Ex parte Rice

Citation766 So.2d 143
PartiesEx parte Ray Anthony RICE, Jr. (In re Ray Anthony Rice, Jr. v. State of Alabama).
Decision Date05 November 1999
CourtSupreme Court of Alabama

766 So.2d 143

Ex parte Ray Anthony RICE, Jr.
(In re Ray Anthony Rice, Jr. v. State of Alabama)

1980846.

Supreme Court of Alabama.

November 5, 1999.

Rehearing Denied January 7, 2000.


766 So.2d 144
L. Dan Turberville, Birmingham, for petitioner

Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for respondent.

PER CURIAM.

Ray Anthony Rice, Jr., was indicted for the capital murder of Philip Andrew Taylor. The indictment alleged in one count that the murder was made capital because it occurred during the commission of a kidnapping in the first degree, see Ala. Code 1975, § 13A-5-40(a)(1); in another count the indictment alleged that the murder was made capital because it occurred during the commission of a robbery in the first degree, see § 13A-5-40(a)(2). Rice was ultimately convicted of two counts of

766 So.2d 145
the lesser included offense of felony murder, as defined in § 13A-6-2(a)(3). The jury specifically found Rice guilty of a felony murder committed during a kidnapping and of a felony murder committed during a robbery.1 The trial court, by separate entries on the case action summary, adjudged Rice guilty of two counts of felony murder and sentenced him to life in prison under each count. The court's sentencing order did not specify that the two sentences were to run concurrently; therefore, by operation of law, Rice's sentences were cumulative and to be served consecutively. See Rule 26.12, Ala. R.Crim.P.; McLemore v. State, 562 So.2d 639 (Ala.Crim.App.1989)

Rice appealed to the Court of Criminal Appeals. He argued to that court, among other things, that his conviction and sentence on two counts of felony murder violated his right under the Fifth Amendment to the United States Constitution not to be twice placed in jeopardy for the same offense. Rice specifically argued that the Double Jeopardy Clause barred the trial court from sentencing him twice for what he says was a single offense—murder. The State conceded in its response brief filed in the Court of Criminal Appeals that the two sentences constituted multiple punishments for a single offense, and it agreed that one of the convictions and its corresponding sentence were due to be set aside. However, after the State had filed that brief, and while Rice's appeal was pending, the Court of Criminal Appeals released its opinion in Weaver v. State, 763 So.2d 972 (Ala.Crim.App.1998). The court stated in Weaver:

"Weaver contends he should have been convicted of only one count of felony murder, making the following argument:
"`The trial court committed reversible error by not setting aside one (1) of the felony murder charges, and its lesser included offenses, in this case. There is no dispute that there was only one (1) murder in this case. To impose sentences upon a person for two (2) felony murder convictions for one (1) murder violates the proscription in the Constitution of Alabama of 1901, Article 1, Section 9, against building a series of criminal charges for a single act. It also violates the prohibition contained in the Fifth Amendment of the Constitution of the United States against a citizen's being twice punished for one (1) crime. Vogel v. State, 426 So.2d 863 (Ala.Cr. App.1980), aff'd, 426 So.2d 882 (Ala.), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983). The same prohibitions apply to the lesser included offenses as well, as they are necessary elements of the crime of felony murder.'

"`When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.' § 13A-1-8(b), Ala.Code 1975. Of course, the test for whether the same conduct does indeed establish the commission of more than one offense is well settled:

"`"The Double Jeopardy Clause `protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
"`". . . .
"`"The established test for determining whether two offenses are sufficiently distinguishable to permit the
766 So.2d 146
imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932):
"`"`The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not....'

"`"This test emphasizes the elements of the two crimes. `If each requires proof that the other does not, the Blockburger test would be satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes....' Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975)."'

"Clift v. State, 352 So.2d 838, 839 (Ala. 1977), quoting Brown v. Ohio, 432 U.S. 161, 165-66, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).
"In this case, Weaver was charged with the capital offenses of murder committed during a burglary and murder committed during a robbery. The jury found him guilty of the lesser offenses included within those capital offenses of felony murder committed during a burglary and felony murder committed during a robbery. In applying the Blockburger test, we find, as we have before, that murder during a robbery is not a lesser included offense of murder during a burglary, because each offense required proof of a statutory element that the other did not. Therefore, Weaver was properly indicted for the separate counts of capital murder and was properly convicted and sentenced for the lesser included offenses of felony murder committed during a robbery and felony murder committed during a burglary. Powell v. State, 631 So.2d 289, 292 (Ala.Cr.App.1993)."

763 So.2d at 980-81. The Court of Criminal Appeals, relying on its opinion in Weaver, rejected Rice's double-jeopardy argument and affirmed both of his convictions and life sentences. We granted Rice's petition for certiorari review. For the following reasons, we reverse and remand.

The sole issue on this certiorari review is whether the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred the trial court from sentencing Rice more than once for his violation of § 13A-6-2(a)(3).2

The Double Jeopardy Clause, applicable to the States through the Fourteenth Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."3 In

766 So.2d 147
Brown v. Ohio, 432 U.S. 161, 165-66, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the United States Supreme Court succinctly summarized the protections afforded by the Double Jeopardy Clause
"Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v. Wilson, 420 U.S. 332, 339-340[, 95 S.Ct. 1013, 43 L.Ed.2d 232] (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.
"The Double Jeopardy Clause `protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' North Carolina v. Pearce, 395 U.S. 711, 717[, 89 S.Ct. 2072, 23 L.Ed.2d 656] (1969) (footnotes omitted). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v. United States, 357 U.S. 386[, 78 S.Ct. 1280, 2 L.Ed.2d 1405] (1958); Bell v. United States, 349 U.S. 81[, 75 S.Ct. 620, 99 L.Ed. 905] (1955); Ex parte Lange, [85 U.S. (18 Wall.) 163, 21 L.Ed. 872] (1874). Where successive prosecutions are at stake, the guarantee serves `a constitutional policy of finality for the defendant's benefit.' United States v. Jorn, 400 U.S. 470, 479[, 91 S.Ct. 547, 27 L.Ed.2d 543] (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436[, 90 S.Ct. 1189, 25 L.Ed.2d 469] (1970); cf. United States v. Martin Linen Supply Co., 430 U.S. 564[, 97 S.Ct. 1349, 51 L.Ed.2d 642] (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see Green v. United States, 355 U.S. 184, 187-188[, 78 S.Ct. 221, 2 L.Ed.2d 199] (1957); cf. North Carolina v. Pearce, supra.
"The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304[, 52 S.Ct. 180, 76 L.Ed. 306] (1932):
"`The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional
766 So.2d 148
fact which the other does not....'
This test emphasizes the elements of the two crimes. `If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes....' Iannelli v. United States, 420 U.S. 770, 785 n. 17[, 95 S.Ct. 1284, 43 L.Ed.2d 616] (1975).
"If two offenses are the same under this test for
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