Wigley v. State, 8 Div. 685
| Decision Date | 23 November 1982 |
| Docket Number | 8 Div. 685 |
| Citation | 456 So.2d 339 |
| Parties | Kenneth WIGLEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Charles B. Langham, Decatur, for appellant.
Charles A. Graddick, Atty. Gen., and Billington M. Garrett, Asst. Atty. Gen., for appellee.
Kenneth Wigley was indicted and convicted in the Morgan County Circuit Court for violation of § 13A-11-72(a), Ala.Code 1975, for having a pistol in his possession or control after having been convicted of committing or attempting to commit a crime of violence. He was sentenced to 20 years under the Habitual Felony Offender Act. Hence this appeal.
Appellant contends that one of his two companions had pleaded guilty to possession of the pistol which the State contends was possessed by appellant and that such action therefore exculpated appellant. Appellant's contention is without merit.
The issue of possession or control, either active or constructive, of a pistol by appellant was a question of fact for the jury to resolve, and the evidence was in conflict. Appellant testified that he did not have the pistol and that he had no knowledge of its being in the truck. The law enforcement officer testified that the pistol was found under appellant's leg, and that appellant claimed ownership of the gun at the scene. The evidence was sufficient to sustain the jury's finding.
The trial court's denial of appellant's motion for a new trial was proper.
Appellant urges that he was erroneously brought within the purview of the Habitual Felony Offenders Act for sentencing.
The charging portion of the indictment provides that:
"Kenneth Wigley, whose name is to the Grand Jury otherwise unknown, did own a pistol, or have one in his possession or under his control, theretofore having been convicted in this state or elsewhere of committing a crime of violence, to-wit: on August 31, 1970, the said Kenneth Wigley plead guilty to the offense of Burglary in the Second Degree in the Circuit Court of Cullman County, Alabama, in violation of Section 13A-11-72 of the Code of Alabama."
The statute under which appellant was tried and convicted, § 13A-11-72(a), Ala. Code 1975, provides:
"No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control."
The punishment for violation of the statute is imprisonment for not more than five years. Ala.Code 1975, § 13A-11-84(a).
The offense is a Class C felony. See Nunnery v. State, 410 So.2d 444 (Ala.Cr.App.1981).
The Habitual Felony Offenders Act, § 13A-5-9, Ala.Code 1975, provides in part as follows:
The punishment range for a Class B felony is 2 to 20 years. Ala.Code 1975, § 13A-5-6(a)(2).
Appellant had one prior conviction, burglary in the second degree on August 18, 1970, in the Cullman County Circuit Court. Burglary is one of the enumerated crimes of violence applicable to the pistol violation. Ala.Code 1975, § 13A-11-70.
Appellant's 1970 burglary conviction was utilized by the State to bring appellant within the provisions of the current pistol possession charge, and was also used by the State to activate the Habitual Felony Offenders Act. Appellant contends this was error.
The question presented amounts to this:
May the previous felony conviction, which is relied on as a necessary element and ingredient in order to constitute the pistol possession offense outlined in § 13A-11-72(a), Ala.Code 1975, also be used to invoke the Habitual Felony Offenders Act?
We think the question must be answered in the negative.
Possession or control of a pistol without a permit, as is the case here, is a misdemeanor only ( § 13A-11-50, Ala.Code 1975), but is elevated to felony status by addition of the element or ingredient of having previously "been convicted in this state or elsewhere of committing or attempting to commit a crime of violence."
The pistol possession offense takes into account a prior crime of violence, which is a requisite element and ingredient of the offense. Presumably, the legislature considered such in (1) making the pistol possession under those circumstances a felony, and (2) establishing a maximum punishment of five years' imprisonment.
In instances when there is only one prior conviction, and that conviction is a necessary element or ingredient of the currently charged offense, such prior conviction is not available...
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