Terry Joe Teague v. State of Alabama (2026)

ORDER

Terry Joe Teague appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his 2021 guilty-plea conviction and sentence for identity theft. Teague did not appeal his conviction and sentence. Teague filed his petition on March 6, 2025, raising four claims. Without receiving a response from the State, the circuit court summarily dismissed Teague's petition on March 11, 2025, finding his claims to be meritless and precluded as successive.

On appeal, Teague pursues only two of the claims he raised in his petition. Those claims he does not pursue on appeal are deemed abandoned and will not be considered by this Court. See, e.g., Ferguson v. State, 13 So. 3d 418, 436 (Ala. Crim. App. 2008) (“[C]laims presented in a Rule 32 petition but not argued in brief are deemed abandoned.”); and Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995) (“We will not review issues not listed and argued in brief.”).

Teague first argues that his 20-year sentence constitutes cruel and unusual punishment. Because this claim is a constitutional challenge to his sentence, it is subject to preclusion. See, e.g., White v. State, 343 So. 3d 1150, 1190-91 (Ala. Crim. App. 2019) (holding that a claim that the sentence imposed constituted cruel and unusual punishment is subject to the preclusions in Rule 32.2, Ala. R. Crim. P.). Specifically, this claim is, as the circuit court found, precluded as successive by Rule 32.2(b).

Teague also argues that his sentence was illegally split. Teague alleged in his petition that he had been sentenced to 20 years’ imprisonment and that the trial court had split the sentence to time served, which he said was 255 days that he had spent in jail before his plea, and 5 years’ probation. The confinement portion of his sentence, Teague alleged, was illegal under the version of § 15-18-8, Ala. Code 1975, in effect at the time of the crime for a Class B felony offense. See § 13A-8-192(b), Ala. Code 1975 (stating that identity theft is a Class B felony). At the time of Teague's crime, § 15-18-8 provided, in relevant part:

“(a) When a defendant is convicted of an offense, other than a sex offense involving a child as defined in Section 15-20A-4(26) [Ala. Code 1975], that constitutes a Class A or Class B felony offense, and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:

“․

“(2) That a defendant convicted of a Class A, Class B, or Class C felony with an imposed sentence of greater than 15 years but not more than 20 years be confined in a prison, jail-type institution, or treatment institution for a period of three to five years for Class A or Class B felony convictions and for a period of three years for Class C felony convictions, during which the offender shall not be eligible for parole or release because of deduction from sentence for good behavior under the Alabama Correctional Incentive Time Act, and that the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for the period upon the terms as the court deems best.”

(Emphasis added.)

This claim is jurisdictional and, therefore, not subject to preclusion. See, e.g., Ex parte McGowan, 346 So. 2d 10, 13 (Ala. 2021) (“This Court has routinely held that the imposition of a sentence in a criminal case that is not authorized by statute creates a jurisdictional defect that is nonwaivable and that can be raised at any time.”). We note that, in its order, the circuit court found this claim to be meritless on the ground that complying with § 15-18-8(a)(2) was optional and “not mandatory.” (C. 14.) Although the decision whether to impose a split sentence for a Class B felony is, in fact, discretionary with the sentencing court, contrary to the circuit court's belief, once a sentencing court chooses to impose a split sentence, that sentence must comply with the provisions in § 15-18-8. See Spencer v. State, 397 So. 3d 985, 987 (Ala. Crim. App. 2024).

Teague's claim is sufficiently pleaded in accordance with Rule 32.3 and Rule 32.6(b), Ala. R. Crim. P., and the claim was not refuted by the State. See McCary v. State, 93 So. 3d 1002, 1008 (Ala. Crim. App. 2011) (“Unrefuted allegations in a postconviction petition must be accepted as true.”). Moreover, if Teague's factual allegations in his petition are true, i.e., that he received a 20-year sentence that was split to serve only 255 days in confinement and not the 3 to 5 years’ confinement required by § 15-18-8(a)(2), Teague would be entitled to relief. Because Teague's claim regarding the legality of his split sentence is jurisdictional, is not precluded, is sufficiently pleaded, and is meritorious on its face and unrefuted by the State, he is entitled to an opportunity to prove his claim. See, e.g., Ford v. State, 831 So. 2d 641, 644 (Ala. Crim. App. 2011) (“Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala. R. Crim. P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”).

