Hardy v. State
| Decision Date | 21 September 1990 |
| Citation | 570 So.2d 871 |
| Parties | Sherman HARDY v. STATE. CR 89-452. |
| Court | Alabama Court of Criminal Appeals |
Clyde E. Jones, Birmingham, for appellant.
Don Siegelman, Atty. Gen., and Norbert H. Williams, Asst. Atty. Gen., for appellee.
Sherman Hardy was indicted for the unlawful distribution of a controlled substance in violation of Ala.Code 1975, § 13A-12-211. He entered a "blind plea" of guilty to this charge and was subsequently sentenced to seven years' imprisonment. Of this sentence, five years with no probation was imposed pursuant to the "schoolyard enhancement" provision of Ala.Code 1975, § 13A-12-250. Three issues are raised in this appeal. Because we must remand this cause for a factual determination by the trial judge on one issue, we pretermit discussion of the remaining issues at this time.
Hardy contends that the trial court erred in applying Ala.Code 1975, § 13A-12-250, in determining his sentence. Section 13A-12-250 originally appeared as § 20-2-79, which provided:
"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 one-mile radius of the campus boundaries of any public or private school, college, university or other educational institution in this state."
Section 20-2-79 was transferred to § 13A-12-250, effective September 30, 1988. 1988 Ala. Acts 512, No. 88-918, § 2. Section § 13A-12-250 was subsequently amended and now mandates enhanced punishment for those who are convicted of selling controlled substances within a three-mile radius of a school. 1989 Ala.Acts 1872, No. 89-950, § 1. The three-mile radius amendment became effective on May 19, 1989. Spinks v. State, 564 So.2d 1043, 1047 (Ala.Cr.App.1990); Qualls v. State, 555 So.2d 1158, 1164-65 (Ala.Cr.App.1989). In Harrison v. State, 560 So.2d 1124, 1128 (Ala.Cr.App.1989), this Court upheld the constitutionality of the one-mile radius statute originally contained in § 20-2-79 and § 13A-12-250.
The record does not show when the instant offense occurred. However, Hardy was indicted in March 1989. Although Hardy pleaded guilty and was sentenced after the effective date of the three-mile radius amendment, it is apparent that the offense was committed while the one-mile radius statute was in effect, either under § 20-2-79 or as originally transferred to § 13A-12-250. Unless the statute contains a clear expression to the contrary, the law in effect at the time of the commission of the offense "govern[s] the offense, the offender, and all proceedings incident thereto." Bracewell v. State, 401 So.2d 123, 124 (Ala.1979), cert. denied, 469 U.S. 980, 105 S.Ct. 382, 83 L.Ed.2d 318 (1984). See also, Spinks v. State, 564 So.2d at 1047-48 ().
However, the record is unclear as to which version of the enhancement statute (one-mile radius or three-mile radius) the trial court applied in sentencing Hardy. The record contains no transcript of the actual proceedings at sentencing. The record does not show that Hardy committed the offense within a one-mile radius of a school. If he was not within a one-mile radius, the enhancement provision, as then in effect, would not apply. Therefore, we remand this cause to the circuit court for a determination of...
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...in 1993 before the burglary statute was amended in 2006. Ware was charged under the pre-amended version of the statute. Hardy v. State, 570 So.2d 871 (Ala.Crim.App.1990) (unless otherwise stated in the statute, the law in effect at the time the offense was committed controls the offense).2 ......
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McFadden V. State Of Ala. Appeal From Baldwin Circuit Court (CC-05-1848), CR-07-1923
...(noting that "the law in effect at the time of the commission of the offense controls the prosecution"); see also Hardy v. State, 570 So. 2d 871 (Ala. Crim. App. 1990) (noting that, unless otherwise stated in the statute, the law in effect at the time the offense was committed controls the ......
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