[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *1252
Thе opinion of March 26, 2004, is withdrawn, and the following is substituted therefor.
On May 9, 2002, Marcus Dewayne Craig was indicted for two counts of first-degree robbery, violations of §
The facts adduced at trial indicate the following: On July 9, 2001, Paulette Gallahar was working at a dry-cleaning business when Craig entered the store, pulled out a weapon, and announced, "`Oh by the way, this is a robbery. . . . I'm taking monеy out of this store and I'm taking your car.'" (R. 95.) Craig stole $45 from the cash register and forced Gallahar into the back of the store. In the back of the store, Craig took $5 and car keys from Gallahar's purse. Craig forced Gallahar to kneel in a corner, put plastic around her head, and held a gun to her head. Another customer entered the front of the store. Craig went to wait on the customer, so as to not cause any suspicion. Gallahar ran to the doorway to the front of the store and shouted, "`It's a robbery, it's a robbery.'" (R. 103.) She ran out the back door, yelling, jumped into her car, and locked the doors. Craig followed her and, with her keys, unlocked the passenger side door. Craig got into the passenger side of the front seat, grabbed Gallahar's wrist, and stated, "Okay, bitch, you're driving." (R. 105.) Gallahar jerked away from Craig, jumped out of the car, and ran. Craig drove away from the scene of the crime in Gallahar's car. Craig was arrested in Kentucky several days later in Gallahar's car. Gallahar later picked Craig out of a photographic lineup.
On appeal, Craig puts forth four arguments, and we address each in turn. For the reasons below, we reverse one of Craig's convictions and remand this cause for resentencing.
"Whenever a person has entered upon a term of imprisonment in a penal or correctionаl institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary оr reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decision of the state parole agency relating to the prisoner."
The State of Alabama received the UMDDA paperwork on Craig on April 15, 2002. The trial court held a pretrial status conference on July 8, 2002, at which the State and defense counsel were present; however, the trial court did not reach the cаse on the docket. The trial court held another pretrial status conference on August 27, 2002. The case was passed on without objection from trial counsel. On or about September 25, 2002, the assistant district attorney requested of trial counsel — outside of court — that Craig sign a waiver of the 180-day deadline, but Craig refused to do so. A pretrial conference was conducted on October 3, 2002, and the trial was scheduled for November 4, 2002. The 180-day period under the UMDDA expired on October 12, 2002.
On October 24, 2002, Craig filed a motion to dismiss the two charges against him; he filed another motion to dismiss regarding only one of the charges on November 4, 2002. The trial court held a hearing on the motions on November 4, 2002, at the conclusion of which it denied the motions, stating, among other things, thаt it had "no remembrance of a 180-day period [issue] being raised at [the] October 3rd pretrial." (R. 38.)
We addressed a similar issue in Glover v. State,
Glover,"[T]here is evidence that the appellant waived the 180-day limitation by failing to object to the continuances.
"`[W]e find that appellant waived the 180-day limitation. In Gillard v. State,
, 486 So.2d 1323 1327 (Ala.Cr.App. 1986), we find the following: "We are inclined toward the majority view that the rights afforded a prisoner under the agreement do not rise to *1254 the level of constitutionally guaranteed rights and can be waived." See also Toro v. State,(Fla.Dist.Ct.App. 1985); Pethtel v. State, 479 So.2d 298 (Ind.App. 1981). Cf. Tombrello v. State, 427 N.E.2d 891 (Ala.Cr.App. 1985) (wherein the court hеld that the appellant, by pleading guilty, waived the nonjurisdictional defect of a violation of the Act); Davis v. State, 484 So.2d 1190 (Ala.Cr.App. 1985) (same). 469 So.2d 1348 "`As noted above, on January 5, 1987, the court set appellant's trial for the March 16, 1987, term of court, and on February 10, 1987, the court set appellant's trial for the "next criminal jury docket," a known and ascertainable date. Appellant had different counsel on these two occasions. Significantly, we can only conclude from the record that both attorneys neither objected to the trial date at the time it was set nor objected during the days remaining under the 180-day time limit. If either had done so, the trial court could have set an appropriate trial date or granted a "necessary or reasonable continuance." Instead of putting the court on notice, appellant waited until the 180-day time limit had lapsed.
