Rel: September 20, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

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SUPREME COURT OF ALABAMA

SPECIAL TERM, 2024

_________________________

SC-2023-0427

_________________________

Ex parte Courtney Rayshun Elston 

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

(In re: Courtney Rayshun Elston 

v. 

State of Alabama)

(Calhoun Circuit Court: CC-08-1025.62;

Court of Criminal Appeals: CR-2022-0823)

STEWART, Justice.
SC-2023-0427

2

In 2010, Courtney Rayshun Elston pleaded guilty in the Calhoun 

Circuit Court ("the trial court") to murder, a violation of § 13A-6-2, Ala. 

Code 1975, and to discharging a firearm into an occupied vehicle, a 

violation of § 13A-11-61, Ala. Code 1975. Elston was sentenced by the 

trial court to consecutive terms of 20 years' imprisonment, each of which

were split for him to serve five years' imprisonment, to be followed by 15 

years of probation. Elston did not appeal. In March 2019, the trial court 

revoked Elston's probation after finding that Elston had committed firstdegree assault while on probation. Elston did not appeal from the 

probation-revocation order.

In April 2020, Elston filed in the Montgomery Circuit Court a pro 

se petition that he styled as a petition for the writ of certiorari, arguing, 

among other things, that his sentences were illegal. That petition was 

ultimately treated as a petition filed under Rule 32, Ala. R. Crim. P., and 

was transferred to the trial court. Following the transfer to the trial 

court, the State moved to dismiss the petition on the grounds that it was 

precluded, insufficiently pleaded, and without merit. The trial court 

summarily denied the petition on May 26, 2022, finding that all of 

Elston's claims were without merit. Elston appealed.
SC-2023-0427

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On April 28, 2023, the Court of Criminal Appeals issued a 

memorandum decision affirming the trial court's judgment. Elston v. 

State (No. CR-2022-0823, Apr. 28, 2023), __ So. 3d __ (Ala. Crim. App. 

2023) (table). Elston filed a petition for the writ of certiorari with this 

Court. This Court granted the petition to review a potential question of 

first impression -- whether Alabama law permits consecutive split 

sentences. After reviewing the record on appeal and considering the 

arguments submitted by the State, we agree with the reasoning of the 

majority opinion in Brand v. State, 93 So. 3d 985 (Ala. Crim. App. 2011), 

and conclude that consecutive split sentences are permissible under 

Alabama law. Accordingly, we affirm the judgment of the Court of 

Criminal Appeals.

Facts and Procedural History

The Court of Criminal Appeals in their unpublished memorandum

summarized the pertinent facts as follows:

"In 2010, Elston pleaded guilty to murder, a violation of 

§ 13A-6-2, Ala. Code 1975, and discharging a firearm into an 

occupied vehicle, a violation of § 13A-11-61, Ala. Code 1975. 

Elston was sentenced to consecutive terms of 20 years' 

imprisonment, and those sentences were split for him to serve 

five years' imprisonment, to be followed by 15 years of 

probation. Elston did not appeal his convictions.
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"In March 2018, Elston was placed on probation, and, in 

March 2019, the [trial court] revoked his probation based on 

a finding that he had committed first-degree assault while on 

probation. It does not appear that Elston appealed the 

revocation order.

"In April 2020, Elston filed in the Montgomery Circuit 

Court a pro se petition that he styled a petition for a writ of 

certiorari. In that petition, Elston argued that his probation 

had been revoked solely on the basis of hearsay evidence, that 

his 15-year probationary period was illegal, that the circuit 

court 'never pronounced in open court' that it was revoking 

his probation, and that 'the imposition of his consecutive split 

sentences ... resulted in an illegal sentence.' Elston also 

sought, and was granted, permission to proceed in forma 

pauperis. In May 2020, Elston amended his petition and 

appears to have argued that there was not probable cause to 

support his arrest for the first-degree-assault charge and that, 

as a result, there was insufficient evidence upon which to 

revoke his probation.

"On June 22, 2020, the Montgomery Circuit Court 

dismissed Elston's petition, and Elston filed a timely notice of 

appeal. On May 18, 2021, this Court concluded that Elston's 

petition, though styled a petition for a writ of certiorari, had 

actually raised claims cognizable in a Rule 32[, Ala. R. Crim. 

P.,] petition. Thus, the Court noted that, pursuant to Rule 

32.5, Elston should have filed his petition in the [trial court], 

where his original convictions occurred. Accordingly, the 

Court reversed the Montgomery Circuit Court's judgment 

dismissing Elston's petition and remanded the case to that 

court for it to transfer the petition to the [trial court].