Accordingly, the Court of Criminal Appeals ORDERS that this cause be, and the same is hereby, REMANDED for the circuit court to allow Teague an opportunity to present evidence to prove his claim that his split sentence was illegal. The court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R. Crim. P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Teague's claim, and it may grant appropriate relief if necessary. Due return shall be filed within 63 days of the date of this order, and shall include the circuit court's written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received and/or relied on by the court in making its findings.

REMANDED WITH INSTRUCTIONS.

I concur in the Court's judgment remanding this case to the Morgan Circuit Court for that court to allow Terry Joe Teague a chance to prove his claim that his split sentence is illegal.¹ I write separately to address the dissenting opinion, which asserts four main points: (1) that, on remand Teague will have “only a hollow opportunity” to present his claim, ___ So. 3d at ___; (2) that this Court's remand order “would interfere with the State's ability to appeal any grant of postconviction relief that might occur on remand,” ___ So. 3d at ___; (3) that this Court's decision conflicts with Anderson v. State, 796 So. 2d 1151 (Ala. Crim. App. 2000); and (4) that this Court has no authority to remand part of a case to the circuit court unless we first reverse or vacate the lower court's judgment.

I address the last point first. The dissenting opinion asserts:

“Because the circuit court's order is a final judgment, the only way Teague can properly be placed into a position to further pursue his illegal-sentence claim is for the circuit court's final judgment dismissing that claim, with prejudice, to be set aside -- i.e., vacated or reversed. See Ex parte Apicella, 87 So. 3d 1150, 1154 (Ala. 2011) (quoting Knight v. State, 356 So. 2d 765, 767 (Ala. Crim. App. 1978)) (‘Reversal of a judgment and remanding of the cause restores both the State and the defendant to the condition in which they stood before the judgment was pronounced.’) (emphasis added)); see also § 12-22-70, Ala. Code 1975.”

___ So. 3d at ___. The dissenting opinion misapprehends both Ex parte Apicella, 87 So. 3d 1150 (Ala. 2011), and § 12-22-70, Ala. Code 1975.

Ex parte Apicella involved a judgment summarily dismissing a petition for postconviction relief under Rule 32, Ala. R. Crim. P. This Court in Apicella v. State, 945 So. 2d 485 (Ala. Crim. App. 2006), had reversed the December 2004 judgment summarily dismissing the petition and had remanded the case for further proceedings, including an evidentiary hearing under Rule 32.9, Ala. R. Crim. P. On remand in the circuit court, Apicella sought to amend his petition, and the State moved to strike the proposed amendment. This Court affirmed the circuit court's judgment denying Apicella the chance to amend his petition. In this Court's view, Apicella had no right to amend his petition because, this Court said, the circuit court had issued a final judgment in December 2004. Ex parte Apicella, 87 So. 3d at 1152-53. Thus, this Court reasoned, Rule 32.7(b), Ala. R. Crim. P., and Ex parte Rhone, 900 So. 2d 455 (Ala. 2004), which give a petitioner the right to amend his petition before a final judgment has been entered if it will not cause undue delay or actual prejudice, did not apply.

The Alabama Supreme Court reversed, explaining that this Court's 2006 judgment had reversed the circuit court's December 2004 judgment. Thus, the Supreme Court held, this Court had erred in holding that Rule 32.7(b), Ala. R. Crim. P., and Ex parte Rhone did not apply.

Ex parte Apicella did not, as the dissenting opinion suggests, hold that this Court, in the absence of a reversal or vacatur, may not remand part of a case to a lower court for further proceedings or clarification. If anything, Ex parte Apicella shows the need for this Court to consider whether it should reverse an entire judgment -- thereby restarting the process in the lower court -- or whether it should remand only that part of a case that needs further proceedings.