"`We construe appellant's silence, on both occasions when the trial court set the trial date, to be his acquiescence. Pethtel,
427 N.E.2d at 894 . We find like treatment in Scrivener v. State,, 441 N.E.2d 954 956 (Ind. 1982), where 35 days before the 180-day period expired, the trial court set the cause for trial 29 days beyond the 180-day period. The court, in adopting Pethtel, held that the appellant's failure to object to the trial date when it was set, on or before the expiration of the 180-day period, precluded him from having the information dismissed. See also State v. McGann, [,] 493 A.2d [452] at 456 [(1985)].' 126 N.H. 316 "Saffold [v. State], 521 So.2d [1368,] 1372 [(Ala.Crim.App. 1987)]."
Because Craig had the opportunity to do so, but chose not to object to the trial date at the time it was set or during the remaining days under the 180-day time limit, that is, because he failed to timely objеct to the two continuances ordered by the trial court and to the court's setting the case for trial 23 days beyond the 180-day period mandated by the UMDDA, he has waived this issue.
As was the case in Girard v. State,
Young v. State,"The constitutional guarantee against double jeopardy protects a defendant from being subjected to multiple punishments *1255 for the same offense. This guarantee bars the conviction of a defendant for two separate counts of first-degree robbery where the evidence adduced at trial tended to show that the defendant committed only one act of robbery against one victim. Moore v. State,
(Ala.Crim.App. 1997)." 709 So.2d 1324
Girard,"This is not a case where the same act or transaction constitutes a violation of two distinct statutory provisions. See Blockburger v. United States,
284 U.S. 299 [,, 52 S.Ct. 180 ] (1932). . . . The pertinent inquiry in deciding whether [these convictions are] acсeptable in the face of constitutional guarantees against double jeopardy then becomes defining the correct unit of prosecution. Bell v. United States, 76 L.Ed. 306 349 U.S. 81 [,, 75 S.Ct. 620 ] (1955). 99 L.Ed. 905 "`"A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const. of 1901, Art. I, § 9; U.S. Const. Amend. V." Ex parte Darby,
, 516 So.2d 786 787 (Ala. 1987). Such question of double jeopardy is determined by the following principles:"`"It has been aptly noted that `the Blockburger [v. United States,
, 284 U.S. 299 , 52 S.Ct. 180 (1932),] test is insufficient where . . . the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction.' Rashad v. Burt, 76 L.Ed. 306 (6th Cir. 1997). This is because when `a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied.' State v. Adel, 108 F.3d 677 , 136 Wash.2d 629 (1998). The `appropriate inquiry' in such a case `asks what "unit of prosecution" was intended by the Legislature as the punishable act. . . . The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant's favor.' Commonwealth v. Rabb, 965 P.2d 1072 , 431 Mass. 123 (2000) (concluding that allegedly multiple drug possessions justify multiple charges if the possessions are sufficiently differentiated by time, place or intended purpose, the case here regarding defendant's possession of drugs at his residence for immediate sale and his possession of drugs at motel for future sales)." 725 N.E.2d 1036 "`4 Wayne R. LaFave et al., Criminal Procedure § 17.4(b), 2001 Pocket Part n. 66 (2d ed. 1999). See also Projeсt, "Twenty-Ninth Annual Review of Criminal Procedure," 88 Geo. L.J. 879, 1293 (2000) ("when the government seeks to prove that a single act or occurrence results in multiple violations of the same statute, the rule of lenity requires only one punishment unless legislative intent to impose multiple punishments is shown").'
"Townsend v. State,
, 823 So.2d 717 722 (Ala.Crim.App. 2001) (footnote omitted [in Girard])."
"`Robbery is an offense against the person. . . .'" Ex parteWindsor,
In Young, this Court reasoned:
"In the present case, the court differentiated the two counts of robbery as follows:
"`And the State is maintaining that the first robbery charge is in regard to the $42 or $43 that [V.E.] said was taken from his wallet. And then that the other robbery charge was the going to the, I believe, the front bedroom, seeking money on that occasion.'
"(R. 416.)
"The State presented evidence of one [robbery], but not two separate rоbberies. The evidence tended to show that Young committed one continuous act of robbery against V.E., using a deadly weapon while committing a theft. The fact that Young forced V.E. into another room does not create a second robbery. The trial court erred in instructing the jury that it did. SeeRolling v. State,
The evidence in this case, like the evidence in Young, shows that Craig committed one continuous act of robbery against Gallahar. For the reasons stated above, the fact that Craig took property from both Gallahar and from the dry-cleaning business does not create two separate robbery offenses. Therefore, because Craig was twice placed in jeopardy by being indicted for and convicted of two separate charges of first-degree robbery when he in fact committed only one сrime against one victim, one of Craig's convictions for first-degree robbery is to be vacated, along with the accompanying sentence.
