Ex parte Thomas
| Decision Date | 05 February 1982 |
| Citation | 435 So.2d 1324 |
| Parties | Ex parte: Rickey Joe THOMAS. (In re: Rickey Joe Thomas v. State of Alabama). 81-21. |
| Court | Alabama Supreme Court |
Robert G. Wilson of Scruggs & Wilson, Fort Payne, for petitioner.
Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
Rickey Joe Thomas was convicted of third degree burglary in February of 1981. Prior to sentencing, the State gave notice that it sought to have Thomas sentenced as a habitual offender, pursuant to Code 1975, § 13A-5-9 (Habitual Offender Act), and, at sentencing, introduced evidence of one previous felony conviction of 2nd degree burglary and one previous "youthful offender" adjudication, both of which were admitted by the trial court. The trial court sentenced Thomas to ten years in the state penitentiary, but did not indicate the basis for its determination of the term of the sentence imposed. The Court of Criminal Appeals affirmed and this Court granted the petition for writ of certiorari.
On appeal, Thomas contends that the sentence imposed by the trial court was erroneous because it was based upon the court's erroneous admission and consideration of his prior adjudication as a youthful offender in sentencing him under the Habitual Offender Act.
Section 13A-5-9, commonly referred to as the Habitual Offender Act, provides, in part:
The Youthful Offender Act ( § 15-19-1, et seq.) provides that a minor 1 charged with certain crimes may be adjudged a youthful offender and, as such, not be subject to trial for those crimes as an adult.
Thomas specifically calls this Court's attention to that portion of § 15-19-7, which states that a youthful offender determination "shall not be deemed a conviction of a crime." He charges that after admitting the State's proffered evidence of his youthful offender adjudication, the trial court used that youthful offender determination as a previous felony conviction, as contemplated by the Habitual Offender Act, and erroneously sentenced him under subsection (b)(1) of § 13A-5-9 to ten years in the state penitentiary.
The State concedes that the ten-year sentence falls within the 10-99 year range of subsection (b)(1) (), but points out that a ten-year sentence is also permissible under the subsection (a)(1) (conviction of a Class C felony with one previous felony conviction) range of 2-20 years. Furthermore, we note that the possible sentence for a conviction for third degree burglary, notwithstanding the Habitual Offender Act, is 1-10 years in the state penitentiary.
The peculiar circumstances of the instant case could lend support to a finding that Thomas's ten-year sentence was imposed under any of the three alternatives discussed above. We agree, however, with the dissent filed by Judge Bowen, who wrote: ...
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