"A trial de novo is '[a] new trial on the entire case -- that is, on both questions of fact and issues of law -- conducted as if there had been no trial in the first instance.' Black's Law Dictionary 1544 (8th ed. 1990)."
How later courts described this case
- "A trial de novo is '[a] new trial on the entire case -- that is, on both questions of fact and issues of law -- conducted as if there had been no trial in the first instance.' Black's Law Dictionary 1544 (8th ed. 1990)."
- Rule 30.5, Ala. R. Crim. P., must be understood to be mandatory and not permissive
- "Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived."
- de novo appeal to the circuit court was dismissed for failure to appear and the cause remanded to the municipal court
Written by the judges who cited it.
The opinion
Rel: January 17, 2025
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, 2024-2025
_________________________
SC-2024-0532
_________________________
Ex parte Christopher Sandon Ramirez
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Christopher Sandon Ramirez
v.
State of Alabama)
(Montgomery Circuit Court: CC-20-35;
Court of Criminal Appeals: CR-2023-0282)
SC-2024-0532
MENDHEIM, Justice.
Christopher Sandon Ramirez petitioned this Court for a writ of
certiorari to review the Court of Criminal Appeals' decision in Ramirez v.
State, [Ms. CR-2023-0282, June 28, 2024] __ So. 3d __ (Ala. Crim. App.
2024), affirming Ramirez's convictions in the Montgomery Circuit Court
("the circuit court") for driving while under the influence of a controlled
substance ("DUI"), see § 32-5A-191(a)(3), Ala. Code 1975, and possession
of drug paraphernalia, see § 13A-12-260, Ala. Code 1975, and affirming
his resulting sentences of one year of incarceration in the Montgomery
County jail for his DUI conviction and six months of incarceration in the
Montgomery County jail for his possession-of-drug-paraphernalia
conviction, which were suspended while Ramirez was placed on
supervised probation for two years. We granted certiorari review to
consider whether the Court of Criminal Appeals' decision raises a
material question of first impression requiring a decision by this Court,
which is discussed below, and to consider whether the Court of Criminal
Appeals' decision is in conflict with Ex parte Sorsby, 12 So. 3d 139 (Ala.
2007), and Clark v. City of Mobile, 357 So. 2d 675 (Ala. Crim. App. 1978).
We conclude that the Court of Criminal Appeals' decision does raise a
2
SC-2024-0532
material question of first impression requiring a decision by this Court
and that the Court of Criminal Appeals' decision is in conflict with Ex
parte Sorsby and Clark.
Facts and Procedural History
As will be explained below, this case eventually proceeded to a jury
trial in the circuit court, at which Corporal Nina Knapp, an employee of
the Montgomery County Sheriff's Office, testified. According to Corporal
Knapp's testimony, on June 9, 2019, she was on duty and patrolling in
Montgomery County. At approximately 2:00 a.m. on that day, Corporal
Knapp observed Ramirez driving a gold-colored sport-utility vehicle with
a trailer attached to it; the trailer did not have a license plate. As a result,
Corporal Knapp initiated a traffic stop and had Ramirez pull over to the
side of the road. Corporal Knapp approached Ramirez's vehicle and
observed that Ramirez, while still sitting in the driver's seat of his
vehicle, "was perspiring far more than any man should have ever been
perspiring at the time." Corporal Knapp also observed that Ramirez's
pupils were dilated and that "[t]here wasn't really a pupillary response
with a flashlight …."
3
SC-2024-0532
Based on Corporal Knapp's observations of Ramirez, she testified,
she "wanted to continue [her] investigation and have Mr. Ramirez step
out [of his vehicle] to further [her] DUI investigation." Ramirez complied
with Corporal Knapp's request, and Corporal Knapp administered
"standardized field sobriety tests" to Ramirez. Corporal Knapp testified
that Ramirez's performance of the field sobriety tests indicated that he
was impaired, and Corporal Knapp suspected that he had been driving
while under the influence. Based on indications that Ramirez was
impaired, Corporal Knapp testified, she "administered a portable breath
test to Mr. Ramirez at the scene." The "breath test," which only tests for
the presence of alcohol on the breath being tested, did not indicate the
presence of alcohol on Ramirez's breath.
Following Corporal Knapp's investigation of Ramirez, she placed
him under arrest for DUI. Corporal Knapp testified that she then
conducted an "inventory search" of Ramirez's vehicle, during which she
"found a pipe commonly used to ingest narcotics" on "the driver's side
floorboard next to the gas pedal …." Corporal Knapp then asked Ramirez
if he would "submit to a drug-recognition evaluation," which Ramirez
refused. Corporal Knapp also asked Ramirez if "he would be willing to
4
SC-2024-0532
submit a blood sample in order to have it analyzed by the Department of
Forensic Sciences to see what was in his system," which Ramirez also
refused.
After Ramirez refused to submit to any further searches, Corporal
Knapp contacted the Montgomery District Court ("the district court") and
obtained a search warrant to obtain a sample of Ramirez's blood for
testing. With the warrant issued, Corporal Knapp transported Ramirez
to Jackson Hospital in Montgomery, where a sample of his blood was
drawn. Corporal Knapp then sent Ramirez's blood sample to the Alabama
Department of Forensic Sciences ("DFS") for testing. The DFS
toxicological-analysis report, which is a certificate of analysis under § 12-
21-300(b), Ala. Code 1975 (the DFS toxicological-analysis report will
hereinafter be referred to as "the DFS certificate of analysis"), indicated
that methamphetamine and amphetamines were present in Ramirez's
blood sample.
