Clemmons v. State

• Citation: 321 So.2d 238,294 Ala. 746
• Parties: In re Jesse Ray CLEMMONS v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. SC 1050.
• Decision Date: 22 May 1975
• Court: Supreme Court of Alabama

Page 238

321 So.2d 238

294 Ala. 746

In re Jesse Ray CLEMMONS v. STATE of Alabama.

Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.

SC 1050.

Supreme Court of Alabama.

May 22, 1975.

Rehearing Denied June 19, 1975.

William J. Baxley, Atty. Gen. and John M. Gruenewald, Asst. Atty. Gen., for the State.

H. Edward McFerrin, Greenville, for respondent.

SHORES, Justice.

Defendant, Jesse Ray Clemmons, was indicted by the Grand Jury of Butler County, Alabama, on May 9, 1973, for first degree murder. He was found guilty of second degree murder and was sentenced to thirty years in the penitentiary. He appealed to the Court of Criminal Appeals, which remanded the case to the circuit court for an investigation and examination of the defendant at a hearing for a determination to be made by the trial court whether, in its discretion, he should be treated as a youthful offender under Tit. 15, §§ 266(1)--(6), Code.

The State filed a petition for writ of certiorari which we granted because of the apparent conflict between Morgan v. State 291 Ala. 764, 287 So.2d 914 (1973); and Armstrong v. State, 49 Ala.App. 720, 275 So.2d 698 (1972), cert. den. 290 Ala. 256, 275 So.2d 702 (1973).

The record shows that the defendant was nineteen years old at the time of the commission of the act and twenty years old at the time of the trial. There is nothing in the record to indicate that the defendant asked to be treated as a youthful offender under the statute, or that the Youthful Offender Act was called to his attention by the trial court.

Squarely presented, therefore, is the question of whether it is mandatory for the trial court to call the Act to the attention of the defendant, as dictum in Morgan, supra, seems to indicate, or whether Armstrong, supra, controls, which held that the defendant could not raise for the first time on appeal the failure of the trial court to afford him the benefit of the Youthful Offender Act.

The statute provides:

' § 266(1). Investigation by court; consent of minor to examination and trial without jury; arraignment as youthful offender.--A person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall--and, if charged with a lesser crime, may--be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury where trial by jury would otherwise be available to him. If the defendant consents and the court so decides, no further action shall be taken on the indictment or information unless otherwise ordered by the court as herein provided. After such investigation and examination, the court in its discretion may direct that the defendant be arraigned as a youthful offender, and no further action shall be taken on the indictment or information; or the court may decide that the defendant shall not be arraigned as a youthful offender, whereupon the indictment or information shall be deemed filed.'

In Morgan, supra, the following statement appears:

'The Act therefore charges the trial judge with the duty to refer any person under 21 years of age, whose case has not been disposed of in the juvenile court and who is charged with a crime involving moral turpitude or is subject to a sentence of confinement for one year or more, to a probation officer to make such investigation requested by the court. Referral in such event is not discretionary, but mandatory, on the part of the trial judge. After the investigation, if the youth consents to examination by the court and trial without a jury, and the court so decides, no further action is taken on the indictment or information unless ordered by the court. After investigation and examination, it is within the discretion of the trial judge whether the youth shall be tried as a youthful offender. The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his constitutional rights when he enters a plea of guilty.' (291 Ala. at 765, 287 So.2d at 915)

The language of the statute is clear that a person charged with a crime committed in his minority (and not disposed of in juvenile court and) which involves moral turpitude or is subject to a sentence for one year or more Shall be investigated and examined by the trial court to determine whether he should be afforded youthful offender status. The defendant must consent to the investigation and examination.

We have been cited to no statute from any other state which makes such an investigation and examination mandatory if the defendant consents. A similar New York statute, which has now been repealed and replaced by a much more workable one, reads in part as follows:

'. . . In any case where a grand jury has found an indictment and it shall appear that the defendant is a youth, the grand jury or the district attorney may recommend to the court to which the indictment was returned . . . that the defendant be investigated for the purpose of determining whether he is eligible to be adjudged a youthful offender.

'3. If the court approves the recommendation of the grand jury or the district attorney, Or, if the court on its own motion determines that the defendant should be investigated hereunder . . . the indictment . . . shall be held in abeyance . . .' (Emphasis Supplied) The Code of Criminal Procedure, § 913--g.

It is obvious that the New York statute left the determination to order an investigation to the discretion of the trial court. People v. Roberts, 35 A.D.2d 760, 315 N.Y.S.2d 208 (1970); People v. Judd, 61 Misc.2d 180, 305 N.Y.S.2d 316 (1969).

While our statute seems to require an investigation in certain cases, we do not read it to require the trial court to order an investigation By a probation officer in every case. In fact, § 266(5) of Tit. 15 places a duty on the probation officers to make such investigations as Requested by the court. We read this to mean that referral to the probation officer for an investigation is a discretionary matter with the trial court, not mandatory as Morgan seems to suggest.

As we read the statute, the requirement that an investigation be made means only that the trial court should conduct or order such investigation as is necessary in each case, including an investigation by the probation officer, if it sees fit, but not necessarily, for the development of such facts as are required for a determination of whether the defendant is eligible for youthful offender treatment.

Obviously, the court will not require an investigation by a probation officer in every case. In many cases, sufficient facts for a determination will be available without a probation officer's report.

The court would naturally consider such matters as the nature of the crime charged, prior convictions, or absence thereof--all of which can be ascertained without a lenghy, time consuming investigation by the probation officer.

We do not believe the legislature intended that each case must be referred to a probation officer for an investigation. Nor do we read the statute to require a full, formal hearing in every case. All that it required of the trial court, assuming the defendant consents, is such investigation and examination of the defendant as is sufficient to enable the judge to make an intelligent determination of whether, in his discretion, the defendant is eligible to be treated...