"After his petition was transferred to the [trial court], 

Elston filed a 'request to amend writ of certiorari.' In that 

motion, Elston argued, among other arguments he has not 

reasserted on appeal, that the [trial] court 'did not have 

jurisdiction to allow [him] to serve probation and a prison 
SC-2023-0427

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sentence concurrently.' In support of that claim, Elston 

alleged the following facts:

"'Elston['s] DOP "date of probation" is 3/14/2013 

and his EOP 'end of probation' is 3/14/2028. 

According to Alabama Board of Pardons and 

Paroles officer's report on delinquent probationer, 

Elston was still incarcerated 3/14/2013 and was 

not released until 3/6/2018.'

"The State filed a motion to dismiss Elston's petition, 

arguing that the petition was precluded, insufficiently 

pleaded, and without merit.

"On May 26, 2022, the [trial] court summarily denied 

Elston's petition, finding that 'all of [his] claims are without 

merit.' Elston filed a timely notice of appeal."

(Citations to the record omitted.)

On appeal, Elston argued, amongst other issues he has not raised 

in his certiorari petition, that his 15-year probationary period and his 

consecutive split sentences were illegal. The Court of Criminal Appeals 

rejected those arguments:

"Regarding his challenge to the length of his 

probationary period, Elston cites § 15-22-54(a), Ala. Code 

1975, which provides, in pertinent part, that 'the maximum 

probation period of a defendant guilty of a misdemeanor may 

not exceed two years, nor shall the maximum probation period 

of a defendant guilty of a felony exceed five years.' However,

"'this Court has previously recognized that the 

Split Sentence Act[, see § 15-18-8, Ala. Code 1975,]
SC-2023-0427

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" '"allows the circuit court to impose 

sentences that would, under other 

statutory sentencing schemes, be 

illegal. For example, under § 15-22-

54(a), Ala. Code 1975, circuit courts do 

not have the authority in felony cases 

to impose terms of probation that 

exceed five years; the Split-Sentence 

Act, however, allows circuit courts to 

impose probationary terms that exceed 

five years."

"'Mosley v. State, 187 So. 3d 1194, 1202 n.4 (Ala. 

Crim. App. 2015).'

"Singleton v. State, 209 So. 3d 529, 532 (Ala. Crim. App. 2015) 

(emphasis added). See also Brand v. State, 93 So. 3d 985 (Ala. 

Crim. App. 2011) (holding that a defendant who had been 

sentenced to 20 years' imprisonment could be ordered to serve 

5 years' imprisonment, to be followed by 15 years of 

probation).

"Thus, there is no merit to Elston's claim that his 15-

year probationary period was illegal. There is also no merit 

to Elston's claim that his consecutive split sentences were 

illegal. See Pack v. State, 331 So. 3d 1179, 1182 (Ala. Crim. 

App. 2021) ('[T]his Court [has] held that § 15-18-8 ... d[oes]

not prohibit consecutive split sentences.'). Accordingly, 

summary denial of these claims was proper."

Analysis

We granted certiorari review in this case to determine whether 

Alabama law permits consecutive split sentences. The "Split Sentence 

Act," § 15-18-8, Ala. Code 1975, authorizes a trial court in certain 
SC-2023-0427

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circumstances to impose a "split sentence," pursuant to which a 

defendant serves a limited amount of jail time followed by a period of 

probation. That act, at the time of Elston's sentencing, provided, in 

pertinent part:

"(a) When a defendant is convicted of an offense ... 

which constitutes a Class A or B felony and receives a 

sentence of 20 years or less in any court having jurisdiction to 

try offenses against the State of Alabama and the judge 

presiding over the case is satisfied that the ends of justice and 

the best interests of the public as well as the defendant will 

be served thereby, he or she may order:

"(1) That the convicted defendant be confined 

in a prison, jail-type institution, or treatment 

institution for a period not exceeding three years 

in cases where the imposed sentence is not more 

than 15 years, and that the execution of the 

remainder of the sentence be suspended 

notwithstanding any provision of the law to the 

contrary and that the defendant be placed on 

probation for such period and upon such terms as 

the court deems best. In cases involving an 

imposed sentence of greater than 15 years, but not 

more than 20 years, the sentencing judge may 

order that the convicted defendant be confined in 

a prison, jail-type institution, or treatment 

institution for a period not exceeding five years, 

but not less than three years, during which the 

offender shall not be eligible for parole or release 

because of deduction from sentence for good 

behavior under the Alabama Correctional 

Incentive Time Act, and that the remainder of the 

sentence be suspended notwithstanding any 

provision of the law to the contrary and that the 
SC-2023-0427

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defendant be placed on probation for the period

upon the terms as the court deems best."

