June 5, 2015
Ex parte Kenneth Ray Cornelius
State of Alabama In re: Kenneth Ray Cornelius
(Cullman Circuit Court, CC-04-413; Court of Criminal Appeals,
Justice. Stuart, Bolin, Parker, Main, and Wise, JJ., concur.
Moore, C.J., and Murdock and Shaw, JJ., dissent.
FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
DENIED. NO OPINION.
Bolin, Parker, Main, and Wise, JJ., concur.
C.J., and Murdock and Shaw, JJ., dissent.
Chief Justice (dissenting).
Ray Cornelius petitions this Court for a writ of certiorari
to review the decision of the Court of Criminal Appeals
dismissing Cornelius's appeal to that court. Today this
Court denies his petition for a writ of certiorari. I
filed a motion for sentence reconsideration pursuant to
§ 13A-5-9.1, Ala. Code 1975 (which was repealed
effective March 13, 2014, see Act No. 2014-165, Ala. Acts
2014), and Kirby v. State, 899 So.2d 968 (Ala.
2004). Such a motion is referred to as a " Kirby
motion." The Cullman Circuit Court denied
Cornelius's Kirby motion, and Cornelius appealed the
circuit court's decision to the Court of Criminal
Appeals. On January 15, 2015, the Court of Criminal Appeals
dismissed Cornelius's appeal on the ground that
Cornelius's Kirby motion was filed on March 13, 2014, the
effective date of the repeal of § 13A-5-9.1. The Court
of Criminal Appeals determined that the circuit court lacked
the jurisdiction to rule on Cornelius's Kirby motion on
March 13, 2014, when the repeal of § 13A-5-9.1 became
2014-165 states, in pertinent part:
" BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
" Section 1. Section 13A-5-9.1, Code of Alabama 1975,
" Section 2. This act shall be applied prospectively
only. Any case, on the effective date of this act, in which a
motion filed pursuant to Section 13A-5-9.1, Code of Alabama
1975, is pending in the trial court ... shall not be affected
by the act.
" Section 3. This act shall become effective immediately
following its passage and approval by the Governor, or its
otherwise becoming law.
" Approved March 13, 2014
" Time: 7:20 A.M."
(Emphasis added.) Section 2 provides that any Kirby motion
" pending" in the trial court on the effective date
of the act (March 13, 2014) " shall not be affected by
the act." Because in my view Cornelius's Kirby
motion was filed on and therefore was pending on March 13,
2014, I believe the circuit court retained jurisdiction to
consider Cornelius's Kirby motion. Accordingly, I
respectfully dissent. I would grant the petition to determine
whether the door on Cornelius's Kirby motion was closed a
day too early.