Ex parte David Eugene Files. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: David Eugene Files v. State of Alabama) (Walker Circuit Court: CC-02-289.63 Criminal Appeals: CR-2023-0062). ( 2024 )

Rel: June 14, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of
Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama
Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any
typographical or other errors, in order that corrections may be made before the opinion is printed in
Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2023-2024
_________________________
SC-2023-0816
_________________________
Ex parte David Eugene Files
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: David Eugene Files
v.
State of Alabama)
(Walker Circuit Court: CC-02-289.63;
Court of Criminal Appeals: CR-2023-0062)
SHAW, Justice.
David Eugene Files petitioned this Court for certiorari review of
the decision of the Court of Criminal Appeals affirming the Walker
SC-2023-0816
Circuit Court's dismissal of his petition seeking postconviction relief
pursuant to Rule 32, Ala. R. Crim. P. We granted the petition and now
affirm the judgment of the Court of Criminal Appeals.
Facts and Procedural History
In 2002, Files was indicted for the murder of Carlie Little. In
November 2002, the case was assigned to Judge James Brotherton.
Judge Brotherton became the presiding judge of the Walker Circuit
Court in 2004. In December 2005, Files filed a motion seeking Judge
Brotherton's recusal, alleging that a "heated disagreement" had
occurred between Judge Brotherton and Files's counsel. Judge
Brotherton granted the motion and appointed Judge Jimmy D. Wells of
the Walker District Court to preside over Files's case. See Rule 13(A),
Ala. R. Jud. Admin. ("A presiding circuit court judge, by order, may
assign a judge who is within the circuit to serve within the circuit
courts or within the district courts of the circuit."). In January 2006,
Files filed a motion seeking Judge Wells's recusal, which was granted.
Judge Brotherton then appointed Judge Larry Lapkovitch of the Walker
District Court to preside over the case.
2
SC-2023-0816
In 2006, Files was found guilty of murder, and Judge Lapkovitch
sentenced him to serve life in prison. Files's conviction and sentence
were affirmed, by an unpublished memorandum, on direct appeal. See
Files v. State, (No. CR-05-2389, Apr. 20, 2007) 9 So. 3d 580 (Ala. Crim.
App. 2007) (table). It appears undisputed that Files, at trial and on
direct appeal, did not challenge Judge Lapkovitch's assignment to
preside over his case.
In December 2021, Files filed a petition for postconviction relief
pursuant to Rule 32, Ala. R. Crim. P., his third such petition,
challenging his conviction and sentence. In his pleadings he argued,
among other things, that Judge Lapkovitch had been improperly
assigned to serve as his trial judge and, thus, that his murder
conviction was void. Specifically, he alleged:
"… It is well settled that once a judge recuses himself
from presiding over a case, he cannot appoint another judge
to preside in the case. Lawler Mfg. Co. v. Lawler, 306 So. 3d
23 (Ala. 2020); Ex parte Jim Walter Homes, Inc., 776 So. 2d
76 (Ala. 2000).
"… It is also well settled that a judgment entered by a
judge who was appointed by a judge who recused himself is a
judgment entered by a court without jurisdiction. Id."
3
SC-2023-0816
The State filed a response and a motion to dismiss the petition,
arguing, among other things, that Files's claim was barred under Rule
32.2(a)(3) and (5), Ala. R. Crim. P., because it could have been but was
not raised at trial or on appeal, and was barred as untimely under Rule
32.2(c), Ala. R. Crim. P. The State also argued that the appropriateness
of Judge Lapkovitch's appointment as the judge in Files's case did not
implicate the subject-matter jurisdiction of the court. After Files
submitted a reply, the Rule 32 petition was dismissed under Rule
32.7(d), Ala. R. Crim. P.1
Files appealed to the Court of Criminal Appeals, which affirmed
the judgment by an unpublished memorandum. See Files v. State (No.
CR-2023-0062, Sept. 15, 2023), ___ So. 3d ___ (Ala. Crim. App. 2023)
(table). Files's application for a rehearing was overruled, and he filed a
petition for a writ of certiorari with this Court. In his certiorari
1Rule 32.7(d) provides, in pertinent part:
"If the court determines that the petition is not sufficiently
specific, or is precluded, or fails to state a claim, or that no
material issue of fact or law exists which would entitle the
petitioner to relief under this rule and that no purpose would
be served by any further proceedings, the court may either
dismiss the petition or grant leave to file an amended
petition."
