AFFIRMED BY UNPUBLISHED MEMORANDUM.
WINDOM, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.
WELCH, J., dissents, with opinion.
WELCH, Judge, dissenting.
Joseph Lester Pate appealed from the denial of his latest motion seeking reconsideration of his sentence pursuant to § 13A-5-9.1, Ala.Code 1975. See Kirby v. State, 899 So.2d 968 (Ala.2004). Pate was sentenced to life in prison without the possibility of parole following his conviction for first-degree theft. In the motion, Pate sought to be resentenced.
The circuit court denied Pate's Kirby motion because the court did not believe it had jurisdiction to consider a successive motion for sentence reconsideration. The majority in its unpublished memorandum affirming the circuit court's decision correctly
For the reasons I expressed in my dissent in Ashford v. State, 12 So.3d 160 (Ala.Crim.App.2008), I respectfully dissent. I stated in Ashford:
Ashford v. State, 12 So.3d 160, 163 (Ala. Crim.App.2008).
Moreover, because the circuit court did not consider the motion, Pate was denied due process. The Alabama Constitution, Art. I, § 6, states that "the accused has a right to be heard...." While Pate was not literally entitled to a hearing, he was entitled to have his motion reviewed. "It is generally understood that an opportunity for a hearing before a competent and impartial tribunal upon proper notice is one of the essential elements of due process." Ex parte Weeks, 611 So.2d 259, 261 (Ala. 1992). Pate's motion was dismissed without any review of the merits of his claim because the circuit court erroneously believed that it lacked jurisdiction to entertain the motion. Under this circumstance, Pate was not afforded the opportunity for sentence reduction provided by § 13A-5-9.1, Ala.Code 1975, and Kirby. The circuit court had jurisdiction and, by not ruling on the motion, deprived Pate of due process. Additionally, because the circuit court did not enter a ruling, there was nothing for this Court to review on appeal. I do not believe this Court should affirm a decision on the basis that "the circuit court is correct for any reason" when the circuit court did not in fact enter a ruling.
As in Ashford, I would reverse the circuit court's judgment and remand this cause for the circuit court to review the