Robinson v. State
Citation | 747 So.2d 348 |
Parties | Tony Andre ROBINSON v. STATE. |
Decision Date | 26 March 1999 |
Court | Alabama Court of Criminal Appeals |
Linda Hall, Birmingham; and Jeffery V. Hood, Bessemer, for appellant.
Bill Pryor, atty. gen., and Andy S. Poole, asst. atty. gen., for appellee.
The appellant, Tony Andre Robinson, pled guilty to unlawful distribution of marijuana, a violation of § 13A-12-211, Ala. Code 1975. The trial court sentenced him to two years in prison, but suspended the sentence and placed him on probation for two years. The trial court also sentenced him to five years in prison, pursuant to § 13A-12-250, Ala.Code 1975, because the sale occurred within three miles of a school.
During the guilty plea proceeding, the appellant testified that he delivered marijuana to his codefendant, Mark Gough, on December 13, 1996. Although he pled guilty to the charge of unlawful distribution of marijuana, the appellant argued that his actions did not constitute a "sale" and that, therefore, his sentence could not be enhanced under the provisions of §§ 13A-12-250 and -270, Ala.Code 1975. The trial court held a sentencing hearing to determine whether the activity in which the appellant was involved was a "sale," so that his sentence should be enhanced pursuant to §§ 13A-12-250 and -270, Ala. Code 1975. At the hearing, Officer Barry Bemis, the undercover agent who purchased the marijuana from the appellant and Gough, testified that, on December 13, 1996, he contacted Gough to arrange to purchase one pound of marijuana. He agreed to meet Gough in a parking lot and to pay $1,050 for the marijuana. (R. 10.) When Officer Bemis arrived at the parking lot, Gough told him that his supplier, whom he identified as "Tony," was running late. (R. 11.) Shortly thereafter, Gough was paged and went to a pay telephone to return the call. (R. 14.) When Gough returned to Officer Bemis's car, he told Bemis that Tony would be there in about 20 minutes. (R. 14.) While they were waiting for Tony, Officer Bemis showed Gough the money, but did not give it to him. When Tony arrived, Gough went to Tony's car to get the marijuana and returned to Officer Bemis's car with the marijuana. At that time, Officer Bemis arrested Gough and Tony (the appellant). At trial, Officer Bemis identified the appellant as the man Gough referred to as Tony. (R. 10-11.)
The appellant argues that Officer Bemis's testimony was insufficient to show that he was engaged in a "sale." According to the appellant, he merely delivered the marijuana to his codefendant, who then sold it to Bemis. He also claims that he never received any money for the marijuana. Therefore, he argues that the trial court improperly enhanced his sentence pursuant to § 13A-12-250, Ala.Code 1975. In Ex parte Mutrie, 658 So.2d 347 (Ala. 1993), the Alabama Supreme Court held:
cert. denied, 288 Ala. 735, 265 So.2d 202, cert. denied, 409 U.S. 1060, 93 S.Ct. 558, 34 L.Ed.2d 512 (1972). Further, neither the trial court nor the jury is required to make a finding that the defendant's actions constituted a sale for § 13A-12-250 to apply, as long as the evidence supports such a finding. Stephens v. State 675 So.2d 73 (Ala.Cr.App.1995).
In this case, the State presented testimony that Gough referred to the appellant as his "supplier." (R. 11.) It also showed that the appellant paged Gough on the day in question and told him that he would meet him and the undercover agent to complete the sale. The appellant drove to the parking lot where the sale was scheduled to occur, and he delivered the marijuana to Gough. Thereafter, Gough returned to Bemis's car and delivered the marijuana to Bemis. Clearly, there was sufficient evidence to show that the appellant acted in concert with or collaborated with Gough in arranging to sell marijuana to Officer Bemis. See Mutrie, supra
; Allen, supra; Greenwald, supra. Therefore, the trial court properly enhanced his sentence by five years pursuant to § 13A-12-250, Ala.Code 1975.
Bates v. State, 669 So.2d 232, 236 (Ala.Cr. App.1995). Furthermore, testimony from an officer who is familiar with the location of the sale to the effect that the sale occurred within three miles of a school is sufficient to establish that fact. See Anderson v. State, 641 So.2d 1299 (Ala.Cr. App.1994)
(Ala.Cr.App.), cert. denied, 600 So.2d 404 (Ala.1992).
Although Officer Bemis testified that he did not use his vehicle to measure the distance, he stated that he had measured the distance on a scaled county map which was admitted at the sentencing hearing. (R. 20.) Based on his eight years of experience, his familiarity with the area, and the county map, Officer Bemis testified that the sale occurred within one mile of Edgewood Elementary School. (R. 19-22.) His testimony was sufficient to establish that the sale occurred within three miles of the school. Bates, supra; Anderson, supra; Grider, supra. Moreover, at the sentencing hearing, the appellant's counsel conceded that the sale occurred within three miles of a school. (R. 25.) Because the appellant agreed at the sentencing hearing that the sale occurred within three miles of a school, he cannot now argue that it did...
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Hall v. State
...; Perry v. State , 741 So.2d 467 (Ala.Crim.App.1999) ; Forte v. State , 747 So.2d 925 (Ala.Crim.App.1999) ; Robinson v. State , 747 So.2d 348 (Ala.Crim.App.1999) ; Nix v. State , 747 So.2d 351 (Ala.Crim.App.1999) ; Glanton v. State , 748 So.2d 224 (Ala.Crim.App.1999) ; Arrington v. State , ......