The dissenting opinion misreads § 12-22-70 as imposing conditions precedent upon this Court's ability to remand part of a case. Section 12-22-70 does not limit this Court's power to remand part of a case while retaining jurisdiction over the rest of the case. That section merely states what this Court “may” do once it reverses a judgment -- it may remand for more proceedings or, if the record allows us to do so, enter the judgment that the lower court should have entered. Indeed, if § 12-22-70 imposes the kind of restriction on this Court's ability to remand part of a case, it is strange that the Supreme Court did not simply cite that statute in Ex parte Apicella and note that this Court lacks authority to remand a case without reversing a judgment in the first place.

The dissenting opinion's second assertion -- that granting relief on remand will deprive the State of the opportunity to appeal -- overlooks that, by requiring a return to remand, this Court retains jurisdiction to review what the circuit court does on remand. Under Rule 28A, Ala. R. App. P., the State has the right to seek supplemental briefing on return to remand and point out any lower-court error.

The dissenting opinion's assertion that Teague will have “only a hollow opportunity” to present his claim, ___ So. 3d at ___, is belied by this Court's order remanding the case for the circuit court to

“either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R. Crim. P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Teague's claim, and it may grant appropriate relief if necessary.”

___ So. 3d at ___. On remand, Teague will have all the opportunity that Rule 32.9, Ala. R. Crim. P., gives him to prove his claim. Indeed, this Court often remands only that part of a case that needs further proceedings, such as an illegal sentence or a claim needing a hearing under Rule 32.9. See, e.g., Zink v. State, 410 So. 3d 1148, 1156-57 (Ala. Crim. App. 2023) (affirming judgment of conviction but remanding for resentencing); Yeomans v. State, 195 So. 3d 1018, 1050-52 (Ala. Crim. App. 2013) (affirming in part a judgment summarily dismissing a Rule 32 petition and remanding one claim for an evidentiary hearing under Rule 32.9).

Finally, this Court's decision is not, as the dissenting opinion asserts, in tension or “outright conflict” with Anderson v. State, 796 So. 2d 1151 (Ala. Crim. App. 2000). ___ So. 3d at ___. That decision involved the application of the rule that “any act by a trial court beyond the scope of an appellate court's remand order is void for lack of jurisdiction.” 796 So. 2d at 1156. Our remand here is not so limited as that at issue in Anderson.

While I agree that Terry Joe Teague is entitled to an opportunity to present evidence in support of his illegal-sentence claim, I fear that this Court's order provides him only a hollow opportunity. Worse yet, the Court's decision would interfere with the State's ability to appeal any grant of postconviction relief that might occur on remand. For that reason, I write to address the jurisdictional issue created by the Court's decision to remand this case with instructions that the Morgan Circuit Court allow further proceedings without having first reversed or vacated the circuit court's judgment. See generally § 12-22-70, Ala. Code 1975 (“The appellate court may, upon the reversal of any judgment or decree, remand the same for further proceedings or enter such judgment or decree as the court below should have entered or rendered, when the record enables it to do so.”).

It is well settled that “there must be a judgment before [an] appeal can be taken.” Ex parte Loyd, 155 So. 2d 519, 524 (Ala. 1963); see also § 12-22-2, Ala. Code 1975. In this case, the final judgment was the circuit court's order summarily dismissing Teague's Rule 32, Ala. R. Crim. P., petition for postconviction relief, and Teague's appeal was authorized by Rule 32.10, Ala. R. Crim. P. But Rule 32.10 does not alter the fact that, as a jurisdictional matter, Teague was permitted to appeal only a final order or decision denying postconviction relief. It is undisputed that the circuit court's order summarily dismissing Teague's petition was a permissible form of final judgment authorized by Rule 32.7(d), Ala. R. Crim. P.² The trouble in this case, however, lies in the fact that the final judgment forming the basis of this Court's jurisdiction is one summarily dismissing Teague's petition with prejudice. (C. 14.)

By reaching a decision to remand this matter, the majority has necessarily determined that the circuit court's order summarily dismissing Teague's petition was a “final” order sufficient to support his appeal -- which, of course, it is. See Fuller v. Birmingham-Jefferson Cnty. Transit Auth., 147 So. 3d 907, 911 (Ala. 2013) (noting that “jurisdictional matters, such as whether an order is final so as to support an appeal, are of such importance that an appellate court may take notice of them ex mero motu”); see also Harris v. State, 301 So. 3d 144, 149 (Ala. Crim. App. 2020); Carpenter v. State, 782 So. 2d 848, 849 (Ala. Crim. App. 2000) (quoting Ex parte Hargett, 772 So. 2d 481, 482 (Ala. Crim. App. 1999), quoting in turn Nunn v. Baker, 518 So. 2d 711, 712 (Ala. 1987)) (“ ‘ “Jurisdictional matters are of such magnitude that [appellate courts] take notice of them at any time and do so even ex mero motu.” ’ ”).

Because the circuit court's order is a final judgment, the only way Teague can properly be placed into a position to further pursue his illegal-sentence claim is for the circuit court's final judgment dismissing that claim, with prejudice, to be set aside -- i.e., vacated or reversed. See Ex parte Apicella, 87 So. 3d 1150, 1154 (Ala. 2011) (quoting Knight v. State, 356 So. 2d 765, 767 (Ala. Crim. App. 1978)) (“Reversal of a judgment and remanding of the cause restores both the State and the defendant to the condition in which they stood before the judgment was pronounced.” (emphasis added)); see also § 12-22-70, Ala. Code 1975. But because the Court's decision neither vacates nor reverses the circuit court's final judgment, the parties in this case return to the circuit court not in the condition in which they stood before judgment was pronounced, but with the dismissal of Teague's Rule 32 petition, with prejudice, still hanging over the court and the parties.

And while the special concurrence asserts that I misapprehend Ex parte Apicella, the court in that case did not send Apicella's postconviction petition back to the circuit court “for further proceedings or clarification” as it suggests. Instead, that court clearly “reverse[d] the trial court's summary dismissal of Apicella's petition for postconviction relief” and “remand[ed] the cause for further proceedings.” Ex parte Apicella, 945 So. 2d at 491. Consequently, there is nothing “strange” about the Supreme Court's failure to discuss this Court's authority to remand without reversal. In dissenting, I do not suggest that remands without reversal are beyond this Court's power. To the contrary, we have frequently -- and properly -- done so in cases where we required additional information, for instance we have “consistently remanded cases when no findings of fact are made by the circuit court following an evidentiary hearing on a postconviction petition.” Lewis v. State, 333 So. 3d 970, 978 (Ala. Crim. App. 2018).

More importantly, this Court cannot both retain jurisdiction over this appeal and return full jurisdiction to the circuit court. That is, this Court's jurisdiction over this appeal vested due to Teague's appeal of the circuit court's final judgment, and if we retain jurisdiction over this appeal it is only because Teague's appeal of that final judgment remains pending before this Court. In other words, there is no legal way for the circuit court to carry out this Court's mandate to consider Teague's claim and “grant appropriate relief if necessary.” ___ So. 3d at ___. See Rule 32.9(a), Ala. R. Crim. P. (“Unless the court dismisses the petition, the petitioner shall be entitled to an evidentiary hearing to determine disputed issues of material fact.” (emphasis added)). But if, as the Court's decision implies, the circuit court's “final” judgment is no longer final, it has instead become a nonappealable order insufficient to sustain an appeal as a jurisdictional matter. See Ex parte Voudrie, 449 So. 2d 1217 (Ala. 1984) (remanding on appeal from an order purporting to dismiss a petition for the writ of habeas corpus and instructing this Court that “in the event the purported order appealed from is found to be a nonfinal judgment, and thus nonappealable, to enter an appropriate order dismissing the appeal”).

