Ex parte Glover
| Decision Date | 06 February 1987 |
| Citation | 508 So.2d 218 |
| Parties | Ex parte Stanley GLOVER. (Re: Stanley Glover v. State of Alabama). 85-1384. |
| Court | Alabama Supreme Court |
Linda S. Perry, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for respondent.
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:
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 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, despite our unequivocal holding that the trial court erred in its denial of that opportunity, we nonetheless decline to reverse on that ground. The trial court left open to the defendant the post-trial opportunity to request reconsideration in the event he wished to present matters in mitigation of the sentence.
Defendant contends that any further opportunity was restricted to his refuting the prior felony conviction offered by the State for impeachment during the guilt phase of the trial. We disagree. Defendant was free to make any showing he wished, bearing upon any material factors for the trial court's consideration in passing sentence. Without some showing of mitigating circumstances, we are unable to pass upon the materiality or practical worth of ordering a new sentencing hearing. Rule 45, A.R.A.P.
The harmless error rule finds its legitimate expression in the context of an absence of any showing that the aggrieved party is prepared to materially affect the outcome upon remand of the cause. For example, a litigant whose propounded question to a witness is precluded by an erroneous ruling is entitled to a reversal only upon an offer of proof of material evidence. It is not enough that the question calls for admissible evidence and thus that the ruling precluding an answer is error. The reviewing court will not reverse unless either the answer, containing material evidence, is apparent or the appealing party places upon the record an offer of proof of such evidence. Otherwise, the reviewing court will apply the harmless error rule, rather than speculate upon the materiality of the witness's answer. See Davis v. Davis, 474 So.2d 654 (Ala.1985). In like manner, we apply the harmless error rule to the instant situation.
We are aware, of course, that, ordinarily, a post-trial motion is not a prerequisite to an appeal in a criminal case; but, under these circumstances, a motion to reconsider the judgment of sentence was a...
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Webb v. State
...statute when the State, for impeachment purposes, introduced evidence of a prior felony allegedly committed by him." Ex parte Glover, 508 So.2d 218 (Ala.1987). A defendant cannot waive a right of which he is unaware and which comes into play at a proceeding of which he has not been informed......
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