Thompson v. State

• Decision Date: 27 September 1985
• Parties: Ex parte State of Alabama. (Re Larry O'Neal THOMPSON v. STATE of Alabama). Ex parte Larry O'Neal THOMPSON. (Re Larry O'Neal Thompson v. State of Alabama). 84-304, 84-305.
• Court: Alabama Supreme Court

Page 820

525 So.2d 820

Ex parte State of Alabama.

(Re Larry O'Neal THOMPSON v. STATE of Alabama).

Ex parte Larry O'Neal THOMPSON.

(Re Larry O'Neal Thompson v. State of Alabama).

84-304, 84-305.

Supreme Court of Alabama.

Sept. 27, 1985.

Rehearing Denied Nov. 8, 1985.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for petitioner/cross-respondent.

George H. Jones, Birmingham, for respondent/cross-petitioner.

Thomas M. Goggans of Goggans & McInnish, Montgomery, for amicus curiae Alabama Criminal Defense Lawyers Assn.

MADDOX, Justice.

Appellant Larry Thompson was found guilty of robbery in the first degree in violation of Code 1975, § 13A-8-41. He was sentenced under Code 1975, § 13A-5-9, the Habitual Felony Offender Act, to life imprisonment. The Court of Criminal Appeals affirmed his conviction conditionally and remanded the case to the trial court for a hearing on his claim of ineffective assistance of counsel at his trial.

Both Thompson and the State ask us to review that judgment. We consolidated both petitions and heard oral arguments. Thompson's primary claim is that he was improperly sentenced under the Habitual Offender Act. We address only Thompson's claim that he was improperly sentenced, and the State's claim that the cause should not have been remanded to the trial court.

The facts surrounding the robbery are adequately set out in the opinion of the Court of Criminal Appeals, 525 So.2d 816, and will not be repeated here.

I

Thompson's petition presents this question: Can convictions of felonies prior to January 1, 1980, the effective date of Alabama's Criminal Code, Title 13A, be considered to enhance the punishment of an offender? Thompson claims they cannot be considered. He says (1) that the interpretation given by the courts of the word "felony" in the Habitual Offender Act is overbroad and contradicts the meaning of the word "felony" intended by the legislature, and (2) that this Court was without authority to define "felony" as broadly as it did in Temporary Rule 6(b)(3)(iv), because the word "felony" was specifically defined by the legislature in the Alabama Criminal Code.

The applicable provisions of Alabama's Criminal Code and the Temporary Rules of Criminal Procedure adopted by this Court to carry out the intent of the legislature read as follows:

Code 1975, § 13A-1-2(4), defines a "felony":

"FELONY. An offense for which a sentence to a term of imprisonment in excess of one year is authorized by this title." (Emphasis added.)

An "offense" is defined in Code 1975, § 13A-1-2(1), as follows:

"OFFENSE. Conduct for which a sentence to a term of imprisonment, or the death penalty, or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state." (Emphasis added.)

Code 1975, § 13A-5-9, which authorizes the imposition of additional penalties, provides as follows:

"In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows: [here are set out the authorized and required sentences]." (Emphasis added.)

Code 1975, § 13A-5-10, provides:

"The court may conduct a hearing upon the issue of whether a defendant is a repeat or habitual offender under section 13A-5-9, according to procedures established by rule of court." (Emphasis added.)

This Court, acting pursuant to the authority granted by the provisions of Code 1975, § 13A-5-10, adopted Temporary Rule 6(b)(3)(iv), Alabama Rules of Criminal Procedure, which provides:

"Any conviction in any jurisdiction, including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under Act 607, § 130(4), Acts of Alabama 1977 Thompson contends that the phrase "by this title" in § 13A-1-2(4) was intended by the legislature to restrict the Habitual Offender Act only to those convicted of felonies under Title 13A. He argues that the courts cannot expand the meaning of "felony" beyond the plain language used by the legislature, and that his sentence was unlawfully enhanced, as a result of proof of two prior felony convictions, one for grand larceny and one for buying, receiving, and concealing stolen property, neither being a violation of Title 13A, Alabama Criminal Code.

p. 812 ( § 13A-1-2(4), Alabama Criminal Code), or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980." (Emphasis added.)

