Ex parte Mutrie
Decision Date | 10 September 1993 |
Citation | 658 So.2d 347 |
Parties | Ex parte Pearlie MUTRIE. 1 (Re Pearlie Mutrie v. State). 1920902. |
Court | Alabama Supreme Court |
Emmett O'Neal Griswold, Jr., Samson, for petitioner.
James H. Evans, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for respondent.
Pearlie Mutrie pleaded guilty to unlawful "delivery" of a controlled substance in violation of § 13A-12-211, Ala.Code 1975. The trial court entered a judgment on the plea, and she was sentenced to two years' imprisonment. The trial court enhanced her sentence five years, under § 13A-12-250, Ala.Code 1975--requiring enhancement for the sale of a controlled substance within three miles of a school--and another five years, under § 13A-12-270, Ala.Code 1975--requiring enhancement for the sale of a controlled substance within three miles of a housing project. The Court of Criminal Appeals, without an opinion, affirmed the judgment and sentence on the authority of Burks v. State, 611 So.2d 487, 491 (Ala.Cr.App.1992). 618 So.2d 150. This Court granted Mutrie's certiorari petition to examine the issue of whether §§ 13A-12-250 and -270 mandate enhancement of Mutrie's sentence on conviction for unlawful "delivery" of a controlled substance.
Section 13A-12-250 specifically provides:
"In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was on the campus or within a three-mile radius of the campus boundaries of any public or private school, college, university or other educational institution in this state."
(Emphasis added.) Section 13A-12-270 specifically provides:
"In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was within a three-mile radius of a public housing project owned by a housing authority."
(Emphasis added.)
As stated above, Mutrie pleaded guilty to unlawful delivery of a controlled substance, in violation of § 13A-12-211, which prohibits the unlawful distribution of a controlled substance. Section § 13A-12-211 states: "A person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he sells, furnishes, gives away, manufactures, delivers or distributes a controlled substance enumerated in schedules I through V." (Emphasis added.) Thus, the issue to be resolved by this Court is whether a judgment based upon a plea of guilty to unlawful "delivery" may be enhanced under §§ 13A-12-250 and -270 which provide for enhancement of sentences for convictions of an unlawful sale.
In construing §§ 13A-12-250 and -270, this Court is guided by prior caselaw stating this Court's authority to construe statutes:
Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985) (emphasis added).
Clements v. State, 370 So.2d 723, 725 (Ala.1979) (emphasis added), overruled on other grounds, Beck v. State, 396 So.2d 645 (Ala.1980). Ex parte Evers, 434 So.2d 813, 817 (Ala.1983).
The Court of Criminal Appeals affirmed the enhancement of Mutrie's sentence on the authority of Burks v. State, 611 So.2d 487, 491 (Ala.Cr.App.1992). The Court of Criminal Appeals, in an earlier case, Qualls v. State, 555 So.2d 1158 (Ala.Cr.App.1989), had held that Qualls, 555 So.2d at 1165, quoted in Burks, 611 So.2d at 491. In Burks, the Court of Criminal Appeals, in dicta, 2 stated that §§ 13A-12-250 and -270 applied to all convictions for "drug activity" within the drug-free zone and were not limited to sales of controlled substances. We disagree with this statement.
Applying the well-established principles of judicial construction of criminal statutes, we hold that the clear and unambiguous language of §§ 13A-12-250 and -270 prescribe enhancement only as to those sentences imposed on "person[s] convicted of an unlawful sale of a controlled substance." As stated above, this Court has stated that a defendant is not to be punished under a criminal statute, even though his act may contravene the policy of the statute, if his action "does not come within the words of [the] statute, according to the general and popular understanding of those words"; and that "No person is to be made subject to penal statutes by implication." Clements, 370 So.2d at 725.
In Hill v. State, 348 So.2d 848, 855 (Ala.Cr.App.), cert. denied, 348 So.2d 857 (Ala.1977), the Court of Criminal Appeals held that a defendant cannot be convicted of "selling" marijuana "if his conduct, according to the undisputed evidence, does not afford a reasonable inference that he participated with the seller in making the sale." The fact that the defendant acted as the buyer's agent is not a defense to an indictment under § 13A-12-211 charging the defendant with unlawfully selling, furnishing, giving away, manufacturing, delivering, or distributing a controlled substance. Although the defendant who acts as a procuring agent may not be liable for a "sale," such conduct clearly would support a finding that the defendant violated § 13A-12-211, prohibiting the distribution of a controlled substance, which includes delivering and furnishing. See Harrington v. State, 515 So.2d 53, 54 (Ala.Cr.App.1986) ( ). Because prior caselaw has established that a defendant who acts as the buyer's agent (also known as a "procuring agent") is not guilty of unlawfully "selling" a controlled substance, and because the clear language of §§ 13A-12-250 and -270 applies only to convictions for unlawful "sale," a conviction for unlawful distribution is enhanceable only if the defendant's activity constituted a sale, and not if the defendant acted as the agent of the buyer.
Therefore, we hold that §§ 13A-12-250 and -270, prescribing a five-year enhancement of sentences for persons convicted of an unlawful sale of a controlled substance within three miles of a school and within three miles of a housing project, do not apply to convictions for "distribution" of a controlled substance, in violation of § 13A-12-211, unless the defendant is found to have sold, or to have collaborated or associated with the seller to sell, a controlled substance. Therefore, we remand this case to the Court of Criminal Appeals for further proceedings in accordance with this opinion.
REMANDED *.
I concur in the holding that the enhancement provisions of §§ 13A-12-250 and 13A-12-270 apply only to " 'person[s] convicted of an unlawful sale of a controlled substance," 658 So.2d at 348, but if the petitioner's activity in this case was sufficient to constitute a "sale" within the meaning of § 13A-12-211, 3 as the term "sale" is broadly defined by the Court of Criminal Appeals in Burks v. State, 611 So.2d 487 (Ala.1993), then the trial court was authorized to enhance the defendant's sentence. I concur only to remand the case to the Court of Criminal Appeals, for that court to determine whether the activity that this defendant engaged in was a "sale," as that...
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