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AlaFile E-Notice

38-CC-2016-001151.00
Judge: J. MICHAEL CONAWAY
To: YARBROUGH DEREK EVAN
motley@graceba.net

NOTICE OF ELECTRONIC FILING


IN THE CIRCUIT CRIMINAL COURT OF HOUSTON COUNTY, ALABAMA
CITY OF DOTHAN V. CORBIN ADAM TAYLOR
38-CC-2016-001151.00
The following matter was FILED on 8/24/2016 5:11:57 PM
C001 CITY OF DOTHAN
MOTION TO REMAND CASE
[Filer: HOLLIDAY SHANNON LYNN]
Notice Date:

8/24/2016 5:11:57 PM

CARLA H. WOODALL
CIRCUIT COURT CLERK
HOUSTON COUNTY, ALABAMA
P.O. DRAWER 6406
DOTHAN, AL, 36302
334-677-4859

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ELECTRONICALLY FILED
8/24/2016 5:11 PM
38-CC-2016-001151.00
CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA
CARLA H. WOODALL, CLERK

IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA


CITY OF DOTHAN,
PLAINTIFF,
V.
MITCHELL PRICE,
DEFENDANT.
CITY OF DOTHAN,
PLAINTIFF,
V.
ADAM TAYLOR CORBIN,
DEFENDANT.
CITY OF DOTHAN,
PLAINTIFF,
V.
ANTERRICA KEYANA DURR,
DEFENDANT.
CITY OF DOTHAN,
PLAINTIFF,
V.
ROY LEE MCCREE,
DEFENDANT.

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CASE NO.: CC-2016-404


CC-2016-405
CC-2016-406

CASE NO.: CC-2016-1151


CC-2016-1152

CASE NO.: CC 2016 - 431

CASE NO.: CC 2016 778

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BRIEF OF CITY OF DOTHAN REGARDING THIS COURTS JURISDICTION TO


HEAR THE ABOVE-STYLED APPEALS FROM DOTHAN MUNICIPAL COURT AND
RELATED MATTERS
COMES NOW the City of Dothan (hereinafter Dothan) and files this brief in response
to the motions challenging this Courts jurisdiction filed by Adam Taylor Corbin and Mitchell
Price in the above-styled cases in which they are defendants, and to further elaborate on the
relevant case law in connection with motions to remand filed by the City of Dothan in the abovestyled cases involving Mitchell Price, Anterrica Keyana Durr and Roy Lee McCree as ordered by
this Court.
I.

FACTUAL BACKGROUND
Defendants Price, Durr and McCree were tried and convicted in the above-styled actions

by Judge Christopher Capps. In the appeals of Defendants Price, Durr and McCree, the City of
Dothan filed motions to remand upon learning that Judge Capps, the judge who heard the
Defendants cases, was not properly appointed pursuant to Ala. Code 12-14-34 and City of
Dothan Code of Ordinance 30-35(c) (derived from 12-14-34). In these Defendants cases,
Judge Capps was appointed to cover for the full-time Municipal Court judge; however, he was
appointed by the City Manager and not the Mayor as required in 12-14-34.
Defendant Price has filed various documents in response to Dothans motion to remand
his case. The issues raised in those documents are addressed below.
Defendant Corbin was tried and convicted in the above-styled actions by Judge Michael
Brown. Defendant Corbin has filed a motion to dismiss his appeal, and he contends that his
convictions are void because Judge Brown was not properly appointed to hear his case as required
by Ala. Code 12-14-34.
Dothan does not contest that, in the above-styled cases, the Judges were not appointed by
the Mayor as dictated by Ala. Code 12-14-34. As noted below, Judge Brown had been validly
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appointed at a prior time to a part-time judgeship with the City of Dothan and, therefore, the facts
relevant to his appointment are different. Due to Judge Browns prior valid appointment, Dothan
did not seek dismissal of Defendant Corbins appeal.
Since filing its motions to remand, 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 these appeals.
Whether this Court has jurisdiction over these appeals must be determined by the Court itself.
While Dothan previously cited case law in its motions 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 convictions here do not appear to be void notwithstanding
the faulty appointment of the judges 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 appeals in the above-styled cases.
II.

