Gray v. State
Decision Date | 03 February 2006 |
Docket Number | CR-05-0047. |
Citation | 939 So.2d 962 |
Parties | Julius LaRosa GRAY v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
Julius LaRosa Gray, pro se.
Troy King, atty. gen., and Hense R. Ellis, II, asst. atty. gen., for appellee.
Julius LaRosa Gray appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked the revocation of his probation.
In December 2003 Gray pleaded guilty to third-degree robbery and was sentenced to 15 years' imprisonment; the sentence was split, and he was ordered to serve 90 days in confinement followed by 3 years' probation. In March 2004, Gray's probation officer filed a delinquency report, and Gray "confessed revocation" and was ordered to serve six months in confinement. (C. 4.) Gray's probation officer filed another delinquency report in October 2004 and a supplemental delinquency report in November 2004. After taking testimony, the trial court determined that Gray had violated the terms and conditions of his probation, and on November 17, 2004, it revoked Gray's probation and ordered Gray to serve five years' imprisonment. The trial court credited Gray with 7 months and 19 days of confinement, thus leaving Gray with over 4 years of confinement to serve upon revocation. Gray did not appeal the November 2004 revocation of his probation.
Gray filed his Rule 32 petition on July 14, 2005.1 In his petition, Gray alleged that the trial court lacked jurisdiction to order him to serve five years in prison upon the revocation of his probation in November 2004 and that that sentence exceeded the maximum authorized by law pursuant to § 15-18-8, Ala.Code 1975.2 After receiving a response from the State, the circuit court summarily denied the petition on August 18, 2005.
Initially, we note that Gray contends for the first time on appeal that only the sentencing judge or presiding judge of the circuit has jurisdiction to rule on a Rule 32 petition and that the circuit judge who ruled on his Rule 32 petition was neither the sentencing judge nor the presiding judge of the circuit and thus lacked jurisdiction to deny his petition. Although only the sentencing judge or the presiding judge of a circuit has jurisdiction to review a motion for resentencing filed pursuant to § 13A-5-9.1, Ala.Code 1975, see Holt v. State, [Ms. CR-04-1250, December 23, 2005]* (Ala.Crim.App.2005), and the cases cited therein, nothing in Rule 32 deprives a circuit judge who is not the sentencing judge or presiding judge of jurisdiction to review a Rule 32 petition. To the contrary, Rule 32.6(d) provides that a Rule 32 petition "shall be assigned to the sentencing judge where possible, but for good cause the proceeding may be assigned or transferred to another judge." (Emphasis added.) Thus, Rule 32.6(d) allows for a Rule 32 petition to be assigned to a judge other than the sentencing or presiding judge, and Gray's argument to the contrary is meritless.
The State concedes, and we agree, that Gray is entitled to relief on his illegal-sentence claim because the total period of confinement imposed by the trial court exceeded the maximum period of confinement allowed for a sentence of 15 years or less under § 15-18-8. At the time of Gray's probation revocation, § 15-18-8(a)(1) provided, in pertinent part:3
(Emphasis added.) Section 15-22-54(d)(2), Ala.Code 1975, provides that "[if] the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence." Thus, "a circuit court has the authority to split a defendant's sentence after it revokes the defendant's probation." Dixon v. State, 912 So.2d 292, 297 (Ala.Crim.App.2005). However, if the court chooses to split a sentence upon revocation, the total length of the confinement portion of the split sentence may not exceed the maximum allowed by § 15-18-8. See, e.g., Phillips v. State, 755 So.2d 63, 65 n. 3 (Ala.Crim.App.1999), and Havis v. State, 710 So.2d 527, 528 (Ala.Crim.App. 1997).
In Phillips v. State, 932 So.2d 165 (Ala. Crim.App.2005), this Court addressed an issue similar to the issue presented here:
932 So.2d at 167 (footnote omitted).
Here, the five-year period of confinement imposed on Gray upon revocation of his probation exceeded the maximum three-year period of confinement allowed by § 15-18-8 and, although the court credited Gray with 7 months and 19 days of confinement, it appears that Gray had actually served 9 months in confinement (3 months of confinement imposed at the original sentencing and 6 months of confinement imposed upon the first revocation of Gray's probation), and the sentence still left Gray with over 4 years of confinement to serve. Thus, the additional five years of confinement imposed upon revocation of Gray's probation resulted in an illegal sentence, and Gray is entitled to be resentenced.4
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Brand v. State
...that results in a total period of confinement exceeding the maximum as stated in § 15–18–8(a)(1) is illegal. See, e.g., Gray v. State, 939 So.2d 962 (Ala.Crim.App.2006); Phillips v. State, 932 So.2d 165 (Ala.Crim.App.2005); Dixon v. State, 912 So.2d 292 (Ala.Crim.App.2005); Moore v. State, ......
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Brand v. State
...that results in a total period of confinementexceeding the maximum as stated in § 15-18-8(a)(1) is illegal. See, e.g., Gray v. State, 939 So. 2d 962 (Ala. Crim. App. 2006); Phillips v. State, 932 So. 2d 165 (Ala. Crim. App. 2005); Dixon v. State, 912 So. 2d 292 (Ala. Crim. App. 2005); Moore......