Based on the above-summarized evidence, Ramirez was charged
with one count of possession of drug paraphernalia, in violation of § 13A-
12-260, and one count of DUI, in violation of § 32-5A-191(a)(3). Ramirez's
case was set for a trial before the district court to occur on October 31,
5
SC-2024-0532
2019; that scheduled trial was subsequently reset to occur on January 9,
2020. Section 12-21-300(a), Ala. Code 1975, states, in pertinent part,
that, "[i]n any criminal case, … the prosecuting authority may offer a
certificate of analysis …, in lieu of direct testimony." However, in order
to do so, § 12-21-301, Ala. Code 1975, requires that "[t]he party seeking
to introduce a certificate of analysis shall not less than 40 days prior to
the commencement of the … trial, give written notice to all parties of
intent to offer proof by a certificate of analysis." Accordingly, on August
21, 2019, pursuant to § 12-21-301, the State served Ramirez notice of its
intent to rely upon the DFS certificate of analysis, in lieu of direct
testimony.
On January 9, 2020, Ramirez appeared before the district court and
entered a guilty plea to both charges against him. The district court
sentenced Ramirez to six months of imprisonment for his possession-of-
drug-paraphernalia conviction and to one year of imprisonment for his
DUI conviction. On January 23, 2020, Ramirez appealed both convictions
and sentences to the circuit court for a trial de novo.
On February 2, 2020, the circuit court set Ramirez's case for a jury
trial to occur at a future, to-be-determined date and ordered the parties
6
SC-2024-0532
to engage in discovery. On March 1, 2021, the circuit court entered an
order appointing Ramirez an attorney. On July 6, 2021, the State filed a
notice of appearance in the circuit-court proceeding. The case was
ultimately set for trial on March 13, 2023.
Before the trial de novo in the circuit court, the State did not serve
Ramirez with a notice under § 12-21-301 indicating that, at trial, it
intended to rely upon the DFS certificate of analysis, in lieu of direct
testimony. The trial in the circuit court commenced on March 13, 2023.
During the trial, the State presented the DFS certificate of analysis, in
lieu of direct testimony, as evidence indicating that, at the time when
Ramirez was stopped by Corporal Knapp on June 9, 2019,
methamphetamine and amphetamines were present in Ramirez's blood;
the State did not call as a witness the person working for DFS who
conducted the analysis of Ramirez's blood. Ramirez objected to the
admission of the DFS certificate of analysis, arguing that the State had
not provided Ramirez with the required notice under § 12-21-301
indicating that the State intended to rely upon the DFS certificate of
analysis, in lieu of direct testimony. Ramirez acknowledged that the
State had provided such notice pertaining to the trial that had been
7
SC-2024-0532
scheduled to occur in the district court, but he argued that that was not
sufficient notice pertaining to the trial de novo in the circuit court. As a
result of the State's failure to provide the proper notice, Ramirez argued,
the admission of the DFS certificate of analysis, without the testimony of
the person who had performed the analysis, violated the Confrontation
Clause of the Sixth Amendment to the United States Constitution. The
circuit court overruled Ramirez's objection, holding that the notice that
the State had given Ramirez in the district court was sufficient for the
trial de novo in the circuit court, and it admitted the DFS certificate of
analysis into evidence.
After both sides rested, the case was submitted to the jury, which
found Ramirez guilty as to both counts against him. The circuit court
sentenced Ramirez to six months of incarceration for his possession-of-
drug-paraphernalia conviction and to one year of incarceration for his
DUI conviction. Ramirez appealed to the Court of Criminal Appeals.
Before the Court of Criminal Appeals, Ramirez argued, among
other things, that the circuit court had erred by admitting into evidence
the DFS certificate of analysis. In support of that argument, Ramirez
argued that the admission of the DFS certificate of analysis, without the
8
SC-2024-0532
testimony of the person who had performed the analysis, violated the
Confrontation Clause of the Sixth Amendment to the United States
Constitution. The Court of Criminal Appeals concluded, however, that
that argument had not been properly preserved for appellate review. The
Court of Criminal Appeals stated:
"Section 12-21-300, Ala. Code 1975, states:
" '(a) In any criminal case, or juvenile or
family court case which is of a criminal nature, the
prosecuting authority may offer a certificate of
analysis as described below, in lieu of direct
testimony. The court shall receive as evidence the
certificate of analysis from any of the following:
" '(1) A person performing an
analysis or examination in any
laboratory operated by the Alabama
Department of Forensic Sciences or
authorized by the department to
conduct an analysis or examination of
the type performed.
" '(2) A person performing an
analysis or examination in any
criminalistics laboratory established
pursuant to federal law.
" '(b) To be admissible pursuant to this
section, a certificate of analysis shall contain all of
the following:
" '(1) The date and time the
evidence was delivered to the facility.
9
SC-2024-0532
" '(2) The name of the person
making the delivery, and the name of
the person receiving the delivery.
" '(3) A brief description of the
evidence.
" '(4) The type of examination or
analysis requested.
" '(5) The name of the person
making the examination or analysis.
" '(6) The date or dates of the
examination or analysis.
" '(7) The results of the
examination or analysis.
" 'The certificate of analysis shall give the
name and address of the facility in which the
examination or analysis was made, and it shall be
signed by and sworn to as true and correct, under
penalty of law, by the person making the
examination or analysis.'
"Section 12-21-301, Ala. Code 1975, states:
" 'The party seeking to introduce a certificate
of analysis shall not less than 40 days prior to the
commencement of the hearing or trial, give written
notice to all parties of intent to offer proof by a
certificate of analysis. The notice shall include a
copy of the certificate of analysis.'
"Section 12-21-302(a), Ala. Code 1975, states:
10
SC-2024-0532
" 'The party against whom the certificate is
offered may request, not later than 30 days prior
to the commencement of the hearing or trial, a
hearing to show cause why a subpoena should be
issued for cross-examination of the person who
performed the examination or analysis.'
"In Brown v. State, 939 So. 2d 957 (Ala. Crim. App.
