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Ex parte Leeds11/15/2002
ourt or the court from which the appeal is taken."
We have often stated that a circuit court may dismiss a de novo appeal when a defendant fails to appear when the case is called for trial. See Kim v. State, 770 So. 2d 1114 (Ala.Crim.App. 2000); Smelley v. State, 766 So. 2d 983 (Ala.Crim.App. 2000); Ex parte Swoope, 724 So. 2d 92 (Ala.Crim.App. 1998); Mayes v. State, 710 So. 2d 537 (Ala.Crim.App. 1997); McLemore v. State, 686 So. 2d 492 (Ala.Crim.App.), on remand, 686 So. 2d 494 (Ala.Crim.App. 1996); Knight v. City of Enterprise, 594 So. 2d 1302 (Ala.Crim.App.), on remand, 609 So. 2d 458 (Ala.Crim.App. 1992). We have also recognized that it is premature to dismiss a de novo appeal when the defendant fails to appear for a "plea date" and not a "trial date." As we stated in Maddox v. State, 668 So. 2d 162 (Ala.Crim.App. 1995):
"In Riddle [v. State, 641 So. 2d 1316 (Ala.Crim.App. 1994)], we held that the circuit court has authority to dismiss a de novo appeal based upon an appellant's failure to appear only when the case is called for trial and that the court's dismissing an appeal for an appellant's nonappearance at 'plea day' is 'unauthorized by either statute or rule.' Id. at 1318. Therefore, dismissal for failure to appear at 'plea day' is premature." 668 So. 2d at 163.
In Riddle v. State, 641 So. 2d 1316 (Ala.Crim.App. 1994), we stated:
"The plain wording of both § 12-14-70(f)[,Ala. Code 1975,] and Rule 30.5(b)[,Ala.R.Crim.P.,] supports the appellant's contention that the circuit court has authority to dismiss a de novo appeal only when the defendant fails to appear for trial. Section 12-14-70(f) provides, 'Upon failure of an appellant to appear in the circuit court when the case is called for trial, unless good cause for such default is shown, the court shall dismiss the appeal.' (Emphasis added in Riddle.)" 641 So. 2d at 1318.
We have approved dismissing a de novo appeal when the circuit court calls its trial docket and the defendant fails to respond because he is absent. See Knight v. City of Enterprise, supra.
A copy of the case action summary reflects, "Set this case for trial before Judge McCormick on October 16, 2000 at 9:00 a.m." The next entry states that on August 14, 2000, subpoenas were issued. The entry for October 16, 2000, states, "Defendant failing to appear, appeal is dismissed procedendo ordered."
At the hearing on the motion to reinstate the appeal, Barefield argued that there was no indication that this case would be tried that week because many other cases were also called. Barefield admitted at the hearing on the motion to reinstate the appeal that he knew that his case had been set for trial on October 16, 2002, but, he said, he was out of the county and thought that his attorney was going to request a continuance.
There is every indication in the documents filed with this Court that the case was not dismissed prematurely. The case action summary sheet indicates a specific trial date. It also indicates that subpoenas had been issued. Everything indicates that the case was in the posture for trial -- had the defendant and his attorney appeared for the trial docket call. Judge McCormick acted within his discretion when he dismissed the de novo appeal. See Rule 30.5(b), Ala.R.Crim.P.
However, Judge Lichtenstein acted outside of his jurisdiction by reinstating the de novo appeal 18 months after it had been dismissed. Rule 30.5, Ala.R.Crim.P., specifically states that a motion to reinstate a de novo appeal must be filed within 30 days of the date of dismissal. After this date, jurisdiction of the case reverts to the lower court for imposition of its sentence. As we stated in Ex
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