Moore v. State

• Decision Date: 21 January 1975
• Docket Number: 3 Div. 298
• Citation: 54 Ala.App. 463,309 So.2d 500
• Parties: Clarence MOORE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 500

309 So.2d 500

54 Ala.App. 463

Clarence MOORE v. STATE.

3 Div. 298.

Court of Criminal Appeals of Alabama.

Jan. 21, 1975.

On Motion March 4, 1975.

Elno A. Smith, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State, appellee.

CLARK, Supernumerary Circuit Judge.

Appellant was indicted for possession of heroin, contrary to the provisions of 'Act 1407, Section 401(a), Regular Session of the Legislature of Alabama, 1971,' now found as Tit. 22, § 258(47), Code of Alabama Recompiled, 1973 Cumulative Supplement. After some preliminary motions of defendant were overruled, which rulings of the court are not questioned on this appeal and which we deem appropriate, defendant first entered a plea of not guilty. He thereafter withdrew his plea of not guilty and entered a guilty plea. The trial court adjudged him guilty as charged in the indictment and sentenced him to imprisonment in the penitentiary for a term of seven years. In the process, defendant requested probation, which request was denied after an investigation and report by the supervisor of the State Probation and Parole Office.

Defendant filed a motion 'for a new trial or a hearing,' alleging that the sentence was excessive and that it was based upon inaccurate information and hearsay testimony contained in the pre-sentence report. The contentions in appellant's brief include in substance those stated in the motion for new trial and the additional contention 'That the court erred in precluding the defendant or his counsel from inspecting the pre-sentencing report in this case.'

Where a sentence is within statutory limits, as here, the appellate courts do not have revisory powers as to the severity of the sentence. Scott v. State, 247 Ala. 62, 22 So.2d 529; Philpot v. State, 43 Ala.App. 326, 190 So.2d 293.

On the hearing of the motion for a new trial, testimony was presented by defendant that while the probation and parole officer who compiled the pre-sentence report was making his investigation, said officer was given some incorrect derogatory information concerning defendant. There was no showing that such information was ever communicated to the trial court. The pre-sentence report does not contain such erroneous information. The claim or implication that this information came to the attention of the trial judge and that he was influenced thereby is not supported by any of the record.

Title 42, § 23, Code of Alabama provides:

'A probation officer shall investigate all cases referred to him for investigation by any court or by the board and shall report in writing thereon. . . . And provided, however, that in no case shall the right to inspect said report be denied the defendant or his counsel after said report has been completed or filed.'

The record does not show any violation of the quoted provision of the statute in that it fails to show that either defendant or his counsel was denied the right to inspect the report.

Pursuant to our duty under Title 15, § 389, Code of Alabama, we have considered the entire record to determine whether it contains any error prejudicial to defendant even though not complained of on appeal. We find that in informing the defendant as to the maximum and minimum sentence that could be imposed upon him, the court stated that the Maximum is imprisonment for twenty years and the minimum is imprisonment for two years. According to the section of the statute under which he was indicted, Title 22, § 258(47), Code of Alabama, 1973 Cumulative Supplement, a violation is punishable by imprisonment for not less than 2 Nor more than 15 years. We have in mind the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, as applied in subsequent cases, particularly Carter v. State, 291 Ala. 83, 85, 277 So.2d 896, 897, as follows:

'Subsequent to Boykin, supra, it has become established that the defendant must be informed of maximum and minimum possible sentences as an absolute constitutional prerequisite to acceptance of a guilty plea. Jones v. State, 48 Ala.App. 32, 261 So.2d 451 (1972); Spidell v. State, 48 Ala.App. 24, 261 So.2d 443 (1972); People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550 (1972); People v. Buck, 7 Ill.App.3d 758, 288 N.E.2d 548 (1972); United States ex rel. Hill v. United States, 452 F.2d 664 (5th Cir. 1971); Cooper v. State, 47 Ala.App. 178, 252 So.2d 104 (1971).'

Any argument that it can be inferred from the record that defendant knew the 'penalties involved' is answered also by Carter, supra, wherein it was further stated:

'In light of this background, the precise issue in this case is whether the defendant's statement that he knew the 'penalties involved' is effective when the exact nature of those penalties (2--10 years in the penitentiary) was not stated on the face of the record.

'We think appellant's argument is well taken. The 'utmost solicitude' required by Boykin, supra, requires a showing not only that the defendant believed he knew the range of punishment, but that his belief was accurate. . . .

'We hold that a defendant, prior to pleading guilty, must be advised on the record of the maximum and minimum potential punishment for his crime.

'Appellee argues that the judgment entry shows that the defendant understood the 'range of the sentence.' This entry clearly refers to the answer of the defendant that he understood the 'Penalties involved,' discussed supra, and is no evidence of any further explanation of rights in the case.'

Even if it could be correctly said at times that an inaccuracy as to the maximum or minimum potential punishment is so slight as to call for an application of the principle of De minimis non curat lex, this is not such a case. Nor can it be logically claimed that defendant was not injured by the mistake in view of the imposition of punishment well within the statutory maximum. Implicit in the reason for the requirement of compliance with Boykin, supra, as to apprising defendant of the maximum punishment is the necessity for affording him an opportunity to give adequate consideration to the possible extremity of the consequence if he pleads not guilty, as well as if he pleads guilty, so that he can determine voluntarily and intelligently whether he is willing to take the risk of such punishment by a trial on a plea of not guilty. We cannot say that defendant's failure to know that the maximum sentence that could...