
    Rodgrick Cornilius BROOKS v. STATE of Alabama.
    CR-00-1134.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Rodgrick C. Brooks, pro se.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   On Application for Rehearing

PER CURIAM.

This Court’s opinion of December 21, 2001, is withdrawn and the following opinion is substituted therefor.

On October 20, 1997, Rodgrick- Cornilius Brooks- was convicted of murder and first-degree robbery. On November 13, 1997, the trial court sentenced him to serve 30 years in prison oh the murder charge and 20 years- in prison on the first-degree robbery charge, with the sentences to be served consecutively. On June 19, 1998, this Gourt affirmed Brooks’s convictions and sentences on direct appeal, in an unpublished memorandum. Brooks v. State (No. CR-97-0540), 738 So.2d 941 (Ala.Crim.App.1998) (table). On July 7, 1998, the certificate of judgment was issued. On March 20, 2000, Brooks filed his first Rule 32, Ala.R.Crim.P., petition, claiming ineffective assistance of both trial and appellate counsel and the improper empaneling of the petit jury. After'the State filed its answer and its motion to dismiss, the circuit court summarily dismissed Brooks’s petition. The order dismissing the petition stated: “Done this_day of August, 2000.” (C. 13.)

After receiving1 a copy of -the order dismissing his petition, which; the record-indicates, was not stamped as received by the circuit clerk, Brooks- sent three letters complaining that the order was undated, the first two of .which were addressed to the circuit court and the last to the Administrative Office of Courts. In the first letter, dated October 4, 2000, Brooks requested that the circuit court vacate the undated order and issue a new one. In his second letter, dated October 23, 2000, Brooks questioned the status of his previous request to have the undated order vacated. In the third letter, dated October 30, 2000, Brooks took his cause to the Administrative Office of Courts. Brooks did not receive a response to any of his letters.

On December 28, 2000, because the circuit court had not responded to his requests to provide a dated order; Brooks filed his second Rule 32 petition — the petition that is the- subject of this appeal— requesting an out-of-time appeal from the dismissal of his first petition pursuant to Rule 32.1(f), Ala.R.Crim.P. On February 6, 2001, after the State had filed its answer and its motion to dismiss the second Rule 32 petition, the circuit court summarily dismissed that petition.

“In a criminal case a notice of appeal by the defendant shall be filed with the clerk of the trial court within 42 days (6 weeks) after pronouncement of the sentence.” Rule 4(b)(1), Ala.R.App.P. In the context of postconviction relief, the 42-day period runs from the date of the entry of the circuit court’s order denying the Rule 32 petition. See Ex parte Potts, 814 So.2d 836, 838 n. 1 (Ala.2001) (“This Court has held that the date of entry by the clerk, rather than the date the judgment is rendered, should be used when computing the time within which the. notice .of appeal must be filed.”).

In Symanowski v. State, 606 So.2d 171 (Ala.Crim.App.1992), this Court stated:

“An appeal must be taken in the manner and within the time prescribed by the Alabama Rules of Appellate Procedure, or it. is not taken at all. See Rogers v. Singleton, 286 Ala. 83, 237 So.2d 473 (1970). [Ala.]R.App.P. 4(b) provides that in a criminal case the notice of appeal must be filed within 42 days of pronouncement of sentence, provided that the notice of appeal may be orally entered at the sentencing, or it must be filed within 42 days after the denial or overruling of a motion in arrest of judgment, motion for a new trial, or motion for judgment of acquittal filed within 30 days of sentence. ‘This 42-day period is to be applied uniformly....’ Committee Comments, Rule 4. Rule 2(a)(1) provides: ‘An appeal shall be dismissed -if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.’ This requirement of timely filing of the notice of appeal is ‘a jurisdictional act’; ‘[i]t is the only step in the appellate process which is jurisdictional.’ Committee Comments, Rule 3. See also Lewis v. State, 463 So.2d 154, 155 (Ala.1985); Woods v. State, 371 So.2d 944, 945 (Ala.1979); Turner v. State, 365 So.2d 335, 335 (Ala.Cr.App.), cert. denied, 365 So.2d 336 ([Ala.]1978).
“ ‘In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal ... even to relieve against mistake, inadvertence, accident, or misfortune .... ’ Meeks v. State Farm, Mut. Auto. Ins. Co., 286 Ala. 513, 515, 243 So.2d 27, 28 (1970) (quoting with approval Hanley v. Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250, 1261-67 (1943)). ‘In the interest of finality of judgments, the prescribed time within which a notice of appeal must be filed with the trial court cannot be waived nor is it subject to extension of time by agreement of the parties or by order of this Court.’ Stewart v. Younger, 375 So.2d 428, 428 (Ala.1979) (emphasis in original). See also Hayden v. Harris, 437 So.2d 1283, 1287 (Ala.1983); State v. Kebe, 399 So.2d 348 (Ala.1981) (wherein our supreme court noted that a United States District Court could not confer to the court the authority to extend the 42-day period).”

