Alabama Department of Corrections v. Joshua Lashawn Booth

• Court: Court of Criminal Appeals of Alabama
• Decided: November 7, 2025
• Docket: CR-2023-0426
• Status: Published

Opinion

Rel: November 7, 2025

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) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals OCTOBER TERM, 2025-2026 _________________________

CR-2023-0426 _________________________

Alabama Department of Corrections

v.

Joshua Lashawn Booth

Appeal from Bibb Circuit Court (CV-22-900034)

On Remand from the Alabama Supreme Court

COLE, Judge.

The Alabama Department of Corrections ("ADOC") appeals the

Bibb Circuit Court's judgment granting Joshua Lashawn Booth's request

for relief, which he styled as an "Application for a Writ of Habeas

Corpus." CR-2023-0426

In his request for relief, Booth alleged that the ADOC had refused

to grant him correctional incentive time on the 15-year sentence imposed

for his 2018 possession-of-obscene-matter conviction, a violation of § 13A-

12-192(b), Ala. Code 1975. 1 Booth argued that, although § 14-9-41(e),

Ala. Code 1975, bars a person who "has been convicted of a sex offense

involving a child as defined in Section 15-20A-4(26)[, Ala. Code 1975,]"

from receiving correctional incentive time, § 14-9-41(e) does not apply to

convictions for possession of obscene matter because the possession-of-

obscene-matter statute "refers to a person under the age of 17, not under

12." 2 (C. 13.) The focus of Booth's argument to the circuit court, and to

this Court, is that the definition of a "child" provided in § 15-20A-4(2),

which is a "person who has not attained the age of 12," should have been

1Section 13A-12-192(b), Ala. Code 1975, has been amended since

Booth's 2018 conviction. Any reference in this opinion to § 13A-12-192(b) is to the version of the statute in effect at the time of Booth's conviction.

2Section 14-9-41(e), Ala. Code 1975, has been amended since Booth's 2018 conviction. Section 14-9-41(e)(1)d. currently states that "[n]o prisoner may receive correctional incentive time" if "[h]e or she has been convicted of a sex offense involving a child as defined in § 15-20A- 4[, Ala. Code 1975]." As the State notes, the "only substantive difference between the two versions is the removal of the citation to subsection (26), now codified as subsection (27)." (State's brief, p. 21.) As the parties do in their briefs, this Court references the versions of the statutes that were in effect at the time of Booth's convictions. 2 CR-2023-0426

applied by the ADOC in determining whether he should receive

correctional incentive time pursuant to § 14-9-41(e). Booth argues that

applying the bar to receiving correctional incentive time to offenses

involving only victims under the age of 12 would preclude the ADOC from

denying his request for correctional incentive time for his conviction of

possession of obscene matter involving an individual under the age of 17.

The ADOC moved to dismiss Booth's request for relief and asserted that

Booth was not eligible for correctional incentive time because individuals

serving prison sentences for offenses against a "child" and for offenses

involving "child pornography," including pornography involving children

under 17 years of age, are ineligible for correctional incentive time. The

circuit court denied the ADOC's motion to dismiss Booth's request for

relief and held that, "[b]ecause Ala. Code § 13A-12-192(b) refers to

persons under the age of 17, not under 12, Ala. Code § 14-9-41(e) did not

and does not bar a person convicted of possession of obscene material

under Ala. Code § 13A-12-192(b) from the benefit of incentive good time."

(C. 175.) Thereafter, Booth moved for a summary judgment, and the

circuit court granted Booth's motion and directed the circuit clerk "to

provide an updated transcript to the [ADOC] directing [it] to calculate

3 CR-2023-0426

the correctional incentive 'good' time as due to Applicant Booth within 14

days" of the entry of the circuit court's order. (C. 195.) The ADOC

appealed the circuit court's summary judgment within 42 days of the

circuit court's order granting Booth's motion for summary judgment.

Upon original submission, this Court held that, in substance, the

request for relief that Booth had filed was a petition for a writ of certiorari

that should have been filed in the Montgomery Circuit Court, not the

Bibb Circuit Court. See Alabama Dep't of Corr. v. Booth, [Ms. CR-2023-

0426, Feb. 9, 2024] ___ So. 3d ___ (Ala. Crim. App. 2024). Thus, we

reversed the summary judgment and remanded the case with

instructions for the Bibb Circuit Court to transfer the case to the

Montgomery Circuit Court. ___ So. 3d at ___. Booth then filed a petition

for a writ of certiorari with the Alabama Supreme Court. Our Supreme

Court determined that Booth's request for relief had been correctly

treated as a petition for a writ of certiorari by the circuit court and by

this Court but that the forum in which the petition had been filed, albeit

the incorrect forum, was a matter of "venue, not jurisdiction." Ex parte

Booth, [Ms. SC-2024-0259, Dec. 6, 2024] ___ So. 3d ___, ___ (Ala. 2024).

Our Alabama Supreme Court held that "a challenge to improper venue is

4 CR-2023-0426

waivable if not timely raised." Id. at ___. Noting that the ADOC had not

objected to the improper venue in the circuit court, the Alabama Supreme

Court held that the ADOC had waived the issue regarding improper

venue and that a remand to transfer the case to the Montgomery Circuit

Court was not required. Therefore, the Alabama Supreme Court

reversed this Court's decision and remanded this case for further

consideration. In accordance with the instructions of the Alabama

Supreme Court, this Court will now consider the merits of the ADOC's

appeal of the circuit court's judgment.

Because Booth's petition challenging the ADOC's refusal to grant

him correctional incentive time should be treated as a petition for a writ

of certiorari, the standard of review for the petition is as follows:

" 'On petition for writ of certiorari the circuit court is, as is the appellate court, limited in its review of quasi-judicial acts of administrative officers and boards. The limited function of that review is to determine whether the act in question was supported by any substantial evidence, or whether findings and conclusions are contrary to uncontradicted evidence, or whether there was an improper application of the findings viewed in a legal sense. Sanders v. Broadwater, 402 So. 2d 1035 (Ala. Civ. App. 1981). Judicial review of administrative acts and decisions is limited in scope, and ordinarily the courts will only pass on the question of whether the administrative agency

5 CR-2023-0426

has acted within its constitutional or statutory powers, whether its order or determination is supported by substantial evidence, and whether its action is reasonable and not arbitrary. Little Caesar's, Inc. v. Alabama Alcoholic Beverage Control Bd., 386 So. 2d 224 (Ala. Civ. App. 1979).

" 'A court may not set aside an order of a fact- finding administrative body, acting within the field of its designated powers, unless the order is illegal, capricious, or unsupported by substantial evidence. Little Caesar's, Inc. v. Alabama Alcoholic Beverage Control Bd., supra; Alabama Electric Cooperative v. Alabama Power Co., 278 Ala. 123, 176 So. 2d 483 (1965); 73 C.J.S. Public Administrative Bodies and Procedure, § 202 et seq. (1951). "Substantial evidence" means legal evidence. Little Caesar's, Inc. v. Alabama Alcoholic Beverage Control Bd., supra; Eagle Motor Lines, Inc. v. Alabama Public Service Commission, 343 So. 2d 767 (Ala. 1977). The order of an administrative board is not to be vacated because of receipt of evidence not admissible under general rules of evidence, so long as there is sufficient legal evidence to sustain the order. However, such illegal evidence will not be considered by the reviewing court in determining if there was substantial evidence to support the order of the Board. Edmondson v. Tuscaloosa County, [48 Ala. App. 372,] 265 So. 2d 154 (Ala. Civ. App. 1972).'

"Ellard v. State, 474 So. 2d 743, 750 (Ala. Crim. App. 1984), aff'd, 474 So. 2d 758 (Ala. 1985)."

Austin v. Alabama Dep't of Corr., 975 So. 2d 398, 403 (Ala. Crim. App.

2007).

6 CR-2023-0426

Section 14-9-41(e), which the parties agree is the applicable statute

to determine whether Booth is precluded from receiving correctional

incentive time, states that "[n]o person may receive the benefits of

correctional incentive time if he or she has been convicted of a sex offense

involving a child as defined in Section 15-20A-4(26)." See note 2, supra.

A "sex offense involving a child," as defined in § 15-20A-4(26), Ala. Code

1975, is "[a] conviction for any sex offense in which the victim was a child

or any offense involving child pornography." 3 (Emphasis added.) As the

circuit court noted, § 15-20A-4(2) defines a "child" as "[a] person who has

not attained the age of 12."

In 2018, Booth pleaded guilty to possession of obscene matter

containing a visual depiction of persons under 17 years of age involved in

obscene acts, a violation of § 13A-12-192(b). A conviction under § 13A-

12-192 is a conviction for a sex offense involving child pornography,

which is a "sex offense involving a child" as defined in § 15-20A-4(26).

See J.F.C. v. State, 293 So. 3d 987, 991 (Ala. Crim. App. 2019) (holding,

similarly, that a conviction for production of obscene matter containing a

3In 2017, § 15-20A-4, Ala. Code 1975, was amended, and the definition of "sex offense involving a child," although otherwise unchanged, was moved from subsection (26) to subsection (27). 7 CR-2023-0426

visual depiction of persons under 17 years of age involved in obscene acts

under § 13A-12-197, Ala. Code 1975, is a sex offense involving child

pornography and "is, by definition, a 'sex offense involving a child' as that

term was defined in § 15-20A-4(2[6])"). Accordingly, under § 14-9-41(e)

and 15-20A-4(26), Booth is not eligible for correctional incentive time,

and the circuit court erred in granting Booth's petition and in denying

the ADOC's motion to dismiss Booth's petition.

