author: McMILLAN, Presiding Judge. SHAW, Judge,

text:
    Ernest Land BOYD v. STATE.
    CR-04-0936.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    Opinion Overruling Application for Rehearing April 28, 2006.

      James Dwight Smith, Tuscaloosa, for appellant.
    Troy King, atty. gen., and Scott L. Rouse, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

On May 1, 2003, Earnest Land Boyd, a convicted sex offender, was indicted for violating the Community Notification Act (“CNA”). Count 1 of the indictment charged Boyd with knowingly establishing a residence or accepting employment within 2,000 feet of a school or child-care facility, a violation of § 15-20-26(a), Ala.Code 1975. Count 2 charged him with knowingly establishing a residence within 1,000 feet of the residence of his former victim or his former victim’s family, a violation of § 15-20-26(b), Ala.Code 1975. Count 3 charged him with intentionally failing to give notice, at least 30 days prior to moving, of his intent to transfer his residence, a violation of § 15-20-23(a), Ala.Code 1975. Pursuant to an agreement with the State, Boyd pleaded guilty to Counts 1 and 2, and Count 3 was dismissed. Before entei’ing his guilty plea, Boyd reserved the right to challenge on appeal the constitutionality and applicability of § 15-20-26. The trial court sentenced Boyd, as a habitual offender with two prior felony convictions, to concurrent sentences of 10 years’ imprisonment.

The State offered the following factual basis for Boyd’s guilty plea: Boyd was convicted of first-degree sexual abuse in 1995. In June, 2002, Sgt. Greene, a Tuscaloosa police officer, contacted Boyd and explained the provisions of the CNA and how it applied to Boyd. On November 7, 2002, Boyd accepted employment at Planit Solutions, a business that was located within 2,000 feet of Skyland Baptist Day Care and/or Sherwood Forest Child Care and Learning Center in Tuscaloosa. He began work at Planit Solutions on November 11, 2002. Boyd’s employer found out that Boyd was a sex offender and that the location of the business in relation to the child care facility precluded Boyd’s employment there; Boyd’s employment was terminated. ■ At that time, Boyd was residing at 4653 31st Avenue East in Tuscaloosa. The household included Boyd’s victim, E., “at one point.” The household included E.’s mother, Nancy Boyd, and E.’s half brother “at all times.”

I.

The State contends that, pursuant to § 6-6-227, Ala.Code 1975, this appeal should be dismissed because the attorney general was not served with a copy of the proceeding or given an opportunity to be heard in the trial court regarding Boyd’s challenge to the constitutionality of the CNA. However, this court held in Townsend v. City of Mobile, 793 So.2d 828 (Ala. Crim.App.1998), rev’d on other grounds, 793 So.2d 835 (Ala.2000), that § 6-6-227 is a civil provision which is inapplicable in criminal proceedings.

The State also contends that Boyd’s arguments regarding mistake of law and fundamental rights should be rejected because, the State says, they were not first presented in circuit court. This contention is not supported by the record. At the plea hearing, Boyd’s counsel reserved the issues of “ex post facto application of this specific statute in this specific case; also[,] issues of procedural due process in terms of complying with this[;] double jeopardy under the Constitution[;] mistake of law[;] as well as fundamental fairness.”

II.

Boyd contends that, under the circumstances of this case, § 15-20-26, Ala. Code 1975, violates the ex post facto clauses of the federal and Alabama Constitutions. He argues on appeal that the statute operates on him in an excessively punitive manner because he has been barred by the residency restrictions from residing with his own wife in his own home; he has lost at least one job as a result of the community notification provisions; and he has been unreasonably restricted in where he can work. He argues that there is “virtually no location” in Tuscaloosa County where he is eligible to live and “practically no business” in Tuscaloosa County where he can work without running afoul of the CNA.

In Lee v. State, 895 So.2d 1038 (Ala. Crim.App.2004), this court held that the residency requirement of the CNA did not violate the ex post facto clause because it was nonpunitive both on its face and in terms of its effects. With regard to the effects of the statute, we noted that there were no factual bases for Lee’s claims of banishment and homelessness because he did not present any evidence indicating that he or any other sex offender was homeless or had been banished. A similar lack of evidence exists in the present case.

At the plea hearing, Boyd failed to offer any evidence that he was married to Nancy Boyd or that the residence he was living in at 4653 31st Avenue East was his. He also failed to offer any evidence regarding the reason his employment at Planit Solutions had been terminated or any evidence indicating that he had been restricted from taking another job. The State’s proffer did not indicate how Boyd’s employer at Planit Solutions learned of Boyd’s sex-offender status or the reason that Boyd’s employment at Planit Solutions was terminated. Therefore, there is no factual basis for Boyd’s claim that the CNA was punitive in its effects.

III.

The appellant contends that, in violating the Adult Criminal Sex Offender Act, he made an excusable mistake of law. He argues on appeal that he relied on the law “as it was when he was convicted,” on the representations of that law made by law-enforcement officials, and on the fact that no law-enforcement agency had informed him of his new obligations or had provided him the forms needed for compliance.

Section 13A-2-6(b), Ala.Code 1975, provides:

“A person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless his mistaken belief is founded upon an official statement of the law contained in a statute or the latest judicial decision of the highest state or federal court which has decided on the matter.”

The Commentary to § 13A-2-6 explains that “[sjubsection (b) codifies the universally accepted principal that generally ignorance or mistake of law is no defense.”

Boyd’s claim of mistake is not supported by the record. At the plea hearing, the trial court asked if Boyd agreed that he had been notified regarding the CNA in 2002 by Sgt. Greene. Boyd’s counsel responded: “Yes, we will concede that the State can show that there was contact with Mr. Green[e] and Mr. Boyd and that he told him about the act at that point.” In her proffer, the prosecutor stated that Greene would testify that he met with Boyd on June 10, 2002; that he went over the sex-offender-notification form with Boyd; and that he explained the information it contained. There is no factual basis for Boyd’s claim that, at the time these offenses occurred in November of 2002, he was mistaken regarding the current law.

IV.

Boyd contends that punishing him for “residing with his wife” imposes an unnecessary burden on the fundamental rights to live with immediate family and enjoy the benefits of marriage. He argues that in J.L.N. v. State, 894 So.2d 738 (Ala. Crim.App.2002), this court found that the operation of the CNA infringed on the defendant’s right to marry his fiancee, who was also the victim of his crime.

In J.L.N. v. State, 894 So.2d 751 (Ala. 2004), the Alabama Supreme Court overturned this court’s decision, finding that J.L.N. did not demonstrate that he had standing to challenge the CNA because he failed to show that he and the victim were married or that they had attempted to marry. Boyd also has failed to offer any evidence indicating that he was married. Therefore, he has not shown that he has standing to challenge the CNA on this ground.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

On Application for Rehearing

McMILLAN, Presiding Judge.

APPLICATION OVERRULED.

COBB and BASCHAB, JJ., concur.

SHAW, J., dissents, with opinion, in which WISE, J., joins.

SHAW, Judge,

dissenting.

I would grant the State’s application for rehearing for the sole purpose of addressing its contention that this Court’s decision in Townsend v. City of Mobile, 793 So.2d 828 (Ala.Crim.App.1998), rev’d on other grounds, 793 So.2d 835 (Ala.2000), incorrectly states Alabama law.

In Townsend, this Court held:

“The City of Mobile asserts that this Court is without jurisdiction to decide the appellant’s Commerce Clause claim because the appellant failed to notify the attorney general that he was challenging the constitutionality of a city ordinance, and it cites § 6-6-227, Ala.Code 1975, in support of its assertion. However, § 6-6-227 is a provision included in the civil practice section of the Code and is inapplicable in a criminal proceeding. Because the appellant properly presented his constitutional argument to the circuit court, the issue is properly before this Court.”

793 So.2d at 829. The State argues that the sole basis for this Court’s holding in Townsend — that § 6-6-227, Ala.Code 1975, is inapplicable in a criminal proceeding because it appears in the civil practice section of the Code — is called into doubt by § l-l-14(a), Ala.Code 1975, which provides:

“(a) The classification and organization of the titles, chapters, articles, divisions, subdivisions and sections of this Code, and the headings thereto, are made for the purpose of convenient reference and orderly arrangement, and no implication, inference or presumption of a legislative construction shall be drawn therefrom.”

Citing several decisions by the Alabama Supreme Court, including Barger v. Barger, 410 So.2d 17 (Ala.1982), the State maintains that § 6-6-227 has a wider field of operation than this Court allowed in Townsend.

The State raised this jurisdictional issue on original submission, and I joined the other members of this Court in accepting jurisdiction based on Tmmsend. However, the State’s request that we revisit Townsend is duly noted. Because § 1-1-14(a) casts doubt on this Court’s rationale in Townsend, I believe that we should take a fresh look at the scope of § 6-6-227.

WISE, J., concurs.

      . The prosecutor stated that she expected Tim Strother, who worked at Planit Solutions, to testify regarding the dates that Boyd applied for employment, was offered a job, and began working at the business. She also stated that she expected Strother to state that "[s]ubse-quent to Mr. Strother finding out about the fact that [Boyd] was a sex offender and that that location was too near a child care facility, he made that aware [sic] to Sergeant Greene and your employment was subsequently terminated from that business.”


source: Caselaw Access Project

author: SEE, Justice. SEE, Justice

license: Public Domain

text:
    Ex parte State of Alabama. (In re Ernest Land BOYD v. STATE of Alabama).
    1051122.
    Supreme Court of Alabama.
    Dec. 29, 2006.
    Troy King, atty. gen., and Scott L. Rouse, deputy atty. gen., for petitioner.
    James D. Smith, Tuscaloosa, for respondent.
   SEE, Justice.

