Brown v. State

• Decision Date: 02 October 1979
• Docket Number: 6 Div. 985
• Citation: 376 So.2d 1382
• Parties: Frank Tyrone BROWN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1382

376 So.2d 1382

Frank Tyrone BROWN v. STATE.

6 Div. 985.

Court of Criminal Appeals of Alabama.

Oct. 2, 1979.

On Remandment Nov. 20, 1979.

F. Wayne Keith of Keith, Keith & Keith, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

The only issue presented on this appeal is whether the trial court was in error in setting aside a sentence imposed upon defendant, and entered of record, and thereafter imposing a sentence severer than the one previously imposed. The time and other circumstances of such action, as compared with the time and circumstances of somewhat similar action found in authorities cited by the parties and other authorities, will appear in the course of this opinion.

At approximately 9:45 A.M. on November 3, 1978, a jury returned a verdict finding appellant-defendant guilty of robbery. After the jurors were polled and released, the following occurred:

"THE COURT: You heard the verdict of the jury, Mr. Brown, 'We the jury find the Defendant guilty of robbery as charged in the indictment.' Signed, Charlie Joe Mills, foreperson. Have you anything to say as to why sentence should not be pronounced against you at this time?

"THE DEFENDANT, MR. BROWN: I am not guilty.

"THE COURT: All right. It is the judgment and sentence of the Court that the Defendant be imprisoned in the penitentiary for a term of ten years and that he be given credit for all time spent in jail unless he was there for another offense.

Wait just a minute. I do want to say that your attorney did a good job on this case. You have forty-two days from today in which to appeal. And, if you do appeal and you can't afford an attorney, the Court will appoint an attorney to represent you without cost. But, remember that is forty-two days from today or six weeks.

"THE DEFENDANT, MR. BROWN: I want to appeal.

"THE COURT: Would you like to announce it now?

"THE DEFENDANT, MR. BROWN: Yes.

"THE COURT: All right. Can you afford an attorney?

"THE DEFENDANT, MR. BROWN: No, sir.

"THE COURT: Would you like to have an attorney appointed to represent you?

"THE DEFENDANT, MR. BROWN: Yes.

"THE COURT: Would you like to handle it, Mr. Keith?

"MR. KEITH: Yes, sir.

"THE COURT: Would you like Mr. Keith to handle your appeal?

"THE DEFENDANT, MR. BROWN: Yes, sir.

"THE COURT: All right, Mr. Keith will be appointed to represent you on appeal. And, I am giving notice of it now that you are appealing."

Thereafter, for about two pages of the record, there was a colloquy among the court and counsel for the parties in which it appears that counsel for defendant was taking the position that the jury should have fixed the punishment rather than the court. The record then shows the following:

"THE COURT: All right, thank you Mr. Keith, I think you have done a good job on this case. And you are appointed to represent him on appeal.

"(Whereupon, there was a brief discussion between the attorneys and the court and Mr. Barber was recalled to the courtroom)."

It should be noted at this time that it appears that the "brief discussion between the attorneys and the court" to which reference is made in the parenthesized part of the record just quoted was as to something that had transpired immediately preceding such "brief discussion." From our understanding of the contentions of the parties as shown by the record and their briefs on appeal, we conclude that Mr. Barber, the Assistant District Attorney who actively prosecuted the case, had for good cause excused himself from the courtroom at the time of the rendition of the verdict and at the time of the imposition of the sentence; but just before, or as a part of, the mentioned "brief discussion," he returned and informed the court that the defendant had a previous criminal record that should be considered in making a determination of the appropriate punishment to be fixed within the statutory requirement of "imprisonment in the penitentiary for not less than ten years, or as otherwise specified by law." Code 1975 § 13-3-110.

After the mentioned "brief discussion," the record continues:

"THE COURT: All right.

"MR. KEITH: Judge, when we came in here and the jury came back with their verdict, the State of Alabama was ably represented by Mr. George Jones sitting in for Mr. David Barber. He came up here and he told Your Honor that he didn't see anything wrong with this. He told you informed him that there was no weapon involved in this case and there was very mild circumstances in this case. Honorable George Jones for the State of Alabama said I don't see anything wrong with this.

"THE COURT: Well, I am going to set it aside and I am going to check on whether I have the authority to do that. But, I am going to set it aside and ask for a probation report.

"MR. KEITH: We would object to that.