2005), Mark Lynn Brown raised the same argument that
Ramirez has raised, i.e., that the circuit court erred by
'admitting into evidence a certificate of analysis from the
[DFS] regarding the nature of the substances found in his
house, because, [Brown] sa[id], admission of the certificate
violated his right to confrontation.' Id. at 958. Brown had
received notice of the State's intent to introduce the certificate
of analysis more than five months before his trial began, but
" 'he did not file a written request 30 days before
trial for a hearing to show cause why a subpoena
should be issued for the forensic scientist. Instead,
Brown waited until after the trial had begun …
and then objected to the certificate of analysis on
the ground that its admission would violate his
right to confrontation.'
"Id. at 960. Thus, this Court refused to address Brown's
Confrontation Clause claim, stating that,
" '[b]ecause Brown did not comply with § 12-21-302
by challenging the certificate of analysis at least
30 days before trial, his objection to the certificate
after the trial began was untimely; therefore, the
issue of the admissibility of the certificate of
analysis is not properly before this Court for
review.'
"Brown, 939 So. 2d at 961.
11
SC-2024-0532
"In this case, the State filed in the district court notice
of its intent to introduce the DFS [certificate of analysis] 'in
lieu of direct testimony.' (C. 54.) That notice was filed in
August 2019, more than three years before Ramirez's March
2023 trial in the circuit court. However, there is no indication
in the record that Ramirez ever requested 'a hearing to show
cause why a subpoena should be issued for cross-examination
of the person who performed the examination or analysis,' §
12-21-302(a), much less that he did so at least 30 days before
his trial began. Instead, Ramirez waited until the State
proffered the DFS [certificate of analysis] at trial to raise his
Confrontation Clause claim. Thus, as this Court did under
the same circumstances in Brown, we hold that 'the issue of
the admissibility of the [DFS certificate of analysis] is not
properly before this Court for review.' Brown, 939 So. 2d at
961.
"We acknowledge Ramirez's argument that the State's
notice in the district court was not sufficient to comply with
the 40-day notice required by § 12-21-301. According to
Ramirez, 'once [he] filed his notice of appeal for a trial de novo,
… the slate was to be wiped clean.' (Ramirez's brief, p. 30.)
Thus, Ramirez argues, '[i]f the slate is wiped clean, no filing
in the district court should determine the procedure in the
circuit court.' (Id., pp. 31-32.) In other words, Ramirez argues
that, once he appealed to the circuit court for a trial de novo,
the State was required to refile the notice of its intent to
introduce the DFS [certificate of analysis] in lieu of direct
testimony. And, because the State did not refile that notice,
Ramirez argues that he had no duty to comply with § 12-21-
302 and that he 'believed that the State would call the
witness' who performed the analysis of his blood sample.
(Ramirez's brief, p. 34.)
"We are not persuaded by Ramirez's argument. First,
Ramirez has not cited any authority that required the State
to refile its notice in the circuit court. Regardless, although it
is true that a trial de novo 'provides a defendant with a clean
12
SC-2024-0532
slate with regard to a determination of whether he or she is
guilty of the offense charged,' Woods v. State, 261 So. 3d 491,
494 (Ala. 2016), 'an appeal for a trial de novo does not mean
that the slate is thrown away.' Woodruff v. State, 347 So. 3d
281, 287 (Ala. Crim. App. 2020) (emphasis and citation
omitted). As noted, before Ramirez pleaded guilty in the
district court, the State provided him with notice of its intent
to introduce the DFS [certificate of analysis] in lieu of direct
testimony, and that [certificate of analysis] was clearly
important evidence for the State, as it confirmed Cpl. Knapp's
suspicion that Ramirez was under the influence of a controlled
substance at the time of the traffic stop. Indeed, Ramirez
concedes that the DFS [certificate of analysis] 'provided a
necessary element the State had the burden to prove.'
(Ramirez's reply brief, p. 18.) Thus, Ramirez should have
certainly anticipated, once he received the State's notice, that
the State would seek to introduce the DFS [certificate of
analysis] into evidence if his case ever went to trial, whether
that trial occurred in the district court, the circuit court, or
both.
"The purpose of § 12-21-301 is to provide a party with
advance notice that the opposing party intends to introduce a
certificate of analysis in lieu of direct testimony from the
person who performed the analysis. The State provided
Ramirez with such notice in the district court, and, having
received that notice, there was no logical reason for Ramirez
to believe that the State would not rely on the DFS [certificate
of analysis] in his trial de novo in the circuit court. Thus, we
conclude that the State satisfied the 40-day notice required by
§ 12-21-301, which triggered Ramirez's obligation to comply
with § 12-21-302(a). Because Ramirez failed to comply with
that obligation, we adhere to our conclusion that he failed to
preserve this claim for appellate review. Brown, supra."
Ramirez v. State, __ So. 3d at __ (footnote omitted).
Discussion
13
SC-2024-0532
As set forth extensively above, the Court of Criminal Appeals
determined that Ramirez's argument that the State had failed to give
him proper notice in the circuit court under § 12-21-301 was not
preserved for appellate review and, thus, cannot serve as a basis for
reversing his convictions and corresponding sentences. The Court of
Criminal Appeals determined that, even though the State had not given
Ramirez notice that it intended to rely upon the DFS certificate of
analysis, in lieu of direct testimony, at the trial de novo in the circuit
court, Ramirez was required, under § 12-21-302(a), to object to the State's
relying upon the DFS certificate of analysis during the trial in the circuit
court "not later than 30 days prior to the commencement of the … trial
…." Having failed to do so, the Court of Criminal Appeals concluded,
Ramirez waived his right to raise on appeal any argument pertaining to
§ 12-21-301. Of course, Ramirez was required to raise an objection under
§ 12-21-302(a) in the circuit court only if he had received notice from the
State under § 12-21-301 indicating that it intended to rely upon the DFS
certificate of analysis, in lieu of direct testimony, at the trial de novo in
the circuit court. The Court of Criminal Appeals' conclusion that Ramirez
failed to object to the State's reliance upon the DFS certificate of analysis
14
SC-2024-0532
rests on its determination that the State's notice to Ramirez in the
district court under § 12-21-301 that it intended to rely upon the DFS
certificate of analysis, in lieu of direct testimony, at the scheduled trial
in the district court was sufficient to give Ramirez notice under § 12-21-
301 that the State intended to rely upon the DFS certificate of analysis,
in lieu of direct testimony, at the trial de novo in the circuit court.
