709 So. 2d 1115 | Ala. | 1997
Nelson Patterson Bates, Jr., was convicted of first degree burglary under Ala. Code 1975, §
At Bates's sentencing hearing the trial judge stated:
"I intend to sentence him to the minimum, but the minimum is 20 years; I have no control over that."
At Bates's hearing on his motion for new trial, the trial judge stated:
"The jury found this young man guilty, and the Court fixed punishment at the very minimum by law that the Court could fix. It eliminates any discretion that this court has."
Bates contends that the trial judge improperly sentenced him by applying §
The Court of Criminals Appeals, affirming the denial of Bates's Rule 32 petition, wrote in its unpublished memorandum:
"Finally, the petitioner claims that the trial court improperly sentenced the petitioner by imposing §
13A-5-6 (a)(4), the firearm enhancement provision, where no firearm was used in the commission of the felony at issue. However, the evidence at trial showed that two firearms were taken during the course of the burglary. According to the Alabama Supreme Court opinion in [Pardue v. State],571 So.2d 333 (Ala. 1990), the fact that at some point the accused became armed during the commission of the felony triggers the enhancement provision of §13A-5-6 (a)(4). See Henry v. State,448 So.2d 432 (Ala.Cr.App. 1983); Bates v. State,468 So.2d 207 (Ala.Cr.App. 1985); and Lovell v. State,477 So.2d 485 (Ala.Cr.App. 1985). Therefore, the trial court was correct in its statement that the minimum sentence for the petitioner is 20 years."
The Court of Criminal Appeals incorrectly read this Court's opinion in Pardue v. State. This Court held in Pardue that the defendant's being in possession of a deadly weapon authorized the enhancement of his burglary charge to first degreeburglary, because taking a weapon as part of the loot meant he was "armed with . . . a deadly weapon" within the meaning of the Burglary I statute, *1117
§
In Ex parte McCree,
"First, implicit in the language of §
13A-5-6 (a)(5) — 'a firearm or deadly weapon was used or attempted to be used in the commission of the felony' — is the requirement that the underlying felony for which the defendant is convicted have, as one of its necessary elements, the element of intentional criminal conduct. Therefore, McCree's reckless or negligent conduct, which resulted in manslaughter, while sufficient to supply the criminal scienter to support a conviction for a Class C felony, does not require a finding that he intentionally used the firearm to commit the felony, and thus can not support the application of §13A-5-6 (a)(5). In other words, reading §13A-5-6 as a whole, we must construe subsection (a)(5) to mean that convictions for those underlying felonies that are committed without the intentional use of a deadly weapon do not fall within the category of convictions that invoke the enhancement provision of this statute."Second, 'enhancement,' as that word is used to describe the effect of §
13A-5-6 (a)(5), necessarily means that in addition to the culpability of the offense for which the defendant has been convicted, the defendant's conduct is necessarily the result of a higher degree of culpability, because of the jury's finding that a 'firearm or deadly weapon was used or attempted to be used in the commission of the felony.' Indeed, the use of a deadly weapon to commit the underlying felony is the classic situation intended by the legislature to invoke the enhanced penalty."
554 So.2d at 340-41 (emphasis original). It follows that this rationale would also apply to §
Bates does not argue that the taking of the firearms did not raise his offense to 1st degree burglary under Pardue. He does argue that the minimum sentence for a Class A felony is 10 years. §
The judgment of the Court of Criminal Appeals is reversed. The cause is remanded with instructions to direct the trial court to resentence the defendant without applying the enhancement provision of §
REVERSED AND REMANDED.
MADDOX, ALMON, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and SEE, J., dissent.