Hugley v. State
Decision Date | 11 April 1991 |
Court | Alabama Court of Criminal Appeals |
Parties | Donnie HUGLEY v. STATE. CR 90-93. |
Margaret Y. Brown, Auburn, for appellant.
Don Siegelman, Atty. Gen., and Norbert H. Williams, Asst. Atty. Gen., for the State.
Donnie Hugley, the appellant, was convicted of theft of property in the first degree, Ala.Code 1975, § 13A-8-3(b), and was sentenced to life imprisonment as a habitual felony offender. He raises two issues on this appeal from that conviction.
The appellant argues that he was improperly sentenced.
On April 11, 1990, immediately after the jury returned its verdict, the trial court adjudged the appellant guilty and, without any advance notice, sentenced him to life imprisonment as a habitual felony offender upon the prosecutor's representation that the appellant had four prior felony convictions. The trial court then stated:
On May 2, 1990, the trial court sent the appellant notice of the prior convictions upon which the State intended to proceed under the Habitual Felony Offender Act. The appellant was returned from the state penitentiary and a sentencing hearing was held on May 23, 1990. The trial court began that sentencing hearing with the following statement:
The State presented evidence that the appellant had four prior felony convictions. However, the trial court found that only one of those prior convictions could be considered under the Alabama Habitual Felony Offender Act. The appellant was sentenced to life imprisonment as a habitual felony offender with one prior felony conviction.
The appellant now contends that he was improperly sentenced on April 11, 1990, and that the initial sentencing "tainted" his resentencing on May 23, 1990. The record contains no objection specifically raising these issues in the trial court. However, upon the initial sentencing, defense counsel did "object to anything [prior conviction, the assistant district attorney] does not have substantiated at this time." The rule is that "when a sentence is clearly illegal or is clearly not authorized by statute, the defendant does not need to object at the trial level in order to preserve that issue for appellate review." Ex parte Brannon, 547 So.2d 68 (Ala.1989). Furthermore, it is clear that the trial court understood the appellant's objection to the use of the "unsubstantiated" prior felony convictions at the time of original sentencing. See Ex parte Harmon, 543 So.2d 716, 717 (Ala.1988).
Although we sympathize with the plight of the trial court, it is clear that reversible error has been committed.
In Ex parte Glover, 508 So.2d 218, 219 (Ala.1987), the trial court sentenced the defendant immediately after the jury's verdict of guilty, before the defendant had received any notice of his prior convictions, and without giving defense counsel the opportunity to file a written request for a presentence investigation. The Alabama Supreme Court held: "That the trial court erred in proceeding with the sentencing phase of the trial immediately after the jury's verdict of conviction is so clear as to merit but little, if any, discussion." Ex parte Glover, 508 So.2d 218, 219 (Ala.1987).
Glover, 508 So.2d at 221. In Ex parte Williams, 510 So.2d 135, 136 (Ala.1987), the Court stated:
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