The dispositive issue of first impression raised in this case, then, is
whether the notice that the State gave to Ramirez in the district court
under § 12-21-301 that it intended to rely upon the DFS certificate of
analysis, in lieu of direct testimony, at the scheduled trial in the district
court was sufficient notice under § 12-21-301 of the State's intention to
rely upon the DFS certificate of analysis, in lieu of direct testimony, at
the trial de novo in the circuit court. For the reasons set forth below, we
answer that question in the negative. The Court of Criminal Appeals
erred in concluding that the § 12-21-301 notice provided to Ramirez
pertaining to the scheduled trial in the district court was sufficient to
give him notice of the State's intentions pertaining to the trial de novo in
the circuit court. Since he did not receive proper notice under § 12-21-301
in the circuit court, Ramirez was not required to object under § 12-21-
15
SC-2024-0532
302(a) to preserve his argument regarding the admissibility of the DFS
certificate of analysis for appellate review. Ramirez is also correct in
arguing that the Court of Criminal Appeals' decision is in conflict with
Ex parte Sorsby and Clark.
The Court of Criminal Appeals, in concluding that the notice that
the State filed in the district court satisfied the requirement of § 12-21-
301 for the trial de novo in the circuit court, relied exclusively upon
Brown v. State, 939 So. 2d 957 (Ala. Crim. App. 2005). Brown, however,
is distinguishable from the present case. As explained by the Court of
Criminal Appeals in its opinion, Brown did not involve the appeal of a
criminal defendant's conviction in a district court to a circuit court for a
trial de novo. Instead, the case originated in a circuit court, was tried
before a jury, and, following the conviction and sentencing, was appealed
to the Court of Criminal Appeals. There were not separate proceedings
before a district court and a circuit court in Brown. In the present case,
the question is whether the State's filing of its notice under § 12-21-301
in the district court -- indicating that it intended to introduce the DFS
certificate of analysis, in lieu of direct testimony, in the scheduled trial
in the district court -- was sufficient to provide Ramirez with notice of its
16
SC-2024-0532
intent to introduce the DFS certificate of analysis, in lieu of direct
testimony, in the trial de novo in the circuit court. Brown stands for the
obvious proposition that the State must comply with § 12-21-301, but it
offers no real guidance on the procedural question raised in this case.
Before the Court of Criminal Appeals, Ramirez argued that the
State's notice in the district court was not sufficient to comply with the
40-day notice required by § 12-21-301 as the trial de novo in the circuit
court. The Court of Criminal Appeals did not find Ramirez's argument
convincing. The Court of Criminal Appeals acknowledged that "a trial de
novo 'provides a defendant with a clean slate with regard to a
determination of whether he or she is guilty of the offense charged,'
Woods v. State, 261 So. 3d 491, 494 (Ala. 2016)," but also stated that " 'an
appeal for a trial de novo does not mean that the slate is thrown away.'
Woodruff v. State, 347 So. 3d 281, 287 (Ala. Crim. App. 2020) (emphasis
and citation omitted)." Ramirez, __ So. 3d at __. Based on that partial
sentence from Woodruff v. State, 347 So. 3d 281 (Ala. Crim. App. 2020)
-- that " 'an appeal for a trial de novo does not mean that the slate is
thrown away' " -- the Court of Criminal Appeals discounted the entirety
of Ramirez's argument.
17
SC-2024-0532
A closer look at the partial sentence from Woodruff relied upon by
the Court of Criminal Appeals is merited. In Woodruff, the issue
addressed by the Court of Criminal Appeals was "whether the definition
of 'conviction' in § 15-20A-4(4), Ala. Code 1975, part of the Alabama Sex
Offender Registration and Community Notification Act ('the
ASORCNA'), includes a municipal-court conviction appealed to a circuit
court for a trial de novo." 347 So. 3d at 283. The appellant in that case
argued, among other things, that "the definition of 'conviction' in § 15-
20A-4(4) does not include his municipal-court conviction because he had
appealed that conviction to the circuit court for a trial de novo …." Id. In
answering that question, the Court of Criminal Appeals discussed the
effect an appeal of a municipal court's judgment of conviction for a trial
de novo in the circuit court has on the municipal court's judgment during
the course of the appeal. The Court of Criminal Appeals generally
recognized that the plain language of § 15-20A-4(4), Ala. Code 1975,
which states, in pertinent part, that "[c]ases on appeal are deemed
convictions until reversed or overturned," meant that the appellant's
appeal of his municipal-court conviction did not make the conviction
obsolete. The appellant, however, argued that the appeal of a municipal-
18
SC-2024-0532
court conviction to a circuit court for a trial de novo is a different kind of
appeal that essentially does away with the municipal-court conviction.
The Court of Criminal Appeals disagreed.
The Court of Criminal Appeals relied extensively on Hulsey v.
State, 866 So. 2d 1180 (Ala. Crim. App. 2003), in discussing "what
happens to a municipal court's judgment of conviction when a defendant
appeals to the circuit court for a trial de novo." Woodruff, 347 So. 3d at
286. The Court of Criminal Appeals stated:
"In Hulsey v. State, 866 So. 2d 1180 (Ala. Crim. App.
2003), this Court examined the circumstances under which
the circuit court could dismiss a defendant's appeal for a trial
de novo. This Court explained that an appeal for a trial de
novo does not vacate the judgment of the municipal court for
all purposes:
" 'The trial court erred in granting the State's
motion to dismiss Hulsey's appeal to the circuit
court for a trial de novo. "Except as provided in
Section 12-12-72[, Ala. Code 1975,] and in
subsection (e) of Section 12-15-120, [Ala. Code
1975,] all appeals from final judgments of the
district court shall be to the circuit court for trial
de novo." § 12-12-71, Ala. Code 1975. The statute
and rule governing an appeal from a municipal or
district court for a trial de novo provide for
dismissal of the appeal only upon the appellant's
request or upon the appellant's failure to appear
for trial. See Rule 30.5(b), Ala. R. Crim. P., and §
12-14-70(e) and (g), Ala. Code 1975. We can find no
authority permitting the dismissal of a de novo
19
SC-2024-0532
appeal on motion of the State other than for failure
of the appellant to appear at trial. " ' "The plain
wording of both § 12-14-70[(e) and (g), 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." ' " Mayes v. State, 710 So. 2d 537, 538 (Ala.
Crim. App. 1997) (failure to appear at "plea day")
(emphasis omitted) (quoting McLemore v. State,
686 So. 2d 492, 493 (Ala. Crim. App. 1996), quoting
in turn Riddle v. State, 641 So. 2d 1316, 1318 (Ala.
Crim. App. 1994)).
" 'Moreover, upon proper dismissal of the
appeal to the circuit court, the cause is to be
remanded to the lower court "for enforcement of
the lower court judgment." Rule 30.5(b), Ala. R.
Crim. P.; see § 12-12-70(e) and (g), Ala. Code 1975;
Gormandy v. City of Mobile, 830 So. 2d 52 (Ala.
Crim. App. 2001) (Rule 30.5, Ala. R. Crim. P., must
be understood to be mandatory and not
permissive); Ex parte Hilburn, 591 So. 2d 8, 12
(Ala. 1991) (de novo appeal to the circuit court was
dismissed for failure to appear and the cause
remanded to the municipal court).
" 'Additionally, until the trial de novo begins
in the circuit court an appellant retains the right
to submit to the lower court's ruling.
" ' "[A] defendant, in an appeal from a
conviction in the municipal court or
district court for a trial de novo in the
circuit court, has the right, prior to the
empaneling of a jury or to the
production of evidence in the circuit
court, to submit to the judgment of the
20
SC-2024-0532
municipal court through the dismissal
of his appeal and the reinstatement of
the original judgment."
" 'Ex parte Hilburn, 591 So. 2d at 12.
" 'Thus, although " '[a] trial de novo means
that the slate is wiped clean and a trial in the
Circuit Court is had without any consideration
being given to prior proceedings in another court,' "
Ex parte Dison, 469 So. 2d 662, 665 (Ala. 1984)
(quoting Yarbrough v. City of Birmingham, 353 So.
2d 75, 78 (Ala. Crim. App. 1977)), [overruled on
other grounds, City of Dothan v. Holloway, 501 So.
2d 1136 (Ala. 1986),] an appeal for a trial de novo
does not mean that the slate is thrown away.'
"Hulsey v. State, 866 So. 2d 1180, 1185-86 (Ala. Crim. App.
2003) (emphasis added). See also Ex parte Hilburn, 591 So. 2d
8, 10-12 (Ala. 1991) (discussing the legislative history of § 12-
14-70, Ala. Code 1975, and the effect of a circuit court's
dismissal of an appeal from a municipal-court judgment)."
Woodruff, 347 So. 3d at 287-88.
As is evident from the above-quoted portion of Woodruff, the idea
that "an appeal from a trial de novo does not mean that the slate is
thrown away" refers to the principle that a conviction in a district court
is not rendered obsolete by an appeal for a trial de novo to a circuit court.
Instead, if the appeal for a trial de novo is dismissed, the criminal
defendant will still be subject to the district-court conviction. It is in that
sense "that the slate is [not] thrown away."
21
SC-2024-0532
There is nothing to indicate, however, that that principle means
that all the procedural aspects that occurred in the district-court
proceeding are forwarded and applied to the proceeding before the circuit
court in conducting a trial de novo. In fact, in the same paragraph of
Hulsey from which the phrase relied upon by the Court of Criminal
Appeals in the present case originated, the Hulsey court stated:
"Thus, although ' "[a] trial de novo means that the slate
is wiped clean and a trial in the Circuit Court is had without
any consideration being given to prior proceedings in another
court," ' Ex parte Dison, 469 So. 2d 662, 665 (Ala. 1984)
(quoting Yarbrough v. City of Birmingham, 353 So. 2d 75, 78
(Ala. Crim. App. 1977)), [overruled on other grounds, City of
Dothan v. Holloway, 501 So. 2d 1136 (Ala. 1986),] an appeal
for a trial de novo does not mean that the slate is thrown
away."
866 So. 2d at 1186 (emphasis added). As noted by Ramirez in his brief
before this Court, the Court of Criminal Appeals stated in Dougherty v.
City of Moundville, 949 So. 2d 188, 192 (Ala. Crim. App. 2006), "that the
term 'trial de novo' is defined as '[a] new trial on the entire case -- that is,
on both questions of fact and issues of law -- conducted as if there had
been no trial in the first instance.' Black's Law Dictionary 1544 (8th ed.
2004)." (Emphasis added.) Further, in Alabama Department of Revenue
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v. Greenetrack, Inc., 369 So. 3d 640, 655 (Ala. 2022), this Court stated
that,
"[a]s held by an unbroken line of authority in this state, a trial
de novo means a new trial 'as if no trial had ever been had,
and just as if it had originated in the circuit court.' Louisville
& Nashville R.R. v. Lancaster, 121 Ala. 471, 473, 25 So. 733,
735 (1899); see also, e.g., Ex parte Sorsby, 12 So. 3d 139, 146
(Ala. 2007); Ball v. Jones, 272 Ala. 305, 309, 132 So. 2d 120,
122 (1961)."
