Ex parte Matthew Wayne Tubbs. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Matthew Wayne Tubbs v. State of Alabama)
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Rel: 10/05/2007 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) 2290649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2007-2008 ____________________ 1061139 ____________________ Ex parte Matthew Wayne Tubbs PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Matthew Wayne Tubbs v. State of Alabama) (Jefferson Circuit Court, CC-98-6436; Court of Criminal Appeals, CR-06-0522) PARKER, Justice. Matthew Wayne Tubbs has filed a petition for a writ of certiorari seeking review of the Court of Criminals Appeals' affirmance, in an unpublished memorandum, of the Jefferson 1061139 Circuit Court's reconsideration denial under § of his 13A-5-9.1, motion Ala. for Code sentence 1975, which supplements § 13A-5-9, Ala. Code 1975, the Habitual Felony Offender Act. We hereby suspend the provisions of Rule 39(g) and (h), Ala. R. App. P., allowing the petitioner and the respondent to file a brief and to request oral argument, and we summarily grant the writ; we reverse and remand. On August 31, 1999, Tubbs was convicted of first-degree robbery. On September 3, 1999, the circuit court sentenced him, as a habitual offender, to imprisonment for life without the possibility of parole. 1975. On August 25, See § 13A-5-9(c)(3), Ala. Code 2006, Tubbs filed a motion for reconsideration of his sentence pursuant to § 13A-5-9.1, Ala. Code 1975, and Kirby v. State, 899 So. 2d 968 (Ala. 2004) ("the Kirby motion"). The State responded, and the circuit court then summarily denied the Kirby motion. Tubbs appealed the denial of the Kirby motion, and the Court of Criminal Appeals affirmed the circuit court's denial in an unpublished memorandum. Tubbs v. State (No. CR-06-0522, April 20, 2007), __ So. 2d __ (Ala. Crim. App. 2007)(table). In its unpublished memorandum, the Court of Criminal Appeals reasoned that Tubbs's Kirby motion was at least the second 2 1061139 motion for sentence reconsideration that Tubbs had filed and was therefore due to be denied because the circuit court did not have jurisdiction to hear such a motion. Tubbs argues that his first Kirby motion was not fully adjudicated on its merits and, thus, that he has never had a full and fair review under the statute. Tubbs alleges that the decision of the Court of Criminal Appeals conflicts with this Court's decisions in Kirby and Ex parte Seymour, 946 So. 2d 536 (Ala. 2006). This petition presents a Kirby resentencing issue like the one presented in Ex parte Gunn, [Ms. 1051754, Sept. 14, 2007] __ So. 2d __ (Ala. 2007). In Gunn, the Court of Criminal Appeals, in an unpublished memorandum, had held, as they did in this case, that under Wells v. State, 941 So. 2d 1008 (Ala. Crim. App. 2005), the circuit court does not have jurisdiction to consider a successive Kirby resentencing motion and affirmed the circuit court's dismissal of Gunn's petition. Gunn v. State (No. CR-05-1350, August 11, 2006), __ So. 2d __ (Ala. Crim. App. 2006) (table). This Court granted certiorari review in Gunn and overruled Wells v. State to the extent that Wells created a limitation on a circuit court's jurisdiction to consider successive Kirby 3 motions, noting that Wells 1061139 conflicts with Kirby and Ex parte Seymour. Ex parte Gunn, __ So. 2d at __. The Court of Criminal Appeals relied solely on Wells in affirming the circuit court's judgment in this case. Therefore, in light of our decision in Gunn, we reverse the judgment of the Court of Criminal Appeals and remand this case to that court for proceedings consistent with Gunn. WRIT GRANTED; REVERSED AND REMANDED. See, Lyons, Woodall, Stuart, Smith, Bolin, and Murdock, JJ., concur. Cobb, C.J., recuses herself. 4
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