WRIT QUASHED. NO OPINION.

NABERS, C.J., and LYONS, HARWOOD, WOODALL, STUART, SMITH, and BOLIN, JJ., concur.

SEE and PARKER, JJ., concur specially.

SEE, Justice

(concurring specially).

This Court granted the State’s petition for the writ of certiorari to review the Court of Criminal Appeals’ holding that § 6-6-227, Ala.Code 1975, which requires any party challenging the constitutionality of a statute to serve the complaint on the attorney general, does not apply to challenges to criminal statutes. I concur in this Court’s decision to quash the writ; I write specially to explain my understanding of § 6-6-227, which is part of the Declaratory Judgment Act.

Ernest Land Boyd was convicted in 1995 of first-degree sexual abuse of his 10-year-old stepdaughter. In June 2002, after Boyd was released from prison, a Tuscaloosa police officer explained to Boyd that the Community Notification Act, § 15-20-26, Ala.Code 1975 (“the CNA”), applied to Boyd. The CNA prohibits, among other actions, an adult sex offender from working within 2,000 feet of a daycare facility and from living within 1,000 feet of his former victim.

Five months after he was released from prison, Boyd obtained a job at Planit Solutions, Inc., in Tuscaloosa. The location of Boyd’s place of employment was within 2,000 feet of Skyland Baptist Daycare and Sherwood Forest Child Care and Learning Centers, in violation of the CNA. Boyd also lived with his former victim; the victim’s mother, who is his wife; and the victim’s half brother, in violation of the CNA. Following his release from prison, Boyd’s household at one time included his former victim, and at all times included the victim’s mother and the victim’s half brother.

In 2003, Boyd pleaded guilty to knowingly establishing a residence or accepting employment within 2,000 feet of a school or child-care facility and to knowingly establishing a residence within 1,000 feet of the residence of his former victim or his former victim’s family, violations of the CNA. See § 15-20-26(a) and (b), Ala.Code 1975. Before entering his guilty plea, Boyd reserved his right to challenge on appeal the constitutionality and applicability of § 15-20-26, Ala.Code 1975. The trial court convicted Boyd and sentenced him, as a habitual offender, to 10 years in prison. Boyd appealed to the Court of Criminal Appeals, arguing that the CNA was unconstitutional as applied to him because it infringed on his right to marry.

The State argued that the Court of Criminal Appeals should dismiss the appeal because Boyd had failed to serve the attorney general with a copy of the proceeding, pursuant to § 6-6-227, Ala.Code 1975. Thus, the State argued, Boyd had failed to give the attorney general an opportunity to be heard in the trial court regarding his challenge to the constitutionality of the CNA.

The Court of Criminal Appeals applied its earlier holding in Townsend v. City of Mobile, 793 So.2d 828 (Ala.Crim.App.1998), rev’d on other grounds, 793 So.2d 835 (Ala. 2000), and held that § 6-6-227, Ala.Code 1975, “is a civil provision which is inapplicable in criminal proceedings,” Boyd v. State, 960 So.2d 717, 719 (Ala.Crim.App. 2006), because “§ 6-6-227 is a provision included in the civil practice section of the Code.” Townsend, 793 So.2d at 829. Thus, the Court of Criminal Appeals reasoned, Boyd was not required to serve the attorney general in order to properly challenge the constitutionality of the CNA, which is included in the Criminal Code. Therefore, the Court of Criminal Appeals declined to dismiss the appeal and addressed the merits of Boyd’s constitutional arguments. The Court of Criminal Appeals found no merit to Boyd’s arguments and affirmed the trial court’s judgment.

The State applied for a rehearing, arguing that the Court of Criminal Appeals had incorrectly held that Boyd did not have to serve the attorney general a copy of his complaint challenging the constitutionality of the CNA. The Court of Criminal Appeals overruled the application; however, Judge Shaw dissented and filed an opinion, in which Judge Wise concurred. Judge Shaw , stated that he “would .grant the State’s application for rehearing for the sole purpose of addressing its contention that this Court’s decision in Townsend v. City of Mobile, 793 So.2d 828 (Ala.Crim. App.1998), rev’d on other grounds, 793 So.2d 835 (Ala.2000), incorrectly states Alabama law.” Boyd v. State, 960 So.2d at 721. We originally issued the writ of cer-tiorari to review whether § 6-6-227 applies to criminal statutes. We now quash our issuance of the writ of certiorari in this case. As is true of a denial of certiorari review, no inference can be drawn from the fact that the writ of certiorari in a particular case was quashed. See Ex parte R.B.Z., 725 So.2d 257, 260 (“Moreover, our denial of certiorari review should not be considered a ruling on the merits of the controversy. Ex parte Cason, 515 So.2d 725 (Ala.1987); Ex parte Glasco, 513 So.2d 61 (Ala.1987); Ex parte McDaniel, 418 So.2d 934 (Ala.1982).”): I concur to quash the writ because I believe the State’s appeal was properly dismissed, although not for the reason stated by the Court of Criminal Appeals.

The State correctly argues, I believe, that Townsend was wrongly decided because “the law is clear that ‘no implication, inference or presumption of a legislative construction shall be drawn from’ the ‘classification and organization’ of the Code. Ala.Code [1975,] § l-l-14(a) (1999).” State’s brief at 10. Section 1 — 1—14, Ala. Code 1975, renders the reasoning of Townsend unpersuasive because it precludes this Court from considering the fact that the Declaratory Judgment Act appears in the “Civil Practice” section of the Code in determining whether § 6-6-227 applies in criminal proceedings. Instead of inferring the scope of the statute by looking to the organization of the Code, we look to the plain meaning of the statute. Ex parte Ward, 957 So.2d 449, 452 (Ala.2006) (“In determining the meaning of a statute or a court rule, this Court looks first to the plain meaning of the words as they are written.”).

By its terms, § 6-6-227, Ala.Code 1975, applies to “any proceeding.” The statute does not purport to limit its application to civil statutes, nor does it exclude challenges to criminal statutes. We will not add words to a statute in order to draw a certain meaning. Pace v. Armstrong World Indus., Inc., 578 So.2d 281, 284 (Ala.1991) (“generally courts may [not] insert words in the statute”). ■ Thus, by the plain meaning of the phrase “any proceeding,” the requirement in the Declaratory Judgment Act of service on the attorney general applies to all constitutional challenges to statutes, including criminal statutes.

Moreover, the legislative intent behind the statute supports the' plain reading. “ ‘[T]he fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to-be obtained.’” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997)(quoting Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985)). We have held that “[t]he purpose of [the statute requiring service on the attorney general] is to give notice of the filing of the [complaint], and protect the state and its citizens should the parties be indifferent to the outcome of the litigation.” Board of Trs. of Employees’ Retirement Sys. of Montgomery v. Talley, 291 Ala. 307, 310, 280 So.2d 553, 555 (1973). I see no reason why the State and its citizens should be protected .from indifferent parties only when those parties oppose a civil statute. Such a reading would frustrate the intent of the legislature by unnecessarily limiting the protection § 6-6-227 affords the State and its citizens.

Boyd argues that the State does not need such protection or notice in a criminal case, because, he says, “the state is a party in all criminal cases” and is represented “by the District Attorney’s Office.” Boyd’s brief at 4. However, § 6-6-227 requires service on the attorney general specifically; it does not require service on the State generally. Service on a State entity is not equivalent to service on the attorney general, and the fact that the State is a party to the action does not obviate the need of notice to the attorney general concerning a constitutional challenge. See Bowdoin v. State, 884 So.2d 865, 867 (Ala. Civ.App.2003) (“concluding] that the attorney general was not properly served with notice of Bowdoin’s constitutional challenge,” even though the attorney for the Retirement Systems of Alabama, a State entity, was served); Stringer v. State ex rel. Valeska, 628 So.2d 686, 688 (Ala.Civ. App.1993) (although the State was a party to the action, “[b]ecause Stringer did not serve the attorney general, the trial court had no jurisdiction to decide the constitutional issues, and its judgment is void with regard to the constitutional issues”); Mohiuddin v. State Dep’t of Indus. Relations, 598 So.2d 925, 929 (Ala.Civ.App.1992) (overruling an application for a rehearing on the ground that the party failed to serve the attorney general, even though the opposing party was a State entity). Thus, the State’s status as a party to the action in a criminal proceeding does not satisfy the requirement of notice to the attorney general; service on a district attorney is not a substitute for service on the attorney general.

Because the requirement of service on the attorney general applies to challenges to criminal statutes and because Boyd failed to serve the attorney general and thereby to give the attorney general notice of his constitutional challenges in this case, I would dismiss these claims on procedural grounds, rather than on jurisdictional grounds.

However, the requirement that the attorney general be served does not apply in this case. The attorney general must be served when parties challenge the constitutionality of a statute on its face, but the attorney general need not be served when parties challenge the constitutionality of a statute as it applies to them. See Bratton v. City of Florence, 688 So.2d 233 (Ala. 1996) (dismissing a constitutional challenge to a zoning ordinance on its face because the Brattons failed to serve the attorney general, but addressing the merits of the Brattons’ argument regarding the Planning Commission’s exercise of discretion in applying the zoning ordinance to them); and Mobile County Dep’t of Human Res. v. Mims, 666 So.2d 22, 26 (Ala.Civ.App. 1995) (finding “no requirement that the Attorney General’s office be served” when Mims challenged the constitutionality of the officials’ enforcement of statutes against him, rather than challenging “the constitutionality of the statutes or regulations themselves”).

