text:
    Henry Craig JENKINS v. Annette MOSS and Antonio Moss.
    2091070.
    Court of Civil Appeals of Alabama.
    Jan. 7, 2011.
    Scott W. Gosnell of Gosnell, P.C., Birmingham, for appellant.
   MOORE, Judge.

Henry Craig Jenkins appeals from an order entered by the Montgomery Circuit Court (“the trial court”) denying his motion to set aside a default judgment that was entered against him and in favor of Annette Moss and Antonio Moss.

On September 21, 2007, the Mosses filed a complaint in the trial court asserting various claims against A Plus Mortgage Corporation; H. Craig Jenkins; Hiram Ci’ittenden; Countrywide Home Loans, Inc.; George Edwards; Security Land Title, Inc.; and William H. Grant. All the defendants subsequently filed answers to the complaint. On May 29, 2009, the Mosses and Countrywide, Edwards, Security Land Title, and Grant filed a joint motion and stipulation of dismissal stating that those parties had entered into a pro tanto settlement of all the claims asserted against Countrywide, Edwards, Security Land Title, and Grant and requesting that the trial court dismiss the claims against those defendants; the trial court granted that motion on June 2, 2009.

On October 1, 2009, the attorney of record for the remaining defendants, i.e., A Plus Mortgage, Jenkins, and Crittenden, filed motions to withdraw from his representation of those defendants; the trial court entered orders on October 2, 2009, granting those motions. According to the “Alabama SJIS [State Judicial Information System] Case Detail” sheet contained in the record on appeal, the trial court entered an order on December 28, 2009, setting the case against the remaining defendants for a jury trial on June 14, 2010; the record on appeal does not, however, contain a copy of that order, and the State Judicial Information System case-detail sheet does not indicate upon whom that order was served.

On June 15, 2010, the trial court entered the following default judgment:

“This matter came before the court pursuant to an Order issued on December 28, 2009 scheduling it for a jury trial to commence at 10:30 a.m. on June 14, 2010. The [Mosses] and their counsel were present and ready to proceed with trial. The court delayed the commencement of the action until 11:05 a.m. in an effort to determine if [A Plus Mortgage, Jenkins, or Crittenden,] the defendants which are still parties to this lawsuit would appear. However, none of the [remaining] defendants appeared nor did any representative of any [remaining] defendant. Accordingly a joint and several default judgment was entered in favor of the [Mosses] against the [remaining] defendants, A Plus Mortgage Corporation, H. Craig Jenkins and Hiram Crittenden.
“The [Mosses] submitted an affidavit for the purpos[e] of establishing damages. Based on a review of the same, the court holds [A Plus Mortgage’s, Jenkins’s, and Crittenden’s] conduct was malicious, wrongful, intentional, gross, wanton and negligent. Thus this Honorable Court hereby enters a joint and several judgment in favor [of] the [Mosses] and against all [remaining] defendants [A Plus Mortgage, Jenkins, and Crittenden] in the amount of $100,000.00.”

The copy of the default judgment in the record on appeal indicates that a copy of the judgment was served on the attorney for the Mosses and “all pro se parties.”

On July 2, 2010, “Henry Craig Jenkins dba A Plus Mortgage Corp.” filed a motion to set aside the default judgment that had been entered against Jenkins. That motion asserted, in pertinent part:

“1. Defendant’s Counsel was allowed to withdraw on October 1, 2009.
“2. Defendant Jenkins was unrepresented and did attend a hearing during December 2009.
“3. At that hearing, there was much discussion about this case having no merit against me.
“4. I received no notice of a trial setting.
“5. On June 15, 2010 a judgment was rendered against me by default for failure to appear.
“6. The default is a product of excusable neglect as I did not provide to the Clerk of this court my home address.
“7. This mistake could happen to a reasonable person as did to me for I am not an attorney and was not aware that I would not receive notices of any future court hearings.
“8. I have meritorious defenses to the claims against me and if this motion is granted, I have a reasonable chance of prevailing on said merits at trial.
“9. No party will be prejudiced by allowing this matter to proceed and go to trial.”

Jenkins’s affidavit was attached to the motion to set aside the default judgment; in that affidavit Jenkins stated:

“1. My name is Henry Craig Jenkins, Sr. and I am over the age of majority.
“2. I reside [on] West Farmington Trace in Pike Road, Alabama.
“3. I am a Defendant in Case Moss v. A Plus Mortgage et al. CV-2007-1506 Montgomery County, Alabama.
“4. I was unrepresented but did attend a hearing during December 2009.
“5. At that hearing, there was much discussion about this case having no merit against me. There was further discussion of the case being dismissed as a waste of the Court’s time although the ease was not dismissed.
“6. There was no trial setting that I was aware.
“7. I received no notice of a trial setting.
“8. On June 15, 2010 a judgment was rendered against me by default for failure to appear.
“9. The default is a product of excusable neglect as I did not provide to the Clerk of this court my home address.
“10. This mistake could happen to a reasonable person as did to me for I am not an attorney and was not aware that I would not receive notices of any future court hearings.
“11. I have meritorious defenses to the claims against me and if this motion is granted, I have a reasonable chance of prevailing on said merits at trial.”

On July 8, 2010, the trial court entered an order denying the motion to set aside the default judgment; that order stated:

“A default judgment was entered on June [15], 2010 when [the remaining] Defendants failed to appear for trial. Defendant Jenkins moves to set aside that judgment asserting that he did not receive notice of the trial date because he failed to provide an address to the Court. This matter was set for jury trial on October 19, 2009. The Court called the case for trial and all parties and their attorneys were present. The Court spoke with [the Mosses’] counsel, [the remaining] defendants, and [the remaining] defendants’ counsel and urged the [Mosses] to determine whether they could collect a verdict before the Court struck a jury and spent several days in trial. The Court never offered an opinion on the merits of the case.
“... [T]he Court allowed [the remaining defendants’] counsel to withdraw and informed the parties that the case would be re-set. Before the parties left [the October hearing], the Clerk informed them that if the case needed to be reset, it would likely not be until June 2010. On December 29, 2009 the Court issued an Amended Trial Scheduling Order re-setting the case for trial on June 14, 2010. The Circuit Clerk’s office mailed the orders to the addresses it had on file in compliance with the Alabama Rules of Civil Procedure.
“The case was called for trial on June 14, 2010. Defendant Jenkins contends that his failure to provide a current address is excusable neglect. Excusable neglect does not include pretending the case does not exist. When [the remaining] Defendants’ counsel was allowed to withdraw and [the remaining] defendants chose to proceed pro se, they had a duty to provide the Circuit Clerk’s Office with valid contact information and to familiarize themselves with the Alabama Rules of Civil Procedure. During the five and a half month period from December 29, 2009 to June 14, 2010, [Jenkins] could have contacted the Court, the Clerk’s Office, or even opposing counsel to inquire about the pending case against him.
“[Jenkins’s] MOTION TO SET ASIDE JUDGMENT is hereby DENIED.”

(Capitalization in original.) Jenkins appealed to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Jenkins asserts that the trial court exceeded its discretion by denying his motion to set aside the default judgment entered against him. This court discussed a trial court’s denial of a motion to set aside a default judgment in Fuller v. Fuller, 991 So.2d 285, 288 (Ala.Civ.App.2008):

“ ‘In Kirtland, v. Fort Morgan Auth. Sewer. Serv., Inc., 524 So.2d 600 (Ala.1988), this Court held that a trial court has broad discretion in determining whether to grant or deny a defendant’s motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgments — judicial economy and the defendant’s right to defend on the merits. Kirtland, 524 So.2d at 604. These interests must be balanced under the two-step process set out in Kirtland.
“ ‘Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so.... Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider “1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.” Kirtland, 524 So.2d at 605.’
“[Sampson v. Cansler, 726 So.2d 632,] 633 [ (Ala.1998) ]. An analysis under the Kirtland factors is one requiring a balancing approach that weighs the factors against one another. Sumlin v. Sumlin, 931 So.2d 40, 45 (Ala.Civ.App.2005). Also, all three factors must be considered, but there is no requirement that all three factors be resolved in favor of the movant in order to set aside a default judgment. Id.”

On appeal, Jenkins discusses each of the factors set out in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988), applies them to the present case, and argues that the trial court erred in failing to set aside the default judgment entered against him. Jenkins also asserts that the trial court failed to address each of the Kirtland factors in its order, and he cites a number of cases that resulted in the reversal of a denial of a motion to set aside a default judgment when each of the Kirt-land factors were not addressed by the trial court. See, e.g., R.J.G. v. S.S.W., 42 So.3d 747, 754 (Ala.Civ.App.2009); Richardson v. Integrity Bible Church, Inc., 897 So.2d 345, 349 (Ala.Civ.App.2004); Jones v. Jones, 717 So.2d 434, 435 (Ala.Civ.App.1998); and CHO Real Estate Holding, Inc. v. Wyatt, 680 So.2d 372, 372 (Ala.Civ.App.1996).

