Bishop v. State
Bishop v. State
Opinion
The appellant, James Charles Bishop, Jr., appeals from the denial of his motion to reconsider his sentence, made pursuant to §
Based upon a review of the record, it appears that Bishop filed his first motion for reconsideration in the circuit court sometime prior to March 2006, alleging that his sentence should be reevaluated pursuant to §
On appeal, Bishop argues that the trial court abused its discretion when it denied his motion as successive without the requisite determination as to whether he was eligible for sentence reconsideration as required by Holt v. State,
However, even though the circuit court, relying on Wells v. State, supra, incorrectly denied Bishop's successive motion for reconsideration, in the interest of judicial economy, we need not remand this cause to the circuit court because the circuit court, in its earlier orders denying Bishop's motions for reconsideration, had already determined that Bishop was a violent offender and therefore ineligible for sentence reconsideration. The circuit court noted in its March 2006 order that attempted murder was clearly a violent offense. In its December 2006 order, the circuit court further noted that it could not rationally conclude that "a defendant convicted by a jury of Attempted Murder with ten (10) prior felony convictions" would be considered a nonviolent offender. (C. 30) There is nothing in the record to suggest that the circuit court did not consider all the information presented to it in determining that Bishop was a violent offender. Thus, we presume that the circuit court properly considered all the information before it. SeeHolt, supra. Although Bishop alleges that the victim did not suffer serious physical injury, we conclude that given that a weapon was used during the attempted murder along with Bishop's 10 prior felony convictions, which included convictions for second-degree burglary and possession of a pistol, the circuit court could have reasonably concluded that Bishop was a violent offender, and, thus, ineligible for sentence reconsideration. "Whether an inmate is a violent offender is for the circuit court to determine and, in the absence of an abuse of discretion in so determining, we will not disturb its finding on appeal." Sanders v. State,
Accordingly, the judgment of the circuit court is due to be affirmed.
AFFIRMED.
BASCHAB, P.J., and McMILLAN, SHAW, and WELCH, JJ., concur.
"[Bishop] previously filed a motion for resentencing under Ala. Code §
13A-5-9 (a Kirby petition) from his. conviction following a jury trial for Attempted Murder with ten (10) prior felony offenses. The petition was assigned to me as Presiding Judge as the sentencing judge is not in office, and was denied on March 20, 2006. Apparently, [Bishop] filed additional materials in August, September, and November 2006 either attacking the earlier denial or seeking to submit additional information or file a subsequent petition. These materials were erroneously routed to another judge and not submitted to me as Presiding Judge until the week of December 11. This court does not have jurisdiction to consider a successive petition. Wells v. State, [941 So.2d 1008 ] (Ala.Crim.App. 2005). Further, [Bishop] appears to challenge the findings of the March 20 ruling and I am unable to rationally conclude that a defendant convicted by a jury of Attempted Murder with ten (10) prior felony offenses is considered `nonviolent,' unless that finding is by consent of the State."
(C.30.)
Reference
- Full Case Name
- James Charles Bishop, Jr. v. State of Alabama.
- Cited By
- 2 cases
- Status
- Published