If, on remand, the circuit court changes its “final” judgment to one granting Teague postconviction relief, it will no longer be the same judgment that originally bestowed jurisdiction on this Court. This, too, is problematic because,

“ ‘[a]fter an appeal is taken, the court whence it came loses control of the subject-matter or question in the case made the subject of an order, judgment, or decree from which the appeal is taken. Action in said case should be suspended in the trial court until the appeal is effectively abandoned, dismissed, or decided.’ ”

Ellis v. State, 705 So. 2d 843, 847 (Ala. Crim. App. 1996) (quoting McKinney v. State, 549 So. 2d 166, 167 (Ala. Crim. App. 1989)) (emphasis added).

While this Court's remand order restores limited authority for the circuit court to perform actions necessary to aid this Court in the resolution of Teague's appeal, what the special concurrence refers to as “further proceedings or clarification,” a remand means that this Court continues to retain jurisdiction over the final judgment that Teague appealed, as evidenced by the Court's decision requiring “[d]ue return ․ within 63 days of the date of this order.” ___ So. 3d at ___. See, e.g., Smith v. State, 387 So. 3d 150, 166 (Ala. Crim. App. 2022) (quoting Bryant v. State, 181 So. 3d 1087, 1136 (Ala. Crim. App. 2011), quoting in turn Anderson v. State, 796 So. 2d 1151, 1156 (Ala. Crim. App. 2000) (opinion on return to remand)). Because “jurisdiction of one case cannot be in two courts at the same time,” see J.M.M. v. State, [Ms. CR-2024-0086, May 2, 2025] ___ So. 3d ___, ___ (Ala. Crim. App. 2025), the circuit court could not -- if, for instance, it found merit in Teague's claim -- alter the final judgment in this case to grant Teague postconviction relief so long as this Court retains jurisdiction over this appeal -- i.e., the circuit court cannot interfere with this Court's jurisdiction, conferred as a consequence of Teague's appeal of an adverse final judgment, by altering that adverse final judgment to one in Teague's favor.

Importantly, the Court's decision is in tension, if not outright conflict, with Anderson v. State, 796 So. 2d 1151 (Ala. Crim. App. 2000). In Anderson, a case involving an appeal from the summary dismissal of a Rule 32 petition, this Court “remanded th[e] cause” to the trial court with directions that it “make written findings of fact with regard to each of Anderson's claims, and, if necessary, to hold an evidentiary hearing on th[e] matter.” 796 So. 2d at 1155. On remand, the circuit court conducted an evidentiary hearing and issued an order vacating Anderson's conviction and sentence for first-degree kidnapping. Id. at 1156 (opinion on return to remand). This Court reversed, noting that, “by vacating Anderson's conviction and sentence for first-degree kidnapping and reinstating his guilty plea to second-degree kidnapping, the trial court exceeded the scope of our remand order, and thus exceeded its jurisdiction.” Id. Consequently, this Court found the trial court's order vacating Anderson's conviction and reinstating his guilty plea a “nullity.” Id. This Court determined that only it could reverse the judgment of the circuit court and again remand the case with instructions “for that court to reinstate Anderson's original conviction for second-degree kidnapping based on his guilty plea and to sentence Anderson on his conviction for second-degree kidnapping.” Id. at 1158.

Under the governing law, including Anderson, the Court's inclusion of language in its remand order permitting the circuit court to “grant appropriate relief if necessary,” ___ So. 3d at ___, wholly ignores the aforementioned authorities relating to subject-matter jurisdiction in appealed cases. In simple terms, the trial court cannot “grant appropriate relief” if modification of the final order remains beyond its authority. Because the final judgment remains intact and on appeal in this Court -- with Teague identified as the appellant and “[d]ue return” ordered “within 63 days of the date of this order,” ___ So. 3d at ___ -- the circuit court cannot change its final judgment. If the circuit court were to grant Teague postconviction relief, it would be a completely different final judgment returning to this Court than the one Teague appealed -- in fact, it would be a final judgment that no one has appealed to this Court.