The trial court’s order in the present case indicates that the court based its decision to deny Jenkins’s motion to set aside the default judgment on Jenkins’s failure to provide the circuit clerk with a current address or to otherwise apprise himself of the status of the case. Thus, the trial court seemingly considered the third Kirt-land factor regarding Jenkins’s culpable conduct. The order does not reflect that the trial court presumed that the case should be decided on the merits, that the trial court considered the two remaining Kirtland factors regarding whether Jenkins has a meritorious defense or whether the Mosses would be prejudiced if the default judgment is set aside, or that the trial court determined that the presumption against a default judgment had been overcome. In Richardson, this court stated:

“In this case, there is nothing to indicate that the trial court considered the three factors specified in Kirtland. We therefore reverse the trial court’s denial of Richardson’s motion to set aside the default judgment entered against him and remand the cause ‘for the trial court to consider the Kirtland factors in determining whether to set aside the default judgment.’ BankAmerica Hous. Servs.[ v. Matthews ], 718 So.2d [86,] 88 [ (Ala.Civ.App.1998) ]. As in White[ v. Westmoreland, 680 So.2d 348 (Ala.Civ.App.1996) ], however, our mandate in this ease ‘is not to be construed to mean that the trial court must set aside the default judgment, [but] only that the trial court must apply the Kirtland factors in deciding whether to set aside the default judgment.’ 680 So.2d at 349.”

897 So.2d at 349. As in Richardson, we conclude that the trial court’s judgment is due to be reversed and the cause remanded with instructions that the trial court apply the Kirtland analysis in full in determining whether to set aside the default judgment entered against Jenkins. Because we are reversing based on this issue, we pretermit discussion of the remaining issues raised by Jenkins on appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ„ concur.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    R.T. v. B.N.H.
    2090968.
    Court of Civil Appeals of Alabama.
    Jan. 7, 2011.

      Joan-Marie Dean, Huntsville, for appellant.
    Jerry Wayne Baker, Jr., Albertville, for appellee.
   MOORE, Judge.

R.T. (“the grandmother”), the paternal grandmother of D.F. (“the child”), appeals from a judgment of the Marshall Juvenile Court (“the juvenile court”) denying her petition for grandparent visitation rights with the child. We dismiss the appeal.

Procedural History

On December 19, 2008, the juvenile court entered an order establishing the paternity of the child and granting B.N.H. (“the mother”) and S.W. (“the father”) joint custody of the child. On February 19, 2009, the mother filed in the juvenile court a motion for immediate relief, alleging that the child had been abused during the time that he had been in the care of the father and that the child would be subject to irreparable harm if the father were allowed to continue to exercise visitation with the child. The mother requested that the juvenile court terminate the father’s visitation with the child pending a further hearing. On February 20, 2009, the juvenile court entered an ex parte order specifically finding that there “exist[ed] a substantial risk of irreparable harm to the ... child” and terminating the father’s visitation with the child pending a further hearing in the case. On March 25, 2009, the father filed an answer as well as a counterclaim for custody and a motion for contempt.

On May 27, 2009, the juvenile court entered the following handwritten notation on the case-action-summary sheet: “Parties agree that they will both complete cooperative parents & submit to a [Department of Human Resources’] home study; both parties to participate & complete family drug court [program]; father’s visitation to be as arranged [by] VIP Center; ... formal order to follow.” That notation was not “signed or initialed by the judge,” and, therefore, it was not a sufficient order pursuant to Rule 58(b), Ala. R. Civ. P. Apparently, there was a separate order entered by the juvenile court that same day that, among other things, allowed supervised visitation between the child and the grandmother. Subsequently, on June 15, 2009, the juvenile court entered the following order:

“This cause having come before the Court on this the 27th day of May, 2009 and each party being present with their respective attorneys and the parties announcing that a temporary agreement has been reached in this matter, it is therefore ORDERED, ADJUDGED, and DECREED as follows:
“1. Each party hereto will contact the Marshall County Court Referral Office and be evaluated and comply with the Marshall County Family Drug Court Program and complete any and all directives therefrom. The [mother] is determined to be indigent for the purposes of the Family Drug Court Program.
“2. The [father] shall receive visitation with the minor child supervised at the VIP Center pursuant to the Court’s Order of May 27, 2009.
“3. The Department of Human Resources is ordered to conduct and complete a formal home study on both the [mother] and [the father] prior to a final hearing herein.
“4. The parties are permitted to conduct discovery in this cause pursuant to the Alabama Rules of Civil Procedure.”

On February 4, 2010, the juvenile court entered the following judgment:

“THE PARTIES HERETO, by and through their respective counsel, having advised this Court that an agreement resolving all issues now pending between them, and the Court having considered the same, it is hereby ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
“1. The [father] shall have no contact with either the [mother] or the ... child.... All prior orders regarding visitation are rescinded and the complete care, custody, and control of the minor child remains with the [mother].
“2. This matter is placed on the administrative docket for a period of twelve (12) months to be dismissed if no further pleadings are filed herein, costs taxed as paid.”

On March 1, 2010, the grandmother moved to intervene; she also filed a petition for grandparent visitation. In her petition, the grandmother alleged that the well being of the child would be benefited by allowing the child to visit with the grandmother and that “grave and irreparable harm” would result without an order of visitation. On March 2, 2010, a hearing on dispositional issues was held and arguments were heard regarding the grandmother’s request for visitation. The motion to intervene was granted on March 8, 2010. On April 5, 2010, the juvenile court entered an order reinstating the grandmother’s visitation effective April 20, 2010, unless, within 10 days, the mother filed caselaw supporting her position that the grandmother’s visitation should be terminated.

Although the juvenile court had granted the grandmother’s motion to intervene on March 8, 2010, the mother filed a response to the grandmother’s motion to intervene on March 10, 2010, alleging that the grandmother lacked standing to intervene and that the juvenile court lacked subject-matter jurisdiction to consider the grandmother’s petition for grandparent visitation.

On April 13, 2010, the mother filed a motion to correct a clerical error in the May 27, 2009, order, stating that “[t]he parties ... had no intent, at any point, to create a separate visitation right [for the grandmother] with [the child], only that she be permitted to provide transportation for the Father.” On May 7, 2010, the juvenile court entered an order, pursuant to Rule 60(a), Ala. R. Civ. P., correcting the May 27, 2009, order to reflect that the grandmother was not awarded any visitation rights in the May 27, 2009, order but that she had simply been permitted to provide transportation for the father; the juvenile court also set aside the April 5, 2010, order reinstating the grandmother’s visitation with the child.

On June 23, 2010, the juvenile court heard arguments on the grandmother’s petition for grandparent visitation. On June 28, 2010, the juvenile court entered a judgment denying the grandmother’s petition, holding that it was barred by Ala.Code 1975, § 30-3-4.1(g). On July 12, 2010, the grandmother filed her notice of appeal to this court.

Discussion

The record reveals that the juvenile court initially decided the issue of the custody of the child in December 2008 “as part of a paternity proceeding involving the child, who was born out of wedlock to the mother and the father.” Ex parte L.N.K., 64 So.3d 656, 657 (Ala.Civ.App.2010). In December 2008,

“only juvenile courts could adjudicate such paternity cases. See former § 12-15-31(2), Ala.Code 1975 (providing that juvenile courts shall have exclusive original jurisdiction ‘[i]n proceedings to establish paternity of a child born out of wedlock’). As part of a paternity proceeding, a juvenile court also could decide custody and child-support issues. See former § 12-15-30(b)(l), Ala.Code 1975 (providing that the juvenile court shall exercise exclusive original jurisdiction of ‘[proceedings to determine custody ... of a child when the child is otherwise before the court’); and C.D.W. v. State ex rel. J.O.S., 852 So.2d 159 (Ala.Civ.App.2002) (holding that an action seeking to establish paternity and for an award of child support is within the juvenile court’s jurisdiction)....
“Formerly, once a juvenile court decided custody and child-support issues as part of a paternity proceeding, that juvenile court retained continuing exclusive jurisdiction over those issues unless it terminated its own jurisdiction. See former § 12-15-32, Ala.Code 1975 (providing that, once a juvenile court obtains jurisdiction in any case involving a child, that court retains jurisdiction over that case until the child reaches the age of 21 years or until the court, by its own order, terminates that jurisdiction); see also W.B.G.M. v. P.S.T., 999 So.2d 971 (Ala.Civ.App.2008). However, in '2008, the legislature enacted the new Alabama Juvenile Justice Act (‘the new AJJA’), § 12-15-101 et seq., Ala.Code 1975, which amended and renumbered the provisions of former § 12-15-32 as § 12-15-117, Ala.Code 1975. Section 12-15-117 provides, in pertinent part:
“ ‘(a) Once a child has been adjudicated dependent, delinquent, or in need of supervision, jurisdiction of the juvenile court shall terminate when the child becomes 21 years of age unless, prior thereto, the judge of the juvenile court terminates its jurisdiction over the case involving the child.’
“By its plain terms, § 12-15-117(a) does not grant juvenile courts continuing jurisdiction over children unless they have been ‘adjudicated dependent, delinquent, or in need of supervision.’ Thus, this court has held that a juvenile court no longer has continuing jurisdiction over a child based solely on its having made a prior paternity determination. Ex parte T.C., 63 So.3d 627 (Ala.Civ.App.2010).”

