Craig v. State

• Decision Date: 25 June 2004
• Citation: 893 So.2d 1250
• Parties: Marcus Dewayne CRAIG v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

893 So.2d 1250

Marcus Dewayne CRAIG v. STATE of Alabama.

CR-02-0812.

Court of Criminal Appeals of Alabama.

June 25, 2004.

William R. Payne, Anniston, for appellant.

William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

On Rehearing Ex Mero Motu

COBB, Judge.

The opinion of March 26, 2004, is withdrawn, and the following is substituted therefor.

On May 9, 2002, Marcus Dewayne Craig was indicted for two counts of first-degree robbery, violations of § 13A-8-41(a)(1), Ala.Code 1975. The two cases were consolidated on October 4, 2002. On November 5, 2002, Craig was convicted of two counts of first-degree robbery as charged in the indictments. On December 18, 2002, the trial court sentenced Craig, as a habitual offender, to two terms of life in prison without the possibility of parole. See § 13A-5-9(c)(4), Ala.Code 1975. Craig filed a postjudgment motion on January 17, 2003, which the trial court summarily denied on January 28, 2003.

The facts adduced at trial indicate the following: On July 9, 2001, Paulette Gallahar was working at a dry-cleaning business when Craig entered the store, pulled out a weapon, and announced," `Oh by the way, this is a robbery. ... I'm taking money out of this store and I'm taking your car.'" (R. 95.) Craig stole $45 from the cash register and forced Gallahar into the back of the store. In the back of the store, Craig took $5 and car keys from Gallahar's purse. Craig forced Gallahar to kneel in a corner, put plastic around her head, and held a gun to her head. Another customer entered the front of the store. Craig went to wait on the customer, so as to not cause any suspicion. Gallahar ran to the doorway to the front of the store and shouted, "`It's a robbery, it's a robbery.'" (R. 103.) She ran out the back door, yelling, jumped into her car, and locked the doors. Craig followed her and, with her keys, unlocked the passenger side door. Craig got into the passenger side of the front seat, grabbed Gallahar's wrist, and stated, "Okay, bitch, you're driving." (R. 105.) Gallahar jerked away from Craig, jumped out of the car, and ran. Craig drove away from the scene of the crime in Gallahar's car. Craig was arrested in Kentucky several days later in Gallahar's car. Gallahar later picked Craig out of a photographic lineup.

On appeal, Craig puts forth four arguments, and we address each in turn. For the reasons below, we reverse one of Craig's convictions and remand this cause for resentencing.

I. The Uniform Mandatory Disposition of Detainers Act

First, Craig argues that the trial court erred by denying his two motions to dismiss the indictments against him based on the State's noncompliance with the Uniform Mandatory Disposition of Detainers Act ("UMDDA"). See § 15-9-81, Ala. Code 1974. Section 15-9-81, Article III(a), provides:

"Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decision of the state parole agency relating to the prisoner."

The State of Alabama received the UMDDA paperwork on Craig on April 15, 2002. The trial court held a pretrial status conference on July 8, 2002, at which the State and defense counsel were present; however, the trial court did not reach the case on the docket. The trial court held another pretrial status conference on August 27, 2002. The case was passed on without objection from trial counsel. On or about September 25, 2002, the assistant district attorney requested of trial counsel — outside of court — that Craig sign a waiver of the 180-day deadline, but Craig refused to do so. A pretrial conference was conducted on October 3, 2002, and the trial was scheduled for November 4, 2002. The 180-day period under the UMDDA expired on October 12, 2002.

On October 24, 2002, Craig filed a motion to dismiss the two charges against him; he filed another motion to dismiss regarding only one of the charges on November 4, 2002. The trial court held a hearing on the motions on November 4, 2002, at the conclusion of which it denied the motions, stating, among other things, that it had "no remembrance of a 180-day period [issue] being raised at [the] October 3rd pretrial." (R. 38.)

We addressed a similar issue in Glover v. State, 599 So.2d 79 (Ala.Crim.App.1992). The appellant in Glover was given two opportunities to object to the continuance of the trial, but did not. Craig, too, had such opportunities, and, in fact, had been reminded of the impending deadline by the State, but chose not to raise the issue before the trial court.¹ In Glover, this Court stated:

"[T]here is evidence that the appellant waived the 180-day limitation by failing to object to the continuances.

