Humber v. State
| Decision Date | 26 November 1985 |
| Docket Number | 4 Div. 507 |
| Citation | 481 So.2d 452 |
| Parties | Phillip DeWayne HUMBER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Robert P. Lane for Phillips & Funderburk, Phenix City, for appellant.
Charles A. Graddick, Atty. Gen. and Beatrice E. Oliver, Asst. Atty. Gen., for appellee.
Phillip DeWayne Humber was indicted on two counts of burglary in the third degree. At arraignment he pleaded not guilty, but later a plea bargain agreement was reached and appellant changed his plea to guilty. He was sentenced, under the Habitual Felony Offender Act, to ten years imprisonment on each count, sentences to run concurrently.
The appellant contends that he was not given sufficient advance notice, as required by Alabama Temporary Rules of Criminal Procedure 6(b)(3)(ii), that he would be sentenced under the Habitual Felony Offender Act. The appellant was told that he would be sentenced as a habitual offender one day before his sentence hearing. This court has previously held that two days' advance notice is reasonable. Gratton v. State, 455 So.2d 189 (Ala.Cr.App.1984); Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981). We are unwilling to set a minimum time for such notice, preferring to leave the determination of "reasonableness" to the discretion of the judge on the scene, who is familiar with the circumstances of the case. Moreover, the appellant admitted to his convictions at trial. "Where an accused admits the prior convictions at trial, there is no legal requirement for notice." Fisher v. State, 453 So.2d 2, 3 (Ala.Cr.App.1984).
The appellant also alleges that the trial court erred in ordering him to pay restitution, arguing that the "Plea Recommendation and Restitution Agreement" did not mention restitution. Article 4A of Title 15, Code 1975, relating to restitution, sets out the policy of the state and mandates restitution hearings and restitution orders. While it is possible for the district attorney and the defense counsel to agree to an amount of restitution as part of the sentencing agreement, it is not mandatory that they do so. Even if they do so agree, the court is not bound to accept the agreement. They cannot, however, get around the requirements of § 15-18-67, et. seq. by simply omitting to agree on any amount as restitution.
The appellant also contends that the state failed to establish the value of the stolen property and that no hearing was held on the issue. Rule 10(a)(5), Alabama Temporary Rules of Criminal Procedure, does not require the court to conduct a hearing to determine the amount of restitution unless the proposed amount is in dispute. Here, the appellant, when asked by the trial judge whether he wished to dispute the amount of money owed as restitution, answered in the negative.
The appellant next contends that his guilty plea was not intelligently and voluntarily made, as is required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). "The record must affirmatively show the colloquy between the court and the defendant wherein the defendant is shown to have full understanding of what the plea of guilty connotes and its consequences." Walcott v. State, 48 Ala.App. 754, 263 So.2d 177 (Ala.Cr.App.), 288 Ala. 546, 547, 263 So.2d 178 (Ala.1972). This colloquy may be supplemented, however, by a validly executed Ireland 1 form if the trial court ascertains, on the record, that the accused has read and understood the rights enumerated in that form. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974); Cashin v. State, 428 So.2d 179 (Ala.Cr.App.1982); McNalley...
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State v. Adams
...of the federal constitution. Many have rejected such a suggestion, either expressly or by implication. See, e.g., Humber v. State, 481 So.2d 452, 454 (Ala.Crim.App.1985); State v. Kennedy, 327 N.W.2d 3, 5 Moreover, federal courts clearly do not adhere to the proposition that a Phillips rule......
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Garth v. State
...to show a flaw in a presentence report is a matter which is left to the discretion of the trial judge. See Humber v. State, 481 So.2d 452, 453 (Ala.Cr.App.1985). Additionally, there has been no showing of any mitigating factors which appellant might introduce at yet another sentencing heari......
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Welcher v. State
...the burden of initiating an inquiry with respect to the criteria set out in § 15-18-68, Code of Alabama 1975. See Humber v. State, 481 So.2d 452 (Ala.Crim.App.1985). Cf. Henry v. State, 468 So.2d 896 (Ala.Crim.App.1984), writ denied, 468 So.2d 902 (Ala.1985). Indeed, the language of § 15-18......
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Jolly v. State
... ... As instructions to the trial court, we adopt the following: ... "[T]his case is remanded to the trial court with instructions that, unless the parties agree upon the amount of restitution, see Humber v. State, 481 So.2d 452, 453 (Ala.Cr.App.1985), an evidentiary hearing shall be conducted at which the State is given the opportunity to prove, by legal evidence and by a preponderance of the evidence, the amount of restitution. The appellant, in addition to his counsel, has a right to be present ... ...