Mack Winchester v. State of Alabama
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REL: 05/25/2007 WINCHESTER 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) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2006-2007 _________________________ CR-06-0836 _________________________ Mack Winchester v. State of Alabama Appeal from Franklin Circuit Court (CC-97-179) WISE, Judge. AFFIRMED BY UNPUBLISHED MEMORANDUM. McMillan, Shaw, and Welch, concurs specially, with opinion. the result. JJ., concur. Wise, J., Baschab, P.J., concurs in CR-06-0836 WISE, Judge (concurring specially). Although this Court affirms the denial of Winchester's motion for sentence reconsideration, I write specially to express my agreement with Justice Stuart's dissent in Ex parte Butler, [Ms. 1051636, March 16, 2007] ___ So. 2d ___ (Ala. 2007), in which jurisdiction she to opined that entertain a "a court motion does for not have sentence reconsideration filed by an inmate who has been convicted of an offense that is statutorily defined as a violent offense." ___ So. 2d at ___. Accord Holt v. State, [Ms. 1050800, December 22, 2006] ___ So. 2d ___, ___ (Ala. 2006) (Stuart, J., dissenting). Although I originally concurred with this Court's opinion in Holt v. State, [Ms. CR-04-1250, March 3, 2006] ___ So. 2d ___ (Ala.Crim.App. 2006), writ quashed, [Ms. 1050800, December 22, 2006] ___ So. 2d ___ (Ala. 2006), and joined Judge Baschab's special concurrence, I am now persuaded by Justice Stuart's dissents in both Holt and Ex parte Butler, that this Court's decision in Holt was an overly broad construction of both § 13A-5-9.1 and the Alabama Supreme Court's opinion in Kirby v. State, 899 So. 2d 968 (Ala. 2004). 2 In my opinion, CR-06-0836 the circuit court lacked jurisdiction even to consider Winchester's motion for sentence reconsideration, given that his criminal history included a conviction for manslaughter -statutorily defined as a violent 32(13)a.3., Ala. Code 1975. offense. See § 12-25- In my opinion, the Supreme Court should revisit its holdings in these cases and adopt Justice Stuart's position. Moreover, to the extent that this Court's decision in Holt v. State allows violent convicted offenders such as Winchester relief from the sentence imposed as a result of revisited their to violent prevent an occurring in future cases. conduct, injustice that such decision as this should one be from Clearly, this could not have been the intent of the Alabama Legislature when it enacted § 13A-59.1, Ala. Code 1975. 3
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