The basic question presented is one this Court faced when it adopted Temporary Rule 6, and that question is: What did the legislature intend when it authorized the use of prior convictions to enhance the punishment for an offense committed under the provisions of the Alabama Criminal Code?

In determining this intent we are aided somewhat because the legislature itself has spelled out the general rule which courts should use in construing what it meant. In Code 1975, § 13A-1-6, the legislature set out the general rule of construction to be used. That section provides:

"All provisions of this title shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law, including the purposes stated in section 13A-1-3. (Acts 1977, No. 607, p. 812, § 115.)" (Emphasis added.)

Code 1975, § 13A-1-3, referred to in § 13A-1-6, states the general purposes of the Alabama Criminal Code as follows:

"The general purposes of the provisions of this title are:

"(1) To proscribe conduct that unjustifiably and inexcusably causes or threatens substantial harm to individual and/or public interests;

"(2) To give fair warning of the nature of the conduct proscribed and of the punishment authorized upon conviction;

"(3) To define the act or omission and the accompanying mental state that constitute each offense;

"(4) To differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties for each;

"(5) To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted and their confinement when required in the interests of public protection; and

"(6) To prevent arbitrary or oppressive treatment of persons accused or convicted of offenses. (Acts 1977, No. 607, p. 812, § 105)." (Emphasis added.)

The Commentary to § 13A-1-6 "General Rule of Construction" contains the reasons for that section's inclusion in the Alabama Criminal Code:

"The rule laid down by this section places the construction of penal laws 'according to the fair import of their terms.' 'We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.' Justice Holmes, Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722 (1928).

"The original draft expressly abolished the common law rule that penal laws are to be strictly construed, U.S. v. Wiltberger, 18 U.S. (Wheat.) 76 (1820), a feature of many modern penal codes, e.g., New York Penal Law § 5.00, Michigan Revised Criminal Code § 115, Proposed Texas Penal Code § 1.05. The premise was that under the artificial rule of strict construction courts sometimes have taken the narrowest possible view of the language used by the legislature which occasionally results in the acquittal of offenders who are clearly within the letter and spirit of the law. 'A more serious result is that (federal) criminal "Actually, the old rule of strict construction is practically meaningless as it is seldom cited and then only to support a conclusion already reached by reference to the fair meaning of the words and phrases used in the statute and a consideration of the legislature's intent. Franklin v. State, 275 Ala. 92, 152 So.2d 158 (1963) (condemnation statute is highly penal and is strictly construed; that is, its enforcement is not to be extended beyond the letter of the law).

law has been made intolerably cumbersome, as the legislative draftsman has sought to anticipate every possible narrow construction.... A strict construction rule had greater merit in former times when the main responsibility for formulating English criminal law lay in the judiciary as a matter of common law. In those circumstances legislation could be regarded as an exceptional intrusion into the main body of judge-made law. There was no systematic code. But when the legislature has assumed responsibility for a comprehensive, integrated Criminal Code, it is not appropriate for the courts to presume that only the least possible alteration of a body of nonstatutory law was intended.' Working Papers, Proposed New Federal Criminal Code, p. 5.

"In drafting the Proposed New Federal Criminal Code, the commissioners recognized that while modern courts seldom follow the rule of strict construction of criminal laws, an explicit repeal of the rule was unnecessary, and a general statement was used integrating the intended rule of construction of the Code provisions with a statement of general purposes. Comment § 102, General Purposes, p. 103. Cf. Model Penal Code § 1.02 for similar treatment.

"Under this section, not only must the alleged misconduct be covered by 'the fair import' of the Criminal Code provisions, but also, under section 13A-1-3, the statute must be construed so that it gives 'fair warning of the nature of the conduct proscribed and the punishment authorized upon conviction,' which is consistent with the constitutional requirement that punishment is authorized only for conduct which has previously been proscribed with fair warning to persons of ordinary intelligence and understanding. Rake [Rabe] v. Washington, 405 U.S. 314 [92 S.Ct. 993, 31 L.Ed.2d 258] (1972); Bouie v. [ City of] Columbia, 378 U.S. 347 [84 S.Ct. 1697, 12...