4
SC-2023-0816
petition, Files argued: "The decision of the Court of Criminal Appeals
conflicts with Lawler Mfg. Co. v. Lawler, 306 So. 3d 23 (Ala. 2020). In
that case, this Court held that a judge who had recused himself lacked
authority to appoint another judge, such that all orders entered by the
appointed judge were void." Petition at 3. This Court granted the
petition.
Standard of Review
Because this case presents a question of law, our review is de
novo. Ex parte Key, 890 So. 2d 1056, 1059 (Ala. 2003) ("This Court
reviews pure questions of law in criminal cases de novo."), and Ex parte
Collins, 363 So. 3d 73, 74 (Ala. 2021).
Discussion
In Ex parte Jim Walter Homes, Inc., 776 So. 2d 76, 78 (Ala. 2000),
the issue presented on appeal was "whether a trial judge, who has been
disqualified from presiding over a case by the Canons of Judicial Ethics,
can, pursuant to Rule 13, Ala. R. Jud. Admin., appoint his successor."
In that case, the trial judge, who was the presiding judge in that circuit
and had initially presided in two related actions, recused himself and,
pursuant to Rule 13, assigned the actions to another judge. Several
5
SC-2023-0816
parties moved for the successor judge to recuse himself, arguing that he
had been improperly assigned to those actions. That judge denied the
motion, and several parties then petitioned this Court for relief,
challenging the assignment and whether the successor judge's
subsequent actions were valid. Id. at 77-78.
This Court noted that Rule 13 gives a presiding circuit-court judge
the authority to temporarily assign circuit- or district-court judges to
serve in that circuit. Id. at 78. However, this Court stated:
"[I]n order to avoid the appearance of impropriety, we hold
that after a judge presiding in a particular case has been
disqualified from hearing that case, under the Canons of
Judicial Ethics, either voluntarily or by objection, he or she
can take no further action in that case, not even the action of
reassigning the case under Rule 13, Ala. R. Jud. Admin. For
such a judge to make the reassignment would be contrary to
Canon 3(C), because the impartiality of the reassignment
might reasonably be questioned."
Id. at 80. The Court further provided a detailed procedure describing
how a case should be assigned when the presiding judge has been
disqualified. Id.
In Lawler Manufacturing Co. v. Lawler, 306 So. 3d 23 (Ala. 2020),
this Court was presented with a similar issue. There, an action had
been initially assigned to the presiding judge of that circuit, Judge Chad
6
SC-2023-0816
E. Woodruff. Judge Woodruff entered an order recusing himself and a
separate order appointing a district-court judge, Judge Jeb Fannin, to
hear the action. 306 So. 3d at 24. Judge Fannin subsequently entered
an order requiring some of the parties to take certain actions while the
case was pending, and that order was appealed. Id.
On appeal, this Court considered whether the assignment of
Judge Fannin to hear the action was "valid and vested him with
jurisdiction to preside over" the case. 306 So. 3d at 24. This Court
noted both that Rule 13 authorizes the temporary assignment of circuit-
or district-court judges and that, under Ex parte Jim Walter Homes,
supra, a presiding judge who recuses himself pursuant to the Canons of
Judicial Ethics "does not have authority to appoint his successor." Id.
at 24. The Court thus held:
"In accordance with Ex parte Jim Walter Homes, when
Presiding Judge Woodruff disqualified himself from this
case, he no longer had authority to appoint his successor or
to enter the order appointing Judge Fannin. Therefore,
Presiding Judge Woodruff's appointment of Judge Fannin
was not a valid judicial appointment, and that order is
vacated. Ex parte K.R., 210 So. 3d [1106,] 1113 [(Ala. 2016)].
Additionally, because Judge Fannin never had jurisdiction
over this case, any orders entered by Judge Fannin are void.
Id."
Id. at 25 (footnote omitted; emphasis added).
7
SC-2023-0816
In this case, the State contends that the Lawler decision
overextended the rule set forth in Ex parte Jim Walter Homes. It
argues that although, under Ex parte Jim Walter Homes, a presiding
judge who is disqualified or has recused himself or herself from a case
errs in assigning another judge to hear it, that error -- contrary to the
holding in Lawler -- does not impact the court's subject-matter
jurisdiction. We agree.
Subject-matter jurisdiction, generally, and the jurisdiction of a
circuit court in a felony criminal prosecution, specifically, have been
defined as follows:
"Jurisdiction is '[a] court's power to decide a case or
issue a decree.' Black's Law Dictionary 867 (8th ed. 2004).
Subject-matter jurisdiction concerns a court's power to
decide certain types of cases. Woolf v. McGaugh, 175 Ala.
299, 303, 57 So. 754, 755 (1911) (' "By jurisdiction over the
subject-matter is meant the nature of the cause of action and
of the relief sought." ' (quoting Cooper v. Reynolds, 77 U.S.
(10 Wall.) 308, 316, 19 L. Ed. 931 (1870))). That power is
derived from the Alabama Constitution and the Alabama
Code. See United States v. Cotton, 535 U.S. 625, 630-31, 122
S. Ct. 1781, 152 L. Ed. 2d 860 (2002) (subject-matter
jurisdiction refers to a court's 'statutory or constitutional
power' to adjudicate a case). In deciding whether [a] claim
properly challenges the trial court's subject-matter
jurisdiction, we ask only whether the trial court had the
constitutional and statutory authority to try the offense with
which [the defendant] was charged and as to which he has
filed his petition for certiorari review.
8
SC-2023-0816
"Under the Alabama Constitution, a circuit court 'shall
exercise general jurisdiction in all cases except as may be
otherwise provided by law.' Amend. No. 328, § 6.04(b), Ala.
Const. 1901 [(now Ala. Const. 2022, art. VI, § 142(b))]. The
Alabama Code provides that '[t]he circuit court shall have
exclusive original jurisdiction of all felony prosecutions ....' §
12-11-30, Ala. Code 1975."
Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006).
It has been further noted that "[s]ubject-matter jurisdiction
generally lies with a court ... and not with a specific judge sitting on
that court." Ex parte Montgomery, 79 So. 3d 660, 668 n.4 (Ala. Civ.
App. 2011) (rejecting an argument that a circuit judge's orders were
void for lack of subject-matter jurisdiction because the judge had not
been formally assigned to that case). Moreover, this Court has held
that the assignment of a judge under Rule 13 does not impact the
jurisdiction of the court:
"Rule 13 of the Rules of Judicial Administration
authorizes a presiding circuit judge to temporarily assign a
circuit or district judge to serve in either a circuit or a
district court within the circuit. The rule finds its sanction in
the Constitution.
"[Amendment No. 328, § 6.11, Ala. Const. 1901 (now
Ala. Const. 2022, art. VI, § 150),] mandated that this court
'... make and promulgate rules governing the administration
of all courts ....' The only limitation upon those rules is that
they '... shall not abridge, enlarge or modify the substantive
9
SC-2023-0816
right of any party nor affect the jurisdiction of circuit and
district courts ....' or venue, or jury trial. The assignment by
the Presiding Judge of the Circuit Court of Mobile County of
District Judge Sweeney to preside over a felony trial is not
offensive to any of these limitations. The jurisdiction of
neither the Circuit nor the District Court of Mobile County is
affected by the temporary assignment of a judge from one to
the other. The jurisdiction of both courts remains the same,
as does the venue of causes in either. The substantive right
of no party has been affected by the temporary assignments
of Judge Sweeney."
State ex rel. Locke v. Sweeney, 349 So. 2d 1147, 1148 (Ala. 1977)
(emphasis added).
In this case, it is undisputed that Files was charged and convicted
of a felony, specifically, murder. The Walker Circuit Court thus had
subject-matter jurisdiction over the prosecution of that offense.
However, the issue is whether the assignment of Judge Lapkovitch by
Judge Brotherton, after having recused himself, in turn worked to deny
the Walker Circuit Court subject-matter jurisdiction.
