October 31, 2014
Tracy Bernard Holt
State of Alabama ex rel. Brian C.T. Jones
from Limestone Circuit Court. (CV-13-900505).
Appellant: H. McGriff Belser III, Decatur.
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
November 2, 2013, Tracy Bernard Holt was arrested and charged
with conspiracy to distribute a controlled substance,
unlawful possession of a controlled substance, and unlawful
possession of drug paraphernalia. Police also seized $1,872
in cash from Holt's residence. On December 4, 2013, the
State and Brian C.T. Jones, the District Attorney for the
39th Judicial Circuit, filed a complaint in the Limestone
Circuit Court seeking the civil forfeiture of the $1,872.
Holt entered into an agreement in which he forfeited the
$1,872. The circuit court entered a consent judgment
incorporating the terms of the agreement on December 5, 2013.
On December 18, 2013, Holt filed a postjudgment motion
seeking an order setting aside the consent judgment. The
circuit court had 90 days to rule on Holt's postjudgment
motion. See Rule 59.1, Ala. R. Civ. P. The circuit court had
not entered an order on Holt's postjudgment motion when
Holt filed an " amended" postjudgment motion on
January 6, 2014.
" amended" postjudgment motion requested the same
relief, deleted or differently summarized certain factual
assertions, and added three citations to authority supporting
the proposition that a trial court may set aside a judgment
that was " inadvertently rendered." This court has
previously explained that a second postjudgment motion
seeking the same relief that was sought in a previously filed
postjudgment motion does not toll the time for taking an
appeal. See Ollis v. Ollis, 636 So.2d 458, 459
(Ala.Civ.App. 1994); Gold Kist, Inc. v. Griffin, 659
So.2d 626, 627 (Ala.Civ.App. 1994).
circuit court purported to enter an order denying Holt's
" amended" postjudgment motion on April 16, 2014.
Holt filed a notice of appeal on May 28, 2014. However,
because we conclude that Holt's notice of appeal was
untimely filed, we dismiss this appeal. Rule 2(a)(1), Ala. R.
case, the 90th day after December 18, 2013, the date on which
Holt filed his original postjudgment motion, was March 18,
2014. Although the circuit court purported to enter an order
denying Holt's " amended" postjudgment motion
on April 16, 2014, the circuit court was without jurisdiction
to enter that order because it was entered more than 90 days
after the date Holt filed his original postjudgment motion.
Ex parte Caterpillar, Inc., 708 So.2d 142, 143 (Ala.
1997); see also Ex parte Hornsby, 663 So.2d 966 (Ala. 1995).
In order to properly invoke the appellate jurisdiction of
this court, Holt was required to file his notice of appeal
within 42 days of the date his original postjudgment motion
was denied by operation of law. Rule 4(a)(1) and (3), Ala. R.
App. P.; Newman v. Newman, 773 So.2d 481, 483
(Ala.Civ.App. 1999). Forty-two days from
March 18, 2014, was April 29, 2014. Holt filed his notice of
appeal on May 28, 2014, which is after the expiration of the
period for the timely filing of a notice of appeal in this
case. " The timely filing of [a] notice of appeal is a
jurisdictional act." Rudd v. Rudd, 467 So.2d
964, 965 (Ala.Civ.App. 1985). Because Holt's notice of
appeal was untimely, it did not invoke the jurisdiction of
this court, and, therefore, this appeal must be dismissed.
See Rule 2(a)(1), Ala. R. App. P.
P.J., and Pittman, Moore, and Donaldson, JJ., concur.