"THE COURT: If I don't have authority, this will remain, but, I am going to see if I have authority.

"MR. KEITH: Well, the sentence has been imposed.

"THE COURT: Off the record.

"(Whereupon, there was an off the record discussion.)

"THE COURT: On the record.

"MR. KEITH: We would object to it being re-opened; the sentence has already been imposed in this case and the commitment order has already been signed, and delivered to the bailiff to take the prisoner back upstairs. And, the prisoner has been down here conferring with his family, talking with his family. And, we would object to it being re-opened.

"THE COURT: All right. I will see the case that Mr. Barber gets.

"(Whereupon, the Court was in recess, and at 2:02 P.M. the Defendant was brought in with his attorney, and the following was had and done before the Court.)

"THE COURT: This morning immediately after I sentenced this Defendant, additional information came to my attention which I did not know about concerning the Defendant's previous record. Mr. Barber came into the courtroom and brought the material at that time. So, before the Defendant left the courtroom, I informed him that I was setting aside the sentence that I had announced this morning of ten years, that I was going to ask for a pretrial sentence report from the Probation Officer. And, to be given to the Court by December 15, 1978. And, the sentence will be suspended and will be rendered on December 15, 1978, at 9:00 A.M."

There was a continuance from the setting on December 15, 1978, to January 12, 1979, at which time defendant, being present with his attorney in open court, was sentenced to imprisonment in the penitentiary for fifteen years. From the time it appeared that the court was considering changing its sentence until the sentence was increased and afterwards, defendant-appellant made it known at every reasonable opportunity that he objected to such action.

Both parties cite a number of authorities in support of their respective contentions. We fail to find in any of them, or in any other authority, such a state of facts that the determination made therein would be conclusively dispositive of the question now before us, but we endeavor to analyze most, if not all, of them in our effort to reach a correct conclusion herein.

Appellant relies upon State ex rel. Curtis v. Heflin, 19 Ala.App. 222, 96 So. 459 (1923); Rice v. Simpson, 274 F.Supp. 116 (M.D.Ala.1967), Smith v. United States, 297 F.Supp. 131 (W.D.Mo.1968) and People v. Johnson, 60 Mich.App. 371, 230 N.W.2d 438 (1975). Appellee urges support for its position in Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947); Cisson v. United States, 37 F.2d 330 (4th Cir. 1930); DeMaggio v. Coxe, 70 F.2d 840 (2 Cir. 1934); Kelley v. United States, 235 F.2d 44 (4th Cir. 1956); Kroll v. United States, 433 F.2d 1282 (5 Cir. 1970); Nichols v. United States, 106 F. 672 (8 Cir. 1901); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Oxman v. United States, 148 F.2d 750 (8th Cir. 1945); Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499 (Ct.App.D.C.1940); United States ex rel. Jones v. Commonwealth of Pennsylvania, 218 F.Supp. 689 (W.D.Pa.1963); United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Vincent v. United States, 337 F.2d 891 (8th Cir. 1964), cert. denied 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281 (1964); Walton v. United States, 92 U.S.App.D.C. 26, 202 F.2d 818 (Ct.App.D.C.1953); Williams v. United States, 422 F.2d 1318 (5th Cir. 1970).

In State v. Heflin, supra, a question related to the one now under consideration was discussed and a determination thereof forecast as a matter of dictum. However, the case was decided on a matter not involved here, that is, that the trial court was in error in attempting to set aside a sentence in that it was acting after expiration of the term in which the sentence was imposed, and for that reason had no jurisdiction to set aside the sentence. Of some value to appellant on the point now presented is dictum in Heflin as follows "Moreover, we doubt that a court could, even during term time, annul and set aside a judgment of conviction in a criminal case after the defendant had paid the fine and cost or had served the punishment inflicted; though we do not decide this question, because it is not now necessary to decide it. . . . Hence a final judgment having been rendered by a court of competent jurisdiction, and that judgment having been fully satisfied, the court cannot, at a subsequent time, cancel and annul that judgment and require the defendant to stand another trial or inflict a different punishment upon him for the same offense. There can be no question that the defendant was put in jeopardy, which is conclusively evidenced by the final judgment of December 14, 1922; and certainly the same court that put him in jeopardy that pronounced him guilty, that imposed a fine cannot, after the fine is satisfied, place him upon trial again for the same offense in the same court, or inflict a different punishment than that which the defendant has...