462 So. 2d 948 | Ala. Crim. App. | 1984
Lead Opinion
On October 28, 1982, appellant Leroy Blake was ordered transferred from the juvenile court to the circuit court to be tried for robbery as an adult. In circuit court, the charge was reduced to robbery in the second degree and a guilty plea was entered on July 7, 1983. The court sentenced appellant under the split sentence provisions to one year in prison and one year on probation. The court did not order that appellant be credited with time already served in jail awaiting disposition of his case.
The sole issue presented by appellant is whether the court should have ordered that he be given credit for the time he was incarcerated before sentence. This question must be answered in the affirmative.
Section 15-18-5, Code of Alabama 1975, provides that:
“Upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the board of corrections.” (emphasis added)
The state contends that this court cannot review the appellant’s claim to time served, when neither the transcript nor the brief gives any proof that there was any time served, and that the appellant cannot raise this issue on appeal if he did not raise the issue at the time of sentencing.
Accordingly, this ease is remanded for the sole purpose of compliance with Ala. Code § 15-18-5 (1975).
REMANDED WITH DIRECTIONS.
Dissenting Opinion
dissenting.
I dissent from the majority opinion. The issue of credit for pre-sentence incarceration was not raised in the circuit court. This Court should not assume that the appellant was incarcerated for this particular offense before sentence. It is a fundamental principle of appellate review that this Court will not presume a fact not shown by the record. Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968); Duncan v. State, 88 Ala. 31, 7 So. 104 (1890). “A reviewing court cannot predicate error on matters not shown by the record.... Indeed, a silent record supports a judgment.” Robinson v. State, 444 So.2d 884 (Ala.1983).
The majority opinion also collides violently with a second traditional and fundamental principle of appellate review. That principle is that, except in those cases where the error is the most flagrant and apparent on the record, this Court will not consider matters which were not raised or considered in the court below. McKissick v. United States, 379 F.2d 754 (5th Cir.1967).
While the particular issue on which this case is remanded is relatively insignificant in that it only concerns sentence and has nothing to do with guilt or innocence or the manner in which the trial was conducted, the principles which the majority disregards are of vital consequence in maintaining a fair and orderly appellate review process. For these reasons, I dissent.