It has long been the law in Alabama that the issue whether a
judge is disqualified from a case or must recuse himself or herself is an
issue that is subject to waiver. See, e.g., Dale v. Kolb, 61 So. 3d 251,
257 (Ala. 2010) (holding that a party's "dilatory" challenge to a judge's
failure to recuse himself "waived the issue of the judge's recusal" and
10
SC-2023-0816
would not be considered on appeal); Ross v. Luton, 456 So. 2d 249, 255
(Ala. 1984) ("The disqualification of a trial judge for interest or
prejudice may be waived if the parties proceed to trial without
objection."); Gross v. Gross, 265 Ala. 58, 59, 89 So. 2d 737, 738 (1956)
(refusing to consider on appeal an argument that the trial judge was
disqualified because "this matter was not raised in the trial of the cause
and we cannot consider it here"); and MacMahon v. Baumhauer, 234
Ala. 482, 487, 175 So. 299, 303 (1937) (holding that "the judgment of the
court" when the judge is disqualified "is not void, but at most irregular
and voidable on direct appeal, unless it appears of record that the
disqualification was waived"). It is well settled that "the absence of
subject-matter jurisdiction cannot be waived …." McElroy v. McElroy,
254 So. 3d 872, 875 (Ala. 2017). See also Ex parte Smith, 438 So. 2d
766, 768 (Ala. 1983) ("Lack of subject matter jurisdiction may not be
waived by the parties ...."). If a challenge to the actions of a judge who
is disqualified is subject to waiver, then the judge's disqualification has
not been considered as impacting the subject-matter jurisdiction of the
court.
11
SC-2023-0816
The Court in Ex parte Jim Walter Homes did not hold that the
erroneous assignment of the trial judge in that case impacted the
court's jurisdiction; in fact, it addressed the respondents' argument that
the challenge to the assignment had been waived by delay, ultimately
holding that no waiver had occurred because "the delay was mitigated
by several factors." 775 So. 2d at 78. It further addressed the
respondents' argument that prior decisions, including Ross v. Luton,
456 So. 2d 249 (Ala. 1984), and Edge v. Edge, 494 So. 2d 71 (Ala. Civ.
App. 1986), had upheld the assignment of judges under Rule 13 made
by presiding circuit-court judges after they had recused themselves.
The Court distinguished those cases, noting, among other things, that
the issue of the propriety of the assignments in those cases had been
waived. 776 So. 2d at 79 (noting that "the party in Ross asking for the
recusal of the second judge did not seek the recusal until after that
judge had entered several orders in the case," i.e., the party had waived
the issue, and that "[t]he Edge court deferred answering the question
that is now before us, because the complaining party was held to have
waived the objection by failing to raise the issue in the trial court").
12
SC-2023-0816
The Court in Ex parte Jim Walter Homes specifically held that the
petitioners in that case "did not waive the objection." Id. 2
In applying the rule set forth in Ex parte Jim Walter Homes --
that a disqualified judge has no authority to assign a successor and that
any order entered by the successor judge is due to be vacated -- the
Court in Lawler cited Ex parte K.R., 210 So. 3d 1106 (Ala. 2016), and
Bush v. State, 171 So. 3d 679 (Ala. Crim. App. 2014), for the proposition
that an improper assignment impacted the lower court's jurisdiction:
"In Ex parte K.R., 210 So. 3d 1106 (Ala. 2016), this Court
observed that, although the objection to the validity, in that
case, of the probate-court judge's appointment to preside
over the case was untimely, the objection placed the probate
court's jurisdiction at issue, and the Court notices
jurisdictional matters ex mero motu. 210 So. 3d at 1112,
citing Bush v. State, 171 So. 3d 679 (Ala. Crim. App. 2014)
(holding void any orders entered by a judge whose
appointment is not valid as being entered by a judge who
lacks authority to enter the orders)."
Lawler, 306 So. 3d at 24. However, those cases involve distinguishable
rationales for holding that the improper assignment of the successor
judges impacted the lower court's jurisdiction.
2The Court of Civil Appeals specifically has interpreted "the rule
announced" in Ex parte Jim Walter Homes as "not jurisdictional and
that objections based on it may be waived." Hornady Truck Lines, Inc.
v. Howard, 985 So. 2d 469, 476 (Ala. Civ. App. 2007). See also C.C.N. v.
R.E.S., 239 So. 3d 1164, 1168 (Ala. Civ. App. 2017).
13
SC-2023-0816
In Ex parte K.R., the petitioner challenged, among other things,
whether a temporary probate judge had been properly appointed. The
judge of the Mobile Probate Court, after initially participating in an
adoption action, recused himself and directed the probate-court clerk to
assign the action " 'to one of the temporary judges of probate appointed
by the Presiding Judge of the Circuit Court of Mobile County, Alabama
to serve in instances when I am unable to serve.' " 210 So. 3d at 1108.
The clerk appointed a temporary probate judge, but the presiding judge
of the Mobile Circuit Court did not.
On mandamus review, this Court noted that the appointment of
special probate-court judges was governed by § 12-1-14.1, Ala. Code
1975, and § 12-13-37, Ala. Code 1975, which vest the authority to make
such appointments in the presiding circuit-court judge or this Court,
respectively. Additionally, a local act gave the presiding judge of the
Mobile Circuit Court the authority to appoint a temporary probate
judge in Mobile County. Act No. 2007-454, Ala. Acts 2007. Finding no
authority to allow the probate-court clerk to appoint a temporary
probate judge, this Court held that the temporary probate-court judge
in that case "had no authority to enter the orders he entered, and any
14
SC-2023-0816
order entered by [him] is void." Ex parte K.R., 210 So. 3d at 1113. The
Court held that the issue "concern[ed] the probate court's jurisdiction"
and provided the following parenthetical citation for that point:
"Bush v. State, 171 So. 3d 679 (Ala. Crim. App. 2014)
(holding that the improper appointment of a judge to a case
deprived the court of jurisdiction to rule on any motions
pending before that judge; the orders entered by that judge
were entered without jurisdiction of the court and were,
thus, void)."
Ex parte K.R., 210 So. 3d at 1112.
In Bush, a criminal defendant sentenced as a habitual felony
offender sought a reconsideration of his sentence under former § 13A-5-
9.1, Ala. Code 1975, by filing a motion under the procedures set forth in
Kirby v. State, 899 So. 2d 968 (Ala. 2004). The motion was denied, and
the defendant appealed, arguing that the lower court lacked
jurisdiction. The Court of Criminal Appeals agreed, noting that, under
§ 13A-5-9.1, "only the sentencing judge, the presiding judge, or a circuit
judge appointed by the presiding judge of that circuit has jurisdiction to
review that motion." Bush, 171 So. 3d at 680. The judge considering
the motion in that case was not the sentencing judge or the presiding
judge, and there was no order appointing that judge to the case. Id.The Court of Criminal Appeals held: "Therefore, we must find that the
15
SC-2023-0816
circuit court's order denying [the] motion was void because that court
did not have jurisdiction to entertain the motion." Id. at 681.
Both Ex parte K.R. and Bush are legally distinguishable from this
case. Those cases, respectively, dealt with specific statutes governing
who may be appointed to fill a judicial vacancy or which judge may hear
a particular case. This statutory basis for holding that the lower courts
in those cases lacked jurisdiction is significant: the legislature has the
power to regulate a circuit court's subject-matter jurisdiction. Ala.
Const. 2022, art. VI, § 142(b). Neither case involved a judge's power to
appoint a replacement after his or her recusal or when he or she is
disqualified under the Canons of Judicial Ethics, which are rules
promulgated by this Court. Those rules do not regulate or impact a
court's jurisdiction, which is instead separately provided by "the
Alabama Constitution and the Alabama Code," Ex parte Seymour, 946
So. 2d at 538. Further, claims that a judge is disqualified under those
rules, as noted above, is subject to waiver and does not impact the
court's jurisdiction. The Lawler Court correctly held that the
assignment of a judge under Rule 13 by a presiding judge who had
recused himself was erroneous and due to be vacated, but such error
16
SC-2023-0816
does not impact the lower court's jurisdiction. To the extent that
Lawler held otherwise, it is overruled.
The appointment of Judge Lapkovitch did not impact the subject-
matter jurisdiction of the Walker Circuit Court in Files's murder case.
Therefore, the trial court properly dismissed Files's Rule 32 petition,
challenging on jurisdictional grounds the judgment entered by Judge
Lapkovitch convicting Files of murder and sentencing him to life in
prison, and the Court of Criminal Appeals did not err in affirming that
dismissal.
Conclusion
The decision of the Court of Criminal Appeals is affirmed.
AFFIRMED.
Parker, C.J., and Wise, Bryan, Sellers, Mendheim, Stewart,
Mitchell, and Cook, JJ., concur.
17