Ala. R. App. P. 40
Ala. R. App. P. 40
Note from the reporter of decisions: The order amending Rule 22, Rule 28(a) (5), Rule 32(a) (7), and Rule 40(f), effective August 1, 2015, and adopting the Committee Comments to those amendments to Rule 28(a) {5), Rule 32(a) (7), and Rule 40(f) is published in that volume of Alabama Reporter that contains Alabama cases from __ So. 3d.
Committee Comments
Notes from the reporter of decisions: The order amending Rule 40, effective October 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
The order amending Rule 5, Rule 21(d), Rule 27(d), Rule 28, Rule 32, Rule 39(d), Rule 39(f), Rule 39(h) and Rule 40(g) effective June 1, 2002, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
This rule is based upon former Supreme Court Rule 17, with certain modifications. References to "terms of court" have been eliminated inasmuch as the court no longer is concerned with such terms.
The rule specifically provides that an applicant for rehearing must file a new brief, and prohibits an application for rehearing by any party who did not submit an original brief. This would ordinarily have application only to an appellee in civil cases, or to both parties in criminal cases.
No answer to an application is permitted in the sense of a pleading. Reply briefs may be filed.
The rule provides for service of the application for rehearing and the accompanying brief in accordance with the general provisions of service in these rules. The former requirement that the application and brief must be physically delivered to the office of opposing counsel within the former 15-day period is no longer required by this rule.
The rule makes explicit the prohibition against two applications for rehearing by the same party. This would not operate to prevent a party who prevailed in the initial decision and lost on the rehearing from asking for a second rehearing.
It is contemplated that execution of the judgment will be suspended routinely by the court in accordance with this rule.
For a discussion of the minimum standards which a brief in support of an application for rehearing must meet in order to be adequate, see DeGraaf v. State, 34 Ala. App. 137, 37 So. 2d 130. See also Rules 31 and 32 for the standards which briefs in general must meet with respect to form and number. It will be permissible hereunder to combine the application for rehearing and the brief in support thereof.
Court Comment to Amendment Effective April 1, 1984.
Temporary Rule 17, A.R.Cr.P., allowing for certain pre-trial appeals by the state in criminal cases, became effective on April 1, 1984. Rule 40 was amended at that time to include the reference to these pre-trial appeals and, in such appeals, to shorten the time to seven days for filing applications and briefs.
Committee Comment to Amendment to Rule 40 Effective February 1, 1994.
This amendment adds references to Rules 53 and 54, which became effective January 1, 1993.
Court Comment to Amendment to Rule 40 Effective August 1, 2000
The amendment completely revises Rule 40. The most significant change in Rule 40 is that a party need not file an application for rehearing with the Court of Civil Appeals in order to obtain review by certiorari in the Supreme Court of a decision of the Court of Civil Appeals. If, however, an application for rehearing is filed with the Court of Civil Appeals, the application must comply with Rule 40(e).
An application for rehearing remains a prerequisite to review by the Supreme Court of a decision of the Court of Criminal Appeals, except in the case of a pretrial appeal by the State. An application for rehearing is not a prerequisite for review of a decision of either appeals court on a petition for a writ of mandamus. See Rule 21. If, however, an application for rehearing of a decision on a mandamus petition is filed, the party must then file a petition for a writ of certiorari with the Supreme Court, rather than a petition for a writ of mandamus, in order to obtain review.
If a party applies for rehearing to one of the courts of appeals, the party should read Rule 39 in conjunction with Rule 40, in the event review by certiorari is sought in the Alabama Supreme Court. If the court of appeals has not included a statement of facts in its decision, whether because it issued a "no-opinion" decision pursuant to Rule 53, or issued an opinion or a memorandum that does not contain a statement of facts, the applicant must include in the application for rehearing a proposed statement of facts. The purpose of this requirement is similar to an objection made at the trial level-it brings to the attention of the appellate court the applicant's understanding of the facts of the case and gives that court the opportunity, upon rehearing, to state or restate the facts. If the court of appeals issues a decision that includes a statement of facts and the party is not satisfied with that statement of the facts, the party applying for rehearing may, in the application, present to the court of appeals a proposed or corrected statement of the facts or the applicant's own statement of the facts. See also Rule 39(d)(5).
A brief in support of the application for rehearing must be filed and must comply with Rule 32(a), except that because the statement of facts will be included in the application, a statement of facts should not be included in the brief in support of the application. The parties can refer in the argument section of the brief to the facts stated in the application.
If the court of appeals denies the application or does not include the applicant's statement of facts in its opinion, the applicant has, by including its statement of facts in the application, preserved the facts for inclusion in its petition for a writ of certiorari, should one be filed.
Court Comment to Amendment To Rule 40(g) Effective June 1, 2002
This amendment to Rule 40(g) provides that the 15-page limitation for an application for a rehearing and a brief in support of the application includes the same items listed in Rule 32(a)(6)(A) and also provides that permission to exceed the page limitation must be sought as provided in Rule 32(a)(6)(C).
Court comment to Amendment to Rule 40(g) Effective June 1, 2005
The amendment to Rule 40(g) clarifies that in all cases except death-penalty cases the page limitation for the application for rehearing itself is 15 pages and the page limitation for the brief in support of the application is 15 pages.
Court Comment to Amendment to Rule 40(e) Effective September 15, 2008
At times, the applicant may not agree with the facts as stated in the court of appeals' main opinion but agrees with the facts stated in a dissent or a special writing. The amendment to Rule 40(e) provides that, in such a case, the applicant shall indicate in the applicant's statement of facts which part of the facts in the dissent or special writing the applicant agrees with and indicate in which part of the dissent or special writing those facts can be found.
Committee Comments to Amendment to Rule 40(f) Effective August 1, 2015
Rule 40(f) has been amended to include here the page limits for briefs filed in opposition to an application for rehearing and to explicitly set out the contents of such a brief. Rule 40(f) was previously silent as to these matters. A sentence has also been added indicating that no reply brief to a brief in opposition to an application for rehearing is permitted.
Committee Comment to Amendment to Rule 40(f) and Rule 40(g) Effective October 1, 2020
Rule 40(f) and Rule 40(g) have been amended to provide a word limit for most applications for rehearing and briefs in support consistent with the amendment to Rule 32, but to retain page limits for applications and briefs filed pro se.
"Note from the reporter of decisions: The order amending Rule 39(d)(5), Rule 40(e), Rule 53, and Rule 54, Alabama Rules of Appellate Procedure, effective October 1, 2023, is published in that volume of Alabama Reporter that contains Alabama cases from __ So. 3d."