Ex parte Glover

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM; All the Justices concur except TORBERT
Citation508 So.2d 218
PartiesEx parte Stanley GLOVER. (Re: Stanley Glover v. State of Alabama). 85-1384.
Decision Date06 February 1987

Page 218

508 So.2d 218
Ex parte Stanley GLOVER.
(Re: Stanley Glover
v.
State of Alabama).
85-1384.
Supreme Court of Alabama.
Feb. 6, 1987.

Page 219

Linda S. Perry, Mobile, for petitioner.

Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for respondent.

PER CURIAM.

The Court of Criminal Appeals, 492 So.2d 671, summarily (with no opinion) affirmed Petitioner's conviction of third degree burglary and his sentence of 20 years' imprisonment. 1 Pursuant to Rule 39(k), A.R.A.P., we granted certiorari to review two issues relating to the sentence: 1) Whether the trial court erred in not granting Petitioner's oral request for a pre-sentence investigation and report; and 2) whether the trial court erred in its application of the Habitual Offender Act. Although we find error as to the first issue, we do not find reversible error as to that issue. On the second issue, we reverse the sentence because it was improperly enhanced by the application of the Habitual Felony Offender Act.

Without any prior notice, the trial court proceeded immediately upon return of the jury verdict to pronounce sentence. Thereupon, defense counsel orally requested a pre-sentence investigation and report. This motion was summarily denied; the trial court again proceeded to inquire of the defendant whether he had anything to say as to why he should not be sentenced forthwith. Again, defense counsel moved the court for "one moment" to prepare a written motion for a pre-sentence investigation in compliance with Rule 6, Temporary Alabama Rules of Criminal Procedure.

We quote directly from the record:

"MR. RATCLIFFE: Judge, we request a pre-sentence investigation. One thing I need to do is check with the judge's court reporter on that '79 case and see if she has any record of that.

"THE COURT: You may address that issue on a motion for new trial. If you determine that you have evidence then I may reconsider the sentence at that time. The man is an habitual offender. The court records reflect that he is. Do you have anything to say as to why the sentence of law should not now be passed upon you?

"MR. RATCLIFFE: Judge, if you would give me one moment I'll give you a written request for a pre-sentence investigation.

THE COURT: I'm not handling a written request at this time. Your oral request is denied."

That the trial court erred in proceeding with the sentencing phase of the trial immediately after the jury's verdict of conviction is so clear as to merit but little, if any, discussion. The trial court's denial of defense counsel's request for "a moment" to present a written request for a pre-sentence report can hardly be excused as a discretionary ruling. To hold such a ruling to be within the court's discretion would be tantamount to requiring defense counsel to have a written motion for a pre-sentence investigation and report ready for immediate presentation to the court in the event the jury returned a verdict of conviction. No citation of authority is required to support the proposition that the law imposes no duty upon trial counsel, under these circumstances, to anticipate an unsuccessful defense of his client. Our holding of error, therefore, is not based upon an abuse of discretion, but upon the

Page 220

convicted defendant's right, as a matter of law, to be given a reasonable opportunity to present in writing his motion for a pre-sentence report.

Yet,...

To continue reading

Request your trial
23 practice notes
  • Webb v. State, 3 Div. 329
    • United States
    • Alabama Court of Criminal Appeals
    • April 28, 1987
    ...statute when the State, for impeachment purposes, introduced evidence of a prior felony allegedly committed by him." Ex parte Glover, 508 So.2d 218 Although pre-trial notice of the State's intent to proceed under the habitual offender act is neither required by the constitution, see Oyler v......
  • Nichols v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 7, 1993
    ...the [HFOA]." Id. (Emphasis added.) 5 On the same date that it decided Williams, the Alabama Supreme Court also decided Ex parte Glover, 508 So.2d 218 (Ala.1987). In Glover, the trial court, "[w]ithout any prior Page 56 notice" and "summarily den[ying]" defense counsel's request for a "pre-s......
  • Pardue v. State, 3 Div. 997
    • United States
    • Alabama Court of Criminal Appeals
    • September 29, 1989
    ...did not give the defendant notice of the Baldwin conviction, its proof of that conviction is unavailing. Pursuant to Ex parte Glover, 508 So.2d 218 (Ala.1987), and Ex parte Williams, 510 So.2d 135 (Ala.1987), the defendant's Baldwin Page 332 Circuit Court conviction may not be considered on......
  • Christianson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 12, 1992
    ...as an habitual offender. Pro Se Brief of Appellant at 2. That was the only notice to which he was Page 517 entitled. See Ex parte Glover, 508 So.2d 218 (Ala.1987). There is no requirement that an accused be informed, prior to trial, that he will be sentenced pursuant to the Habitual Felony ......
  • Request a trial to view additional results
23 cases
  • Webb v. State, 3 Div. 329
    • United States
    • Alabama Court of Criminal Appeals
    • April 28, 1987
    ...statute when the State, for impeachment purposes, introduced evidence of a prior felony allegedly committed by him." Ex parte Glover, 508 So.2d 218 Although pre-trial notice of the State's intent to proceed under the habitual offender act is neither required by the constitution, see Oyler v......
  • Nichols v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 7, 1993
    ...the [HFOA]." Id. (Emphasis added.) 5 On the same date that it decided Williams, the Alabama Supreme Court also decided Ex parte Glover, 508 So.2d 218 (Ala.1987). In Glover, the trial court, "[w]ithout any prior Page 56 notice" and "summarily den[ying]" defense counsel's request for a "pre-s......
  • Pardue v. State, 3 Div. 997
    • United States
    • Alabama Court of Criminal Appeals
    • September 29, 1989
    ...did not give the defendant notice of the Baldwin conviction, its proof of that conviction is unavailing. Pursuant to Ex parte Glover, 508 So.2d 218 (Ala.1987), and Ex parte Williams, 510 So.2d 135 (Ala.1987), the defendant's Baldwin Page 332 Circuit Court conviction may not be considered on......
  • Christianson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 12, 1992
    ...as an habitual offender. Pro Se Brief of Appellant at 2. That was the only notice to which he was Page 517 entitled. See Ex parte Glover, 508 So.2d 218 (Ala.1987). There is no requirement that an accused be informed, prior to trial, that he will be sentenced pursuant to the Habitual Felony ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT