Opinion
6 Div. 697.
May 11, 1990. Rehearing Denied June 29, 1990. Certiorari Denied August 31, 1990 Alabama Supreme Court 89-453 Certiorari Denied December 14, 1990 Alabama Supreme Court 89-1533.
Appeal from the Circuit Court, Jefferson County, Braxton L. Kittrell, Jr., J.
J. Louis Wilkinson, Birmingham, for appellant.
Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.
ON REMAND FROM ALABAMA SUPREME COURT
This cause was remanded on the authority of Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). The appellant's argument that his indictment was not sufficiently particular is without merit, as the indictment contained all the elements of the offense charged and was sufficient to apprise the appellant of the charges against him. His argument that the prosecution failed to present sufficient evidence is without merit, as ample evidence was presented to satisfy each of the elements of theft of property in the first degree. Moreover, his argument that the weight of the evidence was insufficient to support the jury's verdict is waived, as he failed to cite any legal authority to support his argument. Johnson v. State, 500 So.2d 494 (Ala.Cr.App. 1986); Vinzant v. State, 462 So.2d 1037, 1039 (Ala.Cr.App. 1986).
AFFIRMED.
All Judges concur except BOWEN, J., dissenting in part, concurring in part with opinion.
I concur in the opinion of the majority except for that portion of the opinion which states: "Moreover, his argument that the weight of the evidence was insufficient to support the jury's verdict is waived, as he failed to cite any legal authority to support his argument. Johnson v. State, 500 So.2d 494 (Ala.Cr.App. 1986); Vinzant v. State, 462 So.2d 1037, 1039 (Ala.Cr.App. 1986)." I dissent from that portion.
This is but another application of the principle set out in Johnson v. State, 500 So.2d 494, 498 (Ala.Cr.App. 1986), which relies on the case of Vinzant v. State, 462 So.2d 1037 (Ala.Cr.App. 1984), which adopted the rule applied in civil cases that arguments not based on legal authority have the same effect as if no argument had been made, and the argument will be deemed waived. In my opinion, this Court compounds error by relying upon that principle.
In Pardue v. State, [Ms. 3 Div. 997, September 29, 1989] (Ala.Cr.App. 1989), this Court stated:
"Citing Vinzant v. State, 462 So.2d 1037 (Ala.Cr.App. 1984), the attorney general contends that the defendant has waived 13 issues because he has cited no legal authority for those particular issues. If we accept his argument and hold that the defendant has waived the issues for which he has cited no legal authority, under the facts and circumstances of this particular case, we are absolutely compelled to the inescapable conclusion that the defendant has been denied his constitutional right to the effective assistance of counsel on appeal. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Annot. 15 A.L.R.4th 582 (1982)."
The failure to file a brief on appeal constitutes a per se denial of the effective assistance of counsel requiring no showing of prejudice. Ex parte Dunn, 514 So.2d 1300, 1304 (Ala. 1987). With regard to the effective assistance of counsel, I see no rational distinction to be made between the situation where counsel files no brief and the situation where counsel files a brief but cites no legal authority. In both situations, not only are issues deemed waived, but relief on the substantive issues is precluded in a petition for post-conviction relief. Rule 20.2(a), A.R.Cr.P.Temp. Indeed, application of Vinzant in any situation only encourages and provides fertile ground for a subsequent or successive petition for post-conviction relief.
Vinzant is a useless legal fiction. Obviously, if the issue is stated in the appellant's brief, that issue has not been "waived." Furthermore, in actual practice, there is no need to follow Vinzant, for in the cases in which it is applied, almost without exception, the issue is without either factual or legal merit and could be disposed of on the merits. If the issue has merit and no authority is cited, then the question of ineffective assistance of counsel arises. Additionally, Vinzant contains the subtle but false and malodorous suggestion that this Court will limit itself to the legal authority cited in the briefs on appeal.
For all of these reasons, I dissent from the majority's application of Vinzant.