Michael Brandon Kelley v. State of Alabama
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REL: 06/03/2016 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2015-2016 _________________________ CR-10-0642 _________________________ Michael Brandon Kelley v. State of Alabama Appeal from St. Clair Circuit Court (CC-09-73) On Remand from the Alabama Supreme Court WINDOM, Presiding Judge. On September 5, 2014, this Court affirmed Michael Brandon Kelley's two 13A-5-40(a)(1) sentences of convictions and death for capital 13A-5-40(a)(8), for those Ala. murder, Code convictions, see 1975, and his §§ his one CR-10-0642 conviction for sexual torture, see § 13A-6-65.1, Ala. Code 1975. Kelley v. State, [Ms. CR–10–0642, Sept. 5, 2014] ___ So. 3d ___ (Ala. Crim. App. 2014). On February 24, 2015, the Alabama Supreme Court granted Kelley's petition for a writ of certiorari to review whether this Court had jurisdiction to affirm his sexual-torture conviction. On November 6, 2015, the Alabama Supreme Court issued an opinion in which it determined that this Court did not have jurisdiction to affirm Kelley's conviction for sexual torture. Ex parte Kelley, [Ms. 1131451, Nov. 6, 2015] ___ So. 3d ___ (Ala. 2015). determined that Specifically, the circuit the court Alabama had not Supreme Court pronounced a sentence for Kelley's sexual-torture conviction; therefore, there had been no judgment of conviction under § 12–22–130, Ala. Code 1975, from which to appeal. ___ So. 3d at ___. Because there was no judgment of conviction relating to the sexual-torture charge, any appeal from that charge was not ripe. ___ So. 3d at ___. Consequently, this Court lacked jurisdiction to affirm that conviction. ___ So. 3d at ___. After determining that this Court lacked jurisdiction to affirm Kelley's conviction for sexual torture, the Alabama 2 CR-10-0642 Supreme Court "reverse[d] the Court of Criminal Appeals' judgment insofar as it affirm[ed] Kelley's sexual-torture conviction, and ... remand[ed] the consistent with [its] opinion." case for proceedings ___ So. 3d at ___. In accordance with the Alabama Supreme Court's opinion in Ex parte Kelley, [Ms. 1131451, Nov. 6, 2015] ___ So. 3d ___ (Ala. 2015), this Court's judgment in Kelley v. State, [Ms. CR–10–0642, Sept. 5, 2014] ___ So. 3d ___ (Ala. Crim. App. 2014), is vacated to the extent it addressed and affirmed Kelley's conviction for sexual torture, and Kelley's appeal from that conviction is dismissed. APPEAL DISMISSED IN PART. Welch, Kellum, Burke, and Joiner, JJ., concur. 3
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