Rolling v. State
Decision Date | 07 July 1995 |
Docket Number | CR-94-0013 |
Citation | 673 So.2d 812 |
Parties | Oliver Tyrone ROLLING v. STATE. |
Court | Alabama Court of Criminal Appeals |
Oliver T. Rolling, pro se.
Jeff Sessions, Atty. Gen., and Yvonne Saxon, Asst. Atty. Gen., for Appellee.
Oliver Tyrone Rolling appeals from the circuit court's denial of his Rule 32, Ala.R.Crim.P., petition in which he contests his 1986 convictions for felony murder and reckless manslaughter. Rolling had been brought to trial on a two-count indictment: Count I charged the felony murder of Jim Godfrey, § 13A-6-2(a)(3), Code of Alabama 1975, and Count II charged the intentional murder of Jim Godfrey, § 13A-6-2(a)(1). The jury was charged under Count II on the lesser included offense of reckless manslaughter. On the felony murder conviction, Rolling was sentenced to life imprisonment, and on the manslaughter conviction, he was sentenced to 10 years' imprisonment. The trial court further ordered that the two sentences were to run concurrently.
In his petition, filed on August 8, 1994, Rolling asserted that after March 12, 1994, he received allegedly newly discovered evidence upon which he bases the following claims: (1) that because his two convictions are based on the same act--the killing of Jim Godfrey--they violate his right against double jeopardy; (2) that the prosecutor was guilty of misconduct in allowing Rolling's double jeopardy and due process rights to be violated and also in his withholding the complete record; (3) that his trial counsel was ineffective for allowing Rolling's right against double jeopardy to be violated by his being convicted twice for one murder; and (4) that double convictions for the same act are in effect double punishment when those convictions are subsequently used for enhancement under the Habitual Felony Offender Act.
In response to these allegations, the state asserted that Rolling's petition is precluded by the limitations period of Rule 32.2(c), that there has been no newly discovered evidence to warrant relief, and that the claims are successive, repetitious, and without legal foundation.
In dismissing Rolling's petition, the circuit court found that all issues either were raised or could have been raised in Rolling's prior petition for writ of error coram nobis or in his appeal. It further found that the petition is repetitive and barred under the Alabama Rules of Criminal Procedure.
We first note that in his petition, Rolling failed to specify what evidence that allegedly supports his petition was newly discovered. However, in his brief, it is apparent that this alleged evidence is the indictment. In his brief, Rolling claims that the indictment is not included in the trial transcript, that it was not read to the jury, and that, in fact, it is not included in any record of any proceeding having to do with his two convictions. However, a review of the record submitted to this court on the direct appeal of Rolling's convictions reveals that the jury was instructed on the charges in the indictment, and that record contains the indictment. Rolling's assertions fail to meet the criteria of Rule 32.1(e); the indictment does not constitute newly discovered evidence.
Nevertheless, on the facts alleged, all of the petition's allegations raise the question of the legality of the two convictions that arose out of one homicide. Rolling was indicted for murder, under alternative subsections of the murder statute, and he was convicted of one of those two alternatives as well as of the lesser included offense of the second alternative method of proving the same offense.
In Meyer v. State, 575 So.2d 1212 (Ala.Cr.App.1990), the jury returned three verdicts on three counts of the indictment charging the capital murder of one victim, finding the defendant guilty of the lesser included offense of murder. The trial court imposed only one sentence, but let the three verdicts stand. In reviewing this action, this court stated:
575 So.2d at 1217. The Meyer court remanded the case for the trial court to vacate two of the appellant's murder convictions.
An alternative analysis of Rolling's claims arises from the fact that Rolling was convicted not only of felony murder but also of a lesser included offense of felony murder. Reckless manslaughter is a lesser included offense of felony murder; it requires no proof independent of that necessary to establish felony murder. See § 13A-1-9(a)(1) (). See also Vinson v. State, 601 So.2d 196 (Ala.Cr.App.1992) ( ).
Coral v. State, 628 So.2d 954, 958 (Ala.Cr.App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994), illustrates the application of the lesser included offense analysis to a double jeopardy claim:
See also Crear v. State, 591 So.2d 530 (Ala.Cr.App.1991) ( ); Pardue v. State, 571 So.2d 320, 329-30 (Ala.Cr.App.1989), rev'd on other grounds, 571 So.2d 333 (Ala.1990) ( ). Compare McKinney v. State, 511 So.2d 220, 225 (Ala.1987) ().
Based on the above discussion, the trial court's judgment finding Rolling guilty of both crimes was error. We hold that, particularly pursuant to § 13A-1-8(b)(1), the court was...
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