REL: 06/20/2014




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2013-2014
                            ____________________

                                    1130541
                             ____________________

                         Ex parte State of Alabama

                      PETITION FOR WRIT OF CERTIORARI
                     TO THE COURT OF CRIMINAL APPEALS

                          (In re: State of Alabama

                                           v.

                          Charles Marquis Simmons)

                     (Lowndes Circuit Court, CC-12-46;
                  Court of Criminal Appeals, CR-12-1393)



STUART, Justice.
1130541

       Charles   Marquis Simmons       was   convicted    of   a    Class   A

misdemeanor in the Lowndes District Court; he appealed the

conviction to the Lowndes Circuit Court for a trial de novo.

He was convicted in the circuit court and appealed the circuit

court's judgment to the Court of Criminal Appeals.                 The Court

of Criminal Appeals reversed the judgment and remanded the

case.     Simmons v. State, [Ms. CR-12-1393, November 8, 2013]

___ So. 3d ___ (Ala. Crim. App. 2013).           The State petitioned

this Court for certiorari review of the decision of the Court

of Criminal Appeals.     We reverse and remand.

                   Facts and Procedural History

       The mother of the victim filed a complaint, stating that

Simmons, a teacher, had had sexual contact with her daughter,

who at the time the sexual contact occurred was under 19 years

old.    Simmons was convicted in the district court for having

sexual contact with a student less than 19 years old, a

violation of § 13A-6-82, Ala. Code 1975.                 Simmons filed a

timely notice of appeal to the circuit court for a trial de

novo.     It is undisputed that the mother's complaint was not

included in the file forwarded to the circuit court by the

district court clerk.     An information, however, was filed in


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1130541

the circuit court by the district attorney after Simmons had

filed his notice of appeal for a trial de novo.

    Before the trial in the circuit court commenced, Simmons

moved to dismiss the case against him because, he said, the

original charging instrument from the district court, the

mother's complaint, was not being used to prosecute his case,

and he objected to being prosecuted on the information filed

by the district attorney subsequent to his conviction in the

district court.     The circuit court denied his motion, and the

trial proceeded.    Simmons was convicted in the circuit court

and appealed to the Court of Criminal Appeals.     The Court of

Criminal Appeals held that, "[i]n the absence of a proper

charging instrument, the circuit court could not exercise

jurisdiction over Simmons's appeal," ___ So. 3d at ___, and

that the circuit court's judgment was void and due to be set

aside, and it reversed the judgment and remanded the case.

                       Standard of Review

    "'"'This Court reviews pure questions of law in criminal

cases de novo.'"'     Ex parte Brown, 11 So. 3d 933, 935 (Ala.

2008) (quoting Ex parte Morrow, 915 So. 2d 539, 541 (Ala.

2004), quoting in turn Ex parte Key, 890 So. 2d 1056, 1059


                                3
1130541

(Ala. 2003))."          Hiler v. State, 44 So. 3d 543, 546 (Ala.

2009).

                                 Discussion

      The State contends that the decision of the Court of

Criminal Appeals that the circuit court could not exercise

jurisdiction over Simmons's appeal for a trial de novo because

the original charging instrument was not used to prosecute the

case conflicts with Ex parte Seymour, 946 So. 2d 536 (Ala.

2006), and Stegall v. State, 628 So. 2d 1006 (Ala. Crim. App.

1993).

      In   Ex   parte    Seymour,    this   Court   established   that   a

court's subject-matter jurisdiction is determined by "whether

the   trial     court    [has]   the   constitutional    and   statutory

authority to try the offense" with which a defendant has been

charged. 946 So. 2d at 538.            Section 12-11-30(3), Ala. Code

1975, provides:

      "The circuit court shall have appellate jurisdiction
      of ... criminal ... cases in district court ....
      Appeals to the circuit court shall be tried de novo,
      with or without a jury, as provided by law."

      In this case, Simmons was convicted in the district court

of a Class A misdemeanor.           He appealed his conviction to the

circuit court for a trial de novo.            In accordance with § 12-

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1130541

11-30(3), Ala. Code 1975, and Ex parte Seymour, the circuit

court had subject-matter jurisdiction over Simmons's case.

       The     decision     of     the       Court     of    Criminal    Appeals

acknowledges Ex parte Seymour and does not appear to dispute

the    fact     that      the    circuit       court        had   subject-matter

jurisdiction over Simmons's case; rather that court asserts

that    "the    filing    of     the   proper    charging         instrument   was

required for the jurisdiction belonging to the circuit court

to attach." ___ So. 3d at ___ (emphasis added).                         In other

words, according to the Court of Criminal Appeals, the circuit

court's jurisdiction in this particular case was not invoked

because the original charging instrument used in the district

court was not used in the circuit court to prosecute the case.

In support of its assertion, the Court of Criminal Appeals

cites State v. Thomas, 550 So. 2d 1067, 1072 (Ala. 1989).

       State v. Thomas, however, does not support the Court of

Criminal Appeals' decision that jurisdiction in the circuit

court did not "attach" in Simmons's case. In State v. Thomas,

this    Court     considered       whether       the    juvenile      court    had

jurisdiction over the mother of a child when no judicial

proceeding had been initiated against the child.                         In that


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1130541

case, the child had been arrested and released into the

mother's custody without being charged for any offense.                   When

the   mother   refused     to    bring     the    child    in   for    further

questioning by law-enforcement officers, the law-enforcement

officers moved the juvenile court for a pickup order for the

child.    The juvenile court issued the order.                        When the

officers executed the order, the mother informed them that she

did not know the child's whereabouts.              After being advised of

the mother's statement, the juvenile court issued a pickup

order for the mother, conducted a hearing, and ordered the

mother to produce the child.           When the mother did not appear

with the child as ordered, the juvenile court placed the

mother in jail for contempt of court for failing to comply

with the court's order to produce the child.                     This Court

recognized that the statutory authority applicable at that

time to establish the juvenile court's jurisdiction required

the filing of a petition with the intake officer alleging that

the child is delinquent, dependent, or in need of supervision,

and the juvenile court had to determine, after conducting a

preliminary     inquiry,        that   the       child    was   within     its

jurisdiction.    See former §§ 12-15-30 through -36, Ala. Code


                                       6
1130541

1975 (now repealed).           Because the statutory requirements to

establish the juvenile court's jurisdiction had not been

satisfied,      this   Court     held   in   State      v.   Thomas   that   the

juvenile court did not have jurisdiction over the child and,

consequently, did not have jurisdiction over the mother.

    The facts and circumstances in this case are clearly

distinguishable from those in State v. Thomas.                    In State v.

Thomas, no action had been initiated in the juvenile court

with regard to the child for the juvenile court's jurisdiction

to attach; therefore, the juvenile court could not exercise

its jurisdiction over the child's mother. Here, an action had

been initiated in the circuit court.                     After Simmons was

convicted in the district court, Simmons filed a notice of

appeal    for   a   trial   de    novo      in   the   circuit   court.      As

previously established, the circuit court has jurisdiction

over appeals from the district court.                  Thus, unlike State v.

Thomas, where no action was taken to commence a judicial

proceeding for the juvenile court's jurisdiction to attach,

Simmons's action of filing a notice of appeal of his district

court conviction in the circuit court for a trial de novo

satisfied the statutory requirements for the circuit court's


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1130541

jurisdiction and the circuit court's jurisdiction "attached"

to his case.

    Moreover, the decision of the Court of Criminal Appeals

that the circuit court could not exercise jurisdiction over

Simmons's appeal because of the absence of the original

charging instrument conflicts with Stegall v. State, 628 So.

2d 1006 (Ala. Crim. App. 1993).     In Stegall, the Court of

Criminal Appeals held that "[t]he filing of a solicitor's

complaint [from the district court] is not a jurisdictional

prerequisite to an appeal to the circuit court for a trial de

novo."    628 So. 2d at 1008.

    Furthermore, in Ex parte Young, 611 So. 2d 414, 415 (Ala.

1992), this Court stated:

    "[A] prosecuting attorney's complaint is not the
    mechanism that confers upon the circuit court
    jurisdiction to proceed with a de novo appeal. The
    complaint is a statutory right of the accused that
    can be waived. Young [v. City of Hokes Bluff], 611
    So. 2d [401,] 405 [(Ala. Crim. App. 1992)], Bowen,
    J., concurring and citing Moss v. State, 42 Ala. 546
    (1868). Certainly, if the right to a complaint can
    be waived, then it is not the mechanism that confers
    subject matter jurisdiction on the circuit court in
    a de novo appeal."

(Footnote omitted.)




                                8
1130541

    Accordingly, if the filing in the circuit court of the

original charging instrument by which the action was commenced

in the district court is not a jurisdictional prerequisite to

an appeal to the circuit court for a trial de novo, the filing

in the circuit court of the original charging instrument from

the district court cannot be a requirement for "jurisdiction

to attach" or to be exercised. Therefore, the decision of the

Court     of   Criminal   Appeals       that   the   circuit   court's

jurisdiction did not attach in this case conflicts with

Stegall.

    When Simmons filed his notice of appeal for a trial de

novo in the circuit court, the circuit court's jurisdiction

over his appeal for a trial de novo "attached," and the fact

that the case was not prosecuted using the original charging

instrument from the district court did not affect the circuit

court's jurisdiction.

                            Conclusion

    Based on the foregoing, the Court of Criminal Appeals

erred in holding that the circuit court could not exercise its

jurisdiction or that the circuit court's jurisdiction did not

attach because the charging instrument from the district court

was not used to prosecute Simmons's case in the circuit court.

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1130541

The judgment of the Court of Criminal Appeals is reversed, and

this case is remanded for proceedings consistent with this

opinion.

    REVERSED AND REMANDED.

    Bolin, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur.

    Stuart, J., concurs specially.

    Moore, C.J., and Parker, J., dissent.




                             10
1130541

STUART, Justice (concurring specially).

        As the main opinion recognizes, our caselaw provides

that the complaint does not confer jurisdiction upon the

circuit court to proceed with a de novo appeal from a district

court conviction, and a defendant can waive the right to a

complaint in a de novo appeal. ___ So. 3d at ___; Ex parte

Young, 611 So. 2d 414, 415 (Ala. 1992).                Therefore, the

absence of the district court's original charging instrument

in the circuit court's file of a de novo appeal cannot impact

the circuit court's jurisdiction over the appeal.            Applying

the law to the facts of this case, the majority properly

concludes that, "[w]hen Simmons filed his notice of appeal for

a trial de novo in the circuit court, the circuit court's

jurisdiction over his appeal for a trial de novo 'attached,'

and the fact that the case was not            prosecuted using the

original charging instrument from the        district court did not

affect the circuit court's jurisdiction." ___ So. 3d at ___.

       It is also important to recognize that the main opinion

does    not   address   whether   Simmons   properly   exercised   his

constitutional and statutory right and demanded a copy of the

original charging instrument and whether the circuit court

improperly denied his request or whether Simmons waived this

                                   11
1130541

right. This nonjurisdictional issue was not before this Court

and, if properly preserved and presented, remains for the

Court of Criminal Appeals to resolve.




                             12
1130541

MOORE, Chief Justice (dissenting).

     I respectfully dissent. I believe the Court of Criminal

Appeals properly held that in the absence of the original

charging instrument, as required by Rule 2.2(d), Ala. R. Crim.

P., and by Art. I, § 6, Ala. Const. 1901, the circuit court

could not exercise its jurisdiction over Charles Marquis

Simmons's appeal from the district court to the circuit court

for a trial de novo.

                         I. Discussion

     The controlling issue is whether the circuit court could

exercise jurisdiction over Simmons's appeal for a trial de

novo in the absence of the original charging instrument, as

required by Rule 2.2(d), Ala. R. Crim. P. The Court of

Criminal Appeals correctly concluded that the circuit court

could not exercise jurisdiction over Simmons's appeal. By

reversing the judgment of the Court of Criminal Appeals, the

majority opinion has in effect decided that a defendant may be

prosecuted in Alabama without an accusation as required by

law. The majority opinion completely neglects the requirements

of   the   Alabama   Rules   of    Criminal   Procedure   and   the

constitutional guarantees in Art. I, §§ 6 and 8, Ala. Const.

1901.

