171 So. 3d 679
Ala. Crim. App.2014Background
- In 1982 Melvin Ross Bush was convicted of first-degree rape and sentenced to life under Alabama's habitual-offender statute.
- On September 30, 2013, Bush filed at least his third motion to reconsider his sentence under § 13A-5-9.1 (a "Kirby motion") in the Mobile Circuit Court.
- The circuit court denied the motion on October 1, 2013, without requiring a response from the State; Bush appealed that denial to the Alabama Court of Criminal Appeals.
- Bush argued on appeal that the judge who ruled (Judge Michael Youngpeter) lacked jurisdiction because he was neither the sentencing judge nor the presiding judge and, Bush contended, had not been appointed by the presiding judge to hear the Kirby motion.
- The appellate court ordered the circuit court to supplement the record with any appointment order; the circuit court supplied a statement that no formal appointment order existed and that the case had been handled pursuant to a customary practice of incoming judges taking over prior assignments.
- Because the record contained no document showing Judge Youngpeter was properly appointed under § 13A-5-9.1, the court held the circuit court lacked jurisdiction and dismissed Bush’s appeal; the Kirby motion remains filed and the circuit court was directed to proceed in accordance with controlling principles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the judge who denied the Kirby motion had jurisdiction | Youngpeter lacked jurisdiction because he was not the sentencing judge, not the presiding judge, and was not appointed by the presiding judge | The motion was properly filed in Mobile Circuit Court and could be assigned to another circuit judge under the 2007 amendment to § 13A-5-9.1 | The record does not show Youngpeter was appointed; court lacked jurisdiction and the prior order denying the motion is void |
| Whether customary practice of case reassignment suffices as appointment | Bush: customary practice without a formal order does not satisfy statutory appointment requirement | Circuit: customary practice is used and incoming judges take over prior assignments (sometimes via standing order) | Customary practice alone, without a formal appointment or standing administrative order in the record, is insufficient to demonstrate jurisdiction |
| Effect of a void order on appealability | Bush: the order denying his Kirby motion should be reviewable on appeal | State: (implicit) court’s denial was a final ruling subject to appeal | A void judgment for lack of jurisdiction cannot support an appeal; appeal dismissed |
| Proper remedy for defective record on appointment | Bush: remedy is remand for proper consideration by a judge with jurisdiction | State: (implicit) court should affirm if merits lacking | Court directed that Bush’s Kirby motion remains filed and ordered the circuit court to proceed to consider it with proper jurisdictional basis |
Key Cases Cited
- Kirby v. State, 899 So.2d 968 (Ala. 2004) (defines who may adjudicate a Kirby motion and requires filing in court of original conviction)
- Ex parte Bush, 270 Ala. 62 (Ala. 1959) (court may take judicial notice of the identity of the presiding judge of a circuit)
- Owens v. State, 39 So.3d 1183 (Ala. Crim. App. 2009) (a presiding judge's standing administrative order can constitute a valid appointment of a circuit judge to hear a Kirby motion)
- Knight v. State, 92 So.3d 717 (Ala. 2011) (an administrative order granting the clerk discretion to assign matters does not necessarily satisfy statutory appointment requirements)
- Madden v. State, 885 So.2d 841 (Ala. Crim. App. 2003) (where the record fails to show statutory prerequisites were met, the appeal may be dismissed)