Opinion
CR-19-0431
10-16-2020
Jeremie Rashad WRIGHT v. STATE of Alabama
Sherri Lee Mazur of The Mazur Law Firm, LLC, Montgomery, for appellant. Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
Sherri Lee Mazur of The Mazur Law Firm, LLC, Montgomery, for appellant.
Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
KELLUM, Judge. Jeremie Rashad Wright appeals the trial court's revocation of his probation.
In October 2014, Wright pleaded guilty to six felony offenses; he was sentenced in February 2015. In case no. CC-14-232, Wright pleaded guilty to robbery in the third degree and was sentenced to 10 years’ imprisonment, split to serve 3 years in confinement followed by 3 years on probation. In case no. CC-14-964, Wright pleaded guilty to burglary in the third degree and theft of property in the first degree and, for each conviction, was sentenced to 61 months’ imprisonment, split to serve 12 months in confinement followed by 3 years on probation. In case no. CC-14-965, Wright pleaded guilty to burglary in the third degree and theft of property in the second degree and was sentenced, for each conviction, to 61 months’ imprisonment, split to serve 12 months in confinement followed by 3 years on probation. In case no. CC-14-1214, Wright pleaded guilty to receiving stolen property in the second degree and was sentenced to 61 months’ imprisonment, split to serve 12 months in confinement followed by 3 years on probation.
On June 12, 2018, Wright's probation officer filed a delinquency report alleging that Wright had violated the terms and conditions of his probation by committing the new offense of murder. After a probation-revocation hearing on August 21, 2018, the trial court entered orders revoking Wright's probation in all four cases, stating that it was reasonably satisfied from the evidence presented at the hearing that Wright had committed the new offense of murder, in violation of the terms and conditions of his probation. On September 20, 2018, Wright filed a timely notice of appeal from the revocation of his probation in case no. CC-14-1214, and this Court reversed the revocation on the ground that the only evidence presented by the State at the hearing indicating that Wright had committed the new offense of murder was hearsay. Wright v. State, 292 So. 3d 1136 (Ala. Crim. App. 2019). See, e.g., Goodgain v. State, 755 So. 2d 591, 592 (Ala. Crim. App. 1999) ("It is well settled that hearsay evidence may not form the sole basis for revoking an individual's probation").
On November 6, 2018, Wright filed a petition for postconviction relief pursuant to Rule 32, Ala. R. Crim. P., in which he requested an out-of-time appeal from the revocation of his probation in cases no. CC-14-232, CC-14-964, and CC-14-965 on the ground that his failure to timely file a notice of appeal in those cases was through no fault of his own. On November 9, 2018, the circuit court granted Wright's petition. This appeal followed.
I.
Initially, we reject the State's argument that this appeal is due to be dismissed. The State argues that, although the circuit court granted Wright an out-of-time appeal on November 9, 2018, Wright did not file a notice of appeal until February 7, 2020, more than 42 days after he had been granted the out-of-time appeal, see Rule 4(a)(1), Ala. R. App. P., and that, even if he was not required to file a notice of appeal within 42 days of the circuit court's granting him an out-of-time appeal, Wright is equitably estopped from pursuing this appeal because he waited some 15 months, until February 2020, before filing a notice of appeal.
We agree with the premise that Wright was required to timely file a notice of appeal after the circuit court granted him an out-of-time appeal. It is well settled that "[t]he timely filing of the notice of appeal is a jurisdictional act." Thompson v. Keith, 365 So. 2d 971, 972 (Ala. 1978). In addition, "[o]ur caselaw illustrates that when a Rule 32 petitioner obtains relief, the proceedings are reopened at the point necessary for the circuit court to address the particular problem in that case." Waters v. State, 155 So. 3d 311, 316 (Ala. Crim. App. 2013). In terms of an out-of-time appeal, the granting of relief under Rule 32.1(f), Ala. R. Crim. P., does nothing more than reopen the proceedings to give the petitioner the opportunity to appeal a judgment from which he had failed to timely appeal through no fault of his own. Thus, when a Rule 32 petitioner is granted relief pursuant to Rule 32.1(f), he or she has 42 days, see Rule 4(a)(1), Ala. R. App. P., from the date the circuit court grants the out-of-time appeal to timely file a notice of appeal to invoke this Court's jurisdiction.