We address the two arguments in turn.
A. The 2001 Trafficking Convictions
Craig argues that two of his prior felony convictions should not have been used to enhance his sentence because the crime underlying the conviction at issue here was committed before he was adjudicated guilty in 2001 of the two traffiсking crimes. Craig raised this argument pretrial, *1257 during sentencing, and in his postjudgment motion. In its brief on appeal, the State agrees.
The two prior felony convictions in question were for trafficking in cocaine and the offenses were committed in Kentucky in 2001 when Craig was 19 years old. The record contains the "Judgment and Sentence on Plea of Guilty" (C. 108), in which the trial court overseeing the two prior convictions ordered the following:
"These offenses were committed when the Defendant was 19 years of age. The Defendant's date of birth is 11-20-81.
"On the 23rd day of May, 2001, having appeared in open court with counsel, . . . with the Commonwealth's Attorney, the Defendant withdrew a plea of Not Guilty and entered a plea of Guilty. Finding that the Defendant understands the nature of the charges agаinst him/her including the possible penalties, that the Defendant knowingly and voluntarily waives his/her right to plead innocent, to be tried by a jury to compel the attendance of witnesses on the Defendant's behalf, to confront and cross-examine witnesses and to appeal to a higher court, and finding further that the Defendant understands and voluntarily waives his/her right not to incriminate himself/herself and finding that the plea is voluntary, the Court accepts the plea.
"On the 1st day of August, 2001, the Defendant appeared in open court with counsel of record, and the Court inquired of the Defendant and counsel whether any legal cause existed to show why judgment should not be pronounced, and afforded the Defendant and counsel the opportunity to make any statements [o]n the Defendant's behalf and to present any information in mitigation of punishment, and the Court having informed the Defendant and counsel of the factual contents and conclusions contained in the written report of the present investigation prepared by the Division of Probation and Parole and provided counsel with a copy of the report although not the sources of the confidential information, the Defendant agreed with the factual contents of said report. Having given due consideration to the written report by the Division of Probation and Parole, and to the nature and circumstances of the crime, and to the history, character, condition of the Defendant, this court is of the opinion:
"that imprisonment is necessary for the protection of the public. . . .
"No sufficient cause having been shown why judgment should not be pronounced, IT IS ADJUDGED BY THIS COURT, that the Defendantis Guilty of the following charges:
"Trafficking in a Controlled Substance Within 1000 Yards of a School — Five (5) Years. Trafficking in a Controlled Substance First-Degree, First Offense, Cocaine — Five (5) Years Concurrent. Possession of Drug Paraphernalia — 12 Months Concurrent."
(C. 108-09.) (Emphasis added.)
In Summerhill v. State,
"As the return to the order of remandment discloses (1) that prior to the judgment of conviction and sentence in the instant case defendant had been adjudged guilty of the felony charged in each of the other two cases involved and (2) that prior to his commission of the felony charged in the instant case defendant had committed the felony charged in each of the other two cases, we no longer have any concern as to the existence of either fact."
"We now hold, as we indicated in our opinion on original submission that we would likely hold, in firm adherence to Watson v. State, [
(Ala.Crim.App. 1980)], and Burgess v. State, [ 392 So.2d 1274 (Ala.Crim.App. 1982)], that a previous `adjudication' of guilt of a felony constitutes a previous `conviction' of a felony whenever the term `previous conviction' of a felony, or its equivalent, is used in the Habitual Felony Offenders law of Alabama." 412 So.2d 298
The crime in this case was committed on July 9, 2001, between the day Craig entered his plea and the day he was adjudicated guilty and sentenced. Although in most cases that come before this Court the trial court adjudicates the defendant guilty *1259
at the time he or she enters a plea of guilty, this is not always the case, and "each case must be evaluated on its facts to determine whether an adjudication of guilt was proved." Morganv. State,
B. The 1999 First-Degree Robbery Convictions
Craig argues that his two 1999 convictions, both of which were committed when he was 15 years old, could not have been used to enhance the sentence in this case because they are juvenile convictions and, therefore, ineligible for consideration under the HFOA. See §§ 12-15-72(a) and
In response to this argument, the State first argues that Craig's sentence was properly enhanced because the State offered evidence of four other prior convictions from Kentucky. The State cites us to the clerk's record, pages 116-23. We note that the record indicates that those four convictions occurred on July 14, 2001, approximately five days after the robbery of the dry-cleaning business involved in this case. These convictions were secured after Craig escaped, in Gallahar's automobile, from the scene of the crime in Alabama and was later apprehended in Kentucky in Gallahar's car. Because those crimes were committedafter the crime in this case, the resulting convictions could not have been used as prior convictions to enhance the sentence in this case. See Summerhill, supra. The State also argues that, because Craig was sentenced as an adult, we should allow the prior convictions to be used for enhancement purposes under the HFOA.
