Circuit Court, CC-16-22
PETITION FOR WRIT OF MANDAMUS
case, we consider whether a circuit court has jurisdiction to
order a defendant to pay restitution after the case against
the defendant has been dismissed and after the time for
filing postjudgment motions and for appealing the dismissal
has expired. For the reasons discussed below, we hold that a
circuit court does not have subject-matter jurisdiction to
order restitution in such a case.
Lynn Butler was indicted for first-degree theft of property
on September 27, 2016, and in February or March 2017, she
sought entrance into a drug-court program. The drug-court
application packet filed with the circuit court included a
signed acknowledgment by Butler that she must pay restitution
as determined by the circuit court at a later time, and the
packet included an unsigned "Order for Restitution"
that identified "Edgar's Foodland" as the
business that would receive restitution. On March 10,
2017, the circuit court adjudged Butler guilty of
first-degree theft of property, see § 13A-8-3,
Ala. Code 1975, but the circuit court deferred sentencing
"because defendant is in drug court." Butler
successfully completed the drug-court program, and on March
14, 2018, the State moved to dismiss the case against Butler
based on the fact that Butler had "completed 17th
Circuit Drug Court Program on March 9, 2018." The
circuit court dismissed the case the next day, March 15,
2018. No postjudgment motions were filed, and neither party
appealed the circuit court's judgment dismissing
August 3, 2018, the State filed a motion in the circuit court
requesting the circuit court to set a restitution hearing
"to address the restitution that is owed and was ordered
paid to Edgar's Foodland on or about March 7, 2017."
After conducting a restitution hearing, the circuit court
entered an "Amended Order" on August 31, 2018,
directing Butler to pay restitution to Edgar's Foodland.
"That certain order heretofore entered on the 15th day
of March 2018 is hereby amended to require defendant,
Michelle Lynn Butler, to pay $6200.00 to Edgar's
Foodland, at the rate of $50.00 per month beginning October
1, 2018. Said order through inadvertence and/or mistake
failed to include the restitution owed to Edgar's
Foodland which formed the basis of Theft of Property First
(C. 60.) Butler filed a timely notice of appeal, arguing that
the circuit court did not have jurisdiction to enter the
order directing her to pay restitution to Edgar's
Foodland because, she says, at the time the restitution order
was entered, more than 30 days had passed following the
dismissal of the case against Butler, and the time for
appealing the dismissal had expired. We agree.
we note that Butler's "appeal" of the circuit
court's order of restitution presents a bit of a
jurisdictional paradox. The crux of her argument is that the
circuit court lacked subject-matter jurisdiction to enter the
restitution order. If that argument is correct, the circuit
court's order is void. And, under longstanding precedent,
a void order will not support an appeal. See, e.g.,
Ex parte Holley, 883 So.2d 266, 268
(Ala.Crim.App.2003). To remedy this problem, this Court may,
when appropriate, exercise its discretion under the Rules of
Appellate Procedure to treat an appeal challenging the
subject-matter jurisdiction of the circuit court as a
petition for a writ of mandamus. See Kirksey v.
Johnson, 166 So.3d 633 (Ala. 2014). In Kirksey,
the Alabama Supreme Court treated a cross-appeal challenging
the subject-matter jurisdiction of the probate court as a
petition for a writ of mandamus, and in doing so, the Court
"This Court has treated a notice of appeal as a petition
for a writ of mandamus, Morrison Rests., Inc. v.
Homestead Vill. of Fairhope, Ltd., 710 So.2d 905 (Ala.
1998), and, conversely, treated a petition for a writ of
mandamus as a notice of appeal, Ex parte Burch, 730
So.2d 143 (Ala. 1999). As noted in F.L. Crane & Sons,
Inc. v. Malouf Construction Corp., 953 So.2d 366 (Ala.
2006), this Court's actions in the above cases is
consistent with Rule 1, Ala. R. App. P., which provides:
'[These rules] shall be ... construed so as to assure the
just, speedy, and inexpensive determination of every
appellate proceeding on its merits.' Likewise, Rule 2(b),
Ala. R. App. P., also calls for the suspension of the
requirements or provisions of any of the Rules of Appellate
Procedure '[i]n the interest of expediting decision.'
Kirksey, 166 So.3d at 643. There is "no
bright-line test" for determining when this Court should
treat an appeal as a petition for a writ of mandamus, and in
deciding whether to treat a particular filing as a petition
or as an appeal, we "consider the facts of the
particular case." Kirksey, 166 So.3d at 644
(quoting F.L. Crane & Sons, Inc. v. Malouf
Construction Corp., 953 So.2d 366, 372 (Ala. 2006)).
Because Butler challenges the circuit court's
subject-matter jurisdiction to order her to pay restitution
and because it is well settled that "the question of
subject-matter jurisdiction is reviewable by a petition for a
writ of mandamus," see, e.g., Ex
parte Flint Construction Co., 775 So.2d 805, 808 (Ala.
2000), we exercise our discretion under the Rules of
Appellate Procedure to treat Butler's timely filed appeal
as a petition for a writ of mandamus, and we have restyled
the case accordingly.
review a petition for a writ of mandamus under the following
"'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 United Serv. Stations, Inc.,
628 So.2d 501, 503 (Ala. 1993); see also Ex parte
Ziglar, 669 So.2d 133, 134 (Ala. 1995).'"
Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001)
(quoting Ex parte Carter, 807 So.2d 534, 536 (Ala.
2001)). A petitioner challenging an action taken by the
circuit court establishes a clear legal right to the relief
she requests when it is shown that the circuit court did not
have subject-matter jurisdiction to take the challenged
action. See, e.g., Ex parte Denson, 57
So.3d 195, 198 (Ala. 2010); Ex parte Liberty National
Life Ins. Co., 888 So.2d 478 (Ala. 2003).
dismissal of a case is a final judgment subject to appeal.
Denson, 57 So.3d at 199. Any postjudgment motions
must be filed within 30 days of a final judgment. See
Melvin v. State, 583 So.2d 1365, 1366
(Ala.Crim.App.1991) (citing Ex parte Andrews, 520
So.2d 507, 510 (Ala. 1987)). A circuit court loses
subject-matter jurisdiction at the expiration of 30 days
following the entry of a final judgment. State v.
Webber, 892 So.2d 869, 870 (Ala. 2004). Any ...