Boyd challenges the constitutionality of the CNA as it is applied to him; because he is married to his victim’s mother, he claims that prohibiting him from living with the victim or her family infringes on his right to marry. See Boyd’s brief at 3 (“Boyd clearly had standing to raise this issue and there was sufficient evidence in the record to establish that he was married prior to these charges and even prior to the underlying conviction and that the Community Notification Act, as applied to him, is unconstitutional.” (emphasis in original)). Because Boyd’s constitutional challenge concerns the constitutionality of the statute “as applied to him,” Boyd was not required under § 6-6-227, Ala.Code 1975, to serve the attorney general. Therefore, his claims are not due to be dismissed for his failure to do so.

Although in my view the Court of Criminal Appeals erred in holding that § 6-6-227 requires notice to the attorney general only in challenges to civil statutes, Boyd’s claims were not due to be dismissed bt cause Boyd challenged the CNA as applied to him; therefore, I concur to quash th writ of certiorari.

PARKER, J., concurs.

      . Section 15-20-26, Ala.Code 1975, provides, in pertinent part:
      "(a) Unless otherwise exempted by law, no adult criminal sex offender shall establish a residence or any other living accommodation or accept employment within 2,000 feet of the property on which any school or child care facility is located.
      "(b) Unless otherwise exempted by law, no adult criminal sex offender shall establish a residence or any other living accommodation within 1,000 feet of the property on which any of his or her former victims, or the victims’ immediate family members reside.”

      . Section 6-6-227, Ala.Code 1975, a part of Alabama's Declaratory Judgment Act, provides:
      "All persons shall be made parties who have, or claim, any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance, or franchise, such municipality shall be made a party and shall be entitled to be heard; and if the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard."

      . One possible explanation for the placement of the Declaratory Judgment Act in the civil-practice section of the Code is that "[djeclara-tory judgment actions are, by their nature, civil actions.” Lyons v. Norris, 727 So.2d 780, 780-81 (Ala.1998) (Maddox, J., dissenting). However, the nature of a declaratory-judgment action does not necessarily determine whether it can be used to challenge a criminal statute; in fact, the majority in Lyons transferred the declaratory-judgment actions before it in that case to the Court of Criminal Appeals because “these causes [involving the reimbursement of expenses incurred in representing indigent defendants] are within the appellate, jurisdiction of the Court of Criminal Appeals.” 727 So.2d at 780.

      . We have discussed a party's failure to comply with § 6-6-227 in terms of a "jurisdictional" defect. See, e.g., Bratton v. City of Florence, 688 So.2d 233, 234 (Ala. 1996) (“If the notice is not given, the courts will not have jurisdiction to resolve any claims based on the challenge to the constitutionality of the statute or ordinance.”); Ex parte Northport Health Serv., Inc., 682 So.2d 52, 55 (Ala. 1996) (quoting Ex parte St. Vincent's Hosp., 652 So.2d 225, 228 (Ala.1994) (" 'When a party challenging the constitutionality of a statute fails to serve the attorney general, the trial court has no jurisdiction to decide the constitutional claim, and any judgment regarding that claim is void.' ”)); Wallace v. State, 507 So.2d 466, 468 (Ala. 1987) (“This Court has determined that 'service on the Attorney general, pursuant to § 6-6-227, is mandatory and jurisdictional.’ ” (quoting Barger v. Barger, 410 So.2d 17, 19 (Ala.1982), which further states: "Because the widow failed to serve the Attorney General as required by state law, we hold that the trial court was without jurisdiction to decide the state and federal constitutional claims.”)). However, this Court recently clarified the meaning of the term "jurisdiction” in Ex parte Seymour, 946 So.2d 536 (Ala.2006).
      In Seymour, we defined "jurisdiction” as " ‘[a] court’s power to decide a case or issue a decree.’ ... Subject-matter jurisdiction concerns a court’s power to decide certain types of cases.” 946 So.2d at 538. Further, we concluded in Seymour that "[i]n deciding whether [a] claim properly challenges the trial court’s subject-matter jurisdiction, we ask only whether the trial court had the constitutional and statutory authority to try the offense. ...” 946 So.2d at 538.
      The general jurisdiction conferred on circuit courts by the Alabama Constitution, and further by the Declaratory Judgment Act, grants them the authority to hear actions in which parties seek a declaratory judgment as to the constitutionality of a statute. See Amend. No. 328, § 6.04(b), Ala. Const.1901 (§ 142, Ala. Const. 1901 (Off.Recomp.)); and § 6-6-222, Ala.Code 1975. Section 6-6-227, Ala.Code 1975, purports to require that the attorney general be given notice and the opportunity to be heard in such a case; however, it does not purport to take away the court’s jurisdiction when a party fails to serve the attorney general. Because a party's failure to serve the attorney general does not deprive the court of its authority to decide the “type of case[],“ such a defect is not truly "jurisdictional.”


author: SHAW, Judge. BASCHAB, Judge,

text:
    William Buster HOLT v. STATE of Alabama.
    CR-04-1250.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.

      William M. Butler, Scottsboro, for appellant.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   On Application for Rehearing

SHAW, Judge.

The opinion issued on December 23, 2005, is withdrawn, and the following opinion is substituted therefor.

William Buster Holt appeals the circuit court’s denial of his motion made pursuant to § 13A-5-9.1, Ala.Code 1975, to reconsider his sentence of life imprisonment without the possibility of parole imposed upon application of the Habitual Felony Offender Act (“HFOA”) for his 1987 conviction for robbery in the first degree. See Kirby v. State, 899 So.2d 968 (Ala. 2004).

Holt filed his motion on December 8, 2004, alleging that he was entitled to have his sentence of life imprisonment without the possibility of parole reconsidered because, he said, the prior convictions used to enhance his sentence under the HFOA were nonviolent, non-Class A felony convictions. The circuit court appointed counsel to represent Holt and on February 23, 2005, conducted an evidentiary hearing on Holt’s motion. At the hearing, Holt presented evidence and argument regarding the facts and circumstances surrounding the robbery conviction for which he was sentenced to life imprisonment without the possibility of parole; regarding the nature and circumstances of the five prior felony convictions used to enhance his sentence for the robbery conviction; and regarding his record while in prison. Holt’s counsel argued that considering “the totality of the circumstances” (R. 11) Holt should be considered a “nonviolent convicted offender” under § 13A-5-9.1 and thus eligible for reconsideration of his sentence, and that he should be resentenced to life imprisonment. The State argued, on the other hand, that because Holt’s underlying conviction was for robbery in the first degree, a crime statutorily defined as a “violent offense,” the circuit court could not consider any other factors and was precluded from finding that Holt was a “nonviolent convicted offender” within the meaning of § 13A-5-9.1.

At the conclusion of the hearing, the circuit court made the following statement:

“Mr. Rhodes has very succinctly argued the State’s position in this matter and, of course, the Code of Alabama does define violent crimes and that’s not been changed, so the court, as you know, must deal with — the threshold issue, I guess, Mr. Holt, would simply be whether or not having been convicted of what the Code describes as a violent crime, whether or not that preempts me altogether from considering anything else.
“Obviously, the Habitual Offender Act has in some cases caused undue hardship and injustice. And for that very reason, this Court not too long ago re-sentenced Mr. Kirby himself to where he would at least be eligible to apply for parole since he had not been convicted of a violent crime.[] Whether or not he makes parole or not is up to the Parole Board. You understand how that works. This case is different. The robbery first degree is, of course, a violent crime according to the Code of Alabama and I will just have to deal with whether or not there is any discretion with the Court at this point to even consider anything you have argued beyond that.
“Again, I hope it’s a work in progress for one reason or another. There may well be cases out there that are going to need to be reviewed under perhaps a new act of the legislature and I invite the legislature to take a look at the totality of all of this and determine whether or not there needs to be a refinement of [§ 13A-5-9.1].”

(R. 44-45; emphasis added.) On March 22, 2005, the circuit court issued the following order denying Holt’s motion:

“This matter was before the court on 10 February, 2005, on [Holt’s] petition for a new sentence hearing pursuant to Act 2001-977 and § 13A-5-9 et seq., Code of Alabama.
“The evidence reflects that in 1987, [Holt] was found guilty of the offense of robbery in the first degree and, at the time of this conviction, had already received five felony convictions. The evidence further reflects that four of [Holt’s] convictions occurred in 1979 when [Holt] was 16 years of age and were originally charged as juvenile offenses charging two counts of forgery and two counts of unlawful use of a vehicle or concealing or receiving a stolen vehicle all of which were transferred to the felony docket. [Holt], from aught that appears, waived treatment as a youthful offender and [after pleading guilty] was sentenced, in September 1979, to three years on each case to run concurrently. [Holt] was granted probation and, in 1981, was convicted of a fifth felony under the charge of forgery and served three years and six months in the Department of Corrections. [Holt’s] last conviction occurred in 1987, as noted hereinabove, wherein he was convicted of robbery in the first degree.
“The court is asked to determine whether, notwithstanding the robbery first degree conviction which is a violent offense which would otherwise disqualify [Holt] from consideration for resen-tencing under Kirby, the court has the discretion to consider other factors and determine, if appropriate, that the defendant was eligible for sentence review under Kirby. The State argues that the court has no such discretion and that [Holt’s] 1987 conviction of robbery in the first degree precludes any consideration for sentence review based upon the robbery first conviction.
“Counsel for [Holt] cites Kirby as grounds for the argument that the court has discretion, ‘notwithstanding the defendant’s being convicted of a crime of violence,’ to exercise judicial discretion in determining whether [Holt] is eligible for the benefits of [§ -13A-5-9.1]. The court has revisited Kirby and finds therefrom that the following statements from Kirby appear to address this issue. The court first states, in Kirby, that, ‘under § 13A-5-9.1, a judge applying § 13A-5-9(c)(3) to a previously sentenced defendant merely has the authority to conduct a new sentencing hearing, and in the judge’s discretion, to modify a previous sentence under which a defendant would never have been eligible for parole to a sentence of “straight” life imprisonment under which a defendant might thereafter become eligible for parole, depending upon the factors then established by the Parole Board.’
“Additionally, the court in Kirby stated, ‘We conclude that the State’s trial judges have the authority under the statute to determine whether a defendant is a nonviolent offender and that those judges are competent to make that determination based upon the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the DOC and the Parole Board concerning the inmate’s behavior while incarcerated.’ The court has construed the first quoted paragraph above in its reference to the judge’s discretion as being general discretion to consider a new sentencing hearing should the court find the defendant eligible initially. The second quoted statement above does not indicate, to this court, that the court can ignore or disregard or change the nature of the underlying conviction when, in fact, that underlying conviction is a listed violent offense, i.e., robbery first degree.
“Therefore, the court finds that the State’s argument that [Holt’s] underlying conviction of robbery in the first degree preempts his ability to seek re dress under this new statute allowing resentencing to be persuasive, and, accordingly, [Holt’s] motion for a new sentence hearing is denied. In the event this matter is appealed and this court’s interpretation of Kirby is affirmed, then the court cannot help but comment that the legislature should readdress the issue of whether multiple or previous convictions of a juvenile even if converted to adult convictions as in this case, should not be allowed to be considered by the court even in cases such as the instant case where four of the convictions contributing to [Holt’s] current sentence of life without parole occurred when he was 16 years old. To this court, this seems inherently unjust to remove at least some consideration by the sentencing court in such instances, and the court in this case invites review of its decision as to whether it has properly interpreted the Kirby case as to the extent of the court’s discretion under [§ 13A-5-9.1].”

