REL: 10/24/2014




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-
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the opinion is printed in Southern Reporter.




          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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1131418

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 Code 1975 (repealed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
1131418
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).
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1131418
    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.




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