Burt v. State

• Decision Date: 08 November 2013
• Docket Number: CR–11–1500.
• Citation: 149 So.3d 1110
• Parties: Timothy Alan BURT v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

149 So.3d 1110

Timothy Alan BURT

v.STATE of Alabama.

CR–11–1500.

Court of Criminal Appeals of Alabama.

Nov. 8, 2013.

Rehearing Denied Feb. 7, 2014.

Certiorari Denied March 14, 2014

J. Paul Whitehurst, Northport, for appellant.

Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.

Opinion

WELCH, Judge.

On August 6, 2003, Timothy Alan Burt was convicted of first-degree sexual abuse and sentenced to prison. At some point Burt was released from prison. On August 5, 2010, a two-count indictment was returned charging him in circuit court case CC–10–1797 with violating his duty under the then in effect “Community Notification of Released Convicted Sex Offenders” Act, (also known as the “Community Notification Act,” i.e., “the CNA”), §§ 15–20–20 through –38, Ala.Code 1975, to file with certain law-enforcement personnel 30 days' prior notice of his intent to move to a different residence, a violation of § 15–20–23(a), Ala.Code 1975, and with failing to comply with the requirement of the then in effect CNA that prohibited a convicted adult sex offender from residing where a person 18 years old or younger resides, a violation of § 15–20–26(c), Ala.Code 1975. Both offenses are Class C felonies. On June 28, 2011, Burt was indicted in circuit court case CC–11–1387 for again failing to comply with the requirement of the then in effect CNA that he file a notice with law-enforcement personnel at least 30 days before moving to a different residence, a violation of § 15–20–23, Ala.Code 1975.

Effective July 1, 2011, the “Community Notification of Released Convicted Sex Offenders” Act, §§ 15–20–20 through 15–20–38, Ala.Code 1975, was expressly repealed by Act No. 2011–640, § 49, Ala. Acts 2011, and on that date replaced with the “Alabama Sex Offender Registration and Community Notification Act.” This act is codified in the Alabama Code as §§ 15–20A–1 through –48.

On May 31, 2012, prior to the commencement of Burt's guilty-plea hearing, counsel for Burt filed written motions asking the circuit court to dismiss the charges against him. In both motions counsel argued that the charges were due to be dismissed because § 15–20–23 had been repealed by Act No. 2011–640, (§§ 15–20A–1 et seq., Ala.Code 1975 ), without providing a “savings clause for prosecutions for violating the statutes that were repealed.” (C. 33, 77.) The motion asserted:

“ ‘ “It is well settled, that no recovery or conviction can be had on a penal statute after its repeal, or the offence against which it is directed, is divested or criminality, unless there is a special clause allowing it,” State v. Allaire, 14 Ala. 435 (1848). See also Carlisle v. State, 42 Ala. 523 (1868) ; Griff[i]n v. State, 39 Ala. 541 (1865) ; and Jordan v. State, 15 Ala. 746 (1849).’ ”

(C. 33, 77.) After hearing Burt's argument in support of his motions, the circuit court denied the motions. Appellate review of the circuit court's ruling was reserved¹ and the guilty-plea proceedings continued. Included in the State's factual basis underlying the pleas, the State asserted for both charges that Burt had not registered his change of residence. The guilty-plea proceedings concluded with the State dismissing count two of CC–10–1797, which alleged that Burt had resided with a person less than 18 years old, and with Burt entering guilty pleas to the 2 charges alleging that he failed to notify authorities of his change in residence. Burt was sentenced as a habitual felon with 2 prior felonies to concurrent 10–year sentences. The sentences were suspended, and Burt was placed on supervised probation for three years. Burt appealed.

Appeal

Burt contends on appeal that the circuit court erred when it denied his motions to dismiss the indictments. Typically, “ ‘[w]hether a trial court's denial of a motion to dismiss an indictment was error is reviewed under an abuse-of-discretion standard of review.’ ” Long v. State, 14 So.3d 184, 185 n. 1 (Ala.Crim.App.2008) (quoting Hunter v. State, 867 So.2d 361, 362 (Ala.Crim.App.2003) ). However, here, because the issue presented involves a review of the circuit court's conclusion of law and its application of the law to undisputed facts, this Court applies a de novo standard of review. Washington v. State, 922 So.2d 145, 158 (Ala.Crim.App.2005). Burt argues on appeal, as he did in his written motions and at the hearing on those motions, that “because [§ 15–20–23,] the statute establishing the offense[,] was repealed and there was no savings clause, Burt's motions to dismiss should have been granted.” (Burt's brief, at p. 3.)

