ELECTRONICALLY FILED
12/23/2013 2:56 PM
44-CC-2012-000770.00
CIRCUIT COURT OF
LIMESTONE COUNTY, ALABAMA
BRAD CURNUTT, CLERK
IN THE CIRCUIT COURT OF LIMESTONE COUNTY, ALABAMA
STATE OF ALABAMA,
Plaintiff,
vs.
AUSTIN SMITH CLEM,
Defendant,
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CASE NO: CC 2012-770
MOTION TO RE-SENTENCE
COMES NOW, the STATE OF ALABAMA, and respectfully requests that this Honorable
Court re-sentence the defendant in this matter, stating as follows:
1. On November 13, 2013, this Court sentenced the defendant to twenty (20) years in
prison on the first-degree-rape conviction and ordered that the sentence be “split” so
that Clem would serve two (2) years in the Limestone County Community
Corrections Program followed by three (3) years of supervised probation.
2. On December 13, 2013, the Court of Criminal Appeals ordered that this Court resentence the defendant in accordance with the statutory provisions of § 15-18-8(a)(1)
(the Split Sentence Act) and § 15-18-171(14) (the Alabama Community Punishment
and Corrections Act). Nothing in the Court of Criminal Appeal’s order directed this
Court to alter any valid portion of the sentence.
3. On December 23, 2013, at 10:20 a.m., the defendant filed a waiver of his right to be
present at a sentencing hearing in this case.
4. Also on December 23, 2013, at 10:30 a.m., this Court issued an “Amended Sentence
Order” sentencing the defendant to fifteen (15) years in prison on the first-degree
rape conviction, ordered that the sentence be “split” to time previously served, and
placed the defendant on five (5) years of supervised probation.
5. In State v. Gaines, the trial court sentenced Gaines to twenty (20) years in prison,
split to serve two (2) years in the state penitentiary. 932 So. 2d 118, 119 (Ala. Crim.
App. 2004). The State filed a mandamus petition arguing that the split portion of the
sentence fell below the mandatory minimum term of imprisonment required by
statute. Id. at 120. The Court of Criminal Appeals granted the petition and issued the
writ directing the trial court to re-sentence Gaines. Regarding re-sentencing, the
Court instructed the trial court that:
“[b]ecause the 20-year sentence was valid, the circuit court may not
change it. However, the court may split the sentence in compliance
with § 15–18–8 . . . or, if it determines that splitting the sentence is no
longer appropriate, it may reinstate the full 20–year sentence.”
Id. at 123.
6. In other words, when a trial court re-sentences a defendant after a portion of
the original sentence is determined to be illegal, the court must cure the
defective portion of the sentence, but may not change the portions of the
initial sentence that are otherwise valid.
7. Because the twenty (20) year sentence was valid in this case, see 13A-5-6(a)(1),
this Court may not change it. It may only cure the portion of the original
sentence which was invalid. Consequently, this Court’s “Amended Sentence
Order” is unlawful because it altered the valid twenty (20) year sentence.
WHEREFORE, PREMISES CONSIDERED, the STATE OF ALABAMA respectfully requests
that this Court set aside its “Amended Sentence Order” and re-sentence the defendant
consistent with the provisions of Alabama law.
/s/ Brian C.T. Jones_________
BRIAN C.T. JONES (JON086)
District Attorney
39th Judicial Circuit
State of Alabama
OFFICE OF THE DISTRICT ATTORNEY
P.O. Box 415
Athens, AL 35612
(256) 233-6416
(256) 233-6472 (fax)
www.limestonecountyda.org