Opinion
CR–15–0553.
06-03-2016
Mitchell Vann GLAZE v. CITY OF ALABASTER.
Derek Brandon Simms, Birmingham, for appellant. Jeffrey W. Brumlow, Trussville, for appellee.
Derek Brandon Simms, Birmingham, for appellant.
Jeffrey W. Brumlow, Trussville, for appellee.
WINDOM, Presiding Judge.
Mitchell Vann Glaze appeals his conviction for driving under the influence, a violation of § 32–5A–191(a)(5), Ala.Code 1975, and his subsequent sentence to 90 days in jail, which was suspended for 24 months.
On January 6, 2016, the municipal court conducted Glaze's trial. At the conclusion of the trial, the municipal court took the parties' positions under advisement but did not pronounce Glaze's adjudication of guilt or sentence in open court. Thereafter, on February 18, 2016, Glaze filed a notice of appeal to this Court.
In order "to enter a judgment of conviction, the trial court must pronounce in open court both an adjudication of guilt and a sentence." Benn v. State, 211 So.3d 857, 859 (Ala.Crim.App.2016) (citing Ex parte Kelley, [Ms. 1131451, Nov. 6, 2015] ––– So.3d ––––, –––– (Ala.2015) ). "Absent a judgment of conviction, a conviction is not ripe for appeal," and this Court lacks jurisdiction to review the cause. Ex parte Kelley, ––– So.3d at ––– – (citing Ex parte Walker, 152 So.3d 1247, 1252 (Ala.2014) ).
Here, the municipal court did not pronounce in open court Glaze's adjudication of guilt or his sentence. As a result, there has not been a judgment of conviction entered that would support this appeal. Ex parte Kelley, ––– So.3d at ––– –; Benn, 211 So.3d at 859. Accordingly, this Court lacks jurisdiction to consider Glaze's appeal, and it is dismissed.
APPEAL DISMISSED.
KELLUM, J., concurs. WELCH, J., concurs specially, with opinion. JOINER, J., concurs specially, with opinion, which is joined by BURKE, J. BURKE, J., concurs in the result.
WELCH, Judge, concurring specially.
I concur with the decision to dismiss Mitchell Vann Glaze's appeal from his municipal-court conviction for driving under the influence based on the Alabama Supreme Court's decision in Ex parte Kelley, [Ms. 1131451, Nov. 6, 2015] ––– So.3d –––– (Ala.2015). The municipal court did not pronounce Glaze's adjudication of guilt or his sentence in open court; the trial proceedings were transcribed and do not include those matters. Furthermore, the court stated on the record at the conclusion of the evidence that it would enter its judgment and sentence into the record on the day following the trial. The bench notes from the day following the trial state that the court found Glaze guilty and imposed sentence. There being no adjudication in open court, this Court lacks jurisdiction and dismissal of the appeal is required.
In Kelley and in this case the trial proceedings were recorded and transcribed by a court reporter, and in each case the record included a transcript of the proceedings in the trial court. Because we have a transcript of Glaze's trial, it is clear that no adjudication or sentencing took place in open court. Therefore, the issue whether a transcript of the adjudication of guilt and sentence is required is not before us, and the issue cannot be addressed until it is squarely presented in a case.
In his special writing, Judge Joiner states:
"The supreme court then explained that a ‘pronouncement’ sufficient to invoke the jurisdiction of this Court exists only when the court reporter's transcript demonstrates that the sentencing court ‘uttered’—that is, ‘ "sen[t] forth as a sound: g[a]ve out in an audible voice" ’—both the ‘defendant's guilt and sentence.’ ––– So.3d at ––– –."
Glaze, 211 So.3d at 862 (Joiner, J., concurring specially)(footnote omitted).