(C. 5-8; some emphasis added.)

For a better understanding of our disposition of this case, an overview of the law to date regarding § 13A-5-9.1 and Kirby, supra, is important. Section 13A-5-9.1 provides:

“The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”

In Kirby, supra, the Alabama Supreme Court explained the scope and application of § 13A-5-9.1:

“The plain language of § 13A-5-9.1 does not require that an inmate have a case pending before the circuit court in order for the inmate to file a motion for reconsideration of his or her sentence, nor does it require that the inmate invoke a particular rule of criminal procedure. Rather, § 13A-5-9.1 provides that an inmate may ask the sentencing judge or the presiding judge for relief from a previous sentence imposed pursuant to the HFOA and provides that the court is to consider the evaluation of the DOC in considering the inmate’s motion. Section 13A-5-9.1 clearly confers jurisdiction on the sentencing judge or the presiding judge by giving that judge the power to apply the provisions of § 13A-5-9 retroactively to ‘nonviolent convicted offenders]’ and by providing the procedure by which the provisions of the statute are to be applied.
“Normally, a trial court loses jurisdiction to modify a sentence in a criminal case if a request for modification is not filed within 30 days of sentencing. Massey v. State, 587 So.2d 448 (Ala.Crim. App.1991). By requiring in § 13A-5-9.1 that the provisions of § 13A-5-9 are to be applied retroactively, however, the Legislature vested jurisdiction in the sentencing judge or the presiding judge to reopen a case more than 30 days after a defendant has been sentenced.... Clearly, the Legislature has the power to vest circuit courts with the authority to reopen a case that had previously been deemed closed and in which the court’s decision was deemed final. See Ex parte Jenkins, 723 So.2d 649, 660 (Ala.1998).
“... Section 6.11 of Amendment No. 328[, Ala. Const, of 1901,] grants this Court the authority to promulgate rules of procedure, including criminal procedure, but it prohibits this Court from enacting a rule that alters the jurisdiction of a court. Only the Legislature, within constitutional limits, has the authority to alter the jurisdiction of the circuit courts. Henderson v. State, 616 So.2d 406, 407-10 (Ala.Crim.App.1993). By passing a general act of statewide application, the Legislature can change the rules this Court has promulgated governing the administration of all courts. Ex parte Kennedy, 656 So.2d 365, 367 (Ala.1995). Section 13A-5-9.1 is an act of statewide application that confers jurisdiction upon the sentencing judge or the presiding judge to apply the 2000 amendment to the HFOA retroactively.
“Section 13A-5-9.1 directs the sentencing judge or the presiding judge to apply the provisions of § 13A-5-9 retroactively, thereby making the benefits of the 2000 amendment to the HFOA available to inmates who were sentenced pursuant to the HFOA before it was amended in 2000. Section 13A-5-9(c)(3), as amended in 2000, allows a sentencing judge to decide in certain circumstances whether a sentence of life imprisonment or life imprisonment without the possibility of parole is appropriate for a particular inmate. In making that decision, the sentencing judge does not have the power to decide the secondary issue — whether the defendant will be granted parole should the judge sentence him or her to ‘straight’ life imprisonment. Under § 13A-5-9.1, a judge applying § 13A-5-9(e)(3) to a previously sentenced defendant merely has the authority to conduct a new sentencing hearing, and in the judge’s discretion, to modify a previous sentence under which a defendant would never have been eligible for parole to a sentence of ‘straight’ life imprisonment, under which a defendant might thereafter become eligible for parole, depending upon the factors then established by the Parole Board.
“... Reading § 13A-5-9.1 in conjunction with. § 13A-5-9, it is clear that a sentencing judge or a presiding judge can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those who had been sentenced to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. Moreover, of those habitual offenders, the judge can resentence only those who are nonviolent offenders.
“We conclude that the state’s trial judges have the authority under the statute to determine whether a defendant is a nonviolent offender and that those judges are competent to make that determination based upon the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the DOC and the Parole Board concerning the inmate’s behavior while incarcerated. It is axiomatic that only the sentencing judge or the presiding judge should evaluate the inmate’s crime and his or her conduct associated with that crime in deciding whether the inmate is a nonviolent offender, just as the judge evaluated those factors at the time the inmate was originally sentenced. Another factor in determining whether the inmate is a nonviolent offender, however, should be a consideration of the inmate’s conduct while incarcerated, which knowledge is within the purview of the DOC. Section 13A-5-9.1 provides that the DOC will conduct an evaluation of the inmate’s performance while incarcerated and submit its evaluation to the court so the judge can take that information into account in determining whether the inmate is eligible for reconsideration of his or her sentence.”

899 So.2d at 971-74 (footnote omitted).

As this Court noted in Prestwood v. State, 915 So.2d 580, 582 (Ala.Crim.App. 2005), “a § 13A-5-9.1 motion involves reopening an existing case”; thus, orders on such motions are appealable. However, because an inmate “does not have a right to have his sentence reduced pursuant to § 13A-5-9.1,” a motion filed pursuant to § 13A-5-9.1 is not considered “a critical stage of the proceedings” that requires the appointment of counsel. Hastings v. State, 938 So.2d 974, 975 (Ala.Crim.App. 2006). And this Court has held that § 13A-5-9.1 allows a case to be reopened only once:

“[OJnce a circuit court has considered one motion for reconsideration of sentence filed by a defendant in a particular case, the defendant’s rights with regard to that case will have been sufficiently safeguarded. Thereafter, the circuit court will not have jurisdiction to [grant] any second or successive motions for reconsideration filed by that defendant in that particular case. Instead, it should summarily deny any such motion.”

Wells v. State, 941 So.2d 1008, 1009 (Ala. Crim.App.2005). Furthermore:

“Whether an inmate is a violent offender is for the circuit court to determine and, in the absence of an abuse of its discretion in so determining, we will not disturb its finding on appeal. Moreover, once the circuit court determined that Sanders was a violent offender, it was correct in finding that it had no jurisdiction to resentence Sanders because, although § 13A-5-9.1 grants the sentencing judge or presiding judge jurisdiction to consider a § 13A-5-9.1 motion, by its very language § 13A-5-9.1 grants the sentencing judge or presiding judge jurisdiction to resentence only those offenders that are eligible for resentencing, i.e., nonviolent offenders who were sentenced pursuant to § 13A-5-9(c)(2) or (c)(3), Ala.Code 1975.”

Sanders v. State, 934 So.2d 432, 434 (Ala. Crim.App.2005).

Based on the authority cited above, it is clear that in evaluating motions filed under § 13A-5-9.1, circuit courts must go through a three-step process. First, the court must determine whether the motion was filed in the appropriate court and whether it has been assigned to the appropriate judge. Only the presiding judge or the sentencing judge in the court of conviction have jurisdiction to consider a § 13A-5-9.1 motion. See Ex parte Sandifer, 925 So.2d 290 (Ala.Crim.App.2006); Bulger v. State, 904 So.2d 219 (Ala.Crim. App.2004); Malloy v. State, 908 So.2d 1048 (Ala.Crim.App.2004); Burns v. State, 908 So.2d 1045 (Ala.Crim.App.2004); Burl v. State, 908 So.2d 314 (Ala.Crim.App.2004); and Dailey v. Alabama Bd. of Pardons & Paroles, 908 So.2d 311 (Ala.Crim.App. 2004). Second, once the motion has been filed in the correct court and assigned to the appropriate judge, the circuit court must determine whether the motion is the inmate’s first motion or is a successive motion. A circuit court has no jurisdiction to grant a second or successive § 13A-5-9.1 motion. See Wells, supra. Third, if the motion is filed in the correct court, assigned to the appropriate judge, and is the inmate’s first motion, the circuit court must then determine whether the inmate is eligible for reconsideration of his or her sentence pursuant to § 13A-5-9.1.