L.N.K., 64 So.3d at 657-58. Thus, we conclude that the juvenile court did not retain jurisdiction to modify its December 2008 custody determination.

We note, however, that, under the new Alabama Juvenile Justice Act, Aa. Code 1975, § 12-15-1 et seq. (“the new AJJA”), the juvenile court, “on an emergency basis, may enter an order of protection or restraint to protect the health or safety of a child....” Ala.Code 1975, § 12-15-138. In the present case, the mother’s February 19, 2009, motion alleged that the child had been abused during the time that he had been in the care of the father and that the child would be subject to irreparable harm if the father were allowed to continue to exercise visitation with the child, and she requested that the father’s visitation with the child be terminated. We conclude that those allegations were sufficient to invoke the juvenile court’s emergency jurisdiction under § 12-15-138. The juvenile court acted pursuant to that jurisdiction in entering its February 20, 2009, ex parte order suspending the father’s visitation rights and, subsequently, in entering its June 15, 2009, order adopting the parties’ settlement agreement providing for supervised visitation by the father.

After the juvenile court entered the June 15, 2009, order addressing the emergency situation, however, the case evolved into a pure custody and visitation dispute between the parents. “The clear intent of the Legislature [in enacting the new AJJA] was to provide that the juvenile courts of this state should no longer be deciding custody disputes except insofar as their resolution is directly incidental to core juvenile-court jurisdiction.” Ex parte T.C., 63 So.3d 627, 630-31 (Ala.Civ.App.2010); see also Ala.Code 1975, § 12-15-114(a) (“A dependency action shall not include a custody dispute between parents.”). Accordingly, the juvenile court lacked jurisdiction to take any action on the parents’ custody and visitation dispute or on the grandmother’s subsequent petition for grandparent-visitation rights. Thus, all orders and judgments entered by the juvenile court after June 15, 2009, are void, including the order granting the grandmother’s motion to intervene and the June 28, 2010, judgment from which the grandmother appeals. See Eagerton v. Second Econ. Dev. Coop. Dist. of Lowndes County, 909 So.2d 783, 788 (Ala.2005) (“Without subject-matter jurisdiction, any judgment entered in the action is void.”). “This court is required to dismiss an appeal from a void judgment.” Owens v. Owens, 51 So.3d 364, 367 (Ala.Civ.App.2010). Accordingly, we dismiss the grandmother’s appeal as being from a void judgment, albeit with instructions to the juvenile court to vacate any orders and judgments it entered after June 15, 2009. See Owens, 51 So.3d at 367.

Because we conclude that the juvenile court’s June 28, 2010, judgment is void, we do not address the grandmother’s second argument — that the juvenile court erred by concluding that her petition for grandparent-visitation rights was precluded by Ala.Code 1975, § 30-3-4.1.

APPEAL DISMISSED WITH INSTRUCTIONS.

THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.

PITTMAN, J., concurs in the result, without writing.

      . A copy of that judgment is not included in the record on appeal; however, the substance of that judgment is stated by the juvenile court in a subsequent judgment that is in the record.

      . That order is not in the record on appeal, but the substance of that order is explained in a subsequent order entered by the juvenile court, which is in the record.

      . See supra note 2 and accompanying text.

      . We note that the juvenile court did have jurisdiction to correct its May 27, 2009, order on May 7, 2010, pursuant to Rule 60(a), Ala. R. Civ. P. This appeal does not concern the validity or correctness of that order, and our holding should not be construed in any manner as applying to the May 7, 2010, order.


author:
PER CURIAM. WINDOM, Judge, MAIN, Judge, PER CURIAM. WINDOM, Judge,
      MAIN, Judge, PER CURIAM. MAIN, Judge,

text:
    Carlton Reashard LANE v. STATE of Alabama.
    CR-07-1354.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 2009.
    On Return to Remand March 26, 2010.
    Order Overruling Rehearing Applications April 30, 2010.
    Certiorari Denied (as to Defendant) Aug. 6, 2010 Alabama Supreme Court 1091128.

      Joshua J. Lane, Anniston, for appellant.

      Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Carlton Reashard Lane, was convicted of murdering Christopher Toson, a violation of § 13A-6-2, Ala.Code 1975, and was sentenced pursuant to the Habitual Felony Offender Act (“HFOA”) to 120 years in the state penitentiary.

Lane does not challenge the sufficiency of the evidence to convict him; thus, only a brief recitation of the facts is necessary. The State’s evidence tended to show the following. On November 9, 2006, Lane, Keyonte Chick, and Randy Pearson planned to rob a man named Chris because they believed that he had in his possession a large sum of money. Chick testified that the three drove past Nor-wood Homes, a housing project in Anni-ston. As they approached the housing project Lane told Pearson, who was driving, to stop the vehicle. Lane and Chick got out of the vehicle and approached a group of men — Toson, Joseph Ingram, Jaydee Turmon, and Travis Turner — who were sitting around the front of one of the apartments. Lane accused Toson of pulling a gun on him, and Lane appeared to reach into his pocket. Toson fled. Lane pulled a gun from his pocket and started firing at Toson as he was running away. Chick testified that he also fired his weapon but that he was pointing his gun in the air. Ingram, Turner, and Chick all testified that Lane was the shooter. Dr. Adel Shaker, the medical examiner, testified that Toson died as a result of a gunshot wound to his heart.

I.

Lane argues that the circuit court abused its discretion when it denied his request for a continuance to secure the testimony of Phillip Talley. Specifically, Lane argues that Talley could have testified that he overheard Chick tell someone that Chick was responsible for Toson’s death.

The record shows that, after the State rested, defense counsel informed the court that Talley would be their first defense witness. The circuit court noted that it would take six hours to transport Talley to the courthouse from the Ventress Correctional Facility in Clayton. The State questioned the value of Talley’s testimony, and the circuit court asked Lane to make an offer of proof as to Talley’s expected testimony. Lane informed the court that Talley would testify that he overheard Keyonte Chick say that he was responsible for Toson’s murder. The circuit court refused to delay the trial after finding that Talley’s testimony would be inadmissible hearsay.

“To warrant a continuance on the ground that a witness is absent, it must be shown that the expected testimony of the witness is material and competent, that there is a probability that the evidence will be forthcoming if the case is continued, and that the moving party exercised due diligence to secure the evidence. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986). Material evidence means ‘[e]vidence which has an effective influence or bearing on questions in issue.’ Black’s Law Dictionary 976 (6th ed. 1990). ‘Simply put, a “material” fact is one that would matter in the trial on the merits.’ Sumner v. Sumner, 664 So.2d 718, 723 (La.App.1995). It must be shown that substantially favorable testimony would be given by the witness and that the denial of a continuance would materially prejudice the defendant. Whitehead v. State, 429 So.2d 641 (Ala.Cr.App.1982). In addition, it must be established that the expected testimony is not merely cumulative or in the nature of impeachment, and the motion for a continuance must not be made merely for purposes of delay. Mitchell v. Moore, 406 So.2d 347 (Ala.1981); Malone v. State, 659 So.2d 1006 (Ala.Cr.App.1995); McClellan v. State, 628 So.2d 1026 (Ala.Cr.App.1993); Prince v. State, 623 So.2d 355 (Ala.Cr.App.1992).”

Smith v. State, 698 So.2d 189, 205 (Ala.Crim.App.1996).

Lane argues that Talley’s testimony would have been admissible under Rule 801(d)(2), Ala. R. Evid., as an admission of a party opponent. Rule 801(d)(2), Ala. R. Evid., states:

“(2) Admission by Party Opponent. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a cocon-spirator of a party during the course and in furtherance of the conspiracy.”

As the circuit court stated, Lane offered no explanation as to how Talley’s testimony fit within any exception to the hearsay rule. Also, “[t]o meet this requirement the statement must be offered against a party. The statement here was not offered against a party but was offered in [the defendant’s] defense.” Johnson v. State, 820 So.2d 842, 867 (Ala.Crim.App.2000). Lane failed to establish that Talley’s testimony would be admissible. Thus, the circuit court did not abuse its discretion in denying Lane’s request to delay the trial in order to transport Talley from the Ventress Correctional Facility in Clayton.

II.

Lane next argues that his sentence of 120 years is cruel and unusual punishment. Specifically, Lane contends that his sentence is disproportionate to the nature of his offense and is unconstitutional.

First, we must determine whether Lane’s sentence exceeds the limits set by statute. This Court has a duty to notice jurisdictional defects ex mero motu. See Nunn v. Baker, 518 So.2d 711 (Ala.1987). “A sentence that exceeds the maximum allowed by law is an illegal sentence affecting the trial court’s jurisdiction.” Wallace v. State, 959 So.2d 1161, 1165 (Ala.Crim.App.2006).

Lane was convicted of murder — a Class A felony. Section 13A-5-6(a), Ala.Code 1975, provides, in pertinent part:

“(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:
“(1) For a Class A felony, for life or not more than 99 years or less than 10 years.”

However, Lane had two prior felony convictions and his sentence was due to be enhanced under the HFOA. Section 13A-5-9(b), Ala.Code 1975, states, in pertinent part:

“(b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he or she must be punished as follows:
(3) On conviction of a Class A felony, he or she must be punished by imprisonment for life or for any term of not less than 99 years.”

Also, § 13A-5-2(a), Ala.Code 1975, provides: “Every person convicted of a felony shall be sentenced by the court to imprisonment for a term authorized by Sections 13A-5-6,13A-5-9, and 13A-5-10.”

This Court in Smith v. State, 447 So.2d 1327 (Ala.Crim.App.1983), considered whether the circuit court’s 45-year sentence for Smith’s conviction for manslaughter, a Class C felony where a firearm was used, was a legal sentence. The applicable statute, § 13A-5-6(a)(5), Ala.Code 1975, provided that the sentence should be for “not less than 10 years.” Section 13A-5-6(a)(3), provided that for a Class C felony the sentence not exceed 10 years. In finding that Smith’s sentence exceeded the statutory 10-year maximum, we stated:

“The defendant ... argues that subsection (a)(5) of Section 13A-5-6 fails to state a maximum term of imprisonment and is therefore unconstitutional. We find that this section is constitutional and that both maximum and minimum terms of imprisonment are provided by the statute. We reach this conclusion by the application of well settled principles of statutory construction. Generally, see D. Sands, Sutherland Statutes And Statutory Construction, Section 59.03 (4th ed. 1974).
“Statutes imposing penalties ‘must be strictly construed in favor of persons sought to be subjected to their operation’, Anderson v. City of Birmingham, 205 Ala. 604, 605, 88 So. 900 (1921), and ‘in favor of life and liberty.’ 24B C.J.S. Criminal Law, Section 1979 (1962). ‘However, even penal laws are not to be construed so strictly as to defeat the obvious intent of the legislature.’ McDonald v. State, 32 Ala.App. 606, 608, 28 So.2d 805 (1947). ‘(T)he interests of justice demand that criminal statutes not be construed irresponsibly. Unfortunate language or phrases within a statute, ... (do) not sanction a construction of that statute at odds with common sense and practicality of application.’ Nobis v. State, 401 So.2d 191, 196 (Ala.Cr.App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala.1981).
“Although ‘penal statutes are to reach no further in meaning than their words’, Fuller v. State, 257 Ala. 502, 505, 60 So.2d 202 (1952); Sexton v. State, 392 So.2d 1239, 1241 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1241 (Ala.1981), ‘every word and each section thereof must be given effect, if possible, and construed with the other sections in pari materia. In re Ashworth, 291 Ala. 723, 726-27, 287 So.2d 843 (1974). ‘(P)arts of the same statute are in pari materia and each part is entitled to equal weight.’ Darks Dairy [Inc. v. Alabama Dairy Comm’n ], 367 So.2d [1378] at 1380-81 [ (Ala.1979) ]. ‘(S)tatutes must be read as whole’, Adams v. Mathis, 350 So.2d 381, 385 (Ala.1977), and not construed as isolated phrases or clauses. Darks Dairy, supra.
“If there is a conflict in the provisions of the same statute, the last provision in point of arrangement must control. Ashworth, supra; 24B C.J.S. Criminal Law, Section 1979 (1962). This is due to the principle of statutory construction which assumes that ‘in enacting the statute the legislature had full knowledge and information as to prior and existing law on the subject of the statute.’ Miller v. State, 349 So.2d 129, 131 (Ala.Cr.App.1977).
“ Tf a statute is susceptible to two constructions, one of which is workable and fair and the other unworkable and unjust, the court will assume that the legislature intended that which is workable and fair.’ State v. Calumet & Hecla Consolidated Copper[ Co.], 259 Ala. 225, 233-34, 66 So.2d 726 (1953). Statutes ‘should not be construed, however, as intending to prevent punishment unless no other alternative is permissible.’ 24B C.J.S. Criminal Law, Section 1979 (1962).
“ ‘A criminal statute must be definite and certain with respect to the punishment it is intended to impose.’ Smith v. United States, 145 F.2d 643, 644 (10th Cir.1944), cert. denied, 323 U.S. 803, 65 S.Ct. 563, 89 L.Ed. 641 (1945). Of particular importance in this case is the principle that the ‘constitutional validity of a particular statute is not affected merely because the statute does not expressly limit and fix the maximum penalty which may be imposed. It is sufficient if the maximum penalty is fixed by a general or related statute.’ Andreas v. Clark, 71 F.2d 908, 909 (9th Cir.1934); Palmer v. State, 168 Ala. 124, 53 So. 283 (1910); 22 C.J.S. Criminal Law, Section 25 (1961).
“Alabama has no general statute fixing the maximum penalty which may be imposed for a felony. Section 15-18-23, Alabama Code (1975), provided that ‘(w)hen no maximum limit to the duration of the imprisonment is prescribed by law, the court may, in its discretion, sentence the offender to imprisonment for the term of his natural life.’ Trone v. State, 366 So.2d 379 (Ala.Cr.App.1979). This section was repealed by our new Criminal Code.
“Applying these principles and rules of construction, we find that Section 13A-5-6 is definite and certain with respect to the punishments it intends to impose. We do find that it was misconstrued by the trial judge who mistakenly sentenced the defendant to a term of imprisonment in excess of that authorized by statute.
“Isolated from the remainder of the statute, subdivisions (4) and (5) of subsection (a) do establish minimum sentences without fixing maximum terms. Construing the statute as a whole, it is clear that those maximum terms are in fact supplied by subdivisions (1), (2) and (3) of subsection (a). Any confusion created by the failure of subdivisions (4) and (5) to specifically state the maximum limits of imprisonment must be imputed to the fact that these subdivisions were added by subsequent amendment. Because the new subdivisions neither repeal nor contradict the existing provisions of Section 13A-5-6, the maximum sentences of the existing provisions of the statute must govern if the statute is to be construed as a whole giving effect to each portion and every word thereof. This is the only reasonable and just construction available.”

447 So.2d at 1332-34. The Alabama Supreme Court in affirming this Court’s decision in Smith, stated:

“We agree with the opinion of the Court of Criminal Appeals. Under § 13A-5-6(a)(3) the term of imprisonment may be set at not more than 10 years. Under section (5) if a deadly weapon is used the sentence must be for at least 10 years. Section (5) must be construed to mean that the 10-year-term is both the minimum and maximum sentence which can be imposed for a Class C felony. We have very carefully considered the forceful argument made by the state that a sentencing statute which sets a minimum sentence but specifically sets no maximum, implicitly sets a maximum sentence of life imprisonment, but we are persuaded that the reasoning by the Court of Criminal Appeals is correct and that the judgment of that court is due to be affirmed.”

Smith v. State, 447 So.2d 1334, 1335-36 (Ala.1984).

As Smith counsels, “rules and statutes relating to the same subject matter must be read in pari materia, thus allowing for legal harmony where possible.” State ex rel. Daw, 786 So.2d 1134, 1136 (Ala.2000). We must read § 13A-5-9(a)(3), in conjunction with § 13A-5-6, Ala.Code 1975. Accordingly, the only sentences available for Lane were either 99 years’ imprisonment or life; the 120-year sentence imposed by the circuit court exceeded the statutory maximum.

This interpretation is consistent with Rule 14.4, Ala. R.Crim. P., the rule governing the acceptance of a guilty plea. We have consistently held that a defendant must be apprised of the correct minimum and maximum sentence before pleading guilty. See White v. State, 4 So.3d 1208 (Ala.Crim.App.2008); Gordon v. State, 692 So.2d 869 (Ala.Crim.App.1996). This right is incorporated into Rule 14.4(a)(1)(ii), Ala. R.Crim. P., which states that before pleading guilty the defendant must be advised of “[t]he mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions.” The “Explanation of Rights and Plea of Guilty Form,” attached as an appendix to Alabama Rules of Criminal Procedure sets out the sentence range for a Class A felony where there are two prior felony convictions as “life imprisonment or any term of years not less than 99.” Rule 14.4(d), Ala. R.Crim. P., further states that “[t]he court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in Form C-44B, CR-51, CR-52, or Form C-44A, as the case may be.” See also Carter v. State, 853 So.2d 1040, 1041 (Ala.Crim.App.2002) (“The maximum sentence for a conviction of first-degree robbery, a Class A felony, with two prior felony convictions, is life imprisonment or imprisonment for a term of not less than 99 years.”); Craig v. State, 645 So.2d 349, 351 (Ala.Crim.App.1994) (“Assuming that Craig had had two prior felony convictions, the sentence for a first degree robbery conviction would.have been life imprisonment or a term of not less than 99 years.”).

Accordingly, this case is remanded to the Calhoun Circuit Court for that court to resentence Lane in accordance with the terms set out in this opinion. Due return should be filed'in this Court within 42 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

WELCH and KELLUM, JJ„ concur.

WISE, P.J., concurs in the result.

WINDOM and MAIN, JJ., concur in part and dissent in part, with opinions.

WINDOM, Judge,

concurring in part and dissenting in part.

I agree with the plurality’s decision to uphold Carlton Reashard Lane’s conviction; however, for the reasons that follow, I disagree with the plurality’s decision to overturn Lane’s 120-year sentence.

As the plurality recognizes, Lane was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975, which is a Class A felony. At the time of his conviction, Lane had previously been convicted of two felonies. Because Lane was convicted of a Class A felony and had two previous felony convictions, the range of sentences to which he was exposed was governed by § 13A-5-9(b)(S), Ala.Code 1975, of the Habitual Felony Offender Act. Section 13A-5-9(b)(3), Ala.Code 1975, provides that “[o]n conviction of a Class A felony, [the defendant] must be punished by imprisonment for life or for any term of not less than 99 years.” Interpreting this provision, the plurality holds that “the only sentences available for Lane were either 99 years’ imprisonment or life”; therefore, Lane’s 120-year sentence is illegal. In holding that § 13A-5-9(b)(3) authorizes only two sentences (life or 99 years), the plurality rejects the plain language of the statute. Therefore, I must dissent.

It is well settled that “the first rule of statutory construction [is] that where the meaning of the plain language of the statute is clear, it must be construed according to the plain language.... ” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 504 (Ala.1993)(citing King v. National Spa & Pool Inst., 607 So.2d 1241, 1246 (Ala.1992)). “‘“The fundamental principle of statutory construction is that words in a statute must be given their plain meaning.” ’ ” Ex parte Ruggs, 10 So.3d 7, 11 (Ala.2008) (quoting Trott v. Brinks, Inc., 972 So.2d 81, 85 (Ala.2007), quoting in turn Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 814 (Ala.2003)). “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.’ ” Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001) (quoting IMED Corp. v. Systems Eng’g Assocs., Corp., 602 So.2d 344, 346 (Ala.1992)). Because courts are bound to “interpret the plain language of [a] statute to mean exactly what it says,” courts may not “engage in judicial construction [unless] the language in the statute is ambiguous.” Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001). That is, “ ‘ “[w]here plain language is used a court is bound to interpret that language to mean exactly what it says,” and “[i]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ ” Ex parte Alabama Great Southern R.R., 788 So.2d 886, 889 (Ala.2000) (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998)).

Section 13A-5-9(b)(3), Ala.Code 1975, provides “[i]n all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, ...: [o]n conviction of a Class A felony, he or she must be punished by imprisonment for life or for any term of not less than 99 years.” (Emphasis added.) The statute sets the maximum sentence at life and the minimum sentence at 99 years. Further, by using the phrase “any term of not less than 99 years” the legislature clearly authorized circuit courts to sentence an individual to any term of years between 99 years and life in prison. Thus, § 13A-5-9(b)(3) provides that the sentencing range for an individual who has two prior felony convictions and is convicted of a Class A felony is 99 years to life. The language is plain and unambiguous and leaves no room for judicial interpretation. See Ex parte Alabama Great Southern R.R. Co., 788 So.2d at 889; Nielsen, 714 So.2d at 296; Ex parte Pratt, 815 So.2d at 535.

Applying the plain language of § 13A-5-9(b)(3), Lane’s sentence of 120 years in prison is within the statutory range of sentences available to individuals convicted of a Class A felony with two prior felonies. Lane’s 120-year sentence, which leaves him eligible for parole, does not exceed a sentence of life in prison. Cf. Kyzer v. State, 484 So.2d 1202, 1203 (Ala.Crim.App.1986) (refusing to review an inmate’s 10,-000-year sentence when the statute under which the inmate was sentenced authorized a sentence of life in prison and the inmate’s 10,000-year sentence, which left him eligible for parole, did not exceed a sentence of life). Likewise, Lane’s 120-year sentence does not fall below 99 years. Thus, Lane’s 120-year sentence is within the range of sentences authorized by § 13A-5-9(b)(3). Cf. Smelcher v. State, 520 So.2d 229, 230 (Ala.Crim.App.1987) (failing to find a sentencing defect in the appellant’s 120-year sentence for rape).

Despite the unambiguous language contained in § 13A-5-9(b)(3), the plurality has chosen to read the phrase “life or for any term of not less than 99 years” as authorizing either a sentence of 99 years or a sentence of life. To come to its conclusion, the plurality rejects the unambiguous phrase “any term not less than 99 years.” By rejecting the phrase “any term not less,” the plurality has limited the range of punishments allowed under the plain language of the statute, i.e., 99 years to life. See Fuller v. Associates Commercial Corp., 389 So.2d 506, 509 (Ala.1980) (holding that “[e]ourt[s] must give effect to the legislature’s choice of the word ‘any’ rather than judicially rewriting the statute.... ”).

In support of its holding that § 13A-5-9(b)(3) authorizes only a sentence of 99 years or a sentence of life in prison, the plurality cites Smith v. State, 447 So.2d 1327 (Ala.Crim.App.1983) (“Smith I”), aff'd, Smith v. State, 447 So.2d 1334 (Ala.1984) (“Smith II”), and Rule 14.4, Ala. R.Crim. P. However, neither Smith I and Smith II nor Rule 14, Ala. R.Crim. P., justify the plurality’s rejection of the plain language contained § 13A-5-9(b)(3). In Smith I, this court held that Smith’s 45-year sentence for a Class C felony exceeded the maximum allowed by law. Smith I, 447 So.2d at 1332-34. Smith was convicted of manslaughter, a Class C felony, through the use of a firearm or deadly weapon. Id. Because Smith was convicted of a Class C felony, the statutory sentencing range for his crime was “‘not more than 10 years or less than 1 year and 1 day.’ ” Id. at 1332 (quoting § 13A-5-6(a)(3), Ala.Code 1975). However, § 13A-5-6(a)(5), Ala.Code 1975, provided that the sentence for “a Class B or C felony in which a firearm or deadly weapon was used [shall be] not less than 10 years.” The circuit court, construing § 13A-5-6(a)(5) — which set a minimum sentence of 10 years — as the only restriction on its sentencing authority, sentenced Smith to 45 years in prison.

On appeal, Smith argued that § 13A-5-6(a)(5), Ala.Code 1975, is unconstitutional because it set the minimum sentence for a Class C felony in which a firearm or deadly weapon was used at 10 years but failed to set a maximum sentence. This court rejected Smith’s argument that § 13A-5-6(a)(5), Ala.Code 1975, failed to set a maximum sentence. Specifically, this court recognized that § 18A-5-6(a)(S), Ala.Code 1975, provided that the sentencing range for a Class C felony is “not more than 10 years or less than 1 year and 1 day.” This court further recognized that the firearm enhancement contained in § 13A-5-6(a)(5) only increased the minimum sentence required by law to 10 years and had no affect on the maximum sentence of 10 years established in § 13A-5-6(a)(8). Thus, when these two “ ‘[p]arts of the same statute are [read] in pari materia, ’ Smith I, 447 So.2d at 1333 (quoting Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380-81 (Ala.1979) (emphasis added)), a “10-year-term is both the minimum and maximum sentence which can be imposed for a Class C felony,” Smith II, 447 So.2d at 1336, and Smith’s 45-year sentence exceeded the 10-year maximum.

This court’s holding in Smith I, however, has no application to Alabama’s Habitual Felony Offender Act. Unlike the firearm or deadly-weapon enhancement contained in § 13A-5-6(a)(5), which affects only the minimum sentence for Class B and Class C offenders, Alabama’s Habitual Felony Offender Act enhances both the minimum and the maximum sentences available for habitual felons. Compare § 13A-5-6(a)(5) (the sentence for “a Class B or C felony in which a firearm or deadly weapon was used [shall be] not less than 10 years ” (emphasis added)) with § 13A-5-9(b)(3), Ala.Code 1975 (“On conviction of a Class A felony, [the defendant] must be punished by imprisonment for life or for any term of not less than 99 years.” (emphasis added)). More importantly, unlike the firearm or .deadly-weapon enhancement contained in § 13A-5-6(a)(5), which contains no maximum sentence and thus must be read in pari materia with subsection (a)(3) of the same statute to ascertain both a maximum and minimum range of sentences, § 13A-5-9(b)(3), Ala.Code 1975, specifies both a minimum and a maximum sentence, i.e., 99 years to life. Accordingly, unlike the firearm or deadly-weapon enhancement, there is no need to read § 13A-5-9(b)(3), Ala.Code 1975, in pari materia with other statutes to ascertain the statutory minimum and maximum sentence.

Because § 13A-5-9(b)(3), Ala.Code 1975, increases both the statutory minimum sentence and the statutory maximum sentence, the holdings in Smith I and Smith II do not apply.

Likewise, the plurality’s attempt to buttress its rejection of the plain language contained in § 13A-5-9(b)(3), Ala.Code 1975, with the requirements outlined in Rule 14, Ala. R.Crim. P., is unpersuasive. According to the plurality:

“[Its] interpretation [of § 13A-5-9(b)(3) ] is consistent with Rule 14.4, Ala. R.Crim. P., the Rule governing the acceptance of a guilty plea. We have consistently held that a defendant must be apprised of the correct minimum and maximum sentence before pleading guilty. See White v. State, 4 So.3d 1208 (Ala.Crim.App.2008); Gordon v. State, 692 So.2d 869 (Ala.Crim.App.1996). This right is incorporated into Rule 14.4(a)(1)(ii), Ala. R.Crim. P., which states that before pleading guilty the defendant must be advised of ‘[t]he mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions.’ The ‘Explanation of Rights and Plea of Guilty Form,’ attached as an appendix to the Alabama Rules of Criminal Procedure, sets out the sentence range for a Class A felony where there are two prior felony convictions as ‘life imprisonment or any term of years not less than 99.’ Rule 14.4(d), Ala. R.Crim. P., further states that ‘[t]he court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in Form C-44B, CR-51, CR-52, or Form CM4A, as the case may be.’ See also Carter v. State, 853 So.2d 1040, 1041 (Ala.Crim.App.2002) (‘The maximum sentence for a conviction of first-degree robbery, a Class A felony, with two prior felony convictions, is life imprisonment or imprisonment for a term of not less than 99 years.’); Craig v. State, 645 So.2d 349, 351 (Ala.Crim.App.1994) (‘Assuming that Craig had had two prior felony convictions, the sentence for a first degree robbery conviction would have been life imprisonment or a term of not less than 99 years.’).”

66 So.3d at 818.

The plurality, however, fails to explain how interpreting § 13A-5-9(b)(3) to allow only a sentence of 99 years or a sentence of life is consistent with “Explanation of Rights and Plea of Guilty Form,” attached as an appendix to Rule 14.4, Ala. R.Crim. P. As the plurality recognizes, the appendix sets out the sentence range for a Class A felony where there are two prior felony convictions as “life imprisonment or any term of years not less than 99 years.” (emphasis added). It is inconceivable that an individual who is informed that the sentencing range pursuant to § 13A-5-9(b)(3) is “life imprisonment or any term of years not less than 99 years” would be unaware that the maximum sentence that individual faces is life, the minimum sentence that individual faces is 99 years, and the circuit court may, within its discretion, sentence that individual to any term in between 99 years and life.

Because the plain language of § 13A-5-9(b)(3), Ala.Code 1975, unambiguously sets the sentencing range for a Class A felony where there are two prior felony convictions at “life imprisonment or any term of years not less than 99,” the plurality has failed to “give effect to the legislature’s choice of the word ‘any’ [and thus has] judicially rewritten] the statute.” Fuller, 389 So.2d at 509. Accordingly, I must respectfully dissent from this court’s decision to overturn Lane’s 120-year sentence.

MAIN, Judge,

concurring in part and dissenting in part.

I concur as to Part I of the opinion.

I dissent as to Part II of the opinion.

Carlton Reashard Lane was convicted of a Class A felony and was sentenced to 120 years in prison pursuant to the Habitual Felony Offender Act (“HFOA”) as a habitual offender with two prior felony convictions. The HFOA provides, in pertinent part: “On conviction of a Class A felony, [the defendant] must be punished by imprisonment for life or for any term of not less than 99 years.” § 13A-5-9(b)(3), Ala. Code 1975 (emphasis added).

The reliance in the main opinion on Smith v. State, 447 So.2d 1327 (Ala.Crim.App.1983), and Smith v. State, 447 So.2d 1334 (Ala.1984), is not persuasive. Smith was sentenced to 45 years’ imprisonment for his conviction for a Class C felony, enhanced pursuant to the firearm-enhancement statute. See §§ 13A-5-6(a)(3) and 13A-5-6(a)(5), Ala.Code 1975. The courts properly recognized that the firearm enhancement increased only the minimum possible punishment but still fell within the constraints of the maximum possible punishment as set out in other subsections of the same statute.

However, unlike the firearm enhancement at issue in Smith, the HFOA is not contained in § 13A-5-6, but rather is codified as a separate statute at § 13A-5-9. Further, the recidivist statute at § 13A-5-9 contains clear and unambiguous language evidencing the Alabama Legislature’s intent that offenders sentenced under the HFOA be subjected to a different range of punishment than those sentenced pursuant to the general felony range in § 13A-5-6. If § 13A-5-9 must be read in ■pari materia with § 13A-5-6 and interpreted in the manner expressed in the main opinion to reach the conclusion reached in the main opinion, then arguably the overwhelming majority of the subsections of the HFOA are invalid because all but one of those subsections increase the minimum and maximum range of punishment above that contained in § 13A-5-6. Sections 13A-5-9(a)(l), (b)(1), and (c)(1), each increase the maximum punishment above that prescribed in § 13A-5-6(a)(3), for a conviction for a Class C felony. Sections 13A-5-9(a)(2), (b)(2), and (c)(2), each increase the maximum punishment above that prescribed in § 13A-5-6(a)(2) for a conviction for a Class B felony. Sections 13A-5-9(c)(3) and (c)(4) each increase the maximum punishment above that prescribed in § 13A-5-6(a)(l) for a conviction for a Class A felony. Only § 13A-5-9 (a)(3) (“On conviction of a Class A felony, [the defendant] must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.”) raises the minimum punishment without deviating from the maximum punishment expressed in § 13A-5-6(a)(l).

The language in the statute is unambiguous. Applying the well settled principles of statutory construction, I must conclude that the plain language of the statute sets a minimum punishment (some numerical term of years not less than 99, without placing any numerical cap on the sentence that may be imposed), and a maximum punishment (life in prison). Any other construction of this statute would require the removal of the words “for any term of not less than.” Thus, I believe that the 120-year sentence imposed in this case is •within the statutory range of punishment.

Finally, because I do not believe that the 120-year sentence is illegal, I do not address the dictum regarding Rule 14.4, Aa. R.Crim.P., and the acceptance of guilty pleas set out in the main opinion.

For these reasons, I respectfully dissent from Part II of the main opinion. Rather than remanding this case for the trial court to impose a new sentence, I would instead address the merits of Lane’s claim that his 120-year sentence constituted cruel and unusual punishment, and, because I believe that claim to be without merit, I would affirm Lane’s conviction and sentence.

On Return to Remand

PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, P.J., and WELCH and KELLUM, JJ., concur; WINDOM and MAIN JJ., concur in part and dissent in part, with opinions.

WINDOM, Judge,

concurring in part and dissenting in part.

I concur in affirming Lane’s conviction. For the reasons stated in my writing on original submission, I disagree with the plurality’s decision to overturn Lane’s 120-year sentence and to remand the case for re-sentencing. I, therefore, dissent from the affirmance of Lane’s sentence on return to remand.

MAIN, Judge,

concurring in part and dissenting in part.

I concur in affirming Carlton Reashard Lane’s conviction. For the reasons stated in my writing on original submission, I dissent as to the propriety of instructing the trial court to resentence Lane.

On Applications for Rehearing

PER CURIAM.

APPLICATIONS OVERRULED; NO OPINION.

WISE, P.J., and WELCH and KELLUM, JJ., concur; WINDOM, J., concurs in part and dissents in part; MAIN, J., concurs in part and dissents in part, with opinion.

MAIN, Judge,

concurring in part and dissenting in part.

I concur with the overruling of the application for a rehearing filed by Carlton Reashard Lane. However, for the reasons stated in my writing on original submission, I continue to disagree with the propriety of instructing the trial court to re-sentence Lane. Therefore, I dissent as to the overruling of the State’s application for a rehearing. •

      . Chick was also charged with murder for the killing of Toson. In exchange for his testimony at Lane’s trial, Chick agreed to plead guilty and the State would recommend a sentence of 20 years.

      . Other grounds were presented as to why Talley should testify, but those grounds are not pursued on appeal.

      . Although in his brief Lane concedes that his sentence falls within the range provided by-statute, a party cannot agree or consent to waive a jurisdictional defect. See Bradley v. State, 925 So.2d 232, 241 (Ala.2005).

      . Even if § 13A-5-9(b)(3), Ala.Code 1975, did not explicitly set the maximum sentence at life, which it does, the maximum sentence available under that statute would be life. See Ex parte Robinson, 474 So.2d 685, 686 (Ala.1985) (holding that a sentence of life in prison is the maximum when a statute explicitly sets a minimum sentence but fails to set a maximum).

      . The only sentences greater then life in prison are life in prison without the possibility of parole and death.

      . I believe that § 13A-5-9(b)(3) also increases the maximum possible punishment above that set out in § 13A-5-6(a)(l); the main opinion does not believe that § 13A-5-9(b)(3) increases the maximum possible punishment above that set out in § 13A-5-6(a)(l).


author: LYONS, Justice.

text:
    Ex parte State of Alabama. (In re Carlton Reashard LANE v. STATE of Alabama).
    1091117.
    Supreme Court of Alabama.
    Sept. 24, 2010.

      Troy King, atty. gen., and William D. Little, asst. atty. gen., for petitioner.
    Joshua J. Lane, Anniston, for respondent.
   LYONS, Justice.

Carlton Reashard Lane was convicted in March 2008 of murder in the death of Christopher Toson, see § 13A-6-2, Ala. Code 1975. The trial court sentenced him to 120 years’ imprisonment pursuant to the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975 (“the HFOA”). The Court of Criminal Appeals affirmed his conviction but reversed his sentence and remanded the case for the trial court to resentence Lane. Lane v. State, 66 So.3d 812 (Ala.Crim.App.2009). Judge Windom and Judge Main dissented from the decision to reverse Lane’s sentence. On remand, the trial court resentenced Lane to 99 years’ imprisonment. On return to remand, the Court of Criminal Appeals affirmed Lane’s sentence, without an opinion, with Judge Windom and Judge Main again dissenting. Lane v. State, 66 So.3d 812, 823, 824 (Ala.Crim.App.2009). The State then petitioned this Court for certiorari review. We granted the State’s petition to review a question of first impression concerning the interpretation of § 13A-5-9(b)(3) of the HFOA, in particular the language authorizing imprisonment “for any term of not less than 99 years” as an alternative to imprisonment for life. We reverse and remand.

The Court of Criminal Appeals summarized the evidence presented at trial as follows:

“On November 9, 2006, Lane, Keyonte Chick, and Randy Pearson planned to rob a man named Chris because they believed that he had in his possession a large sum of money. Chick testified that the three drove past Norwood Homes, a housing project in Anniston. As they approached the housing project Lane told Pearson, who was driving, to stop the vehicle. Lane and Chick got out of the vehicle and approached a group of men — Toson, Joseph Ingram, Jaydee Turmon, and Travis Turner— who were sitting around the front of one of the apartments. Lane accused Toson of pulling a gun on him, and Lane appeared to reach into his pocket. Toson fled. Lane pulled a gun from his pocket and started firing at Toson as he was running away. Chick testified that he also fired his weapon but that he was pointing his gun in the air. Ingram, Turner, and Chick all testified that Lane was the shooter. Dr. Adel Shaker, the medical examiner, testified that Toson died as a result of a gunshot wound to his heart.”

66 So.3d at 814 (footnote omitted).

In challenging his sentence on appeal, Lane argued that his sentence of 120 years constitutes cruel and unusual punishment. The Court of Criminal Appeals stated that before it could address Lane’s argument, it must first determine whether his sentence exceeded statutory limits because, it said, if his sentence exceeded the maximum allowed by law, it would be an illegal sentence, which would affect the trial court’s jurisdiction. Wallace v. State, 959 So.2d 1161, 1165 (Ala.Crim.App.2006). The Court of Criminal Appeals then sua sponte reversed the trial court’s judgment sentencing Lane to 120 years’ imprisonment and remanded the case for the trial court to resentence him to a term of 99 years or life imprisonment, finding that Lane’s sentence exceeded what the Court of Criminal Appeals determined to be the statutory 99-year maximum permitted by § 18A-5-9(b)(S) of the HFOA. Section 13A-5-9(b) provides:

“(b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows:
“(3) On conviction of a Class A felony, he must be punished by imprisonment for life or for any term of not less than 99 years.”

(Emphasis added.) The Court of Criminal Appeals held that the phrase “for any term of not less than 99 years” means that 99 years is the maximum sentence under the statute.

The Court of Criminal Appeals applied the rationale of Smith v. State, 447 So.2d 1327 (Ala.Crim.App.1983), aff'd, 447 So.2d 1334 (Ala.1984). In Smith, the Court of Criminal Appeals considered whether the trial court’s 45-year sentence for Smith’s conviction for manslaughter, a Class C felony involving the use of a firearm, was a legal sentence. Smith was sentenced pursuant to § 13A-5-6(a)(5), Ala.Code 1975, a firearms-enhancement provision, under which the sentence for a Class C felony committed using a firearm or deadly weapon is “not less than 10 years.” However, § 13A-5-6(a)(3) provided that a sentence for a Class C felony must not exceed 10 years. In finding that Smith’s sentence exceeded the 10-year maximum provided by the statute, the court construed the language “not less than 10 years” to mean that 10 years was both the minimum and the maximum sentence under § 13A-5-6.

“ ‘A criminal statute must be definite and certain with respect to the punishment it is intended to impose.’ Smith v. United States, 145 F.2d 643, 644 (10th Cir.1944), cert. denied, 323 U.S. 803 (1945). Of particular importance in this case is the principle that the ‘constitutional validity of a particular statute is not affected merely because the statute does not expressly limit and fix the maximum penalty which may be imposed. It is sufficient if the maximum penalty is fixed by a general or related statute.’
Andreas v. Clark, 71 F.2d 908, 909 (9th Cir.1934) [other citations omitted].
“Alabama has no general statute fixing the maximum penalty which may be imposed for a felony....
“Applying these principles and rules of construction, we find that Section 13A-5-6 is definite and certain with respect to the punishments it intends to impose. We do find that it was misconstrued by the trial judge who mistakenly sentenced the defendant to a term of imprisonment in excess of that authorized by statute.
“Isolated from the remainder of the statute, subdivisions (4) and (5) of subsection (a) do establish minimum sentences without fixing maximum terms. Construing the statute as a whole, it is clear that those maximum terms are in fact supplied by subdivisions (1), (2) and (3) of subsection (a). Any confusion created by the failure of subdivisions (4) and (5) to specifically state the maximum limits of imprisonment must be imputed to the fact that these subdivisions were added by subsequent amendment. Because the new subdivisions neither repeal nor contradict the existing provisions of Section 13A-5-6, the maximum sentences of the existing provisions of the statute must govern if the statute is to be construed as a whole giving effect to each portion and every word thereof. This is the only reasonable and just construction available.”

447 So.2d at 1332-34.

Turning to the statutes under which Lane was sentenced, the Court of Criminal Appeals read § 13A-5-9(b)(3) in pari materia with § 13A-5-6(a), which provides the following sentencing range for a Class A felony such as murder:

“(a) Sentences for felonies shall be for a definite term of imprisonment ... within the following limitations:
“(1) For a Class A felony, for life or not more than 99 years or less than 10 years.”

Applying the rationale of Smith, the Court of Criminal Appeals held that “the only sentences available for Lane were either 99 years’ imprisonment or life; the 120-year sentence imposed by the circuit court exceeded the statutory maximum.” 66 So.3d at 818.

The State contends that the plurality opinion of the Court of Criminal Appeals did not address critical language, in the HFOA that is missing from the statute that was at issue in Smith, specifically, the language in § 13A-5-9(b)(3) requiring that a defendant with two prior felonies who is convicted of a Class A felony be sentenced to “any term of not less than 99 years.” (Emphasis added.) The State maintains that in reversing Lane’s 120-year sentence the plurality disregarded the plain meaning of the statute.

This Court’s inquiry is governed by well settled principles of statutory construction.

“ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).’
“Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979) (emphasis added). To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001). If a literal construction would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided. Ex parte Meeks, 682 So.2d 423 (Ala.1996).”

City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006). “When a court construes a statute, ‘[wjords 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.’ ” Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).

Judge Windom, in her special writing, faulted the plurality for rejecting the plain meaning of § 13A-5-9(b)(3). She explained:

“The statute sets the maximum sentence at life and the minimum sentence at 99 years. Further, by using the phrase ‘any term of not less than 99 years’ the legislature clearly authorized circuit courts to sentence an individual to any term of years between 99 years and life in prison. Thus, § 13A-5-9(b)(3) provides that the sentencing range for an individual who has two prior felony convictions and is convicted of a Class A felony is 99 years to life. The language is plain and unambiguous and leaves no room for judicial interpretation.
“Applying the plain language of § 13A-5-9(b)(3), Lane’s sentence of 120 years in prison is within the statutory range of sentences available to individuals convicted of a Class A felony with two prior felonies. Lane’s 120-year sentence, which leaves him eligible for parole, does not exceed a sentence of life in prison. Likewise, Lane’s 120-year sentence does not fall below 99 years. Thus, Lane’s 120-year sentence is within the range of sentences authorized by § 13A-5-9(b)(3).”

66 So.3d at 819-20 (footnotes and citations omitted).

In her special writing, Judge Windom points out that the statute governing sentences for felonies, § 13A-5-6, contains a separate subsection, § 13A-5-6(a)(3), stating that the sentencing range for a Class C felony is “not more than 10 years or less than 1 year and 1 day,” in addition to the firearms-enhancement subsection, § 13A-5-6(a)(5). According to Judge Windom, the court in Smith correctly read subsection (a)(3) together with subsection (a)(5) to conclude that the statute established both a maximum and a minimum sentence of 10 years. Of course, as Judge Windom notes, no provision similar to § 13A-5-6(a)(3) appears in the HFOA.