Furthermore, all three appellate courts of Alabama have recognized

that violations of § 13A-12-190 et seq., Ala. Code 1975, including

violations of § 13A-12-192, which Booth was convicted of, are violations

of the "Alabama Child Pornography Act." As this Court noted in Poole v.

State, 596 So. 2d 632, 637-38 (Ala. Crim. App. 1992),

"[i]n 1978, … the Alabama Legislature passed the child pornography act. Act No. 592, 1978 Ala. Acts 705 (codified at Ala. Code 1975, §§ 13A-12-190 through 13A-12-198 (1982 Replacement Vol.)). Among other things, this act made it illegal to knowingly produce by any means 'obscene matter displaying or depicting in any way a person under the age of 17 years engaged in or involved in any way in an obscene act' involving specified sexual conduct."

(Emphasis altered). See also S.B. v. Saint James Sch., 959 So. 2d 72, 84

(Ala. 2006) (noting that "[b]ecause the students were 14 years old when

the photographs were taken, the photographs, which contain full frontal

8 CR-2023-0426

nudity and/or lewd poses, constitute child pornography under the

Alabama Child Pornography Act, § 13A-12-190 et seq., Ala. Code 1975"

(overruled on other grounds, as recognized in Flickinger v. King, 385 So.

3d 504, 517 (Ala. 2023))) and Hayes v. Hayes, 949 So. 2d 150, 155, n.1

(Ala. Civ. App. 2006) ("In Alabama, the only statute under which

possession of obscene material may be punished as a felony offense is §

13A-12-192(b), Ala. Code 1975, a portion of the Alabama Child

Pornography Act."). In recognizing the need to protect children below the

age of 17 from the evils of child pornography, this Court has also

explained that,

"[i]n 1984, … the Legislature amended the child pornography act, codified at §§ 13A-12-190 through -197, to 'further define and prohibit child pornography and to further provide for the trial of cases involved in it.' Act No. 84-285, 1984 Ala. Acts; see also Poole v. State, 596 So. 2d 632 (Ala. Crim. App. 1992). It is evident that the Legislature, recognizing the need to protect innocent children from the dangers of child pornography, enacted broad legislation prohibiting the visual depictions of children involved in any type of sexual act."

Rutledge v. State, 745 So. 2d 912, 916 (Ala. Crim. App. 1999) (emphasis

added). The designation by the Alabama Legislature and the Alabama

appellate courts of the possession of lewd photographs of minors below

the age of 17 in violation of § 13A-12-192, the crime committed by Booth,

9 CR-2023-0426

as "child pornography" is equally applicable in this Court's determination

that the legislative prohibition against the granting of correctional

incentive time for "any offense involving child pornography" includes all

child pornography, not just pornography involving children under the age

of 12.

Finally, even if Booth was eligible to receive correctional incentive

time, § 14-9-41(a) states that, under certain circumstances, an individual

who is not excluded from receiving correctional incentive time "may earn

a deduction from the term of his or her sentence" under certain

circumstances. Therefore, the granting of correctional incentive time

under § 14-9-41 is discretionary. "The opportunity to earn 'good time' is

a privilege, not a right, in Alabama." Coslett v. State, 697 So. 2d 61, 64

(Ala. Crim. App. 1997). " ' "When [a] statute is framed in discretionary

terms there is not a liberty interest created." ' " Gullet v. State, 613 So.

2d 400, 401 (Ala. Crim. App. 1992) (quoting Conlogue v. Shinbaum, 949

F.2d 378, 380 (11th Cir. 1991), quoting in turn Thomas v. Sellers, 691

F.2d 487, 489 (11th Cir. 1982)). See also Sandin v. Conner, 515 U.S. 472,

486 (1995). Accordingly, the ADOC was authorized to deny Booth's

request for correctional incentive time.

10 CR-2023-0426

Conclusion

Because the circuit court erred in determining that Booth, who had

been convicted of possession of obscene matter containing a visual

depiction of persons under 17 years of age engaged in sexual conduct, was

eligible for correctional incentive time, and because the ADOC's decision

to grant correctional incentive time to an eligible prisoner is

discretionary, the judgment of the circuit court is reversed, and this case

is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Windom, P.J., and Kellum, Minor, and Anderson, JJ., concur.