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DOCUMENT 22

ELECTRONICALLY FILED
8/24/2016 5:30 PM
38-CC-2016-001133.00
CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA
CARLA H. WOODALL, CLERK

IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA


CITY OF DOTHAN,
PLAINTIFF,
V.
AMOS NEWSOME,
DEFENDANT.

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CASE NO.: CC 2016-1133

BRIEF OF CITY OF DOTHAN REGARDING THIS COURTS JURISDICTION TO


HEAR THE ABOVE-STYLED APPEAL FROM DOTHAN MUNICIPAL COURT
COMES NOW the City of Dothan (hereinafter Dothan) and files this brief in response
to the motion challenging this Courts jurisdiction filed by Amos Newsome in the above-styled
case.
I.

FACTUAL BACKGROUND
Defendant Newsome was tried and convicted in the above-styled action by Judge Carl

Chamblee. Dothan does not contest that, in the above-styled case, the Judge was not appointed by
the Mayor as dictated by Ala. Code 12-14-34.
Prior to Defendant Newsomes motion to dismiss filed on August 3, 2016 (Doc. 12),
Dothan itself had filed a motion to dismiss and remand (Doc.10) which raised the same general
ground the faulty appointment of the municipal court judge. Since filing its motion to remand,
however, Dothan has had further opportunity to research the issue. As this Court knows, this is an
issue of the Courts subject matter jurisdiction to hear the appeal. While Dothan previously cited
case law in its motion to dismiss recognizing that in some circumstances the faulty appointment
of a judge may render a judgment void, further research and study has revealed that the underlying
conviction here does not appear to be void notwithstanding the faulty appointment of the judge

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involved, as explained below. Dothan respectfully asks this Court to consider the facts laid out
below and to make a determination as to its jurisdiction to hear the appeal in the above-styled case.
II.

RELATED CASES
Prior to the motions filed in this case, Dothan, on its own accord, also sought the dismissal

and remand of appeals in other cases on appeal to this Circuit involving Defendant Rickey Stokes
(Case Nos. CC-2014-001141 and CC-2014-001142) in which Judge Carl Chamblee presided.
Judge Chamblee was also appointed by the City Manager rather than by the Mayor in that case.
See Ala. Code 12-14-34. Dothan also filed motions to dismiss appeals in other cases pending
before this court in which Judges had been appointed by the City Manager rather than the Mayor,
and was served with at least one motion to dismiss in an appeal in which the City had not filed its
own motion to dismiss. See City of Dothan v. Mitchell Price, Case No. CC-2016-404, CC-2016405, CC-2016-406; City of Dothan v. Adam Taylor Corbin, Case No. CC-2016-1151, CC-20161152; City of Dothan v. Anterrica Keyana Durr, Case No. CC-2016-431; and City of Dothan v.
Roy Lee McCree, Case No. CC-2016-778.
Those motions were all filed before Dothan had fully appreciated the import of the holdings
in Benjamin v. State, 156 So.3d 424, 459 (Ala. Crim. App. 2013), and Gwin v. State, 808 So.2d 65
(Ala. 2001), discussed below. While the Stokes motion to dismiss was granted, Defendant Stokes
has not yet been retried.
Based on Dothans investigation into this matter, four additional cases not mentioned
herein but tried by Judge Michael Brown are pending on appeal to this Court. The Courts rulings
in this case as to its own jurisdiction will give Dothan direction as to how to handle these additional
cases and the Stokes matter.

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III.

LAW ON RULINGS MADE BY DE FACTO JUDGES


It is important to note here that Defendant Newsome did not raise the issue of Judge

Chamblees appointment before the Municipal Court. The Alabama appellate courts have held
that where there is no objection to a faultily-appointed judge prior to conviction, the underlying
conviction is valid. See Benjamin v. State, 156 So.3d 424, 459 (Ala. Crim. App. 2013) (involving
Rule 32 petition in which defendant unsuccessfully argued for the first time that the specially
appointed judge who presided over defendants trial and sentencing was unlawfully appointed).
In the leading case on this issue, Gwin v. State, 808 So.2d 65 (Ala. 2001), a defendant
appealed directly from a circuit court conviction for reckless driving. For the first time on direct
appeal to the Court of Criminal Appeals, the defendant raised the issue of the appointment of the
special judge who presided over his case. Id. at 66. The Court of Criminal Appeals concluded that
the special judge was not qualified to sit under the temporary judicial appointments statute and
ruled that the judgment was therefore invalid. Id. at 66-67. On petition for certiorari, the Alabama
Supreme Court held that the conviction should stand as it was the ruling of a de facto judge whose
jurisdiction had not been challenged before judgment of conviction and sentence was entered.
Id. at 67.
In conclusion, under that precedent, where a conviction and sentence is entered without
objection to the validity of the judges appointment, as is the case in the present action, Alabama
law renders the judge a de facto official and further renders his actions valid and binding. See also
Benjamin, supra (quoting and relying on Ala. Code 36-1-2, Alabamas de facto official statute).
IV.

THE CITYS RESPONSE TO DEFENDANT NEWSOMES ARGUMENTS


RELATIVE TO REMAND
Defendant Newsome contends that this Court can only dismiss the appeal and cannot make

any further orders in this matter because the appeal is from an allegedly void judgment. See Doc.
3

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12, 3. While Dothan herein has articulated a basis for this Courts concluding that the underlying
judgment is not void, even if it were, Defendant Newsomes position is erroneous. The appellate
courts in this state often dismiss appeals from void trial court orders with very specific instructions.
See, e.g., Williams v. Minor, No. 2140485, 2016 WL 100204, at *2 (Ala. Civ. App. Jan. 8, 2016)
(instructing trial court to transfer case to another county after dismissing appeal from void
judgment); Jones v. DeRamus, No. 2140740, 2015 WL 7889738, at *2 (Ala. Civ. App. Dec. 4,
2015) (instructing district court to vacate the void order appealed from); Palmer v. Palmer, 192
So. 3d 12, 1718 (Ala. Civ. App. 2015) (same). Thus, it is evident that this Court can issue
instructions to remand the case or make other instructions consistent with its ruling even if it
determines that the conviction and sentence appealed from was void, notwithstanding the holdings
in Gwin, supra, and Benjamin, supra.
CONCLUSION
The City of Dothan would ask this Court to determine its subject matter jurisdiction over
the appeal in the above-styled case and rule accordingly either by retaining jurisdiction over the
appeal or dismissing the appeal and remanding it to the Dothan Municipal Court for retrial.
Submitted this the 24th day of August, 2016.

s/Shannon L. Holliday
Lee H. Copeland (ASB-3461-O72L)
Shannon L. Holliday (ASB-5440-Y77S)
COPELAND, FRANCO, SCREWS & GILL, P.A.
P.O. Box 347
Montgomery, AL 36101-0347
Telephone: 334-834-1180
Facsimile: 334-834-3172
copeland@copelandfranco.com
holliday@copelandfranco.com
ATTORNEYS FOR CITY OF DOTHAN

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CERTIFICATE OF SERVICE
I certify that on this the 24th day of August 2016, I electronically filed the foregoing with
the Clerk of the Court using the Alafile system which will send notification of such filing to the
following attorney:
Henry Penick
1728 3rd Avenue North,
#400A
Birmingham, AL 35203
s/Shannon L. Holliday
Of Counsel