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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1130541
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: State of Alabama
v.
Charles Marquis Simmons)
(Lowndes Circuit Court, CC-12-46;
Court of Criminal Appeals, CR-12-1393)
STUART, Justice.
1130541
Charles Marquis Simmons was convicted of a Class A
misdemeanor in the Lowndes District Court; he appealed the
conviction to the Lowndes Circuit Court for a trial de novo.
He was convicted in the circuit court and appealed the circuit
court's judgment to the Court of Criminal Appeals. The Court
of Criminal Appeals reversed the judgment and remanded the
case. Simmons v. State, [Ms. CR-12-1393, November 8, 2013]
___ So. 3d ___ (Ala. Crim. App. 2013). The State petitioned
this Court for certiorari review of the decision of the Court
of Criminal Appeals. We reverse and remand.
Facts and Procedural History
The mother of the victim filed a complaint, stating that
Simmons, a teacher, had had sexual contact with her daughter,
who at the time the sexual contact occurred was under 19 years
old. Simmons was convicted in the district court for having
sexual contact with a student less than 19 years old, a
violation of § 13A-6-82, Ala. Code 1975. Simmons filed a
timely notice of appeal to the circuit court for a trial de
novo. It is undisputed that the mother's complaint was not
included in the file forwarded to the circuit court by the
district court clerk. An information, however, was filed in
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the circuit court by the district attorney after Simmons had
filed his notice of appeal for a trial de novo.
Before the trial in the circuit court commenced, Simmons
moved to dismiss the case against him because, he said, the
original charging instrument from the district court, the
mother's complaint, was not being used to prosecute his case,
and he objected to being prosecuted on the information filed
by the district attorney subsequent to his conviction in the
district court. The circuit court denied his motion, and the
trial proceeded. Simmons was convicted in the circuit court
and appealed to the Court of Criminal Appeals. The Court of
Criminal Appeals held that, "[i]n the absence of a proper
charging instrument, the circuit court could not exercise
jurisdiction over Simmons's appeal," ___ So. 3d at ___, and
that the circuit court's judgment was void and due to be set
aside, and it reversed the judgment and remanded the case.
Standard of Review
"'"'This Court reviews pure questions of law in criminal
cases de novo.'"' Ex parte Brown, 11 So. 3d 933, 935 (Ala.
2008) (quoting Ex parte Morrow, 915 So. 2d 539, 541 (Ala.
2004), quoting in turn Ex parte Key, 890 So. 2d 1056, 1059
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(Ala. 2003))." Hiler v. State, 44 So. 3d 543, 546 (Ala.
2009).
Discussion
The State contends that the decision of the Court of
Criminal Appeals that the circuit court could not exercise
jurisdiction over Simmons's appeal for a trial de novo because
the original charging instrument was not used to prosecute the
case conflicts with Ex parte Seymour, 946 So. 2d 536 (Ala.
2006), and Stegall v. State, 628 So. 2d 1006 (Ala. Crim. App.
1993).
In Ex parte Seymour, this Court established that a
court's subject-matter jurisdiction is determined by "whether
the trial court [has] the constitutional and statutory
authority to try the offense" with which a defendant has been
charged. 946 So. 2d at 538. Section 12-11-30(3), Ala. Code
1975, provides:
"The circuit court shall have appellate jurisdiction
of ... criminal ... cases in district court ....
Appeals to the circuit court shall be tried de novo,
with or without a jury, as provided by law."
In this case, Simmons was convicted in the district court
of a Class A misdemeanor. He appealed his conviction to the
circuit court for a trial de novo. In accordance with § 12-
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11-30(3), Ala. Code 1975, and Ex parte Seymour, the circuit
court had subject-matter jurisdiction over Simmons's case.
