Rule 40. Applications for rehearing

Applications for rehearing.

(a) Who may file. A party who has not prevailed may apply for a rehearing by filing an application for rehearing.

(1) BRIEF IN SUPPORT OF APPLICATION. The party filing the application for rehearing must, when the application is filed, file a brief in support with the application.

(2) BRIEF ON ORIGINAL SUBMISSION PREREQUISITE TO APPLICATION FOR REHEARING. No party can, as a matter of right, apply for a rehearing unless, on original submission, a brief was filed with the clerk as provided by the rules.

(3) SECOND APPLICATION FOR REHEARING. No second application for rehearing will be considered unless in response to the first application the court reversed or substantially modified the original decision of the court.

(b) Content of the application and the brief in support. The application for rehearing must state with particularity the points of law or the facts the applicant believes the court overlooked or misapprehended. The brief in support of the application must contain any arguments in support of the application the petitioner desires to present.

(c) Time for filing. An application for rehearing and the brief in support of the application must be filed with the clerk of the appropriate appellate court within 14 days (2 weeks) of the date the decision being questioned is issued, except that in the case of a rehearing application in a pretrial appeal by the state in a criminal case, the application, with the supporting brief, must be filed with the clerk within 7 days (1 week) after the release of the decision.

(d) Application for rehearing as a prerequisite to certiorari review by the Supreme Court.

(1) CRIMINAL. In all criminal cases except pretrial appeals by the state, the filing of an application for rehearing in the Alabama Court of Criminal Appeals is a prerequisite to certiorari review by the Alabama Supreme Court.

(2) CIVIL. The filing of an application for rehearing with the Court of Civil Appeals is not a prerequisite for certiorari review by the Supreme Court.

(3) PETITIONS FOR WRIT OF MANDAMUS. An application for rehearing is not a prerequisite to review by the Supreme Court of a decision by a court of appeals on an original petition for a writ of mandamus filed pursuant to Rule 21(e), Alabama Rules of Appellate Procedure. See Rule 21(e). If, however, the petitioner filed an application for rehearing in the court of appeals, that application must have complied with Rule 40(e).

(e) Statement of facts to be contained in application for rehearing. If a court of appeals has issued an opinion or an unpublished memorandum containing a statement of facts and a party applying for rehearing is not satisfied with that court's statement of the facts, the party applying for rehearing may present in the application for rehearing a proposed additional or corrected statement of facts or the applicant's own statement of facts. If the applicant is not satisfied with the facts stated in the main opinion or the unpublished memorandum of the court of appeals, but the applicant is satisfied with the facts as stated in a dissent or a special writing by a judge or judges of the court of appeals, the applicant shall indicate those facts with which the applicant is in agreement and indicate in which part of the dissent or special writing the facts are found. If the applicant does not present in the application an additional or corrected statement of facts or the applicant's own statement of facts, it will be presumed that the applicant is satisfied with the facts as stated in the court of appeals' main opinion or unpublished memorandum. If a court of appeals has issued an opinion or an unpublished memorandum that does not contain a statement of facts, the applicant shall include a statement of facts in the application for rehearing. See Rule 39(d)(5).

(f) Brief opposing application for rehearing. No brief opposing the application is required, but if the opposing party wishes to file a brief, the brief must be filed within 14 days (2 weeks) — or, in the case of a pretrial appeal by the state in a criminal case, within 7 days (1 week) — after the filing of the application and the brief in support of the application. Any brief in opposition to the application for rehearing shall not exceed 3,000 words (15 pages for a brief filed pro se) (see Rule 28(j)(5)), unless that word or page limitation is extended by the court pursuant to Rule 28(j)(3), if applicable. The brief in opposition shall contain a table of contents, a table of authorities, a summary of the argument, an argument and conclusion, a certificate of compliance (if a word limit applies), and a certificate of service. No reply brief to a brief in opposition to an application for rehearing is permitted.

(g) Form of application; color of brief; length of argument. Except in criminal cases in which the death penalty is imposed, the application shall not exceed 3,000 words (15 pages for an application filed pro se). The application for rehearing may be a separate document or may be included at the beginning of the applicant’s brief. The brief shall be in a form prescribed by Rules 28 and 32(a), except that because the statement of facts is included in the application for rehearing, a statement of facts will not be included in the brief. Except in criminal cases in which the death penalty is imposed, the brief in support of the application for rehearing shall not exceed 3,000 words (15 pages for a brief filed pro se), unless that word or page limitation is extended by the court pursuant to Rule 28(j)(3). Copies of the brief shall be served and filed as prescribed by Rule 31 for the service and filing of briefs. The cover of the brief in support of the application for rehearing shall be white. The application, or a brief in support of an application for rehearing, shall be governed by Rule 32(b)(1).1 [Amended 2-6-84, eff. 4-1-84; Amended 6-12-90, eff. 8-1-90; Amended 11-17-93, eff. 2-1-94; Amended eff. 8-1-2000; Amended 11-20-2001, eff. 6-1-2002; Amended 5-7-2015, eff 8-1-2015; Amended 7-24-2020, eff. 10-1-2020; Amended 4-4-2023, eff. 10-1-2023.] 1 Ordered August 30, 2000, in the Supreme Court of Alabama: “The order of this Court issued on May 19, 2000, amending Rule 40, Alabama Rules of Appellate Procedure, provided that the amendment to Rule 40 was effective August 1, 2000. IT IS ORDERED that that provision shall be interpreted to mean that Rule 40, as amended, is effective to cases in which the lower appellate court releases its decision on or after August 1, 2000.”

Committee Notes

Committee Comments on 1975 Adoption 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.Crim.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 app