606 So.2d at 172. See also Woods v. State, 609 So.2d 7, 8 (Ala.Crim.App.1992).

This Court created a narrow exception to the 42-day rule in Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000), aff’d in pertinent part, rev’d on other grounds, 842 So.2d 726 (Ala.2001). In Fountain, the circuit court had granted the appellant’s second Rule 32 petition, in which he had requested an out-of-time appeal from the dismissal of his first Rule 32 petition, “ruling that, because Fountain was never notified of the ... dismissal of his petition, his failure to timely appeal from that dismissal was through no fault of his own.” 842 So.2d at 721. This Court stated:

“[UJnder these circumstances, to deny Fountain the opportunity to seek an out-of-time appeal of the circuit court’s denial of postconviction relief, solely because the Alabama Rules of Criminal Procedure do not specifically provide such a procedure, would be to deny Fountain his right to procedural due process and would not be a fair administration of justice. Our sense of fundamental fair play requires us to recognize a petitioner’s right to petition a circuit court for an out-of-time appeal pursuant to Rule 32.1(f), Ala.R.Crim.P., of that court’s denial of postconviction relief when the petitioner has been denied the ability to file a timely appeal because of a mistake by the circuit court. Article I, § 35, Alabama Constitution of 1901. Our holding is limited to those cases where, as here, the circuit court recognizes that it was the fault of the court that the petitioner was unable to perfect a timely appeal.”

842 So.2d at 724. The Alabama Supreme Court affirmed that aspect of this Court’s judgment in Fountain affirming the trial court’s grant of am out-of-time appeal. See Ex parte Fountain, 842 So.2d 726 (Ala.2001).

In addition, in Ex parte Johnson, 806 So.2d 1195 (Ala.2001), the Alabama Supreme Court held that denying a Rule 32 petitioner his ability to have the ruling on his petition reviewed on appeal violated the petitioner’s right to procedural due process when the petitioner’s inability to perfect a timely appeal was caused by the circuit, court’s failure to give adequate notice of its ruling. Relying on Ex parte Weeks, 611 So.2d 259 (Ala.1992), the Court in Johnson issued a writ of mandamus, stating:

“ ‘Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to présent evidence and argument, representation by counsel, if desired, and information as to the claims of'the opposing party, with reasonable opportunity to controvert them.... Although it is generally held in Alabama that a party is under a duty to follow the status of his case, whether he is represented by counsel or acting pro se, and that, as a general rule, no duty rests upon either the court or the opposing party to advise that party of his scheduled trial date, see the cases collected at 18A Ala. Digest Trial § 9(1) (1956), a party’s right to procedural due process is nonetheless violated if he is denied' his day in court because the court, acting through its clerk, assumed the duty of notifying that party of his scheduled trial date and then negligently failed to do so.
“ ‘The circuit court’s dismissal of Weeks’s appeal, on the facts presented, lacked one of the fundamental attributes .of a fair judicial proceeding— the opportunity for all of the parties to be heard — and could never be upheld where justice is fairly administered. Because the sole object and only legitimate end of state government (including the judicial branch of state government) is to protect the citizen in the enjoyment of life, liberty, and property, it would surely amount to “usurpation and oppression” by this state’s judicial branch of government if this branch failed to recognize Weeks’s right to procedural due process and he was not afforded his day in court. Article I, § 35, Ala. Const.’
611 So.2d at 261-62 (citations omitted).
“Considering the limited" facts before us on this mandamus petition, we conclude that, through no fault of his own, Johnson has never been notified that his Rule 32 petition has been denied, even though it appears the petition was denied and even though he was entitled to such notification. The trial judge does not dispute Johnson’s allegation that he has never received notification of the disposition of his Rule 32 petition, and the judge has presented no evidence suggesting that Johnson has received notice. On this state of the record, we must conclude that Johnson was not informed of the denial of his Rule 32 petition.
‘We cannot deny Johnson his day in court simply because the trial court has not notified him of the disposition of his Rule 32 petition. See Weeks. Like the defendant in Weeks, Johnson asked, through the office of the circuit clerk, that he be notified of material developments in his case. Johnson was not notified that his Rule 32 petition was denied, and the 42-day period during which he could have appealed that denial has expired. We vacate the order dated May 15, 2000, denying Johnson’s Rule 32 petition, and we direct the trial court to enter a new order and to promptly send Johnson notification of that order.”

806 So.2d at 1196-97.

For the reasons stated below, we conclude that an out-of-time appeal under Rule 32 may be appropriate in this case. The record indicates that the copy of the order mailed to Brooks denying his first Rule 32 petition does not contain the stamp of the circuit clerk denoting the exact date the order was entered. In. fact, nothing in the record indicates the date the order was actually entered. Furthermore, the State admitted in its response to Brooks’s second Rule 32 petition and in its brief on appeal that the order is dated simply “August 2000.” Brooks has included in the record a copy of the envelope from the circuit court,.which he claims is postmarked September 29,. 2000. Although the postmark on the copy of the envelope in the record is illegible, Brooks claimed in his second Rule 32 petition, and claims now, that the envelope containing the order was postmarked September 29, 2000.

The problem lies in the fact that, if the order was entered on August 1, 2000, the earliest possible date of entry from the information provided on the copy of the order, then Brooks’s 42-day period in which to file his notice of appeal would have run on September 12, 2000, 17 days before Brooks’s copy of the order was mailed to him. In fact, if the order was entered on or before August 18, 2000, the 42-day period for filing the notice of appeal would have run before Brooks received his copy of the order. For this reason, and because the 42-day period for filing his notice of appeal expired while Brooks was attempting to get clarification from the circuit court as to when the 42-day appeal period would begin, we con-‘ elude that Brooks’s claim that he should have been allowed to appeal the summary dismissal of his first Rule 32 petition is meritorious on its face. Rudimentary principles of notice and fair play, which are the hallmarks of procedural due process, require that an inmate receive notice as to when the 42-day appeal period commences for purposes of filing a notice of appeal from an adverse ruling of the trial court. An inmate’s lack of notice as to when the 42-day appeal period commences, we think, is tantamount to an inmate’s receiving no notice of a ruling at all, at least for purposes of satisfying the requirements of procedural due process. Based on the state of this record, it appears that Brooks may have had no way of knowing whether he needed to file a notice of appeal or to pursue, as he did, other avenues of relief.

Brooks’s attempts to clarify the status of his case culminated in his filing a second Rule 32 petition, in which he again raised the issue of his lack of adequate notice of the circuit court’s ruling on his first Rule 32 petition. Because of the apparent confusion that may have been generated by the copy of the order that was sent to Brooks, we believe that it would elevate form over substance not to recognize Brooks’s letters to the circuit court and his second Rule 32 petition as sufficiently asserting the right to procedural due process that this Court discussed in Fountain and that the Alabama Supreme Court discussed in Ex parte Johnson.