The decision of the Court of Criminal Appeals
acknowledges Ex parte Seymour and does not appear to dispute
the fact that the circuit court had subject-matter
jurisdiction over Simmons's case; rather that court asserts
that "the filing of the proper charging instrument was
required for the jurisdiction belonging to the circuit court
to attach." ___ So. 3d at ___ (emphasis added). In other
words, according to the Court of Criminal Appeals, the circuit
court's jurisdiction in this particular case was not invoked
because the original charging instrument used in the district
court was not used in the circuit court to prosecute the case.
In support of its assertion, the Court of Criminal Appeals
cites State v. Thomas, 550 So. 2d 1067, 1072 (Ala. 1989).
State v. Thomas, however, does not support the Court of
Criminal Appeals' decision that jurisdiction in the circuit
court did not "attach" in Simmons's case. In State v. Thomas,
this Court considered whether the juvenile court had
jurisdiction over the mother of a child when no judicial
proceeding had been initiated against the child. In that
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case, the child had been arrested and released into the
mother's custody without being charged for any offense. When
the mother refused to bring the child in for further
questioning by law-enforcement officers, the law-enforcement
officers moved the juvenile court for a pickup order for the
child. The juvenile court issued the order. When the
officers executed the order, the mother informed them that she
did not know the child's whereabouts. After being advised of
the mother's statement, the juvenile court issued a pickup
order for the mother, conducted a hearing, and ordered the
mother to produce the child. When the mother did not appear
with the child as ordered, the juvenile court placed the
mother in jail for contempt of court for failing to comply
with the court's order to produce the child. This Court
recognized that the statutory authority applicable at that
time to establish the juvenile court's jurisdiction required
the filing of a petition with the intake officer alleging that
the child is delinquent, dependent, or in need of supervision,
and the juvenile court had to determine, after conducting a
preliminary inquiry, that the child was within its
jurisdiction. See former §§ 12-15-30 through -36, Ala. Code
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1975 (now repealed). Because the statutory requirements to
establish the juvenile court's jurisdiction had not been
satisfied, this Court held in State v. Thomas that the
juvenile court did not have jurisdiction over the child and,
consequently, did not have jurisdiction over the mother.
The facts and circumstances in this case are clearly
distinguishable from those in State v. Thomas. In State v.
Thomas, no action had been initiated in the juvenile court
with regard to the child for the juvenile court's jurisdiction
to attach; therefore, the juvenile court could not exercise
its jurisdiction over the child's mother. Here, an action had
been initiated in the circuit court. After Simmons was
convicted in the district court, Simmons filed a notice of
appeal for a trial de novo in the circuit court. As
previously established, the circuit court has jurisdiction
over appeals from the district court. Thus, unlike State v.
Thomas, where no action was taken to commence a judicial
proceeding for the juvenile court's jurisdiction to attach,
Simmons's action of filing a notice of appeal of his district
court conviction in the circuit court for a trial de novo
satisfied the statutory requirements for the circuit court's
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jurisdiction and the circuit court's jurisdiction "attached"
to his case.
Moreover, the decision of the Court of Criminal Appeals
that the circuit court could not exercise jurisdiction over
Simmons's appeal because of the absence of the original
charging instrument conflicts with Stegall v. State, 628 So.
2d 1006 (Ala. Crim. App. 1993). In Stegall, the Court of
Criminal Appeals held that "[t]he filing of a solicitor's
complaint [from the district court] is not a jurisdictional
prerequisite to an appeal to the circuit court for a trial de
novo." 628 So. 2d at 1008.
Furthermore, in Ex parte Young, 611 So. 2d 414, 415 (Ala.
1992), this Court stated:
"[A] prosecuting attorney's complaint is not the
mechanism that confers upon the circuit court
jurisdiction to proceed with a de novo appeal. The
complaint is a statutory right of the accused that
can be waived. Young [v. City of Hokes Bluff], 611
So. 2d [401,] 405 [(Ala. Crim. App. 1992)], Bowen,
J., concurring and citing Moss v. State, 42 Ala. 546
(1868). Certainly, if the right to a complaint can
be waived, then it is not the mechanism that confers
subject matter jurisdiction on the circuit court in
a de novo appeal."