There are three requirements for eligibility to have a sentence reconsidered under § 13A-5-9.1: (1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the HFOA became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole pursuant to § 13A-5-9(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A. — 5—9(c)(2), see Prestwood, supra; and (3) the inmate is a “nonviolent convicted offender.” An inmate must satisfy all three requirements before he or she is eligible for reconsideration of sentence under § 13A-5-9.1. If a circuit court determines that an inmate is eligible for reconsideration of his or her sentence, the court then has the authority pursuant to § 13A-5-9.1 to resentence the inmate, within the bounds of § 13A-5-9(c)(2) or § 13A — 5—9(c)(3), as amended, if it so chooses. If, on the other hand, the circuit court determines that the inmate fails to meet any or all of the eligibility requirements, then the circuit court must deny the inmate’s § 13A-5-9.1 motion because a circuit court has jurisdiction to resentence only those inmates who meet the eligibility requirements of § 13A-5-9.1. See Sanders, supra.

In this case, the circuit court had jurisdiction to consider Holt’s motion because the motion was filed in the court in which Holt was convicted and the judge who ruled on the motion was the presiding judge of the Jackson Circuit Court; the record indicates that this was Holt’s first motion for reconsideration under § 13A-5-9.1; and Holt satisfied the first two eligibility requirements — he was sentenced before the 2000 amendment to the HFOA became effective and he was sentenced pursuant to § 13A — 5—9(c)(3) based on five prior felony convictions, none of which were Class A felonies. This case concerns the third eligibility requirement — whether Holt is a “nonviolent convicted offender” within the meaning of § 13A-5-9.1. Specifically, the question presented is whether the circuit court, after finding that Holt had been convicted of robbery in the first degree, an offense statutorily defined as a “violent offense,” was required, as a matter of law, to find that Holt was not a “nonviolent convicted offender” within the meaning of § 13A-5-9.1, without consideration of any other factors, and that Holt was, therefore, ineligible for reconsideration of his sentence under § 13A-5-9.1.

Section 13A-5-9.1 does not specifically define which inmates are considered “nonviolent convicted offenders.” However, there are two statutes that define certain offenses, including robbery in the first degree, as violent offenses. Section 13A-11-70, Ala.Code 1975, provides, in pertinent part:

“For the purposes of this division [the Uniform Firearms Act], the following terms shall have the respective meanings ascribed by this section:
“(2) Crime of Violence. Any of the following crimes or an attempt to commit any of them, namely, murder, manslaughter (except manslaughter arising out of the operation of a vehicle), rape, mayhem, assault with intent to rob, assault with intent to ravish, assault with intent to murder, robbery, burglary, kidnapping and larceny.”

(Emphasis added.) Section 12-25-32, Ala. Code 1975, provides, in pertinent part:

“For the purposes of this article [the Alabama Sentencing Reform Act of 2003], the following terms have the following meanings:
“(13) Violent Offense.
“a. For purposes of this article [the Alabama Sentencing Reform Act of 2003], a violent offense includes each of the following offenses, or any substantially similar offense to those listed in this subdivision created after June 20, 2003 [the date the Alabama Sentencing Reform Act of 2003 became effective]:
“28. Robbery I pursuant to Section 13A-8^fl.
“29. Robbery II pursuant to Section 13A-8-42.
“30. Robbery III pursuant to Section 13A-8-43.” '

Because the substance of § 13A-11-70 was a part of Alabama’s criminal law long before the current Criminal Code, Title 13A, was enacted, “one cannot simply look to the name given an offense in the new Criminal Code provision and conclude that it is synonymous with an older term found in § 13A-ll-70(2).” Ex parte Johnson, 620 So.2d 665, 667 (Ala. 1993). In addition, the criteria for determining what offenses were “violent offenses” in § 12-25-32 was not necessarily based on whether the crime actually involved violence, as that term is commonly defined, but included crimes the legislature simply deemed “reprehensible.” In § 12-25-32(13)b., the legislature specifically explained the basis for its classifying some offenses as violent offenses:

“b. The basis for defining these offenses as violent is that each offense meets at least one of the following criteria:
“1. Has as an element, the use, attempted use, or threatened use of a deadly weapon or dangerous instrument or physical force against the person of another.
“2. Involves a substantial risk of physical injury against the person of another.
“3. Is a nonconsensual sex offense.
“4. Is particularly reprehensible.”

Therefore, the fact that a crime is defined as a “violent offense” under § 13A-11-70 and/or § 12-25-32, although certainly a relevant and appropriate consideration, is not binding on a circuit court in determining whether an inmate is a “nonviolent convicted offender” within the meaning of § 13A-5-9.1. In other words, merely because an inmate has been convicted of a “violent offense” as defined in § 13A-11-70 and/or § 12-25-32 does not mean that that inmate is a “violent offender” for purposes of § 13A-5-9.1; committing a “violent offense” as defined in § 13A-11-70 and/or § 12-25-32 is not the equivalent of being a “violent offender” under § 13A-5-9.1. Had the legislature intended to preclude any inmate convicted of a “violent offense” as defined in § 13A-11-70 and/or § 12-25-32 from receiving the benefits of § 13A-5-9.1, it could have easily said that § 13A-5-9 would apply retroactively only to those offenders who had not been convicted of an offense defined by statute as a “violent offense.” Instead, the legislature chose to state that § 13A-5-9 would apply retroactively to any “nonviolent convicted offender.”

As the Supreme Court noted in Kirby, “§ 13A-5-9.1 is not a model of clarity.” 899 So.2d at 974. Nevertheless, it is clear that § 13A-5-9.1 allows for consideration of factors other than the fact that the inmate’s underlying conviction is statutorily defined as a “violent offense” in determining whether the inmate is a “nonviolent convicted offender”; it allows the Department of Corrections to evaluate an inmate and to submit that evaluation to the circuit court for consideration in ruling on a motion filed under § 13A-5-9.1. However, as the Supreme Court noted in Kirby, “if the DOC does not provide the evaluation in a timely fashion, the State will have waived any input as to the inmate’s conduct while incarcerated that the sentencing judge or the presiding judge might otherwise have considered in determining whether the inmate is a nonviolent offender.” 899 So.2d at 975. Thus, § 13A-5-9.1 does not require a circuit court to order, or the Department of Corrections to submit, an inmate evaluation; it merely permits the consideration by the circuit court of such an evaluation. Likewise, the Supreme Court specifically held in Kirby that an inmate’s prison record as well, as other factors may be considered in determining whether an inmate is a “nonviolent convicted offender.” Although we have already quoted the Kirby opinion extensively above, we find it important to . again quote the following, which we believe is disposi-tive of the issue:

“We conclude that the state’s trial judges have the authority under the statute to determine whether a defendant is a nonviolent offender and that those judges are competent to make that determination based upon the nature of ■ the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the DOC and the Parole Board concerning the inmate’s behavior while incarcerated. It is axiomatic that only the sentencing judge or the presiding judge should evaluate the inmate’s crime and his or her conduct associated with that crime in deciding whether the inmate is a nonviolent offender, just as the judge evaluated those factors at the time the inmate was originally sentenced. Another factor in determining whether the inmate is a nonviolent offender, however, should be a consideration of the inmate’s conduct while incarcerated, which knowledge is within the purview of the DOC. Section 13A-5-9.1 provides that the DOC will conduct an evaluation of the inmate’s performance while incarcerated and submit its evaluation to the court so the judge can take that information into account in determining whether the inmate is eligible for reconsideration of his or her sentence.”

Kirby, 899 So.2d at 974 (emphasis added). If the Alabama Supreme Court had construed § 13A-5-9.1 as a bright-line rule precluding any inmate who had been convicted of an offense statutorily defined as a “violent offense” from sentence reconsideration, the Court would have instructed circuit courts to look no further than the statutory designation of the inmate’s underlying offense. It certainly would not have instructed circuit courts to “evaluate the inmate’s crime and his or her conduct associated with that crime” and to consider “the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the DOC and the Parole Board concerning the inmate’s behavior while incarcerated” in determining whether an inmate is a “nonviolent convicted offender” within the meaning of § 13A-5-9.1. Id. This Court is bound to follow the Supreme Court’s opinion in Kirby and cannot overrule that decision by creating a bright-line rule precluding any inmate who has been convicted of an offense statutorily defined as a “violent offense” from sentence reconsideration under § 13A-5-9.1.

Of course, the statutory designation of an inmate’s underlying offense as a “violent offense” is certainly an important consideration in determining whether an inmate is a “nonviolent convicted offender”; nothing in § 13A-5-9.1 or Kirby suggests otherwise. However, the statutory designation of an offense is not the only factor a circuit court may consider, and the fact that the inmate’s underlying conviction was for an offense statutorily defined as a “violent offense” does not preclude a circuit court from considering other factors presented to it, such as the facts and circumstances surrounding the underlying offense, the facts and circumstances surrounding the inmate’s prior convictions, the inmate’s prison record, and any “other factors brought before the judge in the record of the case.” Kirby, 899 So.2d at 974. In determining whether an inmate is a “nonviolent convicted offender” within the meaning of § 13A-5-9.1, a circuit court is not precluded from considering, nor may it refuse to consider, all of the factors presented to it by either party. As Holt argued to the circuit court, and argues to this Court, and as the Alabama Supreme Court made clear in Kirby, whether an inmate is a “nonviolent convicted offender” is based on the totality of the circumstances.

