Norris v. State, 6 Div. 213
Decision Date | 16 March 1990 |
Docket Number | 6 Div. 213 |
Citation | 563 So.2d 47 |
Parties | Jesse NORRIS v. STATE. |
Court | Alabama Court of Criminal Appeals |
Jesse Norris, pro se.
Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.
Jesse Norris filed a A.R.Cr.P.Temp. 20 petition contesting the validity of his 1966 convictions for grand larceny and robbery pursuant to which he was sentenced to imprisonment for a term of ten years and for a term of one year and a day. (It is not specified which sentence applied to which conviction.) Norris's convictions were based on his pleas of guilty. The trial court dismissed Norris's Rule 20 petition without an evidentiary hearing, on its findings that Norris's petition is without merit, is successive (Rule 20.2(b)), and is precluded by the applicable statute of limitations (Rule 20.2(c)).
Norris, in his pro se brief, contends that this ruling was erroneous. We first note that the record offers absolutely no evidence of the instant petition's being successive. 1 However, all grounds raised in Norris's petition, with the exception of one, were foreclosed by the applicable statute of limitations, because Rule 20.2(c) bars any consideration of the grounds specified in Rule 20.1(a) and (f). The exception is the allegation, suggested by Rule 20.1(b), that "[t]he court was without jurisdiction to render judgment or to impose sentence." In support of this ground, Norris alleged the following:
We find no appropriate application of Smith v. State. In Ex parte Jenkins, the court, by petition for writ of error, reviewed the trial court's action, without the intervention of a jury, in adjudging the accused guilty of robbery and imposing a sentence of 15 years' imprisonment. The reviewing court first took note of the following statutes:
Title 14, § 415--"Any person who is convicted of robbery shall be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years."
Title 30, § 70--"At any time before a special venire has been drawn for the trial of any capital case, if the defendant enters a plea of guilty or in writing waives the right of a special venire, such plea of guilty or such waiver of special venire shall be entered of record, and, in either event, no special jury or venire shall be necessary for the trial of such cause; but the trial of the cause shall be had and the question of the degree of guilt must be ascertained and the punishment fixed by a jury to be selected from the panel of regular petit jurors organized by the court during the week such case is set for trial, in the same matter as juries are organized for the trial of felonies not capital; and the state and the defendant shall be allowed the same number of peremptory challenges as they are respectively allowed in the trial of felonies not capital." (Emphasis added.)
Then, the court observed the following:
Id. at 118, 76 So.2d at 858. The reviewing court then reversed on the authority of Ex parte Wesley, 31 Ala.App. 323, 16 So.2d 427 (1944), wherein the lower court, without the intervention of a jury, accepted the accused's guilty plea to first degree manslaughter (without the accused's having waived a jury trial) and sentenced him. The Wesley court found, on reviewing this procedure by petition for writ of error, that "the trial judge transcended his authority in adjudging the defendant guilty, and also in fixing his punishment." Id. at 324, 16 So.2d at 428.
In Houston v. State, 37 Ala.App. 359, 68 So.2d 735 (1953), the judgment entry showed that, upon the appellant's arraignment on the capital offense charge of carnal knowledge of a girl under 12 years of age, he entered a plea of guilty; that he was adjudged guilty by the court; and that he was sentenced to imprisonment for 10 years. All this was done without the intervention of a jury. The court, on direct appeal, held that the case should be reversed for failure to follow Title 14, § 398, requiring that punishment be fixed by a jury and Title 30, § 70, requiring that, in a capital case where a defendant pleads guilty, a trial shall be had and the degree of guilt and punishment should be fixed by a jury. See also Prothro v. State, 370 So.2d 740, 745 (Ala.Cr.App.1979) ( ).
Based upon this authority, it appears that, since robbery was a capital offense in 1966, the trial court usurped the jury's prerogative under the statutes then in effect. The question, thus, becomes whether the actions of the trial court are void, for lack of jurisdiction. The court in Lott v. State, 43 Ala.App. 256, 188 So.2d 285, cert. denied, 279 Ala. 688, 188 So.2d 287 (1966), in reviewing the denial of a petition for writ of error coram nobis wherein the petitioner contested the validity of his sentences for his three robbery convictions pursuant to his pleas of guilty, held that the fact that his punishment was fixed by the court instead of by a jury is a procedural error which cannot be raised in a coram nobis proceeding. The court foreclosed a similar claim in Isbell v. State, 42 Ala.App. 498, 169 So.2d 27 (1964). In Thomas v. State, 40 Ala.App. 697, 122 So.2d 535 (1960), the court reviewed the trial court's striking the petitioner's petition for writ of habeas corpus wherein the petitioner contested the legality of his detention pursuant to sentences for his robbery convictions, which were based upon his pleas of guilty. After recognizing that the conviction of robbery, a capital offense, puts the fixing of punishment with a jury, the court noted that, had this issue been raised by error or appeal, the judgments would have been reversed. The court then continued, as follows:
Id. at 698, 122 So.2d at 536. See also Smith v. State, 23 Ala.App. 72, 72, 121 So. 692, 692 (1929) ( ); Luquire v. State, 42 Ala.App. 652, 177 So.2d 106 (1965) ( ).
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