"`[W]e find that appellant waived the 180-day limitation. In Gillard v. State, 486 So.2d 1323, 1327 (Ala.Cr.App.1986), we find the following: "We are inclined toward the majority view that the rights afforded a prisoner under the agreement do not rise to the level of constitutionally guaranteed rights and can be waived." See also Toro v. State, 479 So.2d 298 (Fla.Dist.Ct.App.1985); Pethtel v. State, 427 N.E.2d 891 (Ind.App.1981). Cf. Tombrello v. State, 484 So.2d 1190 (Ala.Cr.App.1985) (wherein the court held that the appellant, by pleading guilty, waived the nonjurisdictional defect of a violation of the Act); Davis v. State, 469 So.2d 1348 (Ala.Cr.App.1985) (same).

"`As noted above, on January 5, 1987, the court set appellant's trial for the March 16, 1987, term of court, and on February 10, 1987, the court set appellant's trial for the "next criminal jury docket," a known and ascertainable date. Appellant had different counsel on these two occasions. Significantly, we can only conclude from the record that both attorneys neither objected to the trial date at the time it was set nor objected during the days remaining under the 180-day time limit. If either had done so, the trial court could have set an appropriate trial date or granted a "necessary or reasonable continuance." Instead of putting the court on notice, appellant waited until the 180-day time limit had lapsed.

"`We construe appellant's silence, on both occasions when the trial court set the trial date, to be his acquiescence. Pethtel, 427 N.E.2d at 894. We find like treatment in Scrivener v. State, 441 N.E.2d 954, 956 (Ind.1982), where 35 days before the 180-day period expired, the trial court set the cause for trial 29 days beyond the 180-day period. The court, in adopting Pethtel, held that the appellant's failure to object to the trial date when it was set, on or before the expiration of the 180-day period, precluded him from having the information dismissed. See also State v. McGann, 493 A.2d [452] at 456 [(1985)].'

"Saffold [v. State], 521 So.2d [1368,] 1372 [(Ala.Crim.App.1987)]."

Glover, 599 So.2d at 81-82.

Because Craig had the opportunity to do so, but chose not to object to the trial date at the time it was set or during the remaining days under the 180-day time limit, that is, because he failed to timely object to the two continuances ordered by the trial court and to the court's setting the case for trial 23 days beyond the 180-day period mandated by the UMDDA, he has waived this issue.

II. Double Jeopardy

Craig next argues that the trial court erred by denying his "Motion to Require [the] State to Elect [a] Charge." (C. 47.) Craig argues on appeal, as he did at trial, that he robbed only one person, albeit twice, and that, therefore, "double jeopardy principles are implicated." (C. 47.) The State does not address this argument in its brief.

As was the case in Girard v. State, 883 So.2d 714, 715 (Ala.Crim.App.2002), Craig's motion to the trial court was untimely made, because he did not make the motion at or before arraignment, and the trial court did not set a later date for such motions. See Rule 15.3(a)(1), Ala. R.Crim. P. Also as in Girard, Craig argued the merits of his motion to the trial court, and, in response, the State did not object to the motion as untimely. Because the trial court denied the motions on the merits, this Court cannot procedurally bar this issue from appellate review. Girard, 883 So.2d at 715.

"The constitutional guarantee against double jeopardy protects a defendant from being subjected to multiple punishments for the same offense. This guarantee bars the conviction of a defendant for two separate counts of first-degree robbery where the evidence adduced at trial tended to show that the defendant committed only one act of robbery against one victim. Moore v. State, 709 So.2d 1324 (Ala.Crim.App.1997)."

Young v. State, 724 So.2d 69, 73 (Ala.Crim.App.1998).

"This is not a case where the same act or transaction constitutes a violation of two distinct statutory provisions. See Blockburger v. United States, 284 U.S. 299[, 52 S.Ct. 180, 76 L.Ed. 306] (1932)

.... The pertinent inquiry in deciding whether ...