By totality of the circumstances, we mean the totality of the information before the circuit court when it rules on the § 13A-5-9.1 motion. A circuit court is not required to solicit additional information before ruling on such a motion. To the contrary, a circuit court may summarily deny a § 13A-5-9.1 motion without holding an evidentiary hearing or otherwise requiring the submission of additional evidence not before it as part of the pleadings, if it so chooses. Nothing in § 13A-5-9.1 or Kirby requires otherwise. In addition, in determining whether an inmate is a “nonviolent convicted offender” within the meaning of § 13A-5-9.1, what weight to afford each factor presented to it is within the circuit court’s discretion. A circuit court is not required to make specific findings of fact regarding the weight it affords each factor, and in reviewing a circuit court’s determination of whether an inmate is a “nonviolent convicted offender,” this Court will give the circuit court great deference regarding the weight it afforded the factors presented to it, and we will presume that the circuit court properly considered and weighed each factor presented, unless the record affirmatively shows otherwise. See, e.g., Prest-wood, 915 So.2d at 583 (recognizing the limited appellate review of a motion filed under § 13A-5-9.1).

In this case, the circuit court found that Holt was a violent offender. However, based on the statements the court made during the hearing as well as in its order denying Holt’s § 13A-5-9.1 motion, it is clear that the court’s finding in that regard was based solely on the fact that Holt had been convicted of robbery in the first degree and that that crime is statutorily defined as a “violent offense.” As this Court held in Sanders, supra, “[w]hether an inmate is a violent offender is for the circuit court to determine and, in the absence of an abuse of its discretion in so determining, we will not disturb its finding on appeal.” 934 So.2d at 434. We would certainly find no abuse of discretion in a circuit court’s determining, after considering all the factors presented to it, that an inmate who had been convicted of robbery in the first degree was a violent offender and thus ineligible for sentence reconsideration under § 13A-5-9.1. Indeed, this Court upheld such a finding in Sanders. However, the circuit court in Sanders, unlike the circuit court in this case, considered more than just the fact that Sanders had been convicted of robbery in the first degree and that that crime was defined by statute as a “violent offense.” In Sanders, unlike in this case, the circuit court’s finding that Sanders was a “violent offender” was not based solely on the fact that Sanders’s underlying conviction was for an offense defined by statute as a “violent offense,” nor did the circuit court in Sanders refuse to consider all of the information presented to it by Sanders. To the contrary, the circuit court in Sanders specifically considered the facts and circumstances surrounding Sanders’s robbery conviction (that Sanders had been armed with a .45 caliber pistol during the robbery) and Sanders’s prison record (which the court found to be “ ‘commendable’ ”) and, after weighing those factors, the court then determined that Sanders’s good prison record did not “ ‘outweigh or overcome’ ” the violent conduct that gave rise to his robbery conviction and that, therefore, Sanders was a violent offender and ineligible for reconsideration of his sentence under § 13A-5-9.1. Sanders, 934 So.2d at 433. Here, however, the circuit court did not consider and weigh the facts and circumstances surrounding Holt’s robbery conviction or any other factors presented to it in determining that Holt was a violent offender, because it believed that it was precluded from doing so. In this regard, the circuit court erred, and its judgment must be reversed.

This is not to say that robbery in the first degree is not a violent offense or that the particular robbery committed by Holt was not a violent offense, nor that we believe that the circuit court in this case would be abusing its discretion in finding that Holt is a violent offender. Indeed, if the circuit court had determined that Holt was a violent offender after considering and weighing all of the factors presented to it, as the circuit court did in Sanders, supra, we would have upheld the court’s denial of Holt’s § 13A-5-9.1 motion. However, the circuit court’s finding that Holt is a violent offender was based on an erroneous interpretation of § 13A-5-9.1 and Kirby, i.e., that anyone convicted of an offense statutorily defined as a “violent offense” is, as a matter of law, a “violent offender” for purposes of § 13A-5-9.1 and, thus, ineligible for sentence reconsideration. Therefore, we must reverse the circuit court’s judgment and remand this case to give the circuit court an opportunity to consider and weigh all of the factors presented to it by Holt and then to reconsider its determination that Holt is a violent offender and its denial of Holt’s § 13A-5-9.1 motion. See, e.g., Mack v. State, 925 So.2d 999 (Ala.Crim.App.2005) (remanding for the circuit court to reconsider inmate’s § 13A-5-9.1 motion where the circuit court mistakenly believed that inmate, convicted of Class B felony and sentenced to life imprisonment pursuant to § 13A-5-9(c)(2), was ineligible for reconsideration of his sentence).

Based on the foregoing, the judgment of the circuit court is reversed and this cause remanded for the circuit court to reconsider Holt’s § 13A-5-9.1 motion in light of the principles set forth in this opinion.

OPINION OF DECEMBER 23, 2005, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, J., concur.

BASCHAB, J., concurs specially, with opinion, which WISE, J., joins.

BASCHAB, Judge,

concurring specially.

I concur fully with the majority opinion, but I write specially to express my understanding of the main holdings of this opinion. First, a circuit court is not required to find that an inmate is not eligible to have his sentence reconsidered simply because his underlying conviction was for an offense that has previously been statutorily defined as a violent offense. Second, although a circuit court may order an evaluation by the Department of Corrections, it is not required to do so. Third, although a circuit court may conduct a hearing on a motion for reconsideration of sentence, it is not required to do so. Fourth, although a circuit court must consider the factors that are before it at the time it rules on a motion for reconsideration, it is not required to make findings of fact as to the weight it gave to each factor.

WISE, J., concurs.

      . Although the record does not contain the court’s order appointing counsel, at the hearing counsel stated that he had been appointed.

      . We note that Kirby was convicted of trafficking in controlled substances. See Kirby, 899 So.2d at 969. Trafficking in controlled substances is defined as a “violent offense” in § 12-25-32(13), Ala.Code 1975, the statute upon which the State primarily relied at the evidentiary hearing in this case in arguing against Holt’s motion. See note 5, infra.

      . Of course, a circuit court is not required to resentence an inmate merely because it determines that the inmate is eligible for reconsideration of his or her sentence.

      . Section 12-25-32(12), Ala.Code 1975, defines a “violent offender” as "an offender who has been convicted of a violent offense, or who is determined by the trial court judge or a release authority to have demonstrated a propensity for violence, aggression, or weapons related behavior based on the criminal history or behavior of the offender while under supervision of any criminal justice system agency or entity.”

      . Black’s Law Dictionary 1601 (8th ed.2004) defines "violence” as "[t]he use of physical force, usu[ally] accompanied by fury, vehemence, or outrage.” The term "violent” is defined as "[o]f, or relating to, or characterized by strong physical force ... [Resulting from extreme or intense force ... [vehemently or passionately threatening.” Yet § 12-25-32 includes as violent offenses such crimes as trafficking in controlled substances under § 13A-12-231 and criminal possession of explosives under § 13A-7-44, neither of which requires either threats or the use of physical force.

      . At the hearing, Holt argued that the robbery conviction was based on his walking into a convenience store and giving the clerk a note that stated: “ '[T]his is a robbery, don’t make it a murder.’ that Holt caused no serious physical injury to the clerk; and that Holt was not armed at the time. Robbery in the first degree requires that the accused either use force or threaten the imminent use of force, see § 13A-8-43, Ala.Code 1975, and that the accused either “cause[ ] serious physical injury to another,” § 13A-8-41(a)(2), or be "armed with a deadly weapon or dangerous instrument,” § 13A-8-41(a)(l). Section 13A-8-41(b), however, provides that "any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.” Thus, an accused need not actually be armed with a deadly weapon to be convicted of robbery in the first degree under § 13A-8-41(a)(l); he need only represent that he is so armed. See, e.g., Dick v. State, 677 So.2d 1267 (Ala.Crim. App.1996). In this case, Holt was charged with threatening the imminent use of force while being armed with a pistol pursuant to § 13A — 8—41(a)(1). (R. 26-27.) Holt argued to the circuit court that given the circumstances of his robbery conviction — that he did not actually use force against another person nor was he armed with a deadly weapon — as well as all the other factors presented, the court could find him to be a "nonviolent convicted offender” under § 13A-5-9.1, despite the fact that robbery in the first degree is statutorily defined as a "violent offense.”


author: BOLIN, Justice. SEE, Justice STUART, Justice

text:
    Ex parte State of Alabama (In re William Buster HOLT v. STATE of Alabama).
    1050800.
    Supreme Court of Alabama.
    Dec. 22, 2006.
    Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Stephanie N. Morman and Stephen N. Dodd, asst, attys. gen., for petitioner.

      Morgan Butler, Scottsboro, for respondent.
   BOLIN, Justice.

WRIT QUASHED. NO OPINION.

LYONS, HARWOOD, WOODALL, and SMITH, JJ., concur.

NABERS, C.J., and SEE, STUART, and PARKER, JJ., dissent.

SEE, Justice

(dissenting).

I dissent from the decision to quash the writ of certiorari. Kirby v. State, 899 So.2d 968, 974 (Ala.2004), says that the trial judge will decide “whether a defendant is a nonviolent offender ... based upon the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the [Department of Corrections] and the Parole Board concerning the inmate’s behavior while incarcerated.” Kirby, however, does not specify what weight, if any, should be assigned to the latter two factors if the underlying conviction is for a violent offense. Therefore, I would grant the State’s petition for the writ of certiorari as presenting a question of first impression— whether other factors can overcome the fact that the defendant’s underlying conviction is for a violent offense.

Moreover, I write specially because I believe that § 18A-5-9.1, Ala.Code 1975, may well violate the separation-of-powers provisions of the Alabama Constitution as a legislative incursion into the power reserved to the judiciary. My review of the issue that William Buster Holt raises, and, by necessity, of § 13A-5-9.1, requires me to consider the mandate the legislature purports to confer upon the courts by its enactment of § 13A-5-9.1; in other words, this Court must consider what it is that § 13A-5-9.1 intends to require a trial court to do. We noted in Kirby that § 13A-5-9.1 purports to confer jurisdiction on trial courts to reopen the final sentences of habitual felons. Insofar as § 13A-5-9.1 goes beyond such a conferring of jurisdiction and requires a trial court to entertain a motion to reopen a final judgment, it would appear that it impinges on the core judicial power and is, therefore, unconstitutional. Neither party raised this constitutional question; however, this Court must determine the constitutionality of a statute where the statute is essential to the decision of the actual controversy that is before this Court.

