Criminal Procedure and Sentencing in Alabama

In 1982, Melvin Bush was convicted of first-degree rape and was sentenced as a habitual felony offender with two prior felony convictions to life in prison. In 2013, Bush filed his third motion for sentence reconsideration pursuant to Code of Alabama, 1975, § 13A-5-9.1. The trial court summarily dismissed the petition. Bush appealed. Appeal dismissed. On appeal, Bush claimed that the judge who ruled on his Kirby motion was neither the sentencing judge nor the presiding judge of the 13th Judicial Circuit (Mobile County) and thus, that he lacked jurisdiction to rule on the motion. A Kirby motion must be filed in the court of original conviction and only the sentencing judge, the presiding judge, or a circuit judge appointed by the presiding judge of that circuit has jurisdiction to review that motion.

In this case, there was no order appointing the judge to preside over the latest Kirby motion. Rather, the trial judge explained that it was the customary practice in the 13th Judicial Circuit for an incoming judge to “take over” the responsibility of handling cases previously assigned to a departing circuit judge. “This Court recognizes that the current customary practice in the 13th Judicial Circuit is often used in many circuits in this State; however, in many circuits, the presiding judge has issued a standing administrative order adopting that procedure.” Such a standing administrative order will suffice. However, in this case, the record does not show any documents establishing the judge’s jurisdiction to rule on Bush’s motion. “Therefore, we must find that the circuit court’s order denying Bush’s motion was void because that court did not have jurisdiction to entertain the motion.” Because a void judgment will not support an appeal, the appeal must be dismissed. Bush v. State of Alabama.

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