(Emphasis added.) It is apparent from Alabama's established authority
that an appeal to a circuit court for a trial de novo means that the trial
de novo is an entirely new proceeding and is treated as if no trial had
ever been conducted in the lower court. That same sentiment is expressed
in Ex parte Sorsby and Clark, the cases that Ramirez alleges the Court
of Criminal Appeals' decision is in conflict with. See Ex parte Sorsby, 12
So. 3d at 146 ("A trial de novo is '[a] new trial on the entire case -- that
is, on both questions of fact and issues of law -- conducted as if there had
been no trial in the first instance.' Black's Law Dictionary 1544 (8th ed.
1990)."); and Clark, 357 So. 2d at 677-78 (same).
Based on that more complete understanding of the partial sentence
relied upon by the Court of Criminal Appeals in the present case that "an
appeal for a trial de novo does not mean that the slate is thrown away,"
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we hold that the Court of Criminal Appeals erred in concluding that the
State's notice filed under § 12-21-301 in the district court was sufficient
to give Ramirez notice that the State intended to introduce the DFS
certificate of analysis, in lieu of direct testimony, in the trial de novo
before the circuit court. The proceeding in the circuit court for a trial de
novo is to be treated as if there had not yet been a trial, or any other
proceeding, in the district court. It would be inconsistent with our long-
established precedent to treat the State's notice under § 12-21-301 filed
in the district court as giving sufficient notice to Ramirez of the State's
intentions for the trial de novo in the circuit court.
The Court of Criminal Appeals stated in its decision that "Ramirez
has not cited any authority that required the State to refile its notice in
the circuit court." Ramirez, __ So. 3d at __. The Court of Criminal Appeals
also stated that, because the State had given Ramirez notice in the
district court under § 12-21-301 that it intended to rely upon the DFS
certificate of analysis, in lieu of direct testimony, "there was no logical
reason for Ramirez to believe that the State would not rely on the DFS
[certificate of analysis] in his trial de novo in the circuit court." Id. at __.
The Court of Criminal Appeals, however, overlooked the authority
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indicating that a trial de novo in the circuit court is a new proceeding, a
proceeding that is to be treated as if it originated in the circuit court. That
being the case, § 12-21-301 is the only authority that Ramirez needed to
rely upon to demonstrate that the State must give the required 40-day
notice under that statute in the circuit-court proceeding. Further, the
proceeding in the district court involved a guilty-plea conviction and the
proceeding in the circuit court involved a jury trial. Regardless of
whether the Court of Criminal Appeals agrees with the logic of it, it is
certainly foreseeable that Ramirez would wonder if the State had
changed its strategy in prosecuting him in front of a jury in the circuit
court. Part of the purpose of § 12-21-301 is to ensure that criminal
defendants, like Ramirez, are given sufficient notice of the State's
intention to rely upon a certificate of analysis, in lieu of direct testimony
from the forensic scientist who created the certificate of analysis, so that
the criminal defendant can decide how to defend his or her case. Section
12-21-301 requires that the State give such notice "not less than 40 days
prior to the commencement of the hearing or trial …." Although the State
gave Ramirez notice of its intent to rely on the DFS certificate of analysis,
in lieu of direct testimony, in the proceeding before the district court, the
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State gave Ramirez no notice of its intent to rely on the DFS certificate
of analysis, in lieu of direct testimony, "not less than 40 days prior to the
commencement of the … trial" in the circuit court.1
1The State makes a meager argument at the end of its brief that,
even if it was error for the circuit court to have admitted the DFS
certificate of analysis into evidence, such error was harmless. See the
State's brief at 23-24. It is important to note that Ramirez has argued
that one of his constitutional rights was violated in this case. In Yeiter v.
State, [Ms. SC-2022-0417, Sept. 2, 2022] __ So. 3d __, __ (Ala. 2022), this
Court recognized that,
"in Chapman [v. California, 386 U.S. 18 (1967),] the United
States Supreme Court held that the denial of a defendant's
federal constitutional right during a criminal trial does not
automatically require reversal of a conviction. 386 U.S. at 22.
Instead, the Court held that a conviction can be affirmed
regardless of the existence of such error if the appellate court
is 'able to declare a belief that [the error] was harmless beyond
a reasonable doubt.' Id. at 24. The Court indicated that an
error is not harmless if ' "there is a reasonable possibility that
the [error] complained of might have contributed to the
conviction." ' Id. at 23 (quoting Fahy v. Connecticut, 375 U.S.
85, 86-87 (1963)).2
"____________________
"2 … The Supreme Court in Chapman placed the burden
on the state to prove whether the error involved in that case
was harmless because it did not contribute to the jury's guilty
verdict. 386 U.S. at 25-26. See also Wilson v. State, 874 So. 2d
1155, 1159 (Ala. Crim. App. 2003) (citing Chapman for the
proposition that the state has the burden of proving that a
violation of a defendant's constitutional right is harmless)."
