Opinion
No. 1041332.
Decided August 19, 2005.
Appeal from the Montgomery Circuit Court, CC-88-1237.60; Court of Criminal Appeals, CR-01-1748, William A. Shashy, Judge.
Petition for Writ of Certiorari to the Court of Criminal Appeals.
William R. Blanchard, Montgomery; and Stuart W. Gold of Cravath, Swaine Moore, LLP, New York, New York, for Petitioner.
Troy King, Atty. Gen., and Cheryl Ann Schuetze, Asst. Atty. Gen., for Respondent.
On Rehearing Ex Mero Motu
The opinion of August 19, 2005, is withdrawn, and the following is substituted therefor.
In Ex parte Pierce, 576 So.2d 258 (Ala. 1991), this Court was presented with the following question: "Should this Court grant a petition for certiorari to review a decision of the Court of Criminal Appeals that affirmed the petitioner's conviction but also remanded the cause to the trial court for a new sentencing hearing?" 576 So.2d at 258. The Court answered that question as follows:
"When the Court of Criminal Appeals remands a case for some action to be performed by the trial court, as it has in this case, it retains jurisdiction of the case. . . .
". . . .
"The Court of Criminal Appeals has not yet affirmed the petitioner's sentence of death, and there remains an issue concerning that sentence. The petition for the writ of certiorari, therefore, is premature and is due to be denied."
576 So.2d at 259. See also Ex parte Charest, 854 So.2d 1101 (Ala. 2002), in which this Court denied a petition for the writ of certiorari because it had been filed prematurely, i.e., before the Court of Criminal Appeals had made a final decision in the case, which it had remanded to the trial court to allow the State to respond to the merits of certain Rule 32, Ala. R. Crim. P., claims raised by the petitioner and the trial court had not yet filed its return to remand.
In this case, in reviewing a Rule 32 petition filed by Harris, the Court of Criminal Appeals affirmed Harris's conviction but remanded the cause for the trial court to conduct a new sentencing hearing. Both Harris and the State petitioned for a writ of certiorari. It appeared initially that these petitions were premature because the Court of Criminal Appeals had ordered a new sentencing hearing in the case; however, this case is distinguishable from Pierce. Here, the Court of Criminal Appeals did not order a return to its remand order, and that court, therefore, did not retain jurisdiction over the case. Therefore, the judgment of the Court of Criminal Appeals in this case is a final decision from which a petition for a writ of certiorari is proper.
In order to clarify for the State and the criminal defense bar what constitutes a final decision of the Court of Criminal Appeals from which a petition for a writ of certiorari can be filed in this Court pursuant to Rule 39, Ala. R. App. P., we hold that when the Court of Criminal Appeals remands a case, unless the Court of Criminal Appeals has expressly directed a return to its remand order, we will treat its decision as final and a petition for a writ of certiorari will lie as to both the State and the defendant. To the extent that Ex parte Pierce holds otherwise, it is hereby overruled. In so holding, we expressly do not abrogate the exception to the final-decision requirement in those cases in which the Court of Criminal Appeals has "set out a holding that [is] applicable to all cases as a matter of legal principle." McCoo v. State, [Ms. 1031852, April 29, 2005] ___ So.2d ___, ___ (Ala. 2005); see Bishop v. State, 608 So.2d 345 (Ala. 1992).
Turning to the merits of Harris's petition for the writ of certiorari, we have examined the grounds raised by Harris, and we grant the petition as to Harris's claim regarding a violation of Batson v. Kentucky, 476 U.S. 79 (1986); her claim that her trial counsel failed to maintain continuity in representation; and her claim that several of her ineffective-assistance-of-counsel arguments were not precluded by findings of no plain error on direct appeal.
OPINION OF AUGUST 19, 2005, WITHDRAWN; OPINION SUBSTITUTED; WRIT GRANTED AS TO SPECIFIED ISSUES.
Nabers, C.J., and See, Harwood, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur.