Ex Parte Sandifer

• Decision Date: 16 December 2005
• Docket Number: CR-04-1391.
• Citation: 925 So.2d 290
• Parties: Ex parte Curtis SANDIFER. In re State of Alabama v. Curtis Sandifer.
• Court: Alabama Court of Criminal Appeals

925 So.2d 290

Ex parte Curtis SANDIFER In re State of Alabama v. Curtis Sandifer.

CR-04-1391.

Court of Criminal Appeals of Alabama.

December 16, 2005.

Curtis Sandifer, petitioner, pro se.

Troy King, atty. gen., and Elizabeth Ray Butler and Marc A. Starrett, asst. attys. gen., for Respondent.

PER CURIAM.

The petitioner, Curtis Sandifer, filed this petition for a writ of mandamus directing Judge James P. Smith to transfer his motion to reconsider his sentence, pending before Judge Smith, to the presiding judge of the Madison Circuit Court or to the judge who sentenced him. In 1987, Sandifer was convicted of robbery in the first degree; he was sentenced under the Habitual Felony Offender Act ("HFOA") to life imprisonment without parole. We affirmed his conviction and sentence. See Sandifer v. State, 535 So.2d 203 (Ala.Crim. App.1987).

In 2004, Sandifer moved that his sentence be reduced pursuant to § 13A-5-9.1, Ala.Code 1975 — the recent amendment to the HFOA. Because the judge who sentenced Sandifer was no longer in office, the motion was assigned to Judge Smith. Judge Smith denied the motion; Sandifer appealed. By order dated March 29, 2005, we dismissed the appeal after finding that it was an appeal from a void judgment. We stated in our order that, with absence of the sentencing judge, the appropriate judge to consider Sandifer's motion was the presiding judge of the circuit. Sandifer v. State, (CR-04-0880, March 22, 2005) (unpublished order). The presiding judge of the Madison Circuit Court is Judge Bruce E. Williams.¹

On March 31, 2005, Presiding Judge Williams issued an administrative order purporting to give Judge Smith the authority to consider, and to dispose of, all motions filed in the Madison Circuit Court pursuant to § 13A-5-9.1, Ala.Code 1975. On April 6, 2005, Judge Smith denied Sandifer's motion to reconsider his sentence. Sandifer then filed this mandamus petition.

By order dated June 29, 2005, we directed the State "to cite this Court to any authority that vests jurisdiction in a presiding judge, a judge who has been elected by a majority vote of his fellow circuit court judges, to appoint an acting presiding judge to consider certain business delegated to the presiding judge."

Initially, we observe that this case is correctly before this Court by way of a petition for a writ of mandamus. We reviewed a similar issue by means of a petition for a writ of mandamus in Ex parte Bridges, 905 So.2d 32 (Ala.Crim.App.2005).

The administrative order issued by Presiding Judge Williams assigning all motions filed pursuant to § 13A-5-9.1 to Judge Smith:

"By the authority vested in me as Presiding Circuit Judge under the provisions of Rule 13 of the Alabama Rules of Judicial Administration; Section 12-1-14.1, Code of Alabama; and the above case(s) having been assigned to me pursuant to Kirby v. State, 899 So.2d 968 (Ala.2004), I hereby ORDER that the Circuit Clerk shall reassign all motions for postjudgment relief filed pursuant to Rule 32, A.R.Crim.P.² and Section 13A-5-9.1, Code of Alabama, to the docket of Judge James P. Smith. Judge Smith, to whom such motions are assigned under the terms hereof, is the Judge presiding over such case and shall preside over such motions."

In response to this mandamus petition, the State asserts that Rule 13(A), Ala.R.Jud.Admin., and § 12-1-14.1(a), Ala. Code 1975, give Presiding Judge Williams the authority to appoint a special judge to preside over all motions to reconsider sentence. It further asserts that Presiding Judge Williams's order was an attempt to deal with the overwhelming number of cases that have been filed since the Supreme Court released it decision in Kirby v. State, 899 So.2d 968 (Ala.2004). The State has also attached copies of similar orders that have been issued by the presiding judges in Montgomery, Jefferson, and Mobile Counties.

Rule 13(A), Ala.R.Jud.Admin. states:

"The presiding circuit judge may temporarily assign circuit or district court judges to serve either within the circuit or in district courts within the circuit."

Section 12-1-14.1(a), Ala.Code 1975, which was added effective September 26, 2001, provides:

"At the request of the affected judge in a particular circuit, the presiding circuit court judge of the circuit may appoint and commission a special circuit court judge, special district court judge, or special judge of probate for temporary service. The person so appointed shall possess the qualifications of the judgeship to which he or she is appointed. The special judge shall qualify by taking the oath of office prescribed in the Constitution of Alabama of 1901. The appointment shall confer on the special judge all powers, authority, and jurisdiction of the judgeship to which he or she is appointed. The special judge shall not receive compensation for his or her services."

(Emphasis added.)³ Section 12-1-14.1, Ala.Code 1975, does not replace § 12-1-14, Ala.Code 1975, but is "supplemental to Section 12-1-14." Section 12-1-14.1(c), Ala.Code 1975. Section 12-1-14, Ala.Code 1975, states:

"Should the need for special judges in the circuit court, district court or probate court arise, the Supreme Court may appoint and commission special circuit judges or special district court judges or special probate judges for temporary service; provided, however, that the person so appointed shall possess the qualifications of the judgeship to which he is appointed. Such special judges shall qualify by taking the oath of office prescribed in the Constitution. Such appointment shall confer on the special judge all powers, authority and jurisdiction of the respective judgeship to which he is appointed. Such special judge shall receive as compensation for his services a sum not to exceed $100.00 a day as established by rule and reimbursement for his actual and necessary expenses, including, but not limited to, transportation costs, food and lodging, to be paid out of the State Treasury or, in whole or part, from grant funds on approval and direction of the Administrative Office of Courts."

(Emphasis added.)

In many cases, as was the situation in this case, the original sentencing judge is no longer in office; therefore, there is no judge to request that the presiding judge appoint a special judge. Also, § 12-1-14.1, Ala.Code 1975, does not address those situations in which a presiding judge has difficulty accomplishing the duties assigned to him or her by virtue of his or her status as presiding judge. The situation presented in this case is not addressed in § 12-1-14.1, Ala.Code 1975; therefore, we believe that § 12-1-14, Ala.Code 1975, controls. Section 12-1-14, Ala.Code 1975, states, in part: "Should the need for special judges in the circuit court, district court or probate court arise, the Supreme Court may appoint and commission special circuit judges or special district court judges or special probate judges for temporary service. . . ."

The judges dissenting from the opinion rely on a statute and a rule that applies to appointing special judges rather than to reassigning to a sitting judge the duties of a presiding circuit judge. The Alabama Supreme Court has enacted rules governing the selection of presiding circuit judges. See Rule 6(A), Ala.R.Jud.Admin. According to Rule 6(A), Ala.R.Jud.Admin., if a circuit has more than one circuit judge, a presiding judge is elected by a majority vote of his or her fellow circuit judges to serve a three year term. See also § 12-17-23, Ala.Code 1975. Rule 6(A), Ala.R.Jud.Admin., also allows the Supreme Court, in certain situations, to elect a presiding judge. The Supreme Court has held that Rule 6(A), Ala.R.Jud.Admin. takes precedence over § 12-17-23, Ala. Code 1975, the statute addressing the election of presiding judges. See In re Opinion of the Clerk, 606 So.2d 138 (Ala.1992). Here, the effect of Presiding Judge Williams's administrative order was to appoint an acting presiding judge to dispose of business delegated to him by virtue of his position as the duly elected presiding judge of the Madison Circuit Court. There is no provision in Rule 6(A), Ala.R.Jud.Admin. that gives Judge Williams the authority to appoint such a special presiding judge.

Also, the Chief Justice has issued an administrative order addressing Kirby motions in Talladega County. In Talladega County the presiding judge, Judge Julian King, petitioned the Chief Justice of the Alabama Supreme Court to appoint a special judge to preside over all motions to reconsider sentences that were filed in that circuit. The Chief Justice's December 22, 2004, order in response to Presiding Judge King's petition stated the following facts:

"To the Honorable William E. Hollingsworth, Circuit Judge Talladega County, Alabama

"Whereas, Judge Julian M. King, Presiding Judge for the 29th Judicial Circuit of Alabama finds a need for a special judge to hear all petitions/motions filed pursuant to Kirby v. State, 899 So.2d 968 (Ala.2004), due to conflicts arising from previously serving as an Assistant District Attorney in the twenty-ninth judicial circuit and having participated in the prosecution of many of the defendants who may be affected by the holdings of such cases.

"Whereas, the Supreme Court of Alabama hereby authorizes and empowers Williams E. Hollingsworth, a Circuit Judge in Talladega County, to act as a special judge to hear all cases of said matter."⁴

Most importantly, Presiding Judge Williams's administrative order assigning all Kirby motions to Judge Smith conflicts with § 13A-5-9.1, Ala.Code 1975, and the Supreme Court's decision in Kirby. Section 13A-5-9.1, Ala.Code 1975, states:

"The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or 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."⁵

(Emphasis...