26
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Conclusion
Based on the foregoing, we conclude that Ramirez did not waive his
right to argue on appeal that the State failed to give him the required
notice under § 12-21-301. The State's notice to Ramirez under § 12-21-
301 of its intent to rely upon the DFS certificate of analysis, in lieu of
direct testimony, at the scheduled trial in the district court did not satisfy
the State's requirement to give Ramirez notice under § 12-21-301 of the
State's intent to rely upon the DFS certificate of analysis, in lieu of direct
testimony, at the trial de novo in the circuit court. Having received no
notice of the State's intent to rely upon the DFS certificate of analysis at
the trial de novo in the circuit court, Ramirez was not required to object
to the State's relying upon the DFS certificate of analysis during the trial
de novo in the circuit court "not later than 30 days prior to the
It is the State's burden to prove, beyond a reasonable doubt, that the
violation of Ramirez's constitutional right was harmless error. The State
does not cite or discuss the standard set forth in Chapman v. California,
386 U.S. 18 (1967), pertaining to whether a violation of a constitutional
right may be considered harmless. Based on the State's failure to cite
and apply the applicable standard, we need not further consider its
harmless-error argument. See White Sands Grp., L.L.C. v. PRS II, LLC,
998 So. 2d 1042, 1058 (Ala. 2008) ("Rule 28(a)(10)[, Ala. R. App. P.,]
requires that arguments in briefs contain discussions of facts and
relevant legal authorities that support the party's position. If they do not,
the arguments are waived.").
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commencement of the … trial …." § 12-21-302(a). Accordingly, Ramirez's
objection, during the trial de novo in the circuit court, to the State's effort
to admit into evidence the DFS certificate of analysis was sufficient to
preserve the issue for appellate review. We further conclude that the
Court of Criminal Appeals' decision is in conflict with the above-discussed
principle relied upon in Ex parte Sorsby and Clark. Accordingly, we
reverse the Court of Criminal Appeals' decision and remand the cause to
it for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Shaw, Sellers, Stewart, and Cook, JJ., concur.
Wise and Bryan, JJ., dissent.
Mitchell, J., dissents, with opinion.
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MITCHELL, Justice (dissenting).
The Court of Criminal Appeals unanimously affirmed the
Montgomery Circuit Court's judgment against Christopher Sandon
Ramirez. In doing so, it held that, in a trial de novo, the State was not
required to give Ramirez a second notice of its intention to introduce a
drug-analysis certificate in lieu of live testimony. Ramirez then
petitioned this Court for certiorari review, which we granted to consider
whether the Court of Criminal Appeals' decision (1) conflicts with Ex
parte Sorsby, 12 So. 3d 139 (Ala. 2007), and Clark v. City of Mobile, 357
So. 2d 675 (Ala. Crim. App. 1978), or (2) addresses a material issue of
first impression.
After reviewing the record on appeal, I would now quash the writ
of certiorari as improvidently granted. In my view, neither the text of
§ 12-21-301, Ala. Code 1975, nor our precedent requires a second notice
in a trial de novo. Because the main opinion holds that it is required, I
respectfully dissent.
Background
Law-enforcement personnel arrested Ramirez and acquired blood
and saliva samples from him. The Alabama Department of Forensic
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Sciences ("DFS") then analyzed those samples, finding that his blood
contained both methamphetamine and amphetamines and that his saliva
contained methamphetamine. Shortly thereafter, Ramirez was charged
with two drug offenses.
While Ramirez awaited trial in the Montgomery District Court, the
State filed a "Notice of Discovery to Defendant, Intent to Use Prior
Convictions & Bad Acts, Invoke Sentencing Enhancements, Offer Proof
By a Certificate, and Motion for Discovery by the State." The notice
stated: "Pursuant to Sections 12-21-300 through 303, Code of Alabama,
written notice is hereby given of the State's intent to offer proof by a
certificate of analysis in lieu of direct testimony. The certificate of
analysis is from [DFS] and is included in the provided discovery
material."
The district court set Ramirez's trial for January 9, 2020. But on
that morning, Ramirez pleaded guilty -- and later that day, he appealed
his convictions to the circuit court for a trial de novo. All documents from
the district court, including the State's notice to Ramirez, were included
in the record that was transmitted to the circuit court. Accordingly, the
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State did not serve Ramirez again with the notice it had already provided
to him.
After some delays, the circuit court held a jury trial in March 2023.
There, the State moved to admit the certificate. Ramirez objected,
arguing that the State had failed to give him proper notice under § 12-
21-301. Yet, at the same time, he acknowledged that the State had given
him notice, saying: "[T]he intent to file that paperwork -- or to use that
paperwork with the agent was filed in the district court. This is a trial
de novo and it had not been filed in the circuit court." According to
Ramirez, because the State did not provide a second notice to him before
trial in the circuit court, he was under no obligation to demand live
testimony before trial. Therefore, he argued, admitting the certificate at
that time would violate his right under the Confrontation Clause of the
United States Constitution to cross-examine the certificate's author.
The circuit court overruled Ramirez's objection, concluding that the
State's notice complied with § 12-21-301 and that this "notice-and-
demand statute" satisfied constitutional requirements. See Bullcoming
v. New Mexico, 564 U.S. 647, 666 (2011). The court thus ruled that
Ramirez had waived his right to challenge the certificate by failing to
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timely demand live testimony before trial. The jury subsequently found
Ramirez guilty on both counts.
Ramirez appealed to the Court of Criminal Appeals. That court
affirmed the circuit court's ruling, holding that the State's notice was
timely under the text of § 12-21-301 and that Alabama precedent did not
require a second notice.
Ramirez then petitioned this Court, arguing that the courts below
had misconstrued Alabama law and erroneously applied precedent. We
granted his petition to review the matter further.
Analysis
The State gave Ramirez express notice of its intention to submit a
certificate in lieu of live testimony before he pleaded guilty in the district
court. Apparently unsatisfied with that notice, Ramirez argues that he
was entitled to a second notice before his trial de novo in the circuit court.
His argument is wrong and the courts below rightly rejected it. The text
of § 12-21-301 does not require more than one notice, and our trial de
novo precedent does not require a circuit court to ignore the one already
given. Nor would I extend our precedent to hold that the State was
required to give Ramirez a second notice here.
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A. Conflict
Ramirez argues that the Court of Criminal Appeals' decision
conflicts with controlling Alabama precedent. It does not.
