Armstrong v. State, 8 Div. 248

• Citation: 275 So.2d 698,49 Ala.App. 720
• Decision Date: 05 December 1972
• Docket Number: 8 Div. 262,8 Div. 249,8 Div. 248
• Parties: Danny ARMSTRONG v. STATE. Don FOWLER v. STATE. ,,
• Court: Alabama Court of Criminal Appeals

Page 698

275 So.2d 698

49 Ala.App. 720

Danny ARMSTRONG v. STATE.

Don FOWLER v. STATE.

8 Div. 248, 8 Div. 249, 8 Div. 262.

Court of Criminal Appeals of Alabama.

Dec. 5, 1972.

Rehearings Denied Jan. 23, 1973.

Roy D. McCord and J. A. Hornsby, Gadsden, for appellants.

William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

HARRIS, Judge.

ON REHEARING

These cases were affirmed on December 5, 1972, without opinions for reasons which will clearly appear in this opinion. Appellants have filed timely applications for rehearing and in deference to counsel of record, we will respond to their insistences. Because the issues raised by these cases all involve the 'Youthful Offender Act', Act No. 335, Third Special Session, approved February 10, 1972, the cases have been consolidated for consideration and disposition.

ARMSTRONG. CASE I

Appellant Armstrong was charged in a two-count indictment by the Grand Jury of Marshall County, Alabama, on October 14, 1971, (Count I) for the unlawful sale and delivery of two capsules of Lysergic Acid Drethylamide (LSD), a hallucinatory or schizophrenic psychoses inducing drug, denounced by Act Number 430, 1966 Special Session of the Alabama Legislature, and (Count II) for the unlawful possession of the same drug condemned by the same Act.

On October 27, 1971, appellant, attended by counsel, was arraigned upon the indictment and entered a plea of not guilty to both counts. The case was set for trial on February 29, 1972.

At arraignment the trial court meticulously explained to appellant the constitutional rights of all persons charged with crime including the right to counsel at all stages of trial, right against self-incrimination, right to a speedy and public trial by a jury. He also explained the presumption of innocence, the burden of proof, the right to compulsory process for witnesses in his behalf, the right of cross-examination, a unanimous verdict, the range of punishment, and involuntary statements or confession. Appellant was then furnished a written outline of his rights for consultation and advice with his attorney. This outline of rights was much more detailed than required in Boykin. Appellant and counsel both signed the written statement.

Appellant filed a demurrer to the indictment but the record does not show that it was called to the attention of the court and no ruling thereon was invoked.

When the case was called for trial on February 29, 1972, appellant and his counsel withdrew the plea of not guilty and entered a plea of guilty to the indictment. However, before accepting the plea of guilty the trial court again explained appellant's rights to be certain that he knowingly, voluntarily and intelligently waived them. The court ascertained that appellant had reached his decision with the advice of his attorney and that the guilty plea was made voluntarily and that he was in fact guilty as charged. The court then accepted appellant's plea of guilty and, after allocutus, sentenced him to two years imprisonment in the penitentiary.

ARMSTRONG. CASE II

Armstrong was indicted by the same Grand Jury that returned the indictment in Case I charging that he did 'unlawfully sell or deliver to Elverd J. Gosdin, two (2) tablets which contained Sodium Phenobarbital, a depressant or stimulant drug, as defined by and contrary to the provisions of Act Number 252 of 1967 Regular Session of the Alabama Legislature, otherwise known as the Alabama Drug Abuse Control Act, and that such sale, or delivery took place subsequent to August 24, 1967, etc., * * *'

The identical procedure was followed in Case II that was followed in Case I. It would serve no useful purpose to here repeat that procedure. Upon his plea of guilty in Case II, appellant was sentenced to two years imprisonment in the penitentiary.

FOWLER.

Fowler was indicted by the Grand Jury of Marshall County on October 14, 1971, for the offense of selling marijuana. Omitting the formal parts the indictment is as follows:

'The Grand Jury of said County charge that before the finding of this Indictment, Don Fowler, whose name to the Grand Jury is otherwise unknown, did unlawfully sell to G. A. Smith on to-wit: May 6, 1971, 150 grams of marijuana, cannabis Americana or cannabis Indica, or a compound or mixture which contained marijuana, cannabis Americana or cannabis Indica, contrary to law and against the peace and dignity of the State of Alabama.'

On February 2, 1972, appellant filed a demurrer to the indictment which was overruled by the trial court on February 3, 1972. Upon arraignment on February 3, appellant, attended by counsel, entered a plea of not guilty and the case was set for trial on February 28, 1972, and was reached on February 29. Upon the case being called for trial appellant and his counsel made known to the court that he desired to withdraw his plea of not guilty and plead guilty to the charge.

As in Armstrong, supra, the trial court fully explained to Fowler his rights under the Constitution and laws of Alabama as well as his rights under the Federal Constitution and furnished them with a 'print out' of his oral explanation. After consultation with his attorney, appellant signed same along with his attorney.

The case was called for trial on February 29, 1972, and appellant with counsel made known to the court that he wanted to withdraw his not guilty plea and plead guilty to the indictment.

The same procedure was followed as in Armstrong above as to determining that appellant knowingly, voluntarily and intelligently waived 'his rights.' The court explained to appellant the nature and elements of the crime against him and the possible sentences for the offense. The court ascertained...