Ex Parte McCormick

• Decision Date: 23 November 2005
• Docket Number: 1041133.,1031657.,1031695.
• Parties: Ex parte Michael W. McCORMICK. In re State of Alabama v. Lartasha Gaines. Ex parte James H. Hard IV. In re State of Alabama v. Ronald Ray Rice. Ex parte Joshua Brack Pickett. In re State of Alabama v. Joshua Brack Pickett.
• Court: Alabama Supreme Court

932 So.2d 124

Ex parte Michael W. McCORMICK.

In re State of Alabama v. Lartasha Gaines.

Ex parte James H. Hard IV.

In re State of Alabama v. Ronald Ray Rice.

Ex parte Joshua Brack Pickett.

In re State of Alabama v. Joshua Brack Pickett.

1031657.

1031695.

1041133.

Supreme Court of Alabama.

November 23, 2005.

Lynne R. Thrower and K. David Sawyer, Administrative Office of Courts, Montgomery, for petitioners Judge Michael W. McCormick and Judge James H. Hard IV.

M. David Barber, district atty., and D. Riggs Walker, deputy district atty., Jefferson County, Birmingham Division, for respondent State of Alabama.

William N. Clark and Keith E. Brashier of Redden, Mills & Clark, Birmingham, for petitioner Joshua Brack Pickett.

H.W. "Bucky" McMillan, Presiding Judge, and Sue Bell Cobb, Pamela W. Baschab, Greg Shaw, and A. Kelli Wise, Judges, Court of Criminal Appeals, filed a response to the petitions for writ of mandamus.

SMITH, Justice.¹

In these three petitions for writs of mandamus, which have been consolidated for purposes of issuing one opinion, we are called upon to construe the legislature's 2000 amendment to Alabama's Split-Sentence Act, § 15-18-8, Ala.Code 1975, ("the 2000 amendment"). The Court of Criminal Appeals held in each action that in splitting the sentence of a defendant who has received a sentence of more than 15 years but not more than 20 years, a trial court must sentence the defendant to a mandatory minimum of 3 years of actual confinement and may not suspend any portion of that mandatory minimum term. For the reasons set forth below, we agree with the Court of Criminal Appeals that the 2000 amendment requires a mandatory minimum sentence of 3 years' confinement when a trial court, acting under § 15-18-8(a)(1), "splits" the sentence of a defendant who has received a sentence of more than 15 years but not more 20 years. But we hold—as § 15-18-8(c) provides—that a trial court in those circumstances "shall retain jurisdiction and authority ... to suspend that portion of the minimum sentence that remains and place the defendant on probation." § 15-18-8(c), Ala.Code 1975.

Facts and Procedural History

Case no. 1031657

Lartasha Gaines pleaded guilty, without benefit of a plea agreement, to the offense of unlawful distribution of a controlled substance.² Judge Michael W. McCormick sentenced Gaines to 20 years in prison.³ Judge McCormick then split the sentence and ordered Gaines to serve two years in the state penitentiary and two years on probation.

The district attorney for the Tenth Judicial Circuit petitioned the Court of Criminal Appeals for a writ of mandamus directing Judge McCormick to resentence Gaines. The Court of Criminal Appeals agreed with the district attorney's argument that Judge McCormick's imposition of a two-year sentence of imprisonment for Gaines was not authorized by § 15-18-8, Ala.Code 1975. State v. Gaines, 932 So.2d 118 (Ala.Crim.App.2004). The court recognized that the 2000 amendment authorized Judge McCormick to split Gaines's sentence of 20 years. But the court held that § 15-18-8(a)(1) required Judge McCormick to sentence Gaines to a minimum of three years of actual "confine[ment] in a prison, jail-type institution[,] or treatment institution," see § 15-18-8(a)(1), Ala.Code 1975, and further held that Judge McCormick had no authority to suspend this "mandatory minimum term of confinement." Gaines, 932 So.2d at 122. Accordingly, the Court of Criminal Appeals issued a writ of mandamus directing Judge McCormick to resentence Gaines. Judge McCormick then filed a petition for writ of mandamus in this Court asking us to direct the Court of Criminal Appeals to vacate its writ.

Case no. 1031695

Ronald Ray Rice pleaded guilty, without benefit of a plea agreement, to trafficking in marijuana.⁴ Judge James H. Hard IV ordered Rice to serve 20 years in prison for the trafficking offense.⁵ Judge Hard then suspended the entire sentence and placed Rice on probation for two years.

Five days later, after the district attorney's office indicated that it would seek a writ of mandamus, Judge Hard declared the sentence a nullity and resentenced Rice to serve three years in prison. Judge Hard then suspended the entire sentence and placed Rice on probation for two years.

The district attorney petitioned the Court of Criminal Appeals for a writ of mandamus directing Judge Hard to resentence Rice. In an unpublished order, the Court of Criminal Appeals granted the State's petition and issued the writ directing Judge Hard to "resentence Rice pursuant to this Court's instructions in Gaines." State v. Rice (No. CR-03-1348, July 22, 2004), 920 So.2d 616 (Ala.Crim.App.2004) (table). Judge Hard then filed a petition for the writ of mandamus in this Court asking us to direct the Court of Criminal Appeals to vacate its writ.

Case No. 1041133

Joshua Brack Pickett pleaded guilty on September 23, 2003, to burglary.⁶ On November 7, 2003, Judge Clyde E. Jones sentenced Pickett to 20 years' imprisonment. The sentence was split—Pickett was ordered to serve three years in prison to be followed by five years' probation. On November 19, 2004, Pickett filed a motion to reduce or shorten his sentence, which Judge Jones granted over the district attorney's objection. Judge Jones suspended the remaining portion of Pickett's three-year sentence and placed Pickett on probation for five years.

Because at the time the remainder of his sentence was suspended Pickett had served only 13 months and 9 days in prison, the district attorney petitioned the Court of Criminal Appeals for a writ of mandamus directing Judge Jones to vacate his order suspending the balance of Pickett's sentence. The district attorney argued that § 15-18-8(a)(1), Ala.Code 1975, as construed by the Court of Criminal Appeals in Gaines, required Pickett to serve a minimum of three years. The Court of Criminal Appeals agreed and issued the writ. State v. Pickett, 911 So.2d 755 (Ala.Crim.App.2005). Pickett then filed a petition for a writ of mandamus in this Court, asking us to direct the Court of Criminal Appeals to withdraw its writ of mandamus issued to Judge Jones and to enter an order denying the district attorney's petition.

Judge McCormick and Judge Hard seek de novo review in this Court under Rule 21(e), Ala. R.App. P. Their petitions have been consolidated with that of Pickett.

Standard of Review

Our review of a decision of the Court of Criminal Appeals on an original petition for a writ of mandamus is de novo. Rule 21(e)(1), Ala. R.App. P.; Ex parte Sharp, 893 So.2d 571, 573 (Ala.2003). The standard for issuance of a writ of mandamus is well settled:

"A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy and (4) the properly invoked jurisdiction of the court."

Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001) (citing Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000)).

Analysis

Resolution of these petitions requires us to construe Alabama's Split-Sentence Act, § 15-18-8, Ala.Code 1975 ("the Act"), which authorizes a trial court to "split" a defendant's sentence under certain circumstances. The version of the Act applicable in these three cases⁷ provides, in relevant part:

"(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:

"(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best. In cases involving an imposed sentence of greater than 15 years, but not more than 20 years, the sentencing judge may order that the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding five years, but not less than three years, during which the offender shall not be eligible for parole or release because of deduction from sentence for good behavior under the Alabama Correctional Incentive Time Act, and that the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for the period upon the terms as the court deems best.

"(2) That the convicted defendant may be confined, upon consultation with the Commissioner of the Alabama Department of Corrections (hereinafter called department) in a disciplinary, rehabilitation, conservation camp program (hereinafter called program) of the department. The convicted defendant shall be received into the department in accordance with applicable department rules and regulations and may be placed in the program after completion of this initial reception. The program shall be not less than 90 days nor more than 180 days in duration and shall be operated in accordance with department rules and regulations and as otherwise provided for by law. The commissioner of the department or his or her designee shall report to the sentencing court of each convicted defendant whether or not the convicted defendant completes or does not complete the program with any additional information that the commissioner or his or her designee shall wish to provide the court. Upon receipt of this report, the sentencing court may, upon its own order, suspend the remainder of the sentence...