My concerns are not hypothetical or hypertechnical in nature. Teague appears before this Court as the appellant. He returns to the circuit court as the appellant, and, when due return is made to this Court, he will remain the appellant. But what if, as the Court's decision purports to authorize, the circuit court grants postconviction relief? How can the State exercise its right to appeal an adverse judgment, see Rule 32.10, when a separate final judgment was what vested this Court with jurisdiction and Teague will continue to be identified as the appellant?³ If the adverse final judgment Teague has appealed is replaced by the grant of a favorable final judgment, on what basis can this Court purport to have jurisdiction over the return-to-remand proceeding? As a jurisdictional matter, a circuit court cannot grant a “new” final judgment while the “original” final judgment is pending review on appeal before this Court.

Finally, while the special concurrence points to two cases -- Zink v. State, 410 So. 3d 1148, 1156-57 (Ala. Crim. App. 2023), and Yeomans v. State, 195 So. 3d 1018, 1050-52 (Ala. Crim. App. 2013) -- neither of those decisions addresses this jurisdictional issue. Thus, neither case has any precedential value here. See Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1210 (Ala. 2006) (noting that, even if raised by the parties, a jurisdictional issue “not decided by the courts and made part of the opinion of the case” has no precedential effect); see also United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 38 (1952) (“Even as to our own judicial power or jurisdiction, this Court has followed the lead of Chief Justice Marshall who held that this Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio.”).

Because I firmly believe that this Court cannot grant the circuit court the authority to enter a final judgment, other than summary dismissal with prejudice, without first reversing or vacating the circuit court's final judgment forming the basis of our jurisdiction over this appeal, I respectfully dissent.

FOOTNOTES

1.   Although I recognize that Teague has sufficiently pleaded a claim that his sentence is illegal under the principles recognized in Ex parte McGowan, 346 So. 3d 10, 13 (Ala. 2021), I think the Alabama Supreme Court should reconsider the logic of its decision in McGowan.I believe Teague's claim is analogous to the claim that this Court rejected in Washington v. State, 345 So. 3d 1234 (Ala. Crim. App. 2019). Like Washington, Teague agreed to a shorter split sentence. Like Washington, Teague had his probation revoked. Unlike Washington who does not appear to have appealed his probation revocation, Teague appealed the judgment revoking his probation -- without success. Teague then started this action to get the “relief” of a longer split sentence, which, if obtained, he would use to argue that his guilty plea was involuntary. As I explained in my special writing in Washington, I think Rule 32 does not permit a petitioner to seek the “relief” of more punishment. Rule 32 was not designed for petitioners to get more time.

2.   See also Ex parte Wright, 860 So. 2d 1253, 1254 (Ala. 2002) (quoting Ex parte Jones, 773 So. 2d 989, 989 (Ala. 1998)) (“ ‘In the context of postconviction relief, the 42-day appeal period runs from the date of the trial court's denial of the Rule 32 petition.’ ”); Miles v. State, 822 So. 2d 468 (Ala. 2000).

3.   The special concurrence assures us that the State's right to appeal will be protected because “this Court retains jurisdiction to review what the circuit court does on remand.” ___ So. 3d at ___ (Minor, J., concurring specially). But absent a cross-appeal, this Court grants relief to appellants, not appellees. See Tarver v. State, 500 So. 2d 1232, 1250 (Ala. Crim. App. 1986) (“The State could have filed a cross-appeal under Rule 28(h), A.R.A.P., but chose not to do so. Thus the alleged errors raised by the State in its brief are not preserved for our review.”); see also, Rule 3(a)(2), Ala. R. App. P. (requiring a timely notice of appeal in order for the State to pursue an appeal as of right); State v. Moore, 803 So. 2d 584, 585 (Ala. Crim. App. 2001) (explaining that a timely notice of appeal is required for the State to invoke the jurisdiction of this Court and that an “appeal must be dismissed for lack of jurisdiction if notice of appeal was not timely filed”). Our retention of jurisdiction over Teague's appeal of the final judgment dismissing his Rule 32 petition does nothing to create jurisdiction over an appeal by the State of an entirely separate final judgment.

Windom, P.J., and Kellum and Cole, JJ., concur. Minor, J., concurs specially, with writing. Anderson, J., dissents, with writing.