Griggs v. State
Decision Date | 20 December 2006 |
Docket Number | CR-06-0002. |
Citation | 980 So.2d 1031 |
Parties | Arthur Lee GRIGGS v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
Arthur Lee Griggs, pro se.
Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
On June 1, 1983, the appellant, Arthur Lee Griggs, pled guilty to unlawful possession of pentazocine and/or meprobamate. The trial court sentenced him to serve a term of twenty years in prison. He did not appeal his conviction. On March 18, 2004, the appellant filed a Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily denied the petition. This appeal followed.
The appellant argues that § 20-2-70, Ala.Code 1975, is unconstitutional. However, this claim is a nonjurisdictional claim that is precluded because he could have raised it at trial and on appeal, but did not, and because it is time-barred. See Rules 32.2(a)(3), (a)(5), and (c), Ala. R.Crim. P.
The appellant also argues that his sentence exceeds the maximum authorized by law because he was allegedly improperly sentenced as a habitual offender. Specifically, he contends that he was convicted pursuant to the Controlled Substances Act, § 20-2-1 et seq., Ala.Code 1975, and that the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, does not apply to convictions under the Controlled Substances Act. The case action summary sheet and the transcript of record in this case indicate that the appellant was sentenced "under Habitual Offender Act." (C.R. 2, 31.) However, in Ex parte Chambers, 522 So.2d 313, 316 (Ala.1987), the Alabama Supreme Court held:
(Footnote omitted.) Thus, the appellant should not have been sentenced as a habitual offender pursuant to the Habitual Felony Offender Act.
Also, § 20-2-70(a), Ala.Code 1975, pursuant to which the appellant pled guilty, provided, in pertinent part:
"Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony and, upon conviction, for the first offense may be imprisoned for not less than two nor more than 15 years and, in addition, may be fined not more than $25,000.00; provided, that any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and, upon conviction of the offense, shall be imprisoned in the county jail for not more than one year, and in addition, shall be fined not more than $1,000.00; provided further, that the penalties for the subsequent offenses relating to possession of marihuana shall be the same as specified in the first sentence of this subsection."
Section 20-2-76, Ala.Code 1975, provided, in pertinent part:
Thus, if the appellant did not have any prior convictions for violations of the Controlled Substances Act, he should have been sentenced pursuant to § 20-2-70, Ala.Code 1975, rather than pursuant to the recidivist provisions set forth in § 20-2-76, Ala.Code 1975. Under § 20-2-70, Ala. Code 1975, the proper range of punishment was not less than two nor more than fifteen years in prison. If this section applied, the appellant's sentence of twenty years in prison is excessive.
Finally, in Kidd v. State, 398 So.2d 349, 351 (Ala.Crim.App.1981), we noted:
"It is reasonably clear from Napier [v. State, 344 So.2d 1235 (Ala.Crim.App. 1977)], and from Funches v. State, 56 Ala.App. 22, 318 So.2d 762, cert. denied, 294 Ala. 757, 318 So.2d 768 (1975), that when the State wishes to bring a defendant under the ambit of § 20-2-76 the prior conviction must be alleged...
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