Dwight Deramus v. Alabama Board of Pardons and Paroles.

84 So. 3d 163, 2011 WL 4790627, 2011 Ala. Crim. App. LEXIS 79
CourtCourt of Criminal Appeals of Alabama
DecidedOctober 7, 2011
DocketCR-09-1624
StatusPublished

This text of 84 So. 3d 163 (Dwight Deramus v. Alabama Board of Pardons and Paroles.) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dwight Deramus v. Alabama Board of Pardons and Paroles., 84 So. 3d 163, 2011 WL 4790627, 2011 Ala. Crim. App. LEXIS 79 (Ala. Ct. App. 2011).

Opinion

BURKE, Judge.

Dwight Deramus appeals the Montgomery Circuit Court’s dismissal of his petition for a writ of certiorari in which he sought the reinstatement of his parole after it was revoked by the Alabama Board of Pardons and Paroles (“the Board”).

On April 17, 1996, Deramus was sentenced to 2 concurrent terms of 20 years in prison for 2 drug offenses. Deramus was granted parole in May 2006. One condition of Deramus’s parole was that he “shall not violate any law.” (C. 40.) On December 6, 2006, Deramus’s parole officer reported that Deramus had violated that condition because, on November 30, 2006, he was arrested and charged with trafficking in marijuana. On December 18, 2006, the Board held a hearing concerning Dera-mus’s alleged parole violation, but the hearing was terminated and reset so that the parole officer could supplement his report concerning an additional charge. On December 20, 2006, the parole officer supplemented his report to add a parole violation based on a second charge against Deramus for trafficking in marijuana. On December 27, 2006, the Board held another hearing, and the hearing officer found that there was insufficient evidence to support the parole-violation charges. Thus, at this time, the Board did not revoke Dera-mus’s parole.

On February 9, 2009, Deramus was again charged with violating the condition of his parole that required him not to “violate any law.” (C. 62.) The parole-violation charge stated that Deramus had been arrested on November 30, 2006, and had been charged with trafficking in marijuana and that, on December 1, 2008, he had pleaded guilty to two counts of first-degree possession of marijuana. On March 16, 2009, at the hearing concerning this parole-violation charge, a certified copy of Deramus’s guilty-plea conviction was pre[165]*165sented to the hearing officer. The hearing officer found that Deramus was guilty of the parole-violation charge, and the hearing officer recommended that Deramus’s parole be revoked. Based on that recommendation, the Board, on March 17, 2009, revoked Deramus’s parole.

On April 24, 2009, Deramus filed a petition for a writ of certiorari in the Montgomery Circuit Court, asking the court to “enter a judgment finding that the revocation of [his] parole on March 17, 2009, was barred by the Double Jeopardy clause of the U.S. Constitution, as well as the doctrines of res judicata and collateral estoppel, and [to] order [his] parole reinstated.” (C. 5-7.) In response, the Board filed an “answer and motion for summary judgment,” arguing that neither double-jeopardy principles nor the doctrines of res judicata or collateral estoppel barred the revocation of Deramus’s parole, and the Board asked the circuit court to dismiss Deramus’s petition. (C. 13-37.) Deramus then filed a motion entitled “Plaintiffs Statement in Opposition to Defendant’s Motion for Summary Judgment.” (C. 82.)

The circuit court held a hearing on the parties’ motions on December 15, 2009. Proposed orders were submitted to the circuit court by the parties on December 16, 2009, and on December 17, 2009. On January 8, 2010, at 3:36:55 p.m., the circuit court issued an order that entered a summary judgment in favor of the Board and dismissed with prejudice Deramus’s petition for a writ of certiorari. However, approximately 10 minutes later, at 3:47:10 p.m., the circuit court issued another order that held that the Board’s revocation of Deramus’s parole was barred by the doctrines of res judicata and collateral estop-pel. That order purported to vacate the revocation of Deramus’s parole and stated that “Deramus is to be immediately reinstated on parole.” (C. 98.) Both orders were electronically signed by the circuit judge. The second order was attached to a notice that was entitled “Notice of Court Action.” (C. 114.) That notice stated that it concerned Deramus’s motion in opposition to the Board’s motion for a summary judgment and that the disposition of Dera-mus’s motion was “no action.” (C. 114.) On January 11, 2010, entries were made in the case-action summary reflecting that the case had been disposed of by a summary judgment on January 8, 2010, and that Deramus’s petition had been dismissed with prejudice.

