Michael Paul Freeman v. State of Alabama

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rel: 08/28/2009 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, 2008-2009 CR-08-0219 Michael Paul Freeman State of Alabama Appeal from Marion Circuit Court (CC 03-239) MAIN, Judge. AFFIRMED BY UNPUBLISHED MEMORANDUM. Wise, P.J., and Kellum, J., concur. Windom, J., concurs in the result. Welch, J., dissents, with opinion. CR-08-0219 WELCH, Judge, dissenting. I respectfully memorandum opinion dissent from the majority's affirming the circuit unpublished court ' s summary dismissal of Michael Paul Freeman's Rule 32, Ala. R. Crim. P., petition. The record discloses the following. On September 12, 2008, Freeman filed what he styled as an "Amendment to Writ of Habeas Corpus." court (C. 18.) received Corpus." entered what (C. 12.) an "Amendment order Writ of On September 15, 2008, the circuit Freeman styled as his "Writ of Habeas On September 15, 2008, the circuit court on the Habeas case-action Corpus summary Denied." stating. (C. 4 On November 4, 2008, Freeman filed a petition styled as "Petition for Writ of Habeas respond. Also on November 4, 2008, the circuit court entered the following summary: order "Petition Corpus." on for the (C. 24.) petition writ of The and habeas State the did not case-action corpus denied. [Defendant] before court on [probation revocation] docliet last Thurs[day] Probation revolted and [Defendant] advised of right of appeal." sentence (C. 3 executed, CR-08-0219 Freeman appealed. recognized The majority of this Court correctly that the petition should have been treated as a Rule 32, Ala. R. Crim. P., petition because Freeman's claims challenged his conviction or sentence. 882 So. 2d 875 See Ex parte Deramus, (Ala. 2002) (pro se pleading must be construed according to its substance, not its style.); Miller v. State, 766 So. 2d 990, 991 (Ala. Crim. App. 2000) ("'A petition for a writ of habeas corpus contesting the validity of a conviction should [be] treated as a petition for post-conviction relief. ' ") . The majority specifically acknowledged that the appeal was being treated as an appeal from the denial of a Rule 32 petition. The majority noted that the State did not file a response to the petition circuit court had in the circuit "summarily denied" court and that the the petition The majority did not comment on the fact that the circuit court denied the petition without entry of any procedural grounds found in Rule 32. Five claims raised by Freeman on appeal were listed in the memorandum opinion. of the claims, claims The majority correctly ruled that two three and four, were claims not CR-08-0219 presented in Freeman's petition and thus, these claims were not properly before this Court. See Arrinqton v. State, 716 So. 2d 237, 239 (Ala. Crim. App. 1997)("[A]n appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.") . The majority found that claims one, two, and five, were nonjurisdictional claims. The Court then noted that, "[i]n Ex parte d e m o n s , [Ms. 1041915, May 4, 2007], So. 3d (Ala. 2007) the Alabama Supreme Court held that this Court cannot, except in extraordinary circumstances, sua sponte apply the Rule 32.2 procedural bars on appeal. However, the due process principles discussed in d e m o n s do not apply in this case because the circuit court dismissed the petition without requiring a response from the State. See A.G. v. State, [Ms. CR-05-2241, November 2, 2007] So. 3d (Ala. Crim. App. 2007)." The majority then held that the circuit court's summary dismissal review by was proper the because procedural the petition preclusion 32.2(c) (limitations period), and was barred found in from Rules 32.2(a) (5) (claims could have been raised on appeal). I must dissent. Aside from my opinion that this Court continues to cite A.G. v. State as precedent for a proposition of law not expressed in A.G., I believe that this case should be remanded to the circuit court for that court to address CR-08-0219 Freeman's petition and amendment as a Rule 32, Ala. R. Crim. P., petition. The remand instructions should allow the circuit court the discretion to require Freeman to refile his Rule 32, Ala. R. Crim. P., petition using or following form provided the in the appendix to Rule 32, Ala. R. Crim. P. See Rule 32.6(a), Ala. R. Crim. P., and Maddox v. State, 662 So. 2d 915, 916 (Ala. 1995) (Summary dismissal. Rule 32.7(d), may take precedent over requirement that petition be filed on proper form. Rule 32.6(a; also allow the circuit The remand instructions should court the discretion to require State to respond to the petition. Based on the above, I respectfully dissent the

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