04/04/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
_________________________
CR-06-1044
_________________________
Don Robert Barclay
v.
State of Alabama
Appeal from Autauga Circuit Court
(CC-77-164.60)
WELCH, Judge.
Don
Robert
Barclay
appeals
from
the
circuit
court's
summary denial of his Rule 32, Ala. R. Crim. P., petition.
The petition sought relief from his April 7, 1978, conviction
for child molestation.
He was sentenced to serve five years
CR-06-1044
in prison.
His conviction was affirmed on direct appeal.
See
Barclay v. State, 368 So. 2d 579 (Ala. Crim. App. 1979).
The
instant petition was deemed filed on January 12, 2007.
Barclay
asserted
that
this
is
his
first
In it,
petition
for
postconviction relief challenging this conviction.
Barclay claimed in his petition that the trial court
lacked subject-matter jurisdiction to render judgment and to
impose sentence because, he claims, neither the jury venire
nor the petit jury was administered an oath prior to trial.
Barclay attached as Exhibit A to his petition a copy of the
case-action summary from his direct appeal.
There is no
notation regarding an oath to the venire or petit jury on the
case-action-summary sheet.
The
Barclay's
State
claim
filed
is
a
a
motion
to
dismiss,
nonjurisdictional
arguing
claim
and
that
thus
procedurally barred by the limitation period contained in Rule
32.2(c), Ala. R. Crim. P., and procedurally barred because the
instant petition is a successive petition, Rule 32.2(b).
The
circuit court issued a written order essentially adopting the
State's argument as its holding.
2
CR-06-1044
Barclay
contends
on
appeal
that
his
claim
was
jurisdictional and, thus, that it is not subject to the
procedural bars of Rule 32.
We note that this Court has no
record of a prior postconviction challenge to this conviction
and nothing in the record supports such a finding.
Thus, we
cannot conclude that this petition is a successive petition.
Barclay is correct in asserting that the claim he alleges
is
a
jurisdictional
claim.
"A
claim
that
no
oath
was
administered at all -- i.e., the jury venire and the petit
jury were not sworn -- would be a jurisdictional issue because
... a verdict rendered by jurors, who have never been sworn is
a nullity."
Brooks v. State, 845 So. 2d 849, 850-851 (Ala.
Crim. App. 2002).
He is also correct in asserting that "it
cannot be presumed from a silent record that the jury was
sworn; there must be in the record some affirmative showing
that the oath was administered to the jury."
See Ex parte
Deramus, 721 So. 2d 242 (Ala. 1998).
This case is identical to Pride v. State, [Ms. CR-061452, February 29, 2008]
So. 2d
(Ala. Crim. App.
2008). Pride alleged that the trial court lacked jurisdiction
to render the judgment or to impose the sentence because, he
3
CR-06-1044
said, neither the jury venire nor the petit jury had been
sworn.
He "attached to his petition pages from his trial
transcript and from the case-action summary," which failed to
reflect "any oath administered to the jury venire or to the
petit jury before the trial began."
2d at
Pride v. State,
So.
.
In Pride, this Court held:
"Pride's claim is jurisdictional, see Brooks v.
State, 845 So. 2d 849 (Ala. Crim. App. 2002); is
sufficiently pleaded to satisfy the requirements in
Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P.; and was
not refuted by the State, see Bates v. State, 620
So. 2d 745, 746 (Ala. Crim. App. 1992) ('"When the
State
does
not
respond
to
a
petitioner's
allegations, the unrefuted statement of facts must
be taken as true."' (quoting Smith v. State, 581 So.
2d 1283, 1284 (Ala. Crim. App. 1991))). Therefore,
Pride was entitled to an opportunity to prove his
claim."
(Footnotes omitted.)
As in Pride, we remand this case for the circuit court to
allow Barclay an opportunity to present evidence to support
his allegation that neither the jury venire nor the petit jury
was sworn.
The court shall either conduct an evidentiary
hearing or accept evidence in the form of affidavits, written
interrogatories, or depositions.
See Rule 32.9(a), Ala. R.
Crim.
considering
P.
After
receiving
and
4
the
evidence
CR-06-1044
presented, the circuit court shall issue specific written
findings of fact regarding Barclay's claim and may grant
whatever relief it deems necessary. Due return shall be filed
within 56 days of the date of this opinion and shall include
the circuit court's written findings of fact, a transcript of
the evidentiary hearing, if one is conducted, and any other
evidence received and/or relied on by the court in making its
findings.
REMANDED WITH DIRECTIONS.
Baschab, P.J., and McMillan, Shaw, and Wise, JJ., concur.
5