Based on our review of the record, and in light of Fountain and Ex parte Johnson, we conclude that Brooks may, in fact, be entitled to an out-of-time appeal from the dismissal of his first Rule 32 petition and that, therefore, the circuit court erred in summarily dismissing Brooks’s second Rule 32 petition requesting such relief. Accordingly, we remand this case to the circuit court for it to take the necessary steps to determine when its order denying Brooks’s first Rule 32 petition was entered, i.e., stamped as received by the circuit clerk, and whether Brooks received a copy of that order that was stamped received by the circuit clerk. If the circuit court determines that the 42-day period for filing a notice of appeal had run before Brooks received his copy of the order dismissing his first Rule 32 petition, or if the circuit court determines that Brooks received no notice as to when the order had been entered and, thus, when the 42-day appeal period began to run, as he alleges in his petition, it shall grant Brooks an out-of-time appeal.

OPINION OF DECEMBER 21, 2001, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, J., concur.

SHAW, J., concurs in the result, with opinion, which BASCHAB, J., joins.

WISE, J., concurs in the result.

SHAW, Judge,

concurring in the result.

I do not believe that Rule 32, Ala. R.Crim.P., provides a method for seeking an out-of-time appeal from the dismissal of a Rule 32 petition. To that extent, I agree with the dissenting opinion of Judge Baschab in Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000) (joined by McMillan, P.J.). In Fountain, a majority of this Court, following the lead of the Alabama Supreme Court in Ex parte A.D.R., 690 So.2d 1208 (Ala.1996), effectively amended Rule 32 to provide an avenue of postcon-viction relief for the denial of a fundamental right to due process. This Court stated:

“We therefore believe that, under these circumstances, to deny Fountain the opportunity to seek an out-of-time appeal of the circuit court’s denial of postcon-viction relief, solely because the Alabama Rules of Criminal Procedure do not specifically provide such a procedure, would be to deny Fountain his right to procedural due process and would not be a fair administration of justice.”

842 So.2d at 723-24. I agree that relief should be available under the circumstances presented in Fountain and in the present case. However, the Alabama Supreme Court is vested with the constitutional authority to “make and promulgate ... rules governing practice and procedure in all courts.” § 6.11, Amend. No. 328, Ala. Const. 1901. Therefore, although the Supreme Court in Ex parte A.D.R. had the constitutional authority to amend, by its opinion, Rule 32 so as to allow Rule 32 to be used to obtain an out-of-time appeal of a juvenile transfer order, I do not believe that this Court had the authority to take the same course of action with respect to the issue presented in Fountain.

This Court’s decision in Fountain reflected the basic premise that when the failure of a Rule 32 petitioner to perfect a timely appeal is the fault of the circuit court, there is a violation of procedural due process for which the law would not tolerate the lack of a remedy. That basic premise, of course, was recently recognized by the Alabama Supreme Court in Ex parte Johnson, 806 So.2d 1195 (Ala.2001). However, this Court’s split decision in Fountain (the vote was 8-2) also reflected a basic disagreement among the Judges of this Court as to the proper procedure by which to pursue a remedy. That disagreement centered around whether Rule 32.1(f) provides a method for seeking an out-of-time appeal from the dismissal of a Rule 32 petition. In light of the recent decision in Ex parte Johnson, in which the Alabama Supreme Court, citing Ex parte Weeks, 611 So.2d 259 (Ala.1992), recognized that mandamus relief was available to Secure the procedural due process rights of an inmate who had not been properly notified of a ruling on his Rule 32 petition (and thereby implicitly recognized that no other adequate remedy at law existed ), this Court took the opportunity, in its original opinion in this case, to revisit its procedural holding in Fountain. After further reflection, a majority of this Court concluded that although Rule 32.1(f) provided a possible avenue of relief for a petitioner who failed to appeal from his conviction and/or sentence, it did not provide an avenue of relief for a petitioner who failed to appeal from an adverse ruling in a previous collateral proceeding. In its original opinion in this case, released on December 21, 2001, this Court, in another split decision, held that Rule 32.1(f) provided a method for seeking an out-of-time appeal from a conviction or sentence, see Symanowski v. State, 606 So.2d 171 (Ala.Crim.App.1992), but that the language of the Rule was not broad enough to support the Fountain interpretation—that Rule 32.1(f) provides a method of seeking- an out-of-time appeal from the dismissal of a Rule 32 petition. Therefore, this Court overruled Fountain to the extent that it was inconsistent with our holding.

