Ex parte Chambers
Citation | 522 So.2d 313 |
Parties | Ex parte Richard CHAMBERS. (Re Richard Chambers v. State). 86-483. |
Decision Date | 25 September 1987 |
Court | Supreme Court of Alabama |
D. Taylor Flowers of Buntin & Cobb, and Lewis, Brackin & Flowers, Dothan, for petitioner.
Don Siegelman, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
We granted the writ in this case to consider whether it was proper for the trial court to apply the punishment enhancement provisions of Code of 1975, § 13A-5-9(a)(1), in sentencing the petitioner, who was convicted of a drug offense. We reverse and remand.
Petitioner, Richard Chambers, was indicted for trafficking in marihuana, but a jury found him guilty only of felony possession. The State proved a prior drug offense, and, pursuant to § 13A-5-9(a)(1), (hereinafter the "Habitual Felony Offender Act"), the trial court sentenced the petitioner as a habitual offender to 20 years' imprisonment and a $10,000 fine. In the portion of its opinion upholding petitioner's sentence under the Habitual Felony Offender Act, the Court of Criminal Appeals quoted from its decision in Motley v. State, 409 So.2d 945, 947 (Ala.Crim.App.1981):
"[T]he legislature intended that all felons, whether drug offenders or otherwise, be subject to enhanced punishment under the Alabama Habitual Felony Offender Act when prior convictions have been shown."
(Emphasis added in Chambers.) 522 So.2d 311. Petitioner contends that the Habitual Felony Offender Statute is inapplicable to enhance his conviction for a drug-related offense on account of a prior drug-related offense. We agree, for the reasons that follow.
At the petitioner's sentencing hearing, the State presented sufficient documentary evidence to establish that the petitioner had a prior conviction in Florida for the offense of "sale of a hallucinogenic drug," which had been affirmed by the Florida District Court of Appeals for the First District. Petitioner argues that he should have been sentenced according to the provisions of Code of 1975, § 20-2-70, which provides "that the penalties for the subsequent offenses relating to possession of marihuana shall be" imprisonment "for not less than two nor more than 15 years" and "in addition, [a fine of] not more than $25,000." Petitioner, however, apparently overlooks the fact that § 20-2-70 refers to "subsequent offenses relating to possession," not to sale of marihuana. Furthermore, petitioner has failed to establish that the "hallucinogenic drug" he was previously convicted for selling in Florida was, in fact, marihuana, as opposed to some other drug. We nevertheless, agree with petitioner that the Habitual Felony Offender Act is not the proper penalty enhancement provision to be applied in this case. 1
Because the offense of which petitioner was convicted is found in the Alabama Uniform Controlled Substances Act, § 20-2-1 et seq., § 20-2-70, and his prior conviction related to hallucinogenic drugs, the only penalty enhancement provision that could have been applied against the petitioner in this case is § 20-2-76, which is the recidivist statute found within the Controlled Substances Act itself. Accord, Luker v. State, 344 So.2d 1219, 1224 (Ala.Crim.App.1976), writ quashed, 344 So.2d 1224 (Ala.1977). Section 20-2-76 provides:
It is important to note that by the use of the language "may be imprisoned" in § 20-2-76(a), above, the imposition of that section by the trial court in sentencing the repeat drug offender is permissible and not mandatory. Luker v. State, 424 So.2d 662 (Ala.Crim.App.1982), writ quashed, 424 So.2d 662 (Ala.1983). The converse is true with respect to the Habitual Felony Offender Act, which is mandatory in that it provides that a repeat felony offender "must be punished " in accordance with its provisions. Watson v. State, 392 So.2d 1274 (Ala.Crim.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981).
When the legislature revised the Criminal Code in 1977, particularly Title 13A, Chapter 5, having to do with punishments and sentences, it was well aware that the penalties set out in that chapter would not necessarily be applicable to all criminal offenses defined outside Title 13A. This is made clear in § 13A-5-1, which sets out the applicability of the provisions of Chapter 5:
Particularly illuminating is the commentary to the above section, as it pertains to subsection (a):
(Emphasis added.)
Thus, it is clear that the legislature knew that because the Controlled Substances Act provided its own penalties, none of the provisions of Title 13A, Chapter 5, including the Habitual Felony Offender provisions, would apply to drug offenses. Under a clear reading of the pertinent sections and the commentary thereto, the penalties set out in Title 13A, Chapter 5, are applicable only to "outside" offenses where no particular punishment is specified. See the Commentary to § 13A-5-4:
"To the extent that there are some crimes now found outside former Title 13 which have not been subsumed by the Criminal Code and which are not repealed, it is desirable that they be incorporated into the Criminal Code, at least those which specify no particular punishment." (Emphasis added.)
See also, Dickerson v. State, 414 So.2d 998, 1005 (Ala.Crim.App.1982), where the Court of Criminal Appeals, construing §§ 13A-5-1, -3, and -4, concluded:
The Habitual Felony Offender Act, with its punishment enhancement provisions, is a penal statute, and must be strictly construed, especially in regard to its applicability to felony offenses outside the Criminal Code. A careful reading of the pertinent provisions of Title 13A, Chapter 5, along with the commentary thereto, makes it quite obvious that the legislature did not intend the Habitual Felony Offender Act to apply to felony drug offenses. That legislative intent is made unequivocal by the inclusion of a recidivist statute in the Controlled Substances Act itself, the enhancement provisions of which are plainly applicable to the facts of the present case.
As noted supra, the Court of Criminal Appeals quoted from its decision in Motley v. State, supra. That court also cited three of its other decisions. We conclude, however, that Motley, supra, is not apt authority for applying the Habitual Felony Offender Act to this petitioner. The defendant in Motley was convicted of attempted murder, and he admitted to six prior felony convictions, none of which was a felony drug offense. Therefore, under the applicable provisions of...
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