                                  13
1130541

A. The Alabama Rules of Criminal Procedure

      Rule 2.1, Ala. R. Crim. P., states that "[a]ll criminal

proceedings shall be commenced either by indictment or by

complaint." A complaint "serves the ... purpose of being the

accusatory instrument in most misdemeanor cases." Committee

Comments to Rule 2.3, Ala. R. Crim. P. The Committee Comments

to Rule 2.1 explain that, "[u]nder the Alabama Constitution of

1901,     criminal    actions     may     not     be   'commenced'   by   an

information, but under the very limited procedure provided in

Rule 2.2(e), infra, once an action is commenced by complaint,

the   defendant      may   be   proceeded       against   by   information."

Committee Comments to Rule 2.1, Ala. R. Crim. P. (emphasis

added). Rule 2.2(e), Ala. R. Crim. P., states:

           "At arraignment on an information following
      receipt of a defendant's written notice of his or
      her desire to plead guilty as charged or as a
      youthful    offender    upon   the    granting    of
      youthful-offender status, the court shall proceed as
      provided in Rule 14.4[, Ala. R. Crim. P., acceptance
      of guilty plea]. If the court does not accept the
      defendant's guilty plea or denies the defendant's
      application for youthful-offender status, the court
      shall proceed as provided by law."

Because Simmons did not give notice of a desire to plead

guilty as charged, Rule 2.2(e) does not apply. Accordingly,

Simmons cannot be prosecuted on an information.


                                     14
1130541

    Rule 30.5(a), Ala. R. Crim. P., states that, "[w]hen

appeal is taken to the circuit court for a trial de novo, the

trial shall be prosecuted as provided in Rule 2.2(d)," which

provides that an appeal from the district court to the circuit

court for trial de novo "shall be prosecuted in the circuit

court on the original charging instrument." The word "shall"

in both rules is mandatory.1 The majority opinion completely

ignores   the   mandatory   requirements   of   Rules   2.2(d)   and

30.5(a), which serve to protect the constitutional rights of

every Alabamian.

B. Alabama's Declaration of Rights

    "The use of an information is severely restricted in

Alabama." Committee Comments to Rule 13.1, Ala. R. Crim. P.

This originates in Art. I, §§ 6 and 8, Ala. Const. 1901.

Section 8 provides:

         "No person shall for any indictable offense be
    proceeded against criminally by information ...
    otherwise than is provided in the Constitution. In
    cases of misdemeanor, the Legislature may by law
    dispense   with   a   grand   jury  and   authorize



    1
     "'[T]he term "shall" is a word of command, and one which
has always or which must be given a compulsory meaning; as
denoting obligation.'" Ex parte Prudential Ins. Co. of Am.,
721 So. 2d 1135, 1138 (Ala. 1998) (quoting Black's Law
Dictionary 1375 (6th ed. 1990)).

                                15
1130541

      prosecutions and proceedings before any inferior
      courts as may be by law established."

(Emphasis added.) "The effect of [§ 8] and §§ 15-15-20 through

-26, [Ala. Code 1975,] is to limit the use of an information

in    Alabama    to   the   situation    where   a     defendant,    before

indictment, pleads guilty to a noncapital felony offense."

Committee Comments to Rule 13.1, Ala. R. Crim. P. Simmons was

not accused of a felony, and he cannot be prosecuted by

information in Alabama.

      Rule 2.2(d) helps to protect the constitutional rights of

the accused "in all criminal prosecutions" and gives Simmons

"a right to ... demand the nature and cause of the accusation;

and to have a copy thereof." Art. I, § 6, Ala. Const. 1901

(emphasis added). The Alabama Rules of Criminal Procedure must

be construed so as "to secure ... fairness in administration

...   and   to   protect    the   rights   of    the    individual   while

preserving the public welfare." Rule 1.2, Ala. R. Crim. P.

Rule 1.2 "carries with it the constitutional guarantee found

in Article I, § 6, Alabama Constitution of 1901, that no

person shall 'be deprived of life, liberty, or property,

except by due process of law.'" Committee Comments to Rule

1.2, Ala. R. Crim. P. The Court of Criminal Appeals correctly


                                    16
1130541

observed in this case that "an information is not a substitute

for a complaint or indictment." ___ So. 3d at ___. The

district   attorney's   information    is     not    "a   copy"    of   the

original complaint against Simmons and does not satisfy the

due-process guarantees in Art. I, § 6, Ala. Const. 1901.

      In Ex parte Seymour, 946 So. 2d 536 (Ala. 2006), this

Court correctly defined jurisdiction as "'[a] court's power to

decide a case or issue a decree,'" and as "a court's power to

decide certain types of cases," which "power is derived from

the Alabama Constitution and the Alabama Code." 946 So. 2d at

538   (quoting   Black's   Law   Dictionary    867    (8th   ed.    2004)

(emphasis added)). A court's constitutional power must be

exercised in conformity with the Constitution. Section 36 of

Art. I, Declaration of Rights, provides that "to guard against

any encroachments on the rights herein retained, we declare

that everything in this Declaration of Rights is excepted out

of the general powers of government, and shall forever remain

inviolate." Art. I, § 36, Ala. Const. 1901. "'Section 36

erects a firewall between the Declaration of Rights that

precedes it and the general powers of government, including

the authority to exercise judicial power, that follow it.'"

1568 Montgomery Highway, Inc. v. City of Hoover, 45 So. 3d

                                  17
1130541

319, 342 (Ala. 2010) (quoting Ex parte Cranman, 792 So. 2d

392, 401 (Ala. 2000) (emphasis added)). Section 36 forbids the

courts of Alabama from exercising judicial powers, i.e.,

jurisdiction,    so   as   to   violate   or   encroach   upon   the

fundamental rights retained by the people of Alabama in the

Declaration of Rights. Under the majority opinion's view of

Seymour,   the   circuit   court's    jurisdiction   overrides   the

Alabama Rules of Criminal Procedure and §§ 6 and 8 of the

Declaration of Rights. The majority opinion, in trying to

uphold the circuit court's jurisdiction in this case, denies

Simmons his constitutional and statutory right to demand a

copy of the accusation and so deprives Simmons of his liberty

without due process of law.

C. Problems with the Majority Opinion

    1. Ex parte Seymour Is Inapposite

    The majority quotes Seymour for the proposition that, in

deciding whether a claim properly challenges the trial court's

subject-matter jurisdiction, we ask only "'whether the trial

court [has] the constitutional and statutory authority to try

the offense' with which a defendant has been charged" and

states that, "[i]n accordance with        § 12-11-30(3), Ala. Code

1975, and Ex parte Seymour, the circuit court had subject-

                                 18
1130541

matter jurisdiction over Simmons's case." ___ So. 3d at ___

(quoting Seymour, 946 So. 2d at 538). The majority's holding

does       not   rely    on   Seymour's    principles    of   subject-matter

jurisdiction but on the majority's conclusion that the circuit

court's jurisdiction attached "[w]hen Simmons filed his notice

of appeal for a trial de novo in the circuit court." ___ So.

3d at ___. The fact that Simmons perfected his appeal is

irrelevant. This case is about whether the circuit court could

exercise its acknowledged jurisdiction in the absence of the

original charging instrument. Seymour offers no guidance on

this issue.

       The Court of Criminal Appeals correctly recognized that

its    decision         did   not   conflict   with     Seymour,   which   is

distinguishable on its facts and procedural history. ___ So.

3d at ___.2 In Seymour, this Court held that "a circuit court

has subject-matter jurisdiction over a felony prosecution,

even if that prosecution is based on a defective indictment."

Seymour, 946 So. 2d at 539. Seymour, however, did not hold


       2
     Judge Welch of the Court of Criminal Appeals has
recognized that Seymour has been applied too broadly. See
generally Patton v. State, 964 So. 2d 1247, 1251-54 (Ala.
Crim. App. 2007) (Welch, J., concurring in the result); and
Turner v. State, 51 So. 3d 394, 394-401 (Ala. Crim. App. 2010)
(unpublished memorandum) (Welch, J., dissenting).

                                          19
1130541

that    a    trial   court   could    pronounce   judgment     against   a

defendant in the absence of the original charging instrument

that is mandatory under Rule 2.2(d), Ala. R. Crim. P., and

Art. I, § 6, Ala. Const. 1901. Also, this Court held that

Seymour's claim was procedurally barred pursuant to Rule 32.2,

Ala. R. Crim. P., because Seymour did not raise his claim at

trial or on appeal. 946 So. 2d at 539. In contrast, Simmons

argued both at trial and on appeal that he could not be

convicted because the original charging instrument was not

filed in the circuit court. Seymour is inapposite to this case

and offers no support for the holding in the majority opinion.