RELATED CASES
Prior to the motions filed in these cases, 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) and Defendant Amos
Newsome (Case No. CC-2016-001133) in which Judge Carl Chamblee presided. Judge Chamblee
was also appointed by the City Manager rather than by the Mayor. See Ala. Code 12-14-34.
Those motions were 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 Brown are pending on appeal to this Court. The Courts rulings in this
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case as to its own jurisdiction will give Dothan direction as to how to handle those additional cases
and the Stokes matter. A separate brief will be submitted contemporaneously as to Defendant
Newsome.
III.

LAW ON RULINGS MADE BY DE FACTO JUDGES


It is important to note here that Defendants Durr, McCree, and Price did not raise the issue

of Judge Capps appointment before the Municipal Court nor did Defendant Corbin raise the issue
of Judge Browns 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 each of the above-styled
actions, Alabama law renders the judge a de facto official and further renders his actions valid and
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binding. See also Benjamin, supra (quoting and relying on Ala. Code 36-1-2, Alabamas de facto
official statute).
IV.

PRIOR APPOINTMENT OF JUDGE BROWN


It should also be pointed out for this Courts further consideration that the Judge in

Defendant Corbins case, unlike other fill-in or acting judges for the Dothan Municipal Court, had
been validly appointed by the City of Dothan prior to his appointment to hear the docket on which
Mr. Corbin appeared before him. The Court need not reach this issue, however, if the Court rules
that orders entered by judges acting in a de facto capacity are not void where there is no objection
to their jurisdiction prior to conviction and sentencing under the holding of Gwin and Benjamin.
Judge Michael Brown was validly appointed in 1986 as part-time judge for the City of
Dothan as established by Exhibit 1-A, hereto, which is a true and correct copy of Resolution 8540
appointing Judge Brown. Judge Brown was, in 1989, appointed to serve as part-time presiding
judge of the Dothan Municipal Court when a second part-time judge was appointed by Dothan.
See Exh. 1-B (a true and correct copy of the resolution appointing Brown presiding judge).
As this Court is aware, Judge Rose Evans-Gordon (Judge Gordon) now serves as full-time
municipal court judge for the City of Dothan, but she did not succeed Brown in office as part-time
municipal court judge. Exhibit 1-C, hereto, is a true and correct copy of the resolution making
Judge Gordons appointment. In other words, Judge Gordon has taken the role of presiding judge
but she has not replaced Judge Brown pursuant to any formal document in his role as part-time
judge.
The Alabama Code provides that a part-time municipal court judges term is two-years,
but the Code further provides that the appointment continues until a successor is appointed and
qualified:

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(b) The term of office of each full-time municipal judge shall be for a term of four
years. The term of office of a municipal judge other than a full-time municipal judge
shall be two years. The term of either full-time or part-time municipal judges shall
continue until a successor has been appointed and qualified.
Ala. Code 12-14-30 (emphasis added).
To date, no successor has been named as part-time judge for the City of Dothan. See Exh.
1 (Affidavit of Tonja Minnifield). It is not unprecedented for part-time municipal court judges to
continue in their positions without reappointment. 1
Unlike the second part-time judge appointed in 1989 in Exh. 1-B who has not continued to
serve as a sitting judge in Dothan, Judge Brown continued to serve as a Municipal Court Judge in
Dothan as needed after Judge Gordons appointment. See Exh. 1, Affidavit of Tonja Minnifield.
Since the appointment of Judge Gordon, Judge Brown by arrangement with the City, has not been
paid a salary but receives remuneration on a per-docket basis. See Exh. 1, Affidavit of Tonja
Minnifield. As a matter of practice, paperwork has been filed indicating that Judge Brown was
appointed as a special judge pursuant to Ala. Code 12-14-34 each time that he held court after
Judge Gordons appointment. However, this does not necessarily render his prior appointment as
part-time judge irrelevant to the jurisdictional question before this Court.
The City of Dothan presents this history so that the Court may consider whether the initial
uncontestably valid appointment of Judge Brown as part-time municipal court judge renders moot

