REL: 10/24/2014
Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________
1131418
____________________
Ex parte Terry Tatum
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Terry Tatum
v.
State of Alabama)
(St. Clair Circuit Court, CC-90-107; CC-90-108; and
CC-90-109; Court of Criminal Appeals, CR-13-1132)
STUART, Justice.
WRIT DENIED. NO OPINION.
1131418
Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan,
JJ.,concur.
Moore, C.J., dissents.
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MOORE, Chief Justice (dissenting).
I respectfully dissent from the Court's decision to deny
Terry Tatum's petition for a writ of certiorari because I
believe that, for purposes of reconsidering an inmate's
sentence pursuant to § 13A-5-9.1, Ala. Code 1975 (repealed
effective March 13, 2014, by Act No. 2014-165, Ala. Acts
2014),1 a circuit court must require the Department of
Corrections to submit an inmate evaluation to the court.
Tatum was convicted of two counts of first-degree sodomy,
violations of § 13A-6-63, Ala. Code 1975, and one count of
first-degree rape, a violation of § 13A-6-61, Ala. Code 1975.
He was sentenced as a habitual felony offender to life
imprisonment without the possibility of parole for each
conviction. In December 2013, he filed the underlying motion
for sentence reconsideration,2 his second, and the circuit
1
Section 13A-5-9.1 stated: "The provisions of Section
13A-5-9 shall be applied retroactively by the sentencing judge
or, if the sentencing judge is no longer in office, by any
circuit judge appointed by the presiding judge, for
consideration of early parole of each nonviolent convicted
offender based on evaluations performed by the Department of
Corrections and approved by the Board of Pardons and Paroles
and submitted to the court."
2
A motion for sentence reconsideration is often called a
"Kirby motion." See Kirby v. State, 899 So. 2d 968 (Ala.
2004)(explaining an inmate's eligibility for sentence
3
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court denied the motion. Tatum appealed the denial of his
motion to the Court of Criminal Appeals. On August 15, 2014,
the Court of Criminal Appeals affirmed the circuit court's
denial of Tatum's motion in an unpublished memorandum. Tatum
v. State (No. CR-13-1132, August 15, 2014), ___ So. 3d ___
(Ala. Crim. App. 2014)(table). Tatum now petitions this Court
for a writ of certiorari to review the Court of Criminal
Appeals' decision, arguing that the following language from
the Court of Criminal Appeals' unpublished memorandum
conflicts with Holt v. State, 960 So. 2d 726 (Ala. Crim. App.
2006), and Kirby v. State, 899 So. 2d 968 (Ala. 2004):
"Although an inmate's behavior while incarcerated is
a factor in determining whether he is a nonviolent
offender, '§ 13A-5-9.1 does not require a circuit
court to order, or the Department of Corrections to
submit, an inmate evaluation; it merely permits the
consideration by the circuit court of such an
evaluation.'"
(Quoting Holt, 960 So. 2d at 737.) I agree with Tatum that
this language conflicts with Alabama law. As I explained in my
dissent in a similar case, Ex parte Gill, [Ms. 1130649, June
20, 2014] ___ So. 3d ___, ___ (Ala. 2014):
"Kirby implies that a presumption of nonviolence
attaches to a motion for sentence reconsideration by
reconsideration).
4
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holding that 'if the DOC [Department of Corrections]
does not provide the evaluation in a timely fashion,
the State will have waived any input as to the
inmate's conduct while incarcerated that the
sentencing judge or the presiding judge might
otherwise have considered in determining whether the
inmate is a nonviolent offender.' Kirby, 899 So. 2d
at 975. Moreover, '[w]hile the information available
to the trial court in the DOC's evaluation will be
helpful in making its determination,' the Department
of Corrections' failure to submit an evaluation
waives the State's input regarding whether the
inmate is a violent offender. 899 So. 2d at 874. If
the Department of Corrections does not submit an
evaluation, then it presents no evidence to rebut an
inmate's claim that the inmate is a nonviolent
convicted offender. I disagree that '§ 13A-5-9.1
does not require a circuit court to order, or the
Department of Corrections to submit, an inmate
evaluation, [and that] it merely permits the
consideration by the circuit court of such an
evaluation.' Holt, 960 So. 2d at 737. The circuit
court is required to order the Department of
Corrections to submit an inmate evaluation."
Because § 13A-5-9.1 requires circuit courts considering a
motion for sentence reconsideration to order the Department of
Corrections to submit to the circuit court an evaluation of an
inmate's behavior while in prison, I believe the Court of
Criminal Appeals' unpublished memorandum contradicts Alabama
law. Therefore, Tatum is entitled to certiorari review of its
decision. See Rule 39, Ala. R. App. P.
5