(Footnote omitted.)
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Accordingly, if the filing in the circuit court of the
original charging instrument by which the action was commenced
in the district court is not a jurisdictional prerequisite to
an appeal to the circuit court for a trial de novo, the filing
in the circuit court of the original charging instrument from
the district court cannot be a requirement for "jurisdiction
to attach" or to be exercised. Therefore, the decision of the
Court of Criminal Appeals that the circuit court's
jurisdiction did not attach in this case conflicts with
Stegall.
When Simmons filed his notice of appeal for a trial de
novo in the circuit court, the circuit court's jurisdiction
over his appeal for a trial de novo "attached," and the fact
that the case was not prosecuted using the original charging
instrument from the district court did not affect the circuit
court's jurisdiction.
Conclusion
Based on the foregoing, the Court of Criminal Appeals
erred in holding that the circuit court could not exercise its
jurisdiction or that the circuit court's jurisdiction did not
attach because the charging instrument from the district court
was not used to prosecute Simmons's case in the circuit court.
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The judgment of the Court of Criminal Appeals is reversed, and
this case is remanded for proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Bolin, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur.
Stuart, J., concurs specially.
Moore, C.J., and Parker, J., dissent.
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STUART, Justice (concurring specially).
As the main opinion recognizes, our caselaw provides
that the complaint does not confer jurisdiction upon the
circuit court to proceed with a de novo appeal from a district
court conviction, and a defendant can waive the right to a
complaint in a de novo appeal. ___ So. 3d at ___; Ex parte
Young, 611 So. 2d 414, 415 (Ala. 1992). Therefore, the
absence of the district court's original charging instrument
in the circuit court's file of a de novo appeal cannot impact
the circuit court's jurisdiction over the appeal. Applying
the law to the facts of this case, the majority properly
concludes that, "[w]hen Simmons filed his notice of appeal for
a trial de novo in the circuit court, the circuit court's
jurisdiction over his appeal for a trial de novo 'attached,'
and the fact that the case was not prosecuted using the
original charging instrument from the district court did not
affect the circuit court's jurisdiction." ___ So. 3d at ___.
It is also important to recognize that the main opinion
does not address whether Simmons properly exercised his
constitutional and statutory right and demanded a copy of the
original charging instrument and whether the circuit court
improperly denied his request or whether Simmons waived this
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right. This nonjurisdictional issue was not before this Court
and, if properly preserved and presented, remains for the
Court of Criminal Appeals to resolve.
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MOORE, Chief Justice (dissenting).
I respectfully dissent. I believe the Court of Criminal
Appeals properly held that in the absence of the original
charging instrument, as required by Rule 2.2(d), Ala. R. Crim.
P., and by Art. I, § 6, Ala. Const. 1901, the circuit court
could not exercise its jurisdiction over Charles Marquis
Simmons's appeal from the district court to the circuit court
for a trial de novo.
I. Discussion
The controlling issue is whether the circuit court could
exercise jurisdiction over Simmons's appeal for a trial de
novo in the absence of the original charging instrument, as
required by Rule 2.2(d), Ala. R. Crim. P. The Court of
Criminal Appeals correctly concluded that the circuit court
could not exercise jurisdiction over Simmons's appeal. By
reversing the judgment of the Court of Criminal Appeals, the
majority opinion has in effect decided that a defendant may be
prosecuted in Alabama without an accusation as required by
law. The majority opinion completely neglects the requirements
of the Alabama Rules of Criminal Procedure and the
constitutional guarantees in Art. I, §§ 6 and 8, Ala. Const.
1901.
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A. The Alabama Rules of Criminal Procedure
Rule 2.1, Ala. R. Crim. P., states that "[a]ll criminal
proceedings shall be commenced either by indictment or by
complaint." A complaint "serves the ... purpose of being the
accusatory instrument in most misdemeanor cases." Committee
Comments to Rule 2.3, Ala. R. Crim. P. The Committee Comments
to Rule 2.1 explain that, "[u]nder the Alabama Constitution of
1901, criminal actions may not be 'commenced' by an
information, but under the very limited procedure provided in
Rule 2.2(e), infra, once an action is commenced by complaint,
the defendant may be proceeded against by information."