Former § 15-18-8(a) (emphasis added).

The Split Sentence Act, however, is silent as to whether a trial court 

may impose consecutive split sentences or how such sentences should be 

served. Moreover, the question whether the Split Sentence Act permits 

the imposition of consecutive split sentences is an issue that has 

previously divided the Court of Criminal Appeals. In Brand v. State, 93 

So. 3d 985 (Ala. Crim. App. 2011), the defendant, James Edward Brand,

was convicted of 2 counts of first-degree sexual abuse and sentenced to 

20 years' imprisonment for each conviction, with each sentence to run 

consecutively and each sentence split to serve 5 years in prison and 10 

years of probation. The Court of Criminal Appeals held that consecutive 

split sentences were not illegal, concluding that "each split sentence must 

be evaluated individually to determine whether it exceeds the limitations 

on confinement and probation stated or implied in § 15-18-8." 93 So. 3d 

at 992. In other words, according to the majority in Brand, so long as an 

individual sentence complies with § 15-18-8, the Split Sentence Act does

not prohibit consecutive split sentences. The Brand court reasoned:
SC-2023-0427

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"Section 15-18-8(a)(1) of the Split Sentence Act imposes 

a 5-year maximum period of confinement for a split on a 20-

year sentence, but we read that limitation as applying only as 

to the sentence of confinement imposed for each offense. See

15-18-8(a) ('When a defendant is convicted of an offense ....' 

(emphasis added)). In this case, there were two convictions 

for two separate offenses, and two separate sentences were 

imposed under the Split Sentence Act -- the convictions and 

sentences simply were imposed at the same time. The fact 

that Brand's sentences were imposed at the same time does 

not mean that they are, for all practical purposes, one 

sentence. Rather, each sentence is supported by a separate 

guilty-plea conviction.

"A slight change in the facts of this case illustrates that 

Brand has received two separate sentences for two separate 

convictions. For example, had Brand entered a guilty plea as 

to one of the counts and received a split sentence for that 

conviction and then later (but before completing the first split 

sentence) had entered a guilty plea to the other count and 

received an identical split sentence in the same circuit, Brand 

would have received two separate sentences -- each subject to 

the five-year limit in § 15-18-8(a)(1). Similarly, had Brand 

been convicted in one circuit as to one of the offenses in this 

case and received a split sentence for that conviction and then 

later (but before completing the first split sentence) had been 

convicted of an offense in another circuit and received a split 

sentence, he would have received two separate sentences for 

two seperate convictions. 

"In sum, although Brand's sentences will require him to 

serve a total of 10 years, he will not be serving more than 5 

years' confinement as to each offense."
SC-2023-0427

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93 So. 3d at 990-91; see also Pack v. State, 331 So. 3d 1179, 1182 (Ala. 

Crim. App. 2021) (citing Brand and holding that the Split Sentence Act 

"d[oes] not prohibit consecutive split sentences").

Presiding Judge Welch, however, disagreed with the majority in 

Brand, and, in a dissent joined by Judge Kellum, he posited that the 

imposition of consecutive split sentences resulted in an illegal sentence. 

Presiding Judge Welch argued that, in practice, stringing together 

multiple split sentences leads to a result contrary to the legislature's 

intent in enacting the Split Sentence Act:

"If the dictates of § 14-3-38, Ala. Code 1975, were strictly 

followed, i.e., that 'second and subsequent terms, each, begin 

on the expiration of the preceding term,' and the word 'term' 

in the statute means the entire length of the sentence, then 

Brand must serve the sentence for count 7 in its entirety 

before the sentence for count 8 could be served.

"Under this interpretation of the meaning of 'term,' if 

Brand began the confinement portion of his sentence on count 

7, served 5 full years, then served 10 years on supervised 

probation, and then served the additional 5 years as a 

suspended sentence, 20 years would have elapsed. Because §

15-18-8 prevents a prisoner from earning correctional 

incentive-time deductions while serving a split sentence and 

such deductions cannot be earned while on probation, the 

sentence would not be terminated prior to a full 20 years. 

Then, if Brand successfully completed the probationary 

portion of his sentence under count 7, he would have to report 

to prison once again after being out of prison, on probation 

and during the suspended portion of his sentence for count 7, 
SC-2023-0427

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for a total of 15 years. Only then would he begin serving the 

confinement portion of his sentence under count 8. It is 

difficult to believe that this was the result intended by the 

trial court.

"Section 14-3-38 provides, in pertinent part:

"'When a convict is sentenced to 

imprisonment in the penitentiary on two or more 

convictions, ... such sentences shall be cumulative 

and shall be served consecutively, the first term 

thereof beginning to run from the date on which 

such prisoner is received at the penitentiary, ... 

and his second and subsequent terms, each, 

beginning on the expiration of the preceding term.'

"If the above-quoted language of § 14-3-38 is construed in the 

context of consecutive split sentences, so that the word 'term' 

and the words 'second and subsequent terms' in the § 14-3-38 

refer not to the whole split sentence imposed, but only to the 

confinement portions of consecutive split sentences, as the 

Department of Corrections does in practice, the question 

arises of how to implement the probationary portion of each 

sentence.

"Each of the consecutive split sentences imposed on 

Brand contained a 15-year suspended sentence, 10 years of 

which was to be served on supervised probation. If each 

period of probation was served consecutively, then Brand 

would serve a total of 20 years' probation. 

"One interpretation of the Split Sentence Act could 

require an inmate sentenced to consecutive split sentences to 

serve the confinement portion of each sentence in succession; 

however, under this interpretation, the period of 

incarceration under the Split Sentence Act would exceed the 

five-year limitation found in the Act itself and would appear 

to thwart the intent of the legislature. Such a construction is 
SC-2023-0427

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also at odds with the trial court's direction that the 

confinement portion of each sentence be followed by a period 

of probation.

"If after two consecutive periods of 5 years[']

confinement, the 10-year probationary period ordered in 

count 7 was followed by the remaining 5-year suspended 

sentence in count 7, then the 10-year period of probation 

ordered under count 8 was served followed by the remaining 

5-year suspended sentence, notwithstanding the nonsensical 

nature of the sentence[,] a total of 20 years of probation would 

still have been ordered, again exceeding the statutory 

limitation and running afoul of the principles announced in 

Ex parte Jackson, 415 So. 2d 1169 (Ala. 1982), and Minshew 

v. State, 975 So. 2d 395, 397 (Ala. Crim. App. 2007).

"....

"It is obvious from the discussion above regarding the 

ways consecutive split sentences in this case might be served, 

that the imposition of such sentences produces irrational and 

nonsensical results. It defies common sense to interpret the 

Split Sentence Act to allow a situation in which a defendant 

could be sentenced to consecutive split sentences that would 

require that he or she spend a total of 15 years after the initial 

5-year period of confinement -- 10 on probation, then 5 years 

suspended -- and only then be required to serve another 5 

years in confinement. The other permutations delineated 

above regarding the possible ways of implementing 

consecutive split sentences likewise produce irrational and 

nonsensical results."

93 So. 3d at 1000-01. Finally, Presiding Judge Welch called on this Court 

to resolve the issue:

"It is clear that an interpretation of the Split Sentence 

Act that allows imposition of consecutive split sentences 
SC-2023-0427

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produces unworkable and unjust results, while a construction 

that allows only concurrent sentences to be imposed under the 

Act is workable and fair. For the foregoing reasons I would 

hold that the imposition of consecutive split sentences was not 

contemplated by the legislature and that the imposition of 

consecutive split sentences results in an illegal sentence. 

Ultimately, this issue should be resolved by the Alabama 

Supreme Court."

Id. at 1002. Because this Court has never directly addressed this issue,1

we granted Elston's certiorari petition to consider the legality of 

consecutive split sentences.

In its brief to this Court, the State argues that consecutive split 

sentences are legal under Alabama law. First, the State notes that the 

Split Sentence Act does not prohibit or provide any indication that its 

terms are not applicable to consecutive sentences. Second, the State 

notes that consecutive sentences have long been the default in Alabama. 

Section 14-3-38(a), Ala. Code 1975, which predates the enactment of the 

Split Sentence Act, provides that 

"[w]hen a convict is sentenced to imprisonment in the 

penitentiary on two or more convictions, unless it is 

specifically ordered ... that such sentences be served 

concurrently, such sentences shall be cumulative and shall be 

served consecutively, the first term thereof beginning to run 

1The defendants in Brand v. State, 93 So. 3d 985 (Ala. Crim. App. 

2011), and Pack v. State, 331 So. 3d 1179 (Ala. Crim. App. 2021), did not 

seek certiorari review by this Court.
SC-2023-0427

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from the date on which such prisoner is received at the 

penitentiary, ... and his second and subsequent terms, each, 

beginning on the expiration of the preceding term."

(Emphasis added.) Likewise, Rule 26.12(a), Ala. R. Crim. P., provides 

that "[s]eparate sentences of imprisonment imposed on a defendant for 

two or more offenses shall run consecutively, unless the judge at the time 

of sentencing directs otherwise ...." (Emphasis added.) Thus, the State 

argues that reading the Split Sentence Act together with § 14-3-38

indicates that the legislature intended to authorize consecutive split 

sentences. 

Furthermore, the State argues that the practice of serving the 

imprisonment portions of separate split sentences consecutively tracks 

with the language of § 14-3-38 and Rule 26.12(a), which refer to "terms" 

of imprisonment. The State posits:

"These provisions, by focusing on the term of 

imprisonment (rather than the total sentence of custody + 

probation + fine + restitution, etc.), suggests just what Elston 

fights against: that the terms of imprisonment in separate 

split sentences are to be served first, consecutive to one 

another, and then the terms of probation are to be served."

State's brief at 55 (emphasis in original). Indeed, it is for this reason that 

the Court of Criminal Appeals in Brand concluded that "§ 14-3-38, Ala. 
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Code 1975, requires that the confinement portions of ... split sentences 

be served consecutively." 93 So. 3d at 988.

Notwithstanding the points raised by Presiding Judge Welch in 

Brand, we conclude that the State's argument is well taken -- consecutive 

split sentences are not illegal under Alabama law. First, the Court of 

Criminal Appeals' decision in Brand recognizing the legality of 

consecutive split sentences promotes a harmonious construction of the 

relevant statutes. See Willis v. Kincaid, 983 So. 2d 1100, 1103 (Ala. 2007) 

("'[S]tatutes must be construed in pari materia in light of their 

application to the same general subject matter. ... Our obligation is to 

construe [the] provisions "in favor of each other to form one harmonious 

plan," if it is possible to do so.'" (citation omitted)). Second, we note that, 

since the Court of Criminal Appeals issued its decision in Brand in 2011, 

the Split Sentence Act has been reenacted and amended several times. 

See Ala. Acts 2015, Act No. 2015-185, p. 476, § 3; Ala. Acts 2015, Act No. 

2015-463, p. 1506, § 1; Ala. Acts 2018, Act No. 2018-406, § 1(b)(4); Ala. 

Acts 2019, Act No. 2019-344, § 1; Ala. Acts 2023, Act No. 2023-461, § 1. 

In reenacting the Split Sentence Act, the legislature did not amend that 

act to prohibit consecutive split sentences or otherwise indicate its 
SC-2023-0427

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disapproval with the existing judicial construction of the act. See Wright 

v. Childree, 972 So. 2d 771, 779 (Ala. 2006) ("'[W]here a statute is 

reenacted without a material change, "it must be assumed that the 

Legislature was familiar with its interpretation by this court and was 

satisfied therewith." '" (quoting Jones v. Conradi, 673 So. 2d 389, 392 

(Ala. 1995), quoting in turn Nolen v. Clark, 238 Ala. 320, 321, 191 So. 

342, 343 (1939))). Accordingly, we agree with the reasoning expressed in

the majority opinion of the Court of Criminal Appeals in Brand, and we 

conclude that the imposition of consecutive split sentences for separate 

offenses does not violate Alabama law. Therefore, Elston has not 

established that his sentences were illegal -- he pleaded guilty to 2

felonies, and for each he received a sentence of 20 years split to serve five 

years in prison and 15 years on probation, terms consistent with the 
SC-2023-0427

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language of the Split Sentence Act.2 We, thus, affirm the judgment of the 

Court of Criminal Appeals.3

Conclusion

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

Parker, C.J., and Wise, Sellers, and Cook, JJ., concur. 

2Elston does not address whether the probationary periods of his 

sentences may run concurrently following the consecutive prison terms. 

Thus, we need not reach that issue. Nor has he argued that the 

probationary periods violated any ceiling imposed by the Split Sentence 

Act. To the extent that Elston contends that one of his sentences 

subjected him to an indefinite term of probation, see Moore v. State, 871 

So. 2d 106, 109 (Ala. Crim. App. 2003) (stating that split sentence must 

include a definite period of probation following the confinement portion 

of the split sentence), from what we can discern from the record, Elston's 

sentences included a definite period of probation for each sentence -- 15 

years. 

3After we granted certiorari review in this case, the State moved to 

expand the issues for certiorari review to include a challenge to the 

"illegal sentence" rule as expressed in Ex parte McGowan, 346 So. 3d 10, 

15 (Ala. 2021), and other cases. Given the timing of the State's request 

and the fact that Elston is not represented by counsel, we do not consider 

this to be an appropriate case in which to reconsider the "illegal sentence" 

rule, and we decline to consider that issue.