Citing Williams v. State, 565 So.2d 282, 286 (Ala.Crim.App.1990), and Ex parte Jefferson, 473 So.2d 1110, 1111 n. 1 (Ala.1985), the State contends that Burt's argument is without merit because the applicable law is the law in effect at the time an offense is committed. The State asserts that § 15–20–23, which required 30 days' prior notice before changing residence, was the law in effect at the time of the commission of Burt's offenses; thus, according to the State, the circuit court properly denied his motions to dismiss. Additionally, the State asserts that the new statute continued to require registration; the new statute merely modified the time in which a sex offender must provide notice to authorities before a sex offender may change his or her residence. Therefore, according to the State, because the new statute, like the old statute, required a sex offender to register a change in his or her residence, the old statute was not repealed.

Analysis

“A saving clause is ... an exemption from the general operation of a statute. It is generally employed to restrict repealing acts, to continue repealed acts in force as to existing powers, inchoate rights, penalties incurred, and pending proceedings, depending on the repealed statute. A repeal destroys such rights, powers and proceedings and discharges the penalties. Thus, to preserve them a special provision with saving effect is necessary.”

2A Norman J. Singer, Sutherland Statutes and Statutory Construction, § 21:12 (7th ed. 2012)(emphasis added); Griffin v. State, 39 Ala. 541 (1865) (“Where a repealing statute has no saving clause as to pending prosecutions, a person indicted for an offense created by statute cannot be convicted after repeal of such statute.”); State v. Allaire, 14 Ala. 435 (1848) (“It is well settled, that no recovery or conviction can be had on a penal statute after its repeal, or the offence against which it is directed, is divested of criminality, unless there is a special clause allowing it.”).

Williams and Jefferson, cited by the State, are not applicable here. Both Williams and Jefferson involved a repealing statute that provided a clause saving the prosecution of conduct occurring before the effective date of the new statute. Williams concerned conduct occurring in December 1986 resulting in a criminal indictment under the Alabama Uniform Controlled Substances Act, § 20–2–70, Ala.Code 1975. That statute was repealed on October 21, 1987, as part of the Drug Crimes Amendments Act of 1987, Act No. 87–603, Ala. Acts 1987,² “insofar as conduct occurring after the effective date of this act is concerned.” Act No. 87–603 p. 1047. Therefore, because Act No. 87–603 declared that § 20–2–70 was repealed as to conduct occurring after the effective date of the Act, the repeal of § 20–2–70 did not abate charges in Williams.

Jefferson was charged for his April 17, 1981, conduct that violated § 13A–5–31(a)(2), Ala.Code 1975, a statute imposing capital punishment. Effective July 1, 1981, the 1981 capital-offense statute, Act No. 81–178, Ala.1981, p. 204,³ repealed § 13A–5–31(a)(2), Ala.Code 1975.⁴ Section 19 of Act No. 81–178, p. 214, states: “This act applies only to conduct occurring after its effective date. Conduct occurring before the effective date of this act shall be governed by pre-existing law.” Thus, in Jefferson, the repeal of § 13A–5–31(a)(2) did not abate charges occurring before the repeal.

Act No. 2011–640, § 49, the “Alabama Sex Offender Registration and Community Notification Act,” effective July 1, 2011, and codified at §§ 15–20A–1 through 15–20A–48, expressly repealed the entire CNA formerly codified at § 15–20–20 through § 15–20–38, Ala.Code 1975. The repealing statute did not provide an express savings clause.⁵

“The common law rule is that, in the absence of an effective saving provision, the outright repeal of a criminal statute operates to bar prosecutions for earlier violations of the statute, whether the prosecutions are pending, or not yet begun, at the time of the repeal, on the theory that the legislature by its repeal has indicated an intention that the conduct in question shall no longer be prosecuted as a crime.”

1 Wayne R. LaFave, Substantive Criminal Law § 2.5 Repeal or Amendment of Statute (2d ed. October 2012).

However, in Burt's case, the repeal of §§ 15–20–20 through 15–20–38 was not an “outright repeal” because at the same time as the repeal, the legislature essentially re-enacted the repealed statute, which is now codified at §§ 15–20A–1 through 15–20A–48, Ala.Code 1975. This action does not suggest an intent by the legislature to “pardon” conduct subject to the repealed statute.

“There is ... a generally recognized simultaneous-repeal-and-reenactment exception to the common law rule. Under this exception, if what was criminal under the repealed statute is also encompassed within the new law, which perhaps carries a different offense label, then prosecution under the repealed statute is permissible.”

LaFave; 37 Am. J.Crim. L. 1, 27In with the New, Out with the Old: Expanding the Scope of Retroactive Amelioration (Fall 2009) (“The court's power and authority to maintain a previously commenced prosecution should continue unabated when the legislature repeals and reenacts or amends a statute.”).

“The idea that the prosecution should be terminated in the absence of a saving clause ignores the objective indication of the legislature's

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