Craig was originally indicted in Kentucky on six charges, but he pleaded guilty to only three, and the trial court dismissed the other three charges. In adjudicating these felonies, the Kentucky trial court entered an order, which states, in pertinent part:
"These offenses were committed when the Defendant was 15 years of age. The Defendant's date of birth is November 29, 1981.
"On thе 14th day of April, 1999, having appeared in open Court with counsel . . ., by agreement with the Commonwealth's Attorney, the Defendant withdrew a plea of not guilty and entered a plea of guilty. Finding that the Defendant understands the nature of the charges, including possible penalties, that the Defendant knowingly and voluntarily waives any right to plead innocent, to be tried by a jury, to compel the attendance of the witnesses on his behalf, to confront and cross-examine witnesses and to appeal to a higher court, and finding further that the Defendant understands and voluntarily waives any right not to self-incriminate, any right to be represented by counsel at each stage of the proceedings, and, if necessary, to have counsel appointed for representation, *1260 and finding that the plea is voluntary, the Court accepts the plea.
"On the 12th day of May, 1999, the Defendant appeared in open court with counsel of record, and the Court inquired of the Defendant and counsel whether any legal cause existed to show why judgment should not be pronounced and afforded the Defendant and counsel and opportunity to make statements [o]n the Defendant's behalf and to present any information in mitigation of punishment, and the Court having informed the Defendant and counsel of the factual contents and conclusions contained in the written report of the presentence investigation prepared by the Justice Cabinet, Department of Juvenile Justice, and provided counsel with a copy of the report although not the sources of the confidential information, the Defendant agreed with the factual contents of said report. Having given due consideration to the written report by the Justice Cabinet, Department of Juvenile Justice, and to the nature and circumstances of the crime, and to the history, character, and condition of the Defendant, this Court is of the opinion[t]hat imprisonment is necessary for the protection of the public because[p]robation, probation with an alternative sentencing plan, or conditional discharge would unduly depreciate the seriousness of the Defendant's crime.
"No sufficient cause having been shown why judgment should not be pronounced, IT IS ADJUDGED BY THIS COURT that the Defendant is guilty of the following charge(s):
"Robbery, First Dеgree — two counts; Wanton Endangerment, First Degree
"AND IS SENTENCED TO:
"Counts 1, 2 and 3 having been dismissed; ten years on Count 4; ten years on Count 5; five years on Count 6 to run concurrently for a total of ten years.
"It is further ORDERED that the Defendant be delivered to the custody of the Corrections Cabinet, Juvenile Division, at such location within this Commonwealth as the Cabinet shall designate unless specified otherwise above."
(C. 127-28.)4
The following statutes, some of which were considered by trial court, govern Craig's cases in Kentucky:
"(4) Any other provision of KRS Chapters 610 to 645 to the contrary notwithstanding, if a child charged with a felony in which a firearm, whether functional or not, was used in the commission of the offense had attained the age of fourteen (14) years at the time of the commission of the alleged offense, hе shall be transferred to the Circuit Court for trial as an adult if, following a preliminary hearing, the District Court finds probable cause to believe that the child committed a felony, that a firearm was used in the commission of that felony, and that the child was fourteen (14) years of age or older at the time of the commission of the alleged felony. If convicted in the Circuit Court, he shall be subject to the same penalties as an adult offender, except that until he reaches the age of eighteen (18) years, he shall be confined in a facility or program for juveniles or for youthful offenders, unless the provisions of KRS635.025 apply or unless he is released pursuant to expiration of sentence or parole, and at age eighteen (18) he shall be returned to thе sentencing *1261 Circuit Court for proceedings