Ringer v. State

• Decision Date: 22 April 1986
• Docket Number: 8 Div. 379
• Citation: 501 So.2d 493
• Parties: Steven L. RINGER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 493

501 So.2d 493

Steven L. RINGER v. STATE.

8 Div. 379.

Court of Criminal Appeals of Alabama.

April 22, 1986.

Rehearing Denied May 27, 1986.

Certiorari Denied Aug. 22, 1986

Alabama Supreme Court 85-1033.

On Return to Remand Dec. 30, 1986.

C. Wayne Morris, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and David B. Karn, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Steven L. Ringer was convicted of escape in the first degree, proscribed by § 13A-10-31, Code of Alabama 1975, and was sentenced to 10 years' imprisonment in the penitentiary. Immediately after a jury had convicted him of a violation of the Alabama Uniform Controlled Substances Act and the judge had pronounced him guilty of the felony, Ringer made an escape from the custody of the court bailiff. On appeal, two issues are presented.

I

Appellant Ringer contends that his prior felony conviction cannot be used for enhancement purposes because it is a necessary element of the offense itself. Section 13A-10-31, reads as follows:

"(a) A person commits the crime of escape in the first degree if:

"(1) He employs physical force, a threat of physical force, a deadly weapon or a dangerous instrument in escaping or attempting to escape from custody, or

"(2) Having been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to that conviction."

"(b) Escape in the first degree is a Class B felony."

We take this to be an issue not clearly decided in this jurisdiction. In Wigley v. State, 456 So.2d 339 (Ala.Cr.App.1982), this court held that a previous conviction could not be used for enhancement when the offense was a possession of a pistol after having been convicted of a crime of violence. This court held that since the previous offense was an element of the present offense, it could not be used to enhance punishment. There we said:

"In instances where there is only one prior conviction, and that conviction is a In that case there was a dissent which relied on Webster v. State, 403 So.2d 299 (Ala.Cr.App.), cert. denied, 403 So.2d 303 (Ala.1981). Webster, however, is distinguishable. Webster had five prior felony convictions, two kidnappings, two grand larcenies, and a second degree theft. He was sentenced to life imprisonment by virtue of mandatory application of the Habitual Felony Offender Act. This sentence was mandated by section (c) of the Act, for any felon with three prior felonies. The issue of the single prior felony being used for enhancement was not clearly before the court in the Webster case because the accused had felonies to spare. The issue argued in that case was that the conviction should have been for second degree escape rather than first degree escape. He was confined in a "penal facility" as that term is used in the second degree escape statute, § 13A-10-32, but his escape was from custody "imposed pursuant to a conviction," as described in the first degree escape statute, § 13A-10-31.

necessary element or ingredient of the currently charged offense, such prior conviction is not available and may not again be used to enhance the punishment under the Habitual Felony Offender Act. To hold otherwise, would nullify the punishment provision of the currently charged offense as contained in § 13A-11-84(a), Ala.Code 1975, because the prior conviction would always activate the Habitual Felony Offender Act; we do not believe that the legislature intended that result."

We are of the opinion that the prior felony of which the defendant was convicted cannot again be used for enhancement purposes. Escape in the first degree is a class B felony. The penalty for its violation is from 2 to 20 years' imprisonment in the penitentiary. Section 13A-5-6(a)(2). Application of the Habitual Felony Offender Act, § 13A-5-9, to a class B felony conviction enhances punishment. Subsection (a)(2) of that statute states, "On conviction of a class B felony, he must be punished for a class A felony; ..." Section 13A-5-6(a)(1) states, "for a class A felony, for life or not more than 99 years or less than 10 years."

Conviction of a felony is a necessary ingredient for the conviction of a person under § 13A-10-31(a)(2). The legislature has clearly directed that this offense be punished as a class B felony. To adopt the interpretation suggested by the state would be always to punish this offense as a class A felony. Our analysis, therefore, tells us that this result is not the one intended by the legislature and that the felony conviction made an element of a conviction of 13A-10-31(a)(2), cannot lawfully be again used to enhance punishment for a conviction under that subsection. For this reason, the case must be remanded for resentencing consistent with this opinion.

II

The appellant had not been sentenced for the conviction of violation of the Alabama Uniformed Controlled Substances Act at the time of his escape; he contends that the procedure was incomplete and so his custody was not "pursuant to a conviction." His escape occurred just after the jury verdict and the court's pronouncement of "guilty." In Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), Judge DeCarlo stated on this issue:

"In the present case, Alabama's Habitual Offender Act contains no requirement that a repeat offender must have served, partially or completely, his sentence for a prior felony before he can be sentenced under the Act. The statute requires that a criminal defendant be 'previously convicted of any felony' or 'any two felonies' or 'any three felonies.' § 13A-5-9, supra. In our judgment, the word 'convicted,' as used in § 13A-5-9, Code of Alabama 1975, does not include actual service in the penitentiary. Had the legislature intended 'conviction' to include only those convictions followed by actual imprisonment, such a definition could easily have been included in the statute."

We find that an escape from custody following a conviction, but before a sentencing hearing, also constitutes an escape from "custody imposed pursuant to a conviction."

III

Appellant next contends that he was the victim of prosecutorial misconduct in that there were offensive comments made regarding him during summation. Specifically, the prosecutor said during summation:

"[MR. HOOPER]: ... Mr. Morris says that his man is a snake. Well, he's right about that part. And he threw himself on the mercy of the jury back on November the 6th and the jury threw it back."

"MR. MORRIS: Your Honor, I am going to object to Mr....