Committee Comments to Rule 2.1, Ala. R. Crim. P. (emphasis
added). Rule 2.2(e), Ala. R. Crim. P., states:
"At arraignment on an information following
receipt of a defendant's written notice of his or
her desire to plead guilty as charged or as a
youthful offender upon the granting of
youthful-offender status, the court shall proceed as
provided in Rule 14.4[, Ala. R. Crim. P., acceptance
of guilty plea]. If the court does not accept the
defendant's guilty plea or denies the defendant's
application for youthful-offender status, the court
shall proceed as provided by law."
Because Simmons did not give notice of a desire to plead
guilty as charged, Rule 2.2(e) does not apply. Accordingly,
Simmons cannot be prosecuted on an information.
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Rule 30.5(a), Ala. R. Crim. P., states that, "[w]hen
appeal is taken to the circuit court for a trial de novo, the
trial shall be prosecuted as provided in Rule 2.2(d)," which
provides that an appeal from the district court to the circuit
court for trial de novo "shall be prosecuted in the circuit
court on the original charging instrument." The word "shall"
in both rules is mandatory.1 The majority opinion completely
ignores the mandatory requirements of Rules 2.2(d) and
30.5(a), which serve to protect the constitutional rights of
every Alabamian.
B. Alabama's Declaration of Rights
"The use of an information is severely restricted in
Alabama." Committee Comments to Rule 13.1, Ala. R. Crim. P.
This originates in Art. I, §§ 6 and 8, Ala. Const. 1901.
Section 8 provides:
"No person shall for any indictable offense be
proceeded against criminally by information ...
otherwise than is provided in the Constitution. In
cases of misdemeanor, the Legislature may by law
dispense with a grand jury and authorize
1
"'[T]he term "shall" is a word of command, and one which
has always or which must be given a compulsory meaning; as
denoting obligation.'" Ex parte Prudential Ins. Co. of Am.,
721 So. 2d 1135, 1138 (Ala. 1998) (quoting Black's Law
Dictionary 1375 (6th ed. 1990)).
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prosecutions and proceedings before any inferior
courts as may be by law established."
(Emphasis added.) "The effect of [§ 8] and §§ 15-15-20 through
-26, [Ala. Code 1975,] is to limit the use of an information
in Alabama to the situation where a defendant, before
indictment, pleads guilty to a noncapital felony offense."
Committee Comments to Rule 13.1, Ala. R. Crim. P. Simmons was
not accused of a felony, and he cannot be prosecuted by
information in Alabama.
Rule 2.2(d) helps to protect the constitutional rights of
the accused "in all criminal prosecutions" and gives Simmons
"a right to ... demand the nature and cause of the accusation;
and to have a copy thereof." Art. I, § 6, Ala. Const. 1901
(emphasis added). The Alabama Rules of Criminal Procedure must
be construed so as "to secure ... fairness in administration
... and to protect the rights of the individual while
preserving the public welfare." Rule 1.2, Ala. R. Crim. P.
Rule 1.2 "carries with it the constitutional guarantee found
in Article I, § 6, Alabama Constitution of 1901, that no
person shall 'be deprived of life, liberty, or property,
except by due process of law.'" Committee Comments to Rule
1.2, Ala. R. Crim. P. The Court of Criminal Appeals correctly
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observed in this case that "an information is not a substitute
for a complaint or indictment." ___ So. 3d at ___. The
district attorney's information is not "a copy" of the
original complaint against Simmons and does not satisfy the
due-process guarantees in Art. I, § 6, Ala. Const. 1901.