In City of Prichard v. Smith, 477 So. 2d 375, 376 (Ala. 1985), two part-time judges had served
from 1976 until 1984 without being reappointed. The Court made it clear that the two judges
retained their positions until the City Council reappoint[ed] them to another two-year term or
appoint[ed] other judges to their positions. In that case, the issue was whether the two-year terms
automatically renewed, and the Court answered that question in the negative, concluding instead
that once the initial two-year term expired, the judges held the positions until successors to their
positions were named. Id. In City of Prichard, the City Council, by formal resolution, appointed
attorneys Jerry Pilgrim and Janice Spears to fill the appellees' positions as part-time municipal
judges. Id. In other words, the appointing resolution in the case ended the plaintiffs terms as
part-time judges, because the resolution placed other parties in the specific positions held by the
sitting part-time judges.
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the issue of the validity of his appointment under Ala. Code 12-14-34.

Dothan would ask this

Court to rule on this issue as to Defendant Corbin (the one Defendant at issue in this brief tried
before Judge Brown), if this Court rules that the case law cited above relative to de facto judges
does not resolve the jurisdictional matter before the Court.
V.

THE CITYS RESPONSE TO DEFENDANT PRICES ARGUMENTS RELATIVE


TO REMAND
Defendant Price has raised several arguments in connection with the motion to remand his

case which Dothan will address here. First, he contends that Dothan does not have standing to
dismiss his appeal. Dothan responds by pointing out that the Court has the ability and duty to
consider its subject matter jurisdiction sua sponte, and Dothan could certainly alert the Court to a
potential problem with its subject matter jurisdiction at any point in the proceeding.
Next Defendant Price argues that double jeopardy has attached and he cannot therefore be
retried. However, as Dothan has pointed out, if the underlying conviction and sentence are void,
retrial is permitted and jeopardy does not attach. 2
Finally, Price argues that this Court can only dismiss the appeal and cannot make any
further orders in this matter. However, the appellate courts in this state very 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

"[l]f a court is without jurisdiction, there can be no valid conviction; hence there is no jeopardy."
Ex parte Cole, 842 So. 2d 605, 609 (Ala. 2002) (reversal on other grounds recognized by Taylor
v. State, 953 So. 2d 429, 430 (Ala. Crim. App. 2006)). "It is essential to constitute jeopardy that
the court in which the accused is put upon his trial shall have jurisdiction. If it is without
jurisdiction, there can be no valid conviction, and hence there is no jeopardy." Benjamin F. Cox v.
State, 585 So. 2d 182, 192 (Ala. Crim. App. 1991), (quoting Anthony G. Cox v. State, 462 So. 2d
1047, 1051 (Ala. Crim. App. 1985)).
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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 in the event that it concludes that the underlying
sentences and convictions are void.
CONCLUSION
The City of Dothan would ask this Court to determine its subject matter jurisdiction over
the appeals in the above-styled cases and rule accordingly either by retaining jurisdiction over the
appeals or dismissing the appeals and remanding them to the Dothan Municipal Court for retrial.
Submitted this the 24th day of August, 2016.

s/F. Lenton White


F. Lenton White (ASB-8223-E68F)
Joe E. Herring, Jr. (ASB-7734-E58J)
City of Dothan
Post Office Box 2128
Dothan, AL 36302
Telephone: 334-615-3130
Facsimile: 334-615-3139
Lwhite@dothan.org
jeherring@dothan.org
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:
Derek E. Yarbrough
Motley, Motley & Yarbrough, LLC
117 East Main Street
Dothan, AL 36301

s/Shannon L. Holliday
Of Counsel

EXHIBIT 1

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ELECTRONICALLY FILED
8/24/2016 5:11 PM
38-CC-2016-001151.00
CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA
CARLA H. WOODALL, CLERK

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EXHIBIT 1-A

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EXHIBIT 1-B

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EXHIBIT 1-C

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