“This court’s holding in [Smith ], however, has no application to Alabama’s Habitual Felony Offender Act. Unlike the firearm or deadly-weapon enhancement contained in § 13A-5-6(a)(5), which affects only the minimum sentence for Class B and Class C offenders, Alabama’s Habitual Felony Offender Act enhances both the minimum and the maximum sentences available for habitual felons. Compare § 13A-5-6(a)(5) (the sentence for ‘a Class B or C felony in which a firearm or deadly weapon was used [shall be] not less than 10 years’ (emphasis added)) with § 13A-5-9(b)(3), Ala.Code 1975 (‘On conviction of a Class A felony, [the defendant] must be punished by imprisonment for life or for any term of not less than 99 years.’ (emphasis added)). More importantly, unlike the firearm or deadly-weapon enhancement contained in § 13A-5-6(a)(5), which contains no maximum sentence and thus must be read in pari materia with subsection (a)(3) of the same statute to ascertain both a maximum and minimum range of sentences, § 13A-5-9(b)(3), Ala.Code 1975, specifies both a minimum and a maximum sentence, i.e., 99 years to life. Accordingly, unlike the firearm or deadly-weapon enhancement, there is no need to read § 13A-5-9(b)(3), Ala.Code 1975, in pari materia with other statutes to ascertain the statutory minimum and maximum sentence.”

66 So.3d at 821. As Judge Windom notes, no provision similar to § 13A-5-6(a)(3), the basis for the conclusion in Smith of a limitation to a fixed number of years appears in the statute before us.

Judge Main, in his special writing, agreed that Smith properly recognized that the firearm-enhancement provision of the statute increased only the minimum possible punishment but still fell within the constraints of the maximum possible punishment as set out in other subsections of the same statute, and he also found the plurality’s reliance on Smith unpersuasive.

“[UJnlike the firearm enhancement at issue in Smith, the HFOA is not contained in § 13A-5-6, but rather is codified as a separate statute at § 13A-5-9. Further, the recidivist statute at § 13A-5-9 contains clear and unambiguous language evidencing the Alabama Legislature’s intent that offenders sentenced under the HFOA be subjected to a different range of punishment than those sentenced pursuant to the general felony range in § 13A-5-6. If § 13A-5-9 must be read in pari materia with § 13A-5-6 and interpreted in the manner expressed in the main opinion to reach the conclusion reached in the main opinion, then arguably the overwhelming majority of the subsections of the HFOA are invalid because all but one of those subsections increase the minimum and maximum range of punishment above that contained in § 13A-5-6. Sections 13A-5-9(a)(l), (b)(1), and (c)(1), each increase the maximum punishment above that prescribed in § 13A-5-6(a)(3), for a conviction for a Class C felony. Sections 13A-5-9(a)(2), (b)(2), and (c)(2), each increase the maximum punishment above that prescribed in § 13A-5-6(a)(2) for a conviction for a Class B felony. Sections 13A-5-9(c)(3) and (e)(4) each increase the maximum punishment above that prescribed in § 13A-5-6(a)(l) for a conviction for a Class A felony. Only § 13A-5-9(a)(3) ... raises the minimum punishment without deviating from the maximum punishment expressed in § 13A-5-6(a)(l).
“The language in the statute is unambiguous. Applying the well settled principles of statutory construction, I must conclude that the plain language of the statute sets a minimum punishment (some numerical term of years not less than 99, without placing any numerical cap on the sentence that may be imposed), and a maximum punishment (life in prison). Any other construction of this statute would require the removal of the words ‘for any term of not less than.’ Thus, I believe that the 120-year sentence imposed in this case is within the statutory range of punishment.”

66 So.3d at 822-23 (footnote omitted).

We agree with Judge Windom and Judge Main that § 13A-5-9(b)(3) is unambiguous and that in reversing Lane’s sentence the Court of Criminal Appeals disregarded the plain meaning of the statute. Based on the reasoning in their special writings, we conclude that the phrase “for any term of not less than 99 years” means that the sentencing options for a defendant with two prior felony convictions who is sentenced pursuant to the HFOA are a minimum sentence of 99 years, a maximum sentence of life imprisonment, and any term of years between the minimum and the maximum, i.e., any term in excess of 99 years. Lane was sentenced to 120 years; therefore, his sentence is within the prescribed statutory range of punishment.

Because the Court of Criminal Appeals erred in holding that Lane’s sentence exceeded the statutory maximum, we reverse the judgment of the Court of Criminal Appeals. We remand the case for that court to address Lane’s argument that his sentence constitutes cruel and unusual punishment in violation of the United States Constitution.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . Lane had two prior felony convictions.

      . A court has a duty to notice jurisdictional defects ex mero motu. See Nunn v. Baker, 518 So.2d 711 (Ala.1987).

      . Judge Welch and Judge Kellum concurred in the per curiam opinion; Presiding Judge Wise concurred in the result; and Judge Windom and Judge Main concurred in part and dissented in part.


author: PER CURIAM.

text:
    Carlton Reashard LANE v. STATE of Alabama.
    CR-07-1354.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Joshua J. Lane, Anniston, for appellant.
    Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The Alabama Supreme Court in Lane v. State, 66 So.3d 824 (Ala.2010), reversed this Court’s decision in Lane v. State, 66 So.3d 812 (Ala.Crim.App.2009), and adopted the views expressed in the dissenting opinions authored by Judge Windom and Judge Main. The Court held that Lane’s 120-year sentence was within the statutory range set out in § 13A-5-9(b)(3), Ala.Code 1975, and that Lane, a third-time felony offender, was correctly sentenced for a Class A felony to a term in excess of 99 years. The Supreme Court remanded the case to this Court and directed that we address Lane’s claim that his 120-year sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

“The Eighth Amendment ... contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” Ewing v. California, 538 U.S. 11, 17, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), quoting Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). We recognized this limited principle in Wilson v. State, 830 So.2d 765 (Ala.Crim.App.2001).

In Wilson, a majority of this Court held that a first-time offender’s sentence of life imprisonment without the possibility of parole for selling a substance containing morphine constituted cruel and unusual punishment. We noted that in order to conduct a full-scale Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), analysis we must first determine whether the sentence is grossly disproportionate to the crime for which the defendant is being sentenced.

“Application of Harmelin [v. Michigan, 501 U.S. 957 (1991),] mandates that we make a threshold determination in this case by considering whether the mandatory sentence of life imprisonment without parole imposed in Wilson’s case is grossly disproportionate to her crime. To perform this analysis, we must consider the gravity of the offense and the harshness of the punishment. Solem [v. Helm,] 463 U.S. [277] at 290-91, 103 S.Ct. 3001 [ (1983) ]. The United States Supreme Court noted in Solem that no single factor determines when a sentence is grossly disproportionate, and it offered a nonexhaustive list of factors to be considered when a court is assessing the severity of a crime. These factors include consideration of the circumstances of the crime, the harm caused to the victim or to society, the culpability of the offender, and the offender’s motive in committing the crime. Id. at 290-94, 103 S.Ct. 3001.”

830 So.2d at 778 (emphasis added). See Smallwood v. Johnson, 73 F.3d 1343, 1347-48 (5th Cir.1996) (“In light of Harmelin [v. Michigan, 501 U.S. 957 (1991) ], it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross dispropor-tionality.’ ”).

Clearly, Lane’s sentence does not meet this threshold inquiry — it is not grossly disproportionate to the crime for which Lane was sentenced — murder. Lane was convicted and sentenced under the Habitual Felony Offender Act to 120 years’ imprisonment for intentionally murdering Christopher Toson by shooting him in the chest. “Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.” Harmelin v. Michigan, 501 U.S. 957, 994-95, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

“ ‘It is well settled that “[w]here a trial judge imposes a sentence within the statutory range, this Court will not disturb that sentence on appeal absent a showing of an abuse of the trial judge’s discretion.” Alderman v. State, 615 So.2d 640, 649 (Ala.Crim.App.1992). “The exception to this general rule is that ‘the appellate courts may review a sentence, which, although within the prescribed limitations, is so disproportionate to the offense charged that it constitutes a violation of a defendant’s Eighth Amendment rights.’ ” Brown [v. State, 611 So.2d 1194,] 1197, n. 6 [ (Ala.Crim.App.1992) ], quoting Ex parte Maddox, 502 So.2d 786, 789 (Ala.1986).”
“Adams v. State, 815 So.2d 583, 585 (Ala.Crim.App.2001).
“Ware was given a heightened sentence under the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975. Legislatively mandated sentences carry a presumption of validity. McLester v. State, 460 So.2d 870, 874 (Ala.Crim.App.1984). ‘ “Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes...."' 460 So.2d at 874, quoting Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). ‘ “ ‘Where the punishment prescribed by the legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment.’ ” ’ Wilson v. State, 427 So.2d 148, 152 (Ala.Crim.App.1983) (quoting Watson v. State, 392 So.2d 1274, 1277 (Ala.Crim.App.1980), quoting in turn Ex parte Messelt v. State, 351 So.2d 636, 639 (Ala.Crim.App.1977)). Likewise, this Court has held that the Habitual Felony Offender Act does not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. See Watson v. State, 392 So.2d 1274 (Ala.Crim.App.1980).”

Ware v. State, 949 So.2d 169, 183 (Ala.Crim.App.2006). Lane’s 120-year sentence does not constitute cruel and unusual punishment; therefore, Lane is due no relief on this claim.

AFFIRMED.

WISE, P.J., and WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.