However, Ex parte Kelley actually held:
"Kelley alleges that no judgment of conviction was entered on the sexual-torture conviction because, he argues, the trial court did not pronounce a sentence on that conviction. After reviewing the transcript from Kelley's sentencing hearing, we agree. ‘ " ‘Pronounce’ is ‘to utter officially or ceremoniously.’ Webster's Third New International Dictionary, G. & C. Merriam Co. 1971. ‘Utter’ is defined as ‘to send forth as a sound: give out in an audible voice.’ Id. " ' King v. State, 862 So.2d 677, 678 (Ala.Crim.App.2003) (quoting Hill v. State, 733 So.2d 937, 939 (Ala.Crim.App.1998) ). It is undisputed that, during Kelley's sentencing hearing, the trial court did not mention Kelley's sexual-torture conviction; the trial court did not pronounce a determination of guilt as to that conviction or a sentence. Thus, a judgment of conviction was not entered as to that offense. See Ex parte Walker, [152 So.3d 1247, 1252 (Ala.2014) ] (defining a judgment of conviction as the pronouncement of both a determination of a defendant's guilt and a sentence). Because a judgment of conviction was not entered for that offense, Kelley's sexual-torture conviction was not ripe for appeal. See Id. "
Ex parte Kelley, ––– So.3d at ––– –.
An examination of Ex parte Kelley reveals that the Supreme Court did not actually state in any other section of the opinion that a transcript of the adjudication of guilt and pronouncement of a sentence was required to confer jurisdiction on this Court. The Supreme Court merely referred to the trial record before it, which contained a transcript of the trial. To conclude that the Supreme Court held that there must be a transcript containing an adjudication of guilt and pronouncement of sentence in open court to confer appellate jurisdiction on this Court is an unwarranted inference.
However, the issue whether a transcript of the adjudication of guilt and sentence is required to confer jurisdiction upon this Court is not before us because Glaze hired a court reporter who transcribed the proceedings. Until the issue Judge Joiner discusses arises in a case and is presented squarely to this court, the issue need not be addressed.
As to the issue now before us, I concur in the decision to dismiss this appeal.
JOINER, Judge, concurring specially.
I concur with this Court's decision to dismiss Mitchell Vann Glaze's appeal from his driving-under-the-influence conviction in the Alabaster Municipal Court and his "purported" sentence only because Ex parte Kelley, [Ms. 1131451, Nov. 6, 2015] ––– So.3d –––– (Ala.2015), compels this Court to do so. Although Kelley involved a circuit court's failure to orally pronounce both guilt and sentence for a felony offense, the holding in Kelley is written in such a broad manner that it ensnares even municipal-court convictions.
Indeed, in Kelley, the supreme court explained:
"In Alabama, the right to appeal a conviction is specifically provided for in § 12–22–130, Ala.Code 1975:
" ‘A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court
of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court.’
"Under § 12–22–130, appeals lie only from a ‘judgment of conviction.’ Ex parte Eason, 929 So.2d 992, 993 (Ala.2005) ; Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980). A judgment of conviction consists of the pronouncement of both a determination of a defendant's guilt and a sentence. Ex parte Walker, 152 So.3d [1247,] 1252 [ (Ala.2014) ]. Absent a judgment of conviction, a conviction is not ripe for appeal. Id. "
––– So.3d at ––– – (emphasis added). The supreme court then explained that a "pronouncement" sufficient to invoke the jurisdiction of this Court exists only when the court reporter's transcript demonstrates that the sentencing court "uttered"—that is, " ‘sen[t] forth as a sound: g[a]ve out in an audible voice’ "—both the "defendant's guilt and sentence." ––– So.3d at ––– –.
In Kelley, the supreme court reviewed only the court reporter's transcript to determine whether the trial court "audibly" informed Kelley of his guilt and sentence. Although the clerk's record in Kelley included a written order from the circuit court establishing that a pronouncement occurred, the supreme court rejected the notion that a written sentencing order could demonstrate that a "pronouncement" had occurred because, the supreme court said, "according to the Alabama Rules of Criminal Procedure and the definition of the word ‘pronounce’ set forth above, the trial court's written order was not the entry of a ‘sentence’ sufficient to support a holding that a judgment of conviction was entered." ––– So.3d at ––– –. Thus, under Kelley, neither a written sentencing order, nor an entry in the case-action summary would be sufficient to establish that a "pronouncement" had occurred.