The Constitution of Alabama of 1901 “ ‘expressly adopts the doctrine of separation of powers that is only implicit in the Constitution of the United States.’ ” McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005)(quoting Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 212 (Ala.2005)). Section 42 of the Alabama Constitution provides:

“The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

Section 43 of the Alabama Constitution provides:

“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

The Alabama Constitution thus “mandates that no branch of government be allowed to exercise any power vested in another branch and not vested in it.” Ex parte Jenkins, 723 So.2d 649, 654 (Ala.1998).

“[T]he core judicial power is the power to declare finally the rights of the parties, in a particular case or controversy, based on the law at the time the judgment becomes final.” Jenkins, 723 So.2d at 656. See also Jenkins, 723 So.2d at 656 (“ “[A] judgment conclusively resolves the case” because “a judicial Power” is one to render dispositive judgments.’ ”) (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1994), quoting in turn Easterbrook, Presidential Review, 40 Case W. Res. L.Rev. 905, 926 (1990)). A judicial decision that has achieved finality “ ‘becomes the last word of the judicial department with regard to a particular ease or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.’ ” Jenkins, 723 So.2d at 656 (quoting Plaut, 514 U.S. at 227, 115 S.Ct. 1447).

“ ‘The finality that a court can pronounce is no more than what the law in existence at the time of judgment will permit it to pronounce. If the law then applicable says that the judgment may be reopened for certain reasons, that limitation is built into the judgment itself, and its finality is so conditioned.’ ”

Jenkins, 723 So.2d at 656 (quoting Plaut, 514 U.S. at 234, 115 S.Ct. 1447).

In Jenkins, we determined that § 26-17A-l(a), Ala.Code 1975, violated the separation-of-powers doctrine because that section requires the courts to retroactively apply that section and to reopen a judgment previously determined to be final. Section 26-17A-l(a) provides that one previously adjudicated to be the father of a child can petition the trial court to reopen the final judgment of paternity, without regard to the “reasonable time” requirement of Rule 60(b)(6), Ada. R. Civ. P., and “the case shall be reopened if there is scientific evidence presented by the defendant that he is not the father.” The child’s guardian ad litem argued that § 26-17A-1 impinges on the judicial power to finally adjudicate cases and controversies and that the legislative command violates the separation-of-powers principle manifested in the Alabama Constitution. We agreed, and we held that the legislature cannot retroactively change the law of finality that was incorporated into final judgments before the legislature enacted § 26-17A-1. Jenkins, 723 So.2d at 655-58. See also Plaut, 514 U.S. at 228, 115 S.Ct. 1447 (“The separation-of-powers violation ... consists of depriving judicial judgments of the conclusive effect that they had when they were announced_”). Therefore, we held that “to the extent § 26-17A-1 is applied retroactively to change the reopening provisions incorporated into paternity judgments that became final before that section was enacted, it impinges on the core judicial power.” Jenkins, 723 So.2d at 656.

In Kirby, supra, Junior Mack Kirby moved the trial court for reconsideration of his sentence pursuant to § 13A-5-9.1, Ala.Code 1975. The trial court found § 13A-5-9.1 “unconstitutional because it impermissibly delegated power [from the legislative branch of government] to another branch of government [the judicial branch] by failing to establish criteria determining who was a ‘nonviolent convicted offender.’ ” Kirby, 899 So.2d at 970. The Court of Criminal Appeals dismissed Kirby’s appeal because it determined that “a motion not recognized by the Alabama Rules of Criminal Procedure, filed when there is no action pending before the trial court, is insufficient to invoke the trial court’s jurisdiction.” Kirby, 899 So.2d at 971. We granted the State’s petition for certiorari review. The State and Kirby argued, in part, that the trial court had jurisdiction to hear Kirby’s motion for sentence reconsideration under § 13A-5-9.1. We agreed, and we held that because Kirby’s sentence-reconsideration motion was filed under § 13A-5-9.1, a statute that commands the reconsideration of his sentence, the trial court had the authority to hear his motion, notwithstanding that no action was then pending before that court. Kirby, 899 So.2d at 971.

The State argued that § 13A-5-9.1 violates the separation-of-powers doctrine because, the State argued, it delegates to the judicial branch the authority to grant parole, which under our constitution is a legislative power. 899 So.2d at 973. We rejected the State’s argument, concluding that because § 13A-5-9.1 grants trial courts the authority only to modify a habitual felon’s sentence deemed final so that the habitual felon may be eligible for parole, it does not confer the power to grant parole upon the judicial branch. 899 So.2d at 973. We did not consider, however, whether § 13A-5-9.1 violates the separation-of-powers doctrine by requiring trial courts to apply “[t]he provisions of § 13A-5-9 ... retroactively,” thereby changing the law of finality that was incorporated into the sentence at the time- the sentence became final.

Section 13A-5-9.1 states in part that “[t]he provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or presiding judge....” Thus, § 13A-5-9.1 commands the courts to change retroactively the law of finality that was incorporated into final judgments before the legislature amended § 13A-5-9. Therefore, to the extent that § 13A-5-9.1 requires the provisions of § 13A-5-9 to be applied “retroactively to change the reopening provisions incorporated into ... judgments that became final before that section was enacted, it impinges on the core judicial power.” Jenkins, 723 So.2d at 656.

The judicial branch of government has the inherent power to reopen its final judgments, as a concomitant power of the core judicial power to render final judgments. However, because the legislature cannot, under the separation-of-powers doctrine, require the court to reopen Holt’s final sentence and consider new factors or reconsider old ones, it would follow that the trial court “has the discretion to hold that an inmate who has been convicted of a ‘violent offense’ is as a matter of law a violent offender and, consequently, not eligible for sentence reconsideration as provided in § 13A-5-9.1,” as Justice Stuart states. 960 So.2d at 744. Thus, there would be no error on the part of the trial court in refusing to reconsider Holt’s sentence pursuant to § 13A-5-9.1. The legislature cannot require the trial court to reopen what has been finally adjudicated.

I dissent from this Court’s decision to quash the petition for the writ of certiorari because I believe it raises a question of first impression that should be addressed.

STUART, Justice

(dissenting).

Because I would address the merits of this case and reverse the judgment of the Court of Criminal Appeals, I respectfully dissent. See Holt v. State, 960 So.2d 726 (Ala.Crim.App.2005).

The State petitioned this Court for a writ of certiorari to address an issue of first impression: Whether a circuit court has the discretion to hold that an inmate who has been convicted of a “violent offense” is as a matter of law a violent offender and, consequently, not eligible for sentence reconsideration as provided in § 13A-5-9.1, Ala.Code 1975. This Court exercised its discretion and issued the writ. In its brief addressing the merits of this issue, the State only asked us to adopt the approach of the United States Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for defining the term “violent felony or serious drug offense” used in the Armed Career Criminals Act of 1984. I, however, believe that this issue may be resolved by interpreting and construing Alabama statutes. The majority, however, declines to adopt my reasoning because our review is discretionary and my reasoning was not urged by the State.

Before 2000, the Alabama Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975 (“the HFOA”), provided that, if a criminal defendant had three prior felony convictions, upon conviction of a fourth felony the sentencing judge must sentence the defendant to imprisonment for life without the possibility of parole. In 2000, the legislature amended the HFOA to provide:

“(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he or she must be punished as follows:
“(2) On conviction of a Class B felony, he or she must be punished by imprisonment for life or any term of not less than 20 years.
“(3) On conviction of a Class A felony, where the defendant has no prior convictions for any Class A felony, he or she must be punished by imprisonment for life or life without the possibility of parole, in the discretion of the trial court.
“(4) On conviction of a Class A felony, where the defendant has one or more prior convictions for any Class A felony, he or she must be punished by imprisonment for life without the possibility of parole.”

Thus, the 2000 amendment provided judges with the discretion, when sentencing a defendant, to order the defendant to serve a sentence of life imprisonment when convicted of a fourth felony offense, provided that the fourth felony conviction was not for a Class A felony or was for a Class A felony and the defendant had not previously been convicted of a Class A felony.

In 2001, the legislature enacted § 13A-5-9.1, Ala.Code 1975, which provided that the 2000 amendment to the HFOA “shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”

At the time § 13A-5-9.1, Ala.Code 1975, became effective the question arose as to how a circuit court retained the authority to reconsider an inmate’s sentence when that court normally loses jurisdiction to modify a defendant’s sentence in a criminal case within 30 days of sentencing if a postjudgment motion is not filed. Kirby v. State, 899 So.2d 968, 971 (Ala.2004), citing Massey v. State, 587 So.2d 448, 449 (Ala. Crim.App.1991)(“If a motion for a new trial or a request to modify a sentence is not filed within 30 days of sentencing, the trial court loses all jurisdiction to modify the sentence.”). In Kirby, this Court held that the legislature, in enacting § 13A-5-9.1, had vested the circuit courts with jurisdiction to consider an inmate’s motion seeking reconsideration of the inmate’s sentence. Additionally, this Court held that §' 13A-5-9.1, Ala.Code 1975, was not unconstitutional. In so holding, we stated:

“[T]he state’s trial judges have the authority under the statute to determine whether a defendant- is a nonviolent offender and ... those judges are competent to make that determination based upon the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the [Department of Corrections] and the Parole Board concerning the inmate’s behavior while incarcerated. It is axiomatic that only the sentencing judge or the presiding judge should evaluate the inmate’s crime and his or her conduct associated with that crime in deciding whether the inmate is a nonviolent offender, just as the judge evaluated those factors at the time the inmate was originally sentenced. Another factor in determining whether the inmate is a nonviolent offender, however, should be a consideration of the inmate’s conduct while incarcerated, which knowledge is within the purview of the [Department of Corrections]. Section 13A-5-9.1 provides that the [Department of Corrections] will conduct an evaluation of the inmate’s performance while incarcerated and submit its evaluation to the court so the judge can take that information into account in determining whether the inmate is eligible for reconsideration of his or her sentence.”

