Ex parte Wendell Hightower.
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REL:04/17/2015 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, 2014-2015 ____________________ 1140628 ____________________ Ex parte Wendell Hightower PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Wendell Hightower v. State of Alabama) (Mobile Circuit Court, CC-94-1984 and CC-94-1985; Court of Criminal Appeals, CR-13-1539) BOLIN, Justice. WRIT DENIED. NO OPINION. 1140628 Murdock, Main, and Bryan, JJ., concur. Moore, C.J., concurs specially. 2 1140628 MOORE, Chief Justice (concurring specially). I concur in denying Wendell Hightower's petition for a writ of certiorari. Effective March 13, 2014, the Alabama Legislature provided repealed for the § 13A-5-9.1, filing of Ala. Code motions 1975, for which sentence reconsideration by certain inmates, also referred to as "Kirby motions." See Kirby v. State, 899 So. 2d 968 (Ala. 2004); see also Gill v. State, [Ms. 1130649, June 20, 2014] ___ So. 3d ___, ___ (Ala. 2014)(Moore, C.J., dissenting)(discussing the repeal of § 13A-5-9.1). Hightower, an inmate, filed his fourth motion for sentence reconsideration in May 2014, after the effective date of the repeal of § 13A-5-9.1. Therefore, his motion for sentence reconsideration was properly denied. However, Hightower alleges in his petition that he had filed a third motion for sentence reconsideration in June 2013, before the repeal of § 13A-5-9.1, and that the trial court never ruled on that motion. reconsideration Hightower's is not third before us, motion but if, for sentence as Hightower alleges, that motion was filed before the repeal of § 13A-59.1 and remains pending, Hightower may still have available to 3 1140628 him the remedy of sentence reconsideration. If the trial court has indeed not ruled on Hightower's June 2013 motion for sentence reconsideration, then mandamus relief may be available to compel a ruling on that motion. See Ex parte Barnett, 858 So. 2d 948, 949 (Ala. 2003). 4
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