On February 23, 2010, Deramus filed a petition for a writ of habeas corpus in the Elmore Circuit Court, asking that court to release him from continued incarceration based on the order from the Montgomery Circuit Court that purported to vacate the revocation of his parole.

On March 15, 2010, the Board filed a motion in the Montgomery Circuit Court requesting that the court correct the record under Rule 60(a), Ala. R. Civ. P., to accurately reflect that a summary judgment had been entered in favor of the Board. On that same day, Deramus filed an opposition to the Board’s Rule 60(a) motion. Also, on the same day, the circuit court entered an order, which stated:

“The Board’s motion for relief from order pursuant to Rule 60, Ala. R. Civ. P., is hereby granted.
“The Court hereby orders that the record accurately reflect that summary judgment was entered in favor of the Alabama Board of Pardons and Paroles on January 8, 2010. The above action is hereby dismissed, with prejudice.
“Deramus’ motion in opposition ... is hereby denied.”

[166]*166(C. 131.)1

On April 13, 2010, Deramus filed a motion to alter, amend, or vacate the judgment under Rule 59, Ala. R. Civ. P. That motion incorporated by reference the arguments that were set forth earlier in Deramus’s opposition to the Board’s Rule 60 motion, and it alleged that the circuit court was without jurisdiction to enter its March 15, 2010 order under Rule 60. Alternatively, Deramus asserted that the circuit court’s entry of a summary judgment in favor of the Board was in error, and he repeated his arguments concerning the doctrines of res judicata and collateral es-toppel. The circuit court did not take any action on Deramus’s Rule 59 motion.

On July 26, 2010, Deramus filed a notice of appeal to this Court.

In his principal brief on appeal, Dera-mus’s only contention is that “the second parole revocation proceeding initiated on February 9, 2009, which was premised on the identical facts/events as the parole revocation proceeding initiated on December 6, 2006, which resulted in a finding of insufficient evidence to revoke Deramus’ parole, was barred by the doctrines of res judicata and collateral estoppel.” Dera-mus’s brief, at 10. The Board responds that Deramus’s appeal of that issue is untimely and, thus, that this Court lacks subject-matter jurisdiction to consider the appeal. We agree with the Board.

As the Court of Civil Appeals has held:

“Subject to certain exceptions that are not applicable here, Rule 4(a)(1), Ala. R.App. P., requires that the notice of appeal be filed within 42 days of the entry of the challenged judgment. Rule 4(a)(3), Ala. R.App. P., provides that the filing of a postjudgment motion made pursuant to Rule 59 may toll the running of the time for filing a notice of appeal until (1) the motion is ruled upon by the court, or (2) the date the motion has been denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. ... ‘ “[T]he timely filing of a notice of appeal is a jurisdictional act.” ’ Allen v. Independent Fire Ins. Co., 743 So.2d 490, 492 (Ala.Civ.App.1999) (quoting Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985))....

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Related

Allen v. Independent Fire Insurance Co.
743 So. 2d 490 (Court of Civil Appeals of Alabama, 1999)
Rudd v. Rudd
467 So. 2d 964 (Court of Civil Appeals of Alabama, 1985)
Landers v. Landers
812 So. 2d 1212 (Court of Civil Appeals of Alabama, 2001)
Woods v. State
845 So. 2d 843 (Court of Criminal Appeals of Alabama, 2002)
Brown v. Brown
808 So. 2d 40 (Court of Civil Appeals of Alabama, 2001)
Hargrove v. Hargrove
65 So. 3d 950 (Court of Civil Appeals of Alabama, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
84 So. 3d 163, 2011 WL 4790627, 2011 Ala. Crim. App. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dwight-deramus-v-alabama-board-of-pardons-and-paroles-alacrimapp-2011.