Petty v. State, 7 Div. 922
| Decision Date | 18 May 1982 |
| Docket Number | 7 Div. 922 |
| Citation | 414 So.2d 182 |
| Parties | James PETTY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Myron K. Allenstein, Gadsden, for appellant.
Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appellee.
The defendant was indicted for attempted robbery in the first degree. Sentence was twelve years' imprisonment. This case is reversed and the cause remanded because the indictment did not charge any offense.
This indictment charges that the defendant violated the attempt statute by attempting to commit the crime of robbery in the first degree.
Alabama's attempt statute is found in Alabama Code 1975, Section 13A-4-2 (amended 1977).
Robbery in the first degree is defined in Section 13A-8-41.
(emphasis added)
By statutory definition, robbery in the third degree is a lesser included offense of robbery in the first degree.
(emphasis added)
Of significance is the phrase "in the course of committing a theft" which is defined to embrace "acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission." Section 13A-8-40(b) (emphasis added).
Because the definition of robbery has been enlarged and expanded by the new criminal code, "the former offense of assault with intent to rob has been merged into the present offense of robbery." Marvin v. State, 407 So.2d 576, 579 (Ala.Cr.App.1981). For this same reason the former crime of attempted robbery now constitutes robbery. Section 13A-8-43(a) adds a definition that extends robbery to include conduct which occurs in an attempt to commit a theft or in flight after the attempt or commission. Section 13A-8-40(b). "Thus, a robbery is committed if the required special circumstances exist at any point from the beginning of an attempt to commit a theft through the end of the flight following its attempt or commission." American Law Institute, Part II, Model Penal Code Section 221.1 at p. 99 (1980).
The Attorney General recognizes that "the shadow of Reed v. State, 372 So.2d 872 (Ala.Cr.App.1978), reversed, 372 So.2d 876 (Ala.1979), looms over the instant case." We find the principles of Reed indistinguishable, and therefore, its application controlling.
In Reed, our Supreme Court found that the statutory offense of bribery included the attempt to bribe. The court specifically held that because the statute defined bribery--a felony--to include attempts to bribe, an accused charged for the felony of bribery could not be convicted of a misdemeanor under the general attempt to commit a crime statute. Reed, 372 So.2d at 877.
As in Reed, we hold that the statute of robbery in the third...
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...he argues, the offense he was charged with and to which he pleaded guilty did not exist under Alabama law. In Petty v. State, 414 So.2d 182, 183 (Ala.Crim.App.1982), this Court said:“ ‘ “Because the definition of robbery has been enlarged and expanded by the new criminal code, ‘the former o......
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