In Ex parte Seymour, 946 So. 2d 536 (Ala. 2006), this
Court correctly defined jurisdiction as "'[a] court's power to
decide a case or issue a decree,'" and as "a court's power to
decide certain types of cases," which "power is derived from
the Alabama Constitution and the Alabama Code." 946 So. 2d at
538 (quoting Black's Law Dictionary 867 (8th ed. 2004)
(emphasis added)). A court's constitutional power must be
exercised in conformity with the Constitution. Section 36 of
Art. I, Declaration of Rights, provides that "to guard against
any encroachments on the rights herein retained, we declare
that everything in this Declaration of Rights is excepted out
of the general powers of government, and shall forever remain
inviolate." Art. I, § 36, Ala. Const. 1901. "'Section 36
erects a firewall between the Declaration of Rights that
precedes it and the general powers of government, including
the authority to exercise judicial power, that follow it.'"
1568 Montgomery Highway, Inc. v. City of Hoover, 45 So. 3d
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319, 342 (Ala. 2010) (quoting Ex parte Cranman, 792 So. 2d
392, 401 (Ala. 2000) (emphasis added)). Section 36 forbids the
courts of Alabama from exercising judicial powers, i.e.,
jurisdiction, so as to violate or encroach upon the
fundamental rights retained by the people of Alabama in the
Declaration of Rights. Under the majority opinion's view of
Seymour, the circuit court's jurisdiction overrides the
Alabama Rules of Criminal Procedure and §§ 6 and 8 of the
Declaration of Rights. The majority opinion, in trying to
uphold the circuit court's jurisdiction in this case, denies
Simmons his constitutional and statutory right to demand a
copy of the accusation and so deprives Simmons of his liberty
without due process of law.
C. Problems with the Majority Opinion
1. Ex parte Seymour Is Inapposite
The majority quotes Seymour for the proposition that, in
deciding whether a claim properly challenges the trial court's
subject-matter jurisdiction, we ask only "'whether the trial
court [has] the constitutional and statutory authority to try
the offense' with which a defendant has been charged" and
states that, "[i]n accordance with § 12-11-30(3), Ala. Code
1975, and Ex parte Seymour, the circuit court had subject-
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matter jurisdiction over Simmons's case." ___ So. 3d at ___
(quoting Seymour, 946 So. 2d at 538). The majority's holding
does not rely on Seymour's principles of subject-matter
jurisdiction but on the majority's conclusion that the circuit
court's jurisdiction attached "[w]hen Simmons filed his notice
of appeal for a trial de novo in the circuit court." ___ So.
3d at ___. The fact that Simmons perfected his appeal is
irrelevant. This case is about whether the circuit court could
exercise its acknowledged jurisdiction in the absence of the
original charging instrument. Seymour offers no guidance on
this issue.
The Court of Criminal Appeals correctly recognized that
its decision did not conflict with Seymour, which is
distinguishable on its facts and procedural history. ___ So.
3d at ___.2 In Seymour, this Court held that "a circuit court
has subject-matter jurisdiction over a felony prosecution,
even if that prosecution is based on a defective indictment."
Seymour, 946 So. 2d at 539. Seymour, however, did not hold
2
Judge Welch of the Court of Criminal Appeals has
recognized that Seymour has been applied too broadly. See
generally Patton v. State, 964 So. 2d 1247, 1251-54 (Ala.
Crim. App. 2007) (Welch, J., concurring in the result); and
Turner v. State, 51 So. 3d 394, 394-401 (Ala. Crim. App. 2010)
(unpublished memorandum) (Welch, J., dissenting).
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that a trial court could pronounce judgment against a
defendant in the absence of the original charging instrument
that is mandatory under Rule 2.2(d), Ala. R. Crim. P., and
Art. I, § 6, Ala. Const. 1901. Also, this Court held that
Seymour's claim was procedurally barred pursuant to Rule 32.2,
Ala. R. Crim. P., because Seymour did not raise his claim at
trial or on appeal. 946 So. 2d at 539. In contrast, Simmons
argued both at trial and on appeal that he could not be
convicted because the original charging instrument was not
filed in the circuit court. Seymour is inapposite to this case
and offers no support for the holding in the majority opinion.
2. Thomas Does Not Support the Majority Opinion
The majority opinion recognizes that the facts and
procedural posture of State v. Thomas, 550 So. 2d 1067 (Ala.
1989), cited by the Court of Criminal Appeals to support its
holding, differ from the facts and procedural posture of this
case. The rationale of Thomas actually supports the Court of
Criminal Appeals' decision, and the procedural differences
between Thomas and this case are not dispositive. In Thomas,
this Court stated that, "even if a court has jurisdiction of
the person and of the crime, an accusation made in the manner
prescribed by law is a prerequisite to the court's power to
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exercise its jurisdiction." 550 So. 2d at 1070 (citing City of
Dothan v. Holloway, 501 So. 2d 1136, 1146 (Ala. 1986) (Beatty,
J., dissenting) (emphasis added)). In City of Dothan, Justice
Beatty explained that "'[a] person may not be punished for a
crime without a formal and sufficient accusation even if he
voluntarily submits to the jurisdiction of the court.'" City
of Dothan, 501 So. 2d at 1146 (Beatty, J., dissenting)
(quoting Albrecht v. United States, 273 U.S. 1, 8 (1927)).
Here, the circuit court had personal jurisdiction over Simmons
because Simmons voluntarily filed a notice of appeal, but it
pronounced judgment upon Simmons without "an accusation made
in the manner prescribed by law" and as required by the
rationale in Thomas.
3. Stegall and Young Do Not Support the Majority Opinion
The majority maintains that the Court of Criminal
Appeals' decision conflicts with Stegall v. State, 628 So. 2d
1006, 1008 (Ala. Crim. App. 1993), in which the Court of
Criminal Appeals stated that "[t]he filing of a solicitor's
complaint is not a jurisdictional prerequisite to an appeal to
the circuit court for a trial de novo." The majority opinion
also cites Ex parte Young, 611 So. 2d 414 (Ala. 1992), in
which this Court stated:
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"[A] prosecuting attorney's complaint is not the
mechanism that confers upon the circuit court
jurisdiction to proceed with a de novo appeal. The
complaint is a statutory right of the accused that
can be waived. ... Certainly, if the right to a
complaint can be waived, then it is not the
mechanism that confers subject matter jurisdiction
on the circuit court in a de novo appeal."
611 So. 2d at 415 (paraphrasing Young v. City of Hokes Bluff,
611 So. 2d 401, 405 (Ala. Crim. App. 1992) (Bowen, J.,
concurring in the result and citing Moss v. State, 42 Ala. 546
(1868)) (emphasis added)).
Stegall and Young cited a line of cases that originated
in Moss v. State, supra, which stand for the proposition that
"'"[t]he 'complaint,' or written accusation,
required by the section last above noticed, is not
found in the record. There is no waiver of it. It
was a right of the accused, in the circuit court, to
have such a writing, and a proceeding without it, or
a waiver of it, is erroneous."'"
Stegall, 628 So. 2d at 1007 (quoting Young, 611 So. 2d at 406
(Bowen, J., concurring in the result), quoting in turn Moss,
42 Ala. at 547, and summarizing Moss line of cases). Stegall
and Young recognize that the accused has a right to the
complaint. Simmons never waived the right to be prosecuted on
the original complaint in the circuit court proceeding.
Moreover, Stegall and Young did not involve a prosecutor's
substituting an information for the original complaint, as
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occurred here. Stegall and Young support the Court of Criminal
Appeals' decision, not the majority opinion.
II. Conclusion
I believe the holding reached in the majority opinion is
unwarranted under Alabama's Constitution, statutory law, and
precedent. The majority opinion violates Simmons's statutory
right to be prosecuted with the original charging instrument
and his constitutional right to obtain a copy of the
accusation against him. I respectfully dissent from the
majority's decision to reverse the judgment of the Court of
Criminal Appeals.
23
Ex parte State of Alabama.
Combined Opinion