We disagree, however, with the State's assertion that Wright did not file a notice of appeal until February 7, 2020, the date the circuit clerk completed and transmitted to this Court the form entitled "Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk." Although the record contains no written notice of appeal filed by Wright after the circuit court's November 9, 2018, order granting his Rule 32 petition, the record reflects that, on December 3, 2018, Wright filed a "Court Criminal Appeals Docketing Statement" in all three cases that are the subject of this appeal. In Okafor v. State, 225 So. 3d 72 (Ala. Civ. App.), rev'd on other grounds, 225 So. 3d 93 (Ala. 2016), the Alabama Court of Civil Appeals held that a docketing statement is sufficient to serve as a notice of appeal. The Court explained:
This Court has held that this form may serve as a notice of appeal, McLin v. State, 840 So. 2d 937 (Ala. Crim. App. 2002), but only if it is "clear from the record that the defendants or their attorneys completed the forms." Bumpus v. State, 868 So. 2d 476, 477 (Ala. Crim. App. 2003). In this case, the record indicates that the "Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk" was completed by the circuit court clerk, not by Wright or his attorney.
"In the instant case, before the time for appealing from the summary judgment had expired, Okafor had filed only the docketing statement required pursuant to Rule 3(e) [, Ala. R. App. P.,]. Just as the appellant in McLin[ v. State, 840 So. 2d 937 (Ala. Crim. App. 2002) ], Okafor used an improper form to declare his intent to appeal from the summary judgment. The language of Rule 3(e) specifically requires that the docketing statement ‘accompan[y]’ a ‘notice of appeal,’ indicating that two documents are required to be filed. We question whether our supreme court, by adopting Rule 3(e), envisioned that the docketing statement could serve a dual purpose -- its intended purpose per Rule 3(e) and as a substitute for the notice of appeal.
"Nonetheless, the docketing statement that Okafor filed contains all the information required by Rule 3(c), [Ala. R. App. P.,] including the order appealed from, the party taking the appeal, and the name of the court to which the appeal is taken. This court can reasonably infer from the text of the docketing statement that Okafor intended to appeal the trial court's summary judgment; thus, liberally construing Rule 3(c), we conclude that Okafor's filing of the docketing statement satisfied the requirements of that rule. See Edmondson v. Blakey, [341 So. 2d 481 (Ala. 1976) ]."
As this Court recognized in McLin v. State, 840 So. 2d 937 (Ala. Crim. App. 2002), " ‘[t]he test for dismissal for failure to comply [with Rule 3(c), Ala. R. App. P.,] seems to be whether the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice.’ " 840 So. 2d at 940 (quoting Edmondson v. Blakey, 341 So. 2d 481, 483 (Ala. 1976) ). Thus, "[j]urisdiction vests with this Court when a notice of appeal that substantially complies with the requirements of Rule 3(c), Ala. R. App. P., is timely filed." McLin, 840 So. 2d at 942. Here, the docketing statements filed by Wright clearly show his intent to pursue the out-of-time appeal granted by the circuit court; they contain all the information required by Rule 3(c), Ala. R. App. P.; and they were timely filed within 42 days of the circuit court's order granting Wright an out-of-time appeal. The fact that the circuit clerk did not transmit this appeal to this Court until February 2020 is of no import. Therefore, the docketing statements timely filed by Wright were sufficient to invoke this Court's jurisdiction, and Wright is not equitably estopped from pursuing this appeal.
II.
Wright argues that the trial court erred in revoking his probation in cases no. CC-14-232, CC-14-964, and CC-14-965 because, he says, the revocation was based solely on hearsay. We agree. As this Court explained in reversing the revocation of Wright's probation in case no. CC-12-1214:
"In this case, the State presented only hearsay evidence to support a finding that Wright had violated the terms and conditions of his probation by committing the new offense of murder. Corporal Stokes testified that he had investigated the murder and that a witness had identified Wright as a participant in the shooting. Detective Shannon also investigated the murder and testified that a witness had come forward and had identified Wright from a photographic lineup as one of the men who shot Garland. No witnesses to the shooting testified at the probation-revocation hearing, and no physical evidence was presented to show Wright's participation in the murder. Contrary to the State's assertion, it did not present any nonhearsay evidence corroborating the hearsay testimony of Corporal Stokes and Detective Shannon or connecting Wright to the offense. The inconsistent statement given by Wright's mother regarding whether Wright was inside or outside at the time of the shooting was insufficient to connect Wright to the murder. Likewise, Wright's decision to leave the [scene] with his mother before police arrived did not connect Wright to the murder."
Wright, 292 So. 3d at 1139 (footnote omitted).
Because hearsay may not form the sole basis for revoking probation, the trial court's revocation of Wright's probation is reversed and these cases remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.