1. The Text of § 12-21-301 Does Not Require Renewed Notice
in a Trial De Novo
I begin with the text of the statute. If the State elects to use a
certificate instead of live testimony, § 12-21-301 requires it to provide the
defendant notice "not less than 40 days prior to the commencement of the
hearing or trial." The State gave timely notice to Ramirez. The ball was
then in his court: if he desired live testimony, he needed to request a
"show cause" hearing "not later than 30 days prior to the commencement
of the hearing or trial." § 12-21-302(a), Ala. Code 1975 (emphasis added).
But he made no such request before trial. Instead, he waited until the
middle of trial to object to the certificate, which is too late.
Ramirez fails to point to any section of the statute that requires a
second notice. And that makes sense: the notice doesn't vanish once
given. The Court of Criminal Appeals thus rightly interpreted the
statute not to require a second notice.
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2. Our Trial De Novo Precedent Does Not Require the State
to Provide a Second Notice
Instead of relying principally on the text of the statute, Ramirez
seeks refuge in our precedent addressing trials de novo. He argues that,
because a trial de novo is " '[a] new trial on … both questions of fact and
issues of law' " and is " 'conducted as if there had been no trial in the first
instance,' " the notice provided before his guilty plea in the district court
doesn't count in the circuit court. Ramirez's brief at 13 (quoting
Dougherty v. City of Moundville, 949 So. 2d 188, 192 (Ala. Crim. App.
2006)); see Ex parte Sorsby, 12 So. 3d at 146. It is true that a trial de
novo is an entirely new trial. See Alabama Dep't of Revenue v.
Greenetrack, Inc., 369 So. 3d 640, 655 (Ala. 2022) ("As held by an
unbroken line of authority in this state, a trial de novo means a new trial
'as if no trial had ever been had, and just as if it had originated in the
circuit court.' ") (citation omitted)). But, as Ramirez concedes, Alabama
precedent does not address notice under § 12-21-301 in the context of a
trial de novo. And, importantly, there is precedent that undermines his
position.
Alabama precedent does not require a circuit court conducting a
trial de novo to categorically ignore what occurred before. For one thing,
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the Court of Criminal Appeals has noted that, while a trial de novo
provides a defendant with a clean slate, that does not mean that " 'the
slate is thrown away.' " Woodruff v. State, 347 So. 3d 281, 287 (Ala. Crim.
App. 2020) (citation and emphasis omitted) (holding that a municipal-
court conviction is not erased when a defendant appeals that conviction
for a trial de novo). Indeed, our Court has held that a defendant's guilty
plea made in district court may be admitted as evidence during a trial de
novo in the circuit court. Woods v. State, 261 So. 3d 491, 494 (Ala. 2016)
(reasoning that, "because the judgment from the prior court proceeding,
and not the defendant's guilty plea, answers the ultimate question posed
in the trial de novo -- whether the defendant is guilty of the offense
charged -- admission of the judgment, but not of the guilty plea, is
prohibited at the trial de novo"). In so holding, we rejected the
defendant's arguments that were based on Sorsby's language regarding
trials de novo. See id. at 494. And Woods is consistent with Greenetrack
because the notice here does not speak to whether the defendant is guilty
or not -- he still gets a new trial.
Given these precedents, it is unsurprising that Ramirez fails to
show that either Sorsby or Clark requires the State to provide a second
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notice in a trial de novo. Although Ramirez understands those cases to
stand for the broad proposition that a trial de novo means that a "new
trial" is held without regard to "prior proceedings," that reasoning
neglects to link the concept of notice to other matters occurring during a
trial or proceeding in the district court. See Ramirez's brief at 13. For
instance, our Court held in Sorsby that a defendant does not necessarily
waive his right to a trial de novo by pleading guilty. 12 So. 3d at 146.
And, in Clark, the Court of Criminal Appeals held that a defendant's
rights are not violated when a circuit court, in a trial de novo, imposes a
greater penalty than the district court. 357 So. 2d at 678. Given these
material differences, Sorsby and Clark do not answer the question
whether notice under § 12-21-301 must be renewed in a trial de novo.
B. Issue of First Impression
If we instead approach Ramirez's petition as presenting a material
issue of first impression, I would decline to extend our trial de novo
precedent to cover the notice here. Notice of the State's intent to offer a
certificate is fundamentally different than most of what is presented in
an earlier proceeding, such as substantive motions, evidence, and
arguments to the trial court. As the State notes in its briefing, the sole
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purpose of notice is to apprise a party of an operative fact and to give him
an opportunity to respond at a later hearing. Once § 12-21-301 notice is
given, no further action is required from the court or the State. Indeed,
the statute only requires further action from the defendant if he wishes
to demand live testimony. See § 12-21-302(a).
Under Ramirez’s reasoning, the circuit court would need to engage
in a legal fiction that disregards the fact that he knew about the State's
intent and imagines that he was surprised by the State's actions solely
because he did not receive a second, identical notice in the circuit court.
I do not believe our law compels this result. In accordance with § 12-21-
301, the State timely notified Ramirez of its intent to offer the certificate
in lieu of live testimony. That is all the State was required to do.
In response to this line of argument, Ramirez offers a parade of
horribles that amounts to a puny procession. He contends that, if we do
not require another written notice in a trial de novo, then "the lower
court's filings, rulings, and decisions must be considered in a trial de
novo." Ramirez's brief at 17. Not so. Unlike those "filings, rulings, and
decisions," § 12-21-301 notice relates to the parties, not the court. While
arguments can be remade, substantive motions can be refiled, and
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evidence may be reintroduced, notice cannot be undone, even by legal
fiction. Section 12-21-301 requires notice "not less than 40 days prior to
the commencement of the hearing or trial." The State gave that notice to
Ramirez well before the deadline and, in my view, was under no
obligation to renew it in the circuit court.
Conclusion
Because the Court of Criminal Appeals properly interpreted our
statutes and precedents on this issue, I would quash the writ as
improvidently granted. I respectfully dissent.
38