However, in an opinion released only seven days after we released our original opinion in this case, the Alabama Supreme Court, although reversing that aspect of this Court’s judgment affirming the denial of Fountain’s first Rule 32 petition, stated that “we affirm that aspect of the judgment of the .Court of Criminal. Appeals affirming the grant of the out-of-time appeal.” See Ex parte Fountain, 842 So.2d 726, 730 (Ala.2001).

I find it puzzling that the Supreme Court took the unnecessary step of affirming an aspect of this Court’s judgment that was not challenged in a petition for a writ of certiorari. The Court noted in its opinion: “The State has not sought certiorari review of the aspect of the judgment of the-Court of Criminal Appeals affirming the trial court in its granting Fountain an out-of-time appeal.” Ex parte Fountain, 842 So.2d at 727. Having spent the vast majority of my professional life as a staff attorney to two Justices on the Alabama Supreme Court, I .find it unlikely that the Justices intended, when they released the opinion in Ex parte Fountain, to overrule a week-old decision of this Court that had reexamined and overruled a previous decision. Nowhere in its opinion did the Supreme Court mention this Court’s, original opinion in this case and nowhere in its opinion did it engage in any analysis with respect to the proper interpretation, of Rule 32.1(f). If the Supreme Court had intended to overrule this Court’s original opinion in this case, I would certainly have expected it to address the issue at hand, especially given the fact that the Court, in Ex parte Johnson, had just previously recognized, at least implicitly, that mandamus relief was available in cases of this kind because there was no other adequate remedy available.

Having said all of this, however, I recognize that there is no escaping the apparent legal effect of the Supreme Court’s opinion in Ex parte Fountain. “Affirm” is defined in Black’s Law Dictionary 59 (7th ed.1999), as “[t]o confirm (a judgment) on appeal.” “Affirmance” is defined in Black’s as “[t]he formal approval by an appellate court of a lower court’s judgment, order, or decree.” The State did not file an application for rehearing in Ex parte Fountain to seek clarification of the Supreme Court’s intent in affirming that aspect of this Court’s judgment affirming the trial court’s granting Fountain an out-of-time appeal under Rule 32.1(f). Therefore, I urge the Supreme Court to clarify its holding in Ex parte Fountain at its earliest convenience.

Until then, I adhere to my personal belief that Rule 32 was not intended to provide a method for seeking an out-of-time appeal from the dismissal of a Rule 32 petition; however, based on the Supreme Court’s opinion in Ex parte Fountain, I will recognize that, when the failure of a Rule 32 petitioner to perfect a timely appeal is the fault of the circuit court, the law provides two remedies — one by way of a petition for a writ of mandamus, see Ex parte Johnson, supra, and one pursuant to a petition for relief under Rule 32, see Ex parte Fountain. 
      
      . That Court reversed that aspect of this Court's judgment affirming the denial of Fountain’s first Rule 32 petition.
     
      
      . Although Brooks’s petition focuses on the fact that the trial court's order was undated. Brooks nonetheless argued that the order "denies the petitioner due process of law as it cannot be ascertained when the 42 days start or stop in which to appeal this undated order.” (C. 29. Petitioner’s Opposition Response to the Respondent’s Answer and-Motion to Dismiss.)
     
      
      . We note that the State attached to its application for rehearing (1) a copy of the order stamped "RECEIVED 9-29-00" and (2) a copy of the case action summary indicating that the order on the first Rule 32 petition was entered on September 29, 2000. However, because both of these documents are outside the record in this appeal, they cannot be considered by this Court. See, e.g., Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991) ("[A]ttachments to briefs are not considered part of the record and therefore cannot be considered on appeal.”).
     
      
      . “The writ of mandamus is a drastic and extraordinary writ, to be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’” Ex parte Carter, 807 So.2d 534, 536 (Ala.2001), quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).
     