, their failure to object to the untimeliness of the hearing, as evidence of their express consent to carry the motion for a new trial past the sixtieth day,” 879 So.2d at 613, such an instruction cannot be reconciled with the plain language of Rule 24.4, Ala.R.Crim.P. See Personnel Bd. for Mobile County v. Bronstein, 354 So.2d 8 (Ala.Civ.App.1977), in which the Court of Civil Appeals discussed the “express consent” requirement of Rule 59.1, Ala.R.Civ. P., and Black‘s Law Dictionary 305 (6th ed.1990), defining “express consent” as “[t]hat directly given, either viva voce or in writing .... positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.”3 See also Harrison v. Alabama Power Co., 371 So.2d 19, 20-21 (Ala.1979)(“The consent or assent to a continuance of a hearing does not satisfy the requirement that the record show the parties’ express consent to an extension of the 90-day period” under Rule 59.1.).