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In other words, Kelley holds that, if a conviction can be appealed directly to this Court, this Court's appellate jurisdiction is not invoked unless the record on appeal includes a court reporter's transcript that affirmatively demonstrates that the sentencing judge "audibly" informed the defendant of both his guilt and his sentence.
Because municipal-court convictions may be appealed directly to this Court, see § 12–12–72, Ala.Code 1975, the holding in Kelley governs direct appeals from municipal-court convictions and dictates the terms under which this Court can exercise its appellate jurisdiction over those appeals. Applying the holding in Kelley to direct appeals from municipal-court convictions, we are, in this case, bound to hold that this Court does not have jurisdiction over an appeal from a municipal-court conviction unless the record on appeal includes a court reporter's transcript that demonstrates that the municipal court judge "audibly" informed the defendant of both his guilt and sentence. Because the main opinion correctly concludes that the holding in Kelley precludes this Court from exercising appellate jurisdiction over this case, I concur with this Court's decision to dismiss Glaze's appeal.
If Kelley did not compel such a result, however, I would not tie myself to an opinion holding that this Court cannot exercise jurisdiction over an appeal from a municipal-court conviction unless the record on appeal includes a court reporter's transcript that demonstrates that the municipal court judge "audibly" informed the defendant of both his guilt and sentence. Indeed, requiring certain words to appear in a court reporter's transcript in a municipal-court proceeding to invoke this Court's appellate jurisdiction, in essence, denies individuals convicted in a municipal court their statutory right to file a direct appeal in this Court unless they can afford to hire a court reporter to transcribe the proceedings.
As the Alabama Supreme Court has recognized, "[u]nlike circuit courts and district courts, municipal courts are not courts of record. Ex parte Town of Gulf Shores, 412 So.2d 1259 (Ala.Crim.App.1982)." Ex parte Burnsed, 844 So.2d 526, 528 (Ala.2001). Because municipal courts are not courts of record, those courts are not statutorily required to appoint an official court reporter to record their proceedings. Cf. § 12–17–270, Ala.Code 1975 ("Each of the judges of the circuit courts of this state shall appoint a competent person to perform the duties of official court reporter of the courts in the circuit over which said judge presides."). Additionally, because municipal courts are not courts of record, a defendant in a municipal-court proceeding has no right to request that a court reporter transcribe the proceedings and, even if such a request is made, the municipal court has no obligation to honor the request. See Ex parte Burnsed, 844 So.2d at 528 ("While a defendant who demands a court reporter is entitled to one in the circuit court or the district court, § 12–17–270, Marquis v. State, 439 So.2d 197 (Ala.Crim.App.1983), and Ex parte White, 403 So.2d 292 (Ala.1981), no rule or statutory law requires a municipal court to appoint an official court reporter upon a defendant's request. See, e.g., Parker v. City of Tuscaloosa, 698 So.2d 1171 (Ala.Crim.App.1997)."). Rather, in a municipal-court proceeding, the only way a defendant can ensure that a municipal-court proceeding will be transcribed—and, thus, ensure that he can invoke the jurisdiction of this Court—is to hire, "at his own expense, a court reporter to record the municipal court proceedings to make a record for purposes of appeal." Ex parte Maye, 799 So.2d 944, 948 (Ala.2001).
In my opinion, requiring defendants to hire, at their own expense, a court reporter to transcribe the municipal-court proceedings, which would include the required "pronouncement," ensures that direct appeal to this Court is an option only for nonindigent defendants. Because Kelley dictates this result, however, I must concur.
BURKE, J., concurs.