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09/30/94 SAMMIE LEE GORDON v. JOHN E. NAGLE

September 30, 1994

SAMMIE LEE GORDON
v.
JOHN E. NAGLE, WARDEN; AND JAMES H. EVANS, ATTORNEY GENERAL OF THE STATE OF ALABAMA



Certified Question from the United States Court of Appeals for the Eleventh Circuit, 92-6100. This Opinion Substituted by the Court for Withdrawn Opinion of March 25, 1994, Previously .

Released for Publication December 6, 1994.

Shores, Hornsby, C. J., and Maddox, Houston, Steagall, Kennedy, Ingram, and Cook, JJ., concur.

The opinion of the court was delivered by: Shores

ON REHEARING EX MERO MOTU

SHORES, JUSTICE.

The Court's opinion of March 25, 1994, is withdrawn and the following is substituted therefor:

The United States Court of Appeals for the Eleventh Circuit has certified this question to us:

"Does the failure to inform an age-qualified defendant of his right to apply for youthful offender status deprive the trial court of jurisdiction to entertain a guilty plea, such that a subsequent challenge to that conviction cannot be barred by the limitations period of Ala. R. Crim. P. 32.2(c)?"

The question certified arose out of a habeas corpus petition brought by an Alabama prisoner, Sammie Lee Gordon. In his petition, Gordon attacks the validity of sentences imposed on him in 1986 under the Habitual Felony Offender Act, Ala. Code 1975, § 13A-5-9 et seq., and the validity of an underlying 1973 conviction utilized for enhancement in the 1986 cases, on the grounds that in the 1973 proceedings the court did not advise Gordon of his right to apply for youthful offender treatment.

The United States district court held that because Gordon had not presented his claim in state court, he is now barred from presenting it in the federal court by the limitations provision in Rule 32, A. R. Crim. P. Rule 32.1(a) imposes a two-year limitations period on claims for post-conviction relief based upon federal or state constitutional grounds. However, collateral relief is available under subsections (b) and (c) if the court was without jurisdiction to render the judgment or to impose the sentence, or if the sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law. Claims alleging jurisdictional defects and excessive sentences under Rule 32.1(b) and (c) are not subject to the two-year time bar. Ladd v. State, 577 So. 2d 926, 926-27 (Ala. Crim. App. 1990), cert. denied, 577 So. 2d 927 (Ala. 1991).

In certifying the question before us, the Eleventh Circuit Court of Appeals explained:

"In straightforward failure-to-advise cases not involving youth offender status, the Alabama cases have held that failure to advise is a jurisdictional matter that can be raised for the first time on appeal. In Ex parte Rivers, 597 So. 2d 1308 (Ala. 1991), the court held that a guilty plea entered by a defendant who had not been advised of his possible minimum and maximum sentences is not knowingly, voluntarily, and intelligently given, so that the judgment of conviction must be reversed and the case remanded. Id. at 1310. The Alabama Supreme Court in Rivers did not use the term 'jurisdiction.' But subsequently the Alabama Court of Criminal Appeals has followed Rivers and interpreted it to mean that failure to advise the defendant as required by Rivers is 'an absolute constitutional requirement' and is a jurisdictional matter that can be raised for the first time on appeal. Sampson v. State, 605 So. 2d 846, 847 (Ala. Crim. App. 1992). Three months later, without reference to Sampson, the Court of Criminal Appeals reiterated that failure to advise of possible minimum and maximum sentences is jurisdictional and can be raised at any time regardless of whether objection was made before the trial Judge. Brown v. State, 611 So. 2d 1194, 1197-98 (Ala. Crim.App. 1992).

"Thus, in straightforward failure-to-advise cases not involving youth offender status, the Court of Criminal Appeals appears to have continued to follow the Rivers principle with the gloss of its own interpretation that Rivers means that failure to advise is jurisdictional. But that court has done so with great reluctance. In Parish v. State, [Ms. CR-90-1285, April 23, 1993] __ So. 2d __ (Ala. Crim. App. 1993), the court expressed at length its view that failure to advise is not a jurisdictional matter but rather should be examined within the context of voluntariness of the plea, but that--as it was required to do--it accepted that it was bound by Rivers to review defendant's conviction. Three months later in August 1993, the Court of Criminal Appeals again reluctantly followed Rivers and reversed the defendant's conviction. Bennett v. State, [Ms. CR-92-1139, Aug. 13, 1993] __ So. 2d __ (Ala. Crim. App. 1993).

"In the context of failure to advise of youthful offender rights the Court of Criminal Appeals had held, prior to Rivers, that the failure to advise was not a jurisdictional matter. Hobbie v. State, 564 So. 2d 97, 99 (Ala. Crim.App. 1990), overruled as to a different holding, 596 So. 2d 613 (Ala.Crim.App. 1991). Without citing Rivers or any of its progeny, the Court of ...


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