Feion Judio McQuieter v. State of Alabama
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REL: 12/16/2011 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) 229-0649), 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, 2011-2012 _________________________ CR-09-1760 _________________________ Feion Judio McQuieter v. State of Alabama Appeal from Mobile Circuit (CC-02-3144.10) Court On Return To Remand BURKE, Judge. Feion Judio McQuieter argued that the circuit court improperly revoked his conviction for murder. probation from his guilty-plea He had been sentenced to a 20-year split sentence and had been ordered to serve 4 years of CR-09-1760 incarceration followed by 5 years of probation. McQuieter had filed a petition requesting that the circuit court resentence him under §15-22-54.1. The circuit court denied McQuieter's petition and held that it lacked jurisdiction to modify McQuieter's sentence because the revocation resulted in a straight determined sentence. that On circuit December courts 17, have 2010, this jurisdiction Court to re- sentence eligible offenders whose probation had been revoked based on technical violations that resulted in straight sentences. This Court further found that, because the circuit court summarily denied McQuieter's petition based solely on its lack of jurisdiction, and because "the record does not indicate that the circuit court determined whether McQuieter satisfied the eligibility requirements", this cause was due to be remanded. McQuieter v. State, [Ms. CR-09-1760, December 17, 2010] So. 3d , (Ala. Crim. App. 2010). On January 6, 2011, the circuit court filed its record and supplemental record on return to remand, which contained its order finding that McQuieter was not an eligible offender because he had pleaded guilty to felony murder on May 2, 2003, specifically to having, during the course of a kidnapping or 2 CR-09-1760 flight therefrom, caused the death of the victim by shooting him. Therefore, McQuieter was not convicted of a nonviolent offense and was not eligible for sentence pursuant to § 15-22-54.1 , Ala. Code 1975. modification The circuit court again ordered that McQuieter's petition be denied. The circuit court properly denied McQuieter's petition because the court lacked jurisdiction to resentence him as McQuieter did not qualify as an eligible offender under § 1522-54.1(a),1 which requires: "(a) Any person convicted of a nonviolent offense now serving a prison sentence based on revocation of probation shall be entitled to be resentenced upon petition to the sentencing court." Because murder is a violent offense under § 12-25-32, Ala. Code 1975, offense. McQuieter was not convicted of a nonviolent Therefore, because McQuieter was a violent offender, the circuit court lacked jurisdiction to resentence him and its decision is due to be affirmed. AFFIRMED. 1 Effective June 14, 2011, this subsection was amended to read: "(a) Any person now serving a prison sentence based on revocation of probation who would have been an eligible offender as defined in Section 15-22-54 at the time of revocation shall be entitled to be resentenced upon petition to the sentencing court." 3 CR-09-1760 Welch, P.J., and Windom, Kellum, and Joiner, JJ., concur. 4
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