Scopolites v. State
Decision Date | 06 February 1973 |
Docket Number | 1 Div. 189 |
Citation | 277 So.2d 389,50 Ala.App. 115 |
Parties | James M. SCOPOLITES v. STATE. |
Court | Alabama Court of Criminal Appeals |
Don Conway, Mobile, for appellant.
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Possession of marijuana: sentence, eight years in the penitentiary, Code 1940, T. 22, § 256, as amended by Act 625, August 29, 1969.
In brief appellant urges us to declare Act 1191, September 13, 1969 unconstitutional.
We reject this contention for two reasons. First, because the question was not presented to the trial court. Second, because the Act, which assimilates into the circuit court the juvenile court in counties having between 300,000 and 500,000 inhabitants, is within the power of the Legislature.
In Dudley v. Birmingham Rly. Lt. & Power Co., 139 Ala. 453, 36 So. 700, we find:
See also, State ex rel. Vandiver v. Burke, 175 Ala. 561, 57 So. 870.
It follows that the additional circuit judge whose office is authorized by said Act 1191 is capable of performing any of the duties of a circuit judge.
Appellant, on April 23, 1971, moved the circuit court to order the State to produce the seized substance for it to be analyzed chemically. On May 3 Judge Hocklander granted the motion.
In Jenkins v. State, 46 Ala.App. 719, 248 So.2d 758, we wrote:
Hence, Judge Hocklander's order was a correct ruling on the motion.
The case on the same day went to Judge Strickland for trial. Defendant moved as follows:
We do not consider that this oral motion in any way apprised Judge Strickland that Judge Hocklander had granted the motion to produce nor, more importantly, that the defendant wanted time for a chemical analysis. There was no error in denying the instant motion for continuance.
After the jury returned their verdict the record shows the following:
Whatever might be said for or against the use of mere accusations (contrasted with convictions) of former offenses yet we must adhere to the language of our Supreme Court. In Goolsby v. State, 283 Ala. 269, 215 So.2d 602, we find:
'Our appellate court should not usurp or invade the discretionary authority of the trial court in fixing punishment, within lawful limits, * * *.'
In Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, we find (where unlike Scopolites, Townsend was not attended by counsel):
'The proceedings as to this petitioner, following his plea of guilty, consisted of a recital by an officer of details of the crimes to which petitioner and others had pleaded guilty and of the following action by the court: (Italics supplied).
Italics added.
Mr. Justice Black for the majority in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 397, wrote:
'About five weeks after the verdict of guilty with recommendation of life imprisonment, and after a statutory presentence investigation report to the judge, the defendant was brought to court to be sentenced. Asked what he had to say, appellant protested his innocence. After each of his three lawyers had appealed to the court to accept the jury's recommendation of a life sentence, the judge gave reasons why he felt that the death sentence should be imposed. He narrated the shocking details of the crime as shown by the trial evidence, expressing his own complete belief in appellant's guilt. He stated that the presentence investigation revealed many material facts concerning appellant's background which though relevant to the question of punishment could not properly have been brought to the attention of the jury in its consideration of the question of guilt. He referred to the experience appellant 'had had on thirty other burglaries in and about the same vicinity' where the murder had been committed. The appellant had not been convicted of these burglaries although the judge had information that he had confessed to some and had been identified as the perpetrator of some of the others. The judge also referred to certain activities of appellant as shown by the probation report that indicated appellant possessed 'a morbid sexuality' and classified him as a 'menace to society.' The accuracy of the statements made by the judge as to appellant's background and past practices were not challenged by appellant or his counsel, nor was the judge asked to disregard any of them or to afford appellant a chance to refute or discredit any of them by cross-examination or otherwise.
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State v. Frazier
...347, 348-49, 365 P.2d 403, 404-405 (1961), Cert. denied, 370 U.S. 958, 82 S.Ct. 1613, 8 L.Ed.2d 824 (1962); Scopolites v. State, 50 Ala.App. 115, 117, 277 So.2d 389, 391 (1973), Cert. denied (Ala.), 291 Ala. 797, 277 So.2d 395; Slettvet v. State, 258 Ind. 312, 280 N.E.2d 806 (1972); People ......
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...347, 348-349, 365 P.2d 403, 404-405 (1961) cert. denied, 370 U.S. 958, 82 S.Ct. 1613, 8 L.Ed.2d 824 (1962); Scopolites v. State, 50 Ala. App. 115, 117, 277 So.2d 389, 391 (1973), cert. denied, 291 Ala. 797, 277 So.2d 395 cert. denied, 414 U.S. 977, 94 S.Ct. 299, 38 L.Ed.2d 221 (1973); Slett......