Simmons v. State

889 So. 2d 47, 2004 Ala. Crim. App. LEXIS 57, 2004 WL 595316

• Court: Court of Criminal Appeals of Alabama
• Decided: March 26, 2004
• Docket: CR-02-1630
• Status: Published

Opinion

SHAW, Judge.

Clarence Leland Simmons appeals the circuit court’s summary dismissal of his Rule 32, Ala.R.Crim.P., petition for post-conviction relief, in which he attacked his capital-murder conviction and sentence of death.

In 1997, Simmons was convicted of murder made capital because it was committed during sexual abuse, see § 13A-5-40(a)(8), Ala.Code 1975. The jury recommended that Simmons be sentenced to death for his conviction; the trial court accepted the jury’s recommendation and sentenced Simmons to death. Simmons’s conviction and sentence were affirmed on direct appeal, Simmons v. State, 797 So.2d 1134 (Ala.Crim.App.1999), aff'd, 797 So.2d 1186 (Ala.2001), and the United States Supreme Court denied certiorari review, Simmons v. Alabama, 534 U.S. 932, 122 S.Ct. 298, 151 L.Ed.2d 221 (2001). This Court issued a certificate of judgment on May 4, 2001.

Simmons, through counsel, filed his Rule 32 petition on September 13, 2002. On May 5, 2003, the State filed a motion to dismiss the petition, arguing that the petition was untimely pursuant to Rule 32.2(c), Ala.R.Crim.P., which was amended effective August 1, 2002, to provide for a one-year limitations period. On May 6, 2003, the circuit court granted the State’s motion and summarily dismissed the petition on the ground that it was time-barred by the newly amended Rule 32.2(c).

On appeal, Simmons raises only one issue: he argues that the circuit court erred in ruling that his petition was time-barred by Rule 32.2(c). In light of the Alabama Supreme Court’s recent decision in Ex parte Gardner, [Ms. 1030309, January 27, 2004] — So.2d -(Ala.2004), we agree.¹

In Ex parte Gardner, the Supreme Court clarified the application of the August 1, 2002, amendment to Rule 32.2(c), shortening the limitations period. The Court held that a petitioner whose “triggering date,” i.e., the date this Court issues a certificate of judgment or, in a case in which no appeal is taken, the date the time for filing an appeal lapses, whichever is applicable, occurred on or before July 31, 2001, has two years from the triggering date to timely file a Rule 32 petition.

In this case, Simmons’s triggering date was the date this Court issued the certificate of judgment, i.e., May 4, 2001. Pursuant to Ex parte Gardner, he was subject to the two-year limitations period, rather than the one-year limitations period and, thus, he had until May 4, 2003, to file his petition. As noted above, Simmons’s petition was filed on September 13, 2002. Therefore, it was timely, and the circuit court erred in ruling that it was not. See Hardy v. State, 887 So.2d 316 (Ala.Crim.App.2004).

Based on the foregoing, the judgment of the circuit court is reversed and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

1 . The State also agrees; after the Supreme Court issued its decision in Ex parte Gardner, the State filed a motion with this Court requesting that we remand the case for further proceedings.