899 So.2d at 974. We further stated that if the Department of Corrections failed to provide an evaluation as contemplated by the statute, that failure did not prevent the circuit court from ruling on a motion for sentence reconsideration but meant that “the State will have waived any input as to the inmate’s conduct while incarcerated that the sentencing judge or the presiding judge might otherwise have considered in determining whether the inmate is a nonviolent offender.” 899 So.2d at 975. Thus, Kirby established the constitutionality of § 13A-5-9.1, Ala.Code 1975; established that the circuit court has the authority to entertain a motion for sentence reconsideration filed pursuant to § 13A-5-9.1; and established that when reviewing such a motion the circuit court may consider certain factors in its analysis.

In this case, the State presented what is in my opinion a question of first impression requiring this Court to engage in additional analysis of § 13A-5-9.1, Ala. Code 1975: Whether a circuit court, when ruling on a motion for sentence reconsideration filed pursuant to § 13A-5-9.1, can determine that an inmate who has been convicted of a “violent offense” is, as a matter of law, not a “nonviolent convicted offender” and deny the motion without further consideration. Although some may argue that this question is not one of first impression in light of our language in Kirby, I maintain that this particular issue was not raised or considered in Kirby; therefore, this question has not been addressed. To the extent that it can be argued that Kirby provides stare decisis on this issue, I urge the State to request that this Court overrule Kirby. See Rule 39(a)(1)(E), Ala. R.App. P. Regardless of how the issue is presented, I would address it as follows.

Section 13A-5-9.1 provides that only “nonviolent convicted offender[s]” are eligible for sentence reconsideration. Thus, this case presents the following question: Can a court determine as a matter of law that an inmate who has been convicted of a violent offense is ineligible for sentence reconsideration under § 13A-5-9.1?

The threshold consideration when reviewing an inmate’s motion for sentence reconsideration filed pursuant to § 13A-5-9.1 is the nature of the inmate’s underlying offense. Just as the legislature provided guidelines for a court’s discretion in determining the length of a defendant’s original sentence, the legislature has provided guidance for the court, albeit not as clear, for determining who is a “nonviolent convicted offender.” 'This guidance requires the interpretation of the plain meaning of the statutes and then the reading of these statutes together.

“The polestar of statutory construction is to ascertain and give effect to the Legislature’s intent in enacting a statute. Norfolk S. Ry. v. Johnson, 740 So.2d 392, 396 (Ala.1999). When a court construes a statute, ‘[w]ords used in [the] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.’ IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992).”

Ex parte Berryhill, 801 So.2d 7, 9-10 (Ala. 2001). Additionally, reasonableness must be read into the provisions of the statute at issue. Bolton v. Board of School Comm’rs of Mobile County, 514 So.2d 820, 824 (Ala.1987). Lastly," “[sjections of the Code dealing with the same subject matter are in pari materia.' As a general rule, such statutes should be construed together to ascertain the meaning and intent of each.” Locke v. Wheat, 350 So.2d 451, 453 (Ala.1977) (citations omitted).

With these principles in mind, I now analyze the relevant statutes addressing sentence reform to determine whether an inmate convicted of- a violent offense can be considered a “nonviolent convicted offender” for purposes of § 13A-5-9.1. Section 13A-5-9.1 provides that a court may modify the sentence of only “nonviolent convicted offender[s].” It is important to note that the statute does not refer' to “each nonviolent convicted offender determined to be such based on evaluations, etc.” In § 13A-5-9.1, the term “nonviolent convicted offender” stands alone, and what is to be “based on” the Department of Corrections’ evaluations is the judge’s decision whether to reduce a sentence.

Like § 13A-5-9.1, the “Alabama Sentencing Reform Act of 2003”— § 12-25-30 to -38, Ala.Code 1975 — addresses modifications in sentencing. Section 12-25-32(6), Ala.Code 1975, defines “nonviolent offender” as “[a]ny offender who does not qualify as a violent offender pursuant to subdivision (12)”. Section 12-25-32(12), Ala.Code 1975, defines a “violent offender” as

“an offender who has been convicted of a violent offense, or who is determined by the trial court judge or a release authority to have demonstrated a propensity for violence, aggression, or weapons related behavior based on the criminal history or behavior of the offender while under supervision of any criminal justice system agency or entity.”

A “violent offense” is defined in § 12-25-32(13), which lists 45 offenses and their corresponding Code sections and includes a “catchall”, violent-offense category' in (13)46., providing that a “violent offense” will include “[a]ny substantially similar offense for which an Alabama offender has been convicted under prior Alabama law or the law of any other state, the District of Columbia, the United States, or any of the territories of the United States.”

When the legislature’s definitions of a “nonviolent offender,” “violent offender,” and “violent offense” are considered, common sense and logic dictate that one who pleads guilty to or is convicted by a jury of a “violent offense” is a “violent offender.” Thus, reading §§ 13A-5-9.1 and 12-25-32, Ala.Code 1975, together requires the conclusion that if an inmate has been convicted of an offense that is defined by the legislature as violent, the inmate is a violent convicted offender and, consequently, as a matter of law is not a “nonviolent convicted offender” and is not eligible for sentence reconsideration under § 13A-5-9.1. See United States v. Freeman, 44 U.S. 556, 556, 11 L.Ed. 724 (1845) (stating that “if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of the former statute, they will amount to a legislative declaration of its meaning and will govern the construction of the first statute”). Indeed, it is only logical that the definition of a “nonviolent convicted offender” would exclude inmates who have been convicted of violent offenses. To hold otherwise would subvert the effect of a conyietion for a violent offense that is based on a defendant’s plea of guilty to or a jury’s verdict finding a defendant guilty beyond a reasonable doubt of the commission of the violent offense. The legislature, by defining a “violent offense,” and the jury or trial court, by finding a defendant guilty of committing a violent offense, have determined that the defendant is a violent offender. This determination earn not be disturbed by a court’s considering a motion for sentence reconsideration filed pursuant to § 13A-5-9.1, Ala.Code 1975. Thus, if an inmate has been convicted of a violent offense, he is a violent offender and is not eligible for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975.

Because I would address the merits of this petition and hold as indicated, I respectfully dissent.

NABERS, C.J., and PARKER, J., concur.

      . We also addressed in Kirby two constitutional questions that were raised in that case. See Kirby, 899 So.2d at 973 ("The State first argues that § 13-5-9.1 is unconstitutional because, it argues, that section improperly delegates to the judicial branch of government the authority to grant parole, a power reserved to the legislative branch, thereby violating the separation-of-powers clause contained in § 43, Ala. Const, of 1901,” and "The State also argues that § 13A-5-9.1 is unconstitutionally vague_”). I address here a third constitutional question not addressed in Kirby.

      . See State ex rel. Bland v. St. John, 244 Ala. 269, 278, 13 So.2d 161, 168 (1943) ("'As a general rule, the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned.’ ” (quoting 16 C.J.S. Constitutional Law § 94)).

      . In Birmingham-Jefferson Civic Center Authority v. City of Binningham, 912 So.2d at 212-13, we stated:
      “Great care must be exercised by the courts not to usurp the functions of other departments of government. § 43, Constitution 1901. No branch of the government is so responsible for the autonomy of the several governmental units and branches as the judiciary.” ' Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 911 (Ala.1992) (quoting Finch v. State, 271 Ala. 499, 503, 124 So.2d 825, 829 (1960)).”

      . Rule 60(b), Ala. R. Civ. P., provides, in part:
      “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for [certain stated reasons].... This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment ... to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

      . In Kirby we cited Jenkins for the proposition that "the Legislature has the power to vest circuit courts with the authority to reopen a case that had previously been deemed closed and in which the court's decision was deemed final.” Kirby, 899 So.2d at 971. It is true that the legislature may prospectively authorize the courts to reopen judgments that become final; however, Jenkins held that the legislature may not require trial courts to reopen any final judgment that, at the time it became final, the law did not provide for the courts to reopen. See Jenkins, 723 So.2d at 656 ("[T]o the extent § 26-17A-1 is applied retroactively to change the reopening provisions incorporated into paternity judgments that became final before that section was enacted, it impinges on the core judicial power.”).

      . Section 13A-5-9.1 reads in its entirety:
      "The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”
      This is a command to apply the law as it is stated in § 13A-5-9 to cases that have been decided, and it does not by its terms exclude those judgments that have become final.

      . See, e.g., § 13A-5-6, Ala.Code 1975 (prescribing the sentences of imprisonment for felonies); § 13A-5-7 (prescribing the sentences of imprisonment for misdemeanors and violations); and § 13A-5-9 (prescribing the sentences of imprisonment for habitual felony offenders).

      . If an inmate has been convicted of an offense that has not been defined by the legislature as a violent offense, then and only then can the court, when considering a motion for sentence reconsideration filed pursuant to § 13A-5-9.1, Ala.Code 1975, exercise the discretion discussed in Kirby and consider the nature/facts of the underlying conviction.