       2. Thomas Does Not Support the Majority Opinion

       The   majority   opinion      recognizes   that   the   facts   and

procedural posture of State v. Thomas, 550 So. 2d 1067 (Ala.

1989), cited by the Court of Criminal Appeals to support its

holding, differ from the facts and procedural posture of this

case. The rationale of Thomas actually supports the Court of

Criminal Appeals' decision, and the procedural differences

between Thomas and this case are not dispositive. In Thomas,

this Court stated that, "even if a court has jurisdiction of

the person and of the crime, an accusation made in the manner

prescribed by law is a prerequisite to the court's power to

                                      20
1130541

exercise its jurisdiction." 550 So. 2d at 1070 (citing City of

Dothan v. Holloway, 501 So. 2d 1136, 1146 (Ala. 1986) (Beatty,

J., dissenting) (emphasis added)). In City of Dothan, Justice

Beatty explained that "'[a] person may not be punished for a

crime without a formal and sufficient accusation even if he

voluntarily submits to the jurisdiction of the court.'" City

of   Dothan,   501   So.   2d at   1146    (Beatty,   J.,   dissenting)

(quoting Albrecht v. United States, 273 U.S. 1, 8 (1927)).

Here, the circuit court had personal jurisdiction over Simmons

because Simmons voluntarily filed a notice of appeal, but it

pronounced judgment upon Simmons without "an accusation made

in the manner prescribed by law" and as required by the

rationale in Thomas.

     3. Stegall and Young Do Not Support the Majority Opinion

     The   majority    maintains    that    the   Court     of   Criminal

Appeals' decision conflicts with Stegall v. State, 628 So. 2d

1006, 1008 (Ala. Crim. App. 1993), in which the Court of

Criminal Appeals stated that "[t]he filing of a solicitor's

complaint is not a jurisdictional prerequisite to an appeal to

the circuit court for a trial de novo." The majority opinion

also cites Ex parte Young, 611 So. 2d 414 (Ala. 1992), in

which this Court stated:

                                   21
1130541

      "[A] prosecuting attorney's complaint is not the
      mechanism that confers upon the circuit court
      jurisdiction to proceed with a de novo appeal. The
      complaint is a statutory right of the accused that
      can be waived. ... Certainly, if the right to a
      complaint can be waived, then it is not the
      mechanism that confers subject matter jurisdiction
      on the circuit court in a de novo appeal."

611 So. 2d at 415 (paraphrasing Young v. City of Hokes Bluff,

611 So. 2d 401, 405 (Ala. Crim. App. 1992) (Bowen, J.,

concurring in the result and citing Moss v. State, 42 Ala. 546

(1868)) (emphasis added)).

      Stegall and Young cited a line of cases that originated

in Moss v. State, supra, which stand for the proposition that

           "'"[t]he 'complaint,' or written accusation,
      required by the section last above noticed, is not
      found in the record. There is no waiver of it. It
      was a right of the accused, in the circuit court, to
      have such a writing, and a proceeding without it, or
      a waiver of it, is erroneous."'"

Stegall, 628 So. 2d at 1007 (quoting Young, 611 So. 2d at 406

(Bowen, J., concurring in the result), quoting in turn Moss,

42 Ala. at 547, and summarizing Moss line of cases). Stegall

and Young recognize that the accused has a right to the

complaint. Simmons never waived the right to be prosecuted on

the   original   complaint   in   the   circuit   court   proceeding.

Moreover, Stegall and Young did not involve a prosecutor's

substituting an information for the original complaint, as

                                  22
1130541

occurred here. Stegall and Young support the Court of Criminal

Appeals' decision, not the majority opinion.

                         II. Conclusion

      I believe the holding reached in the majority opinion is

unwarranted under Alabama's Constitution, statutory law, and

precedent. The majority opinion violates Simmons's statutory

right to be prosecuted with the original charging instrument

and   his   constitutional    right    to   obtain    a   copy    of    the

accusation   against   him.   I   respectfully       dissent     from   the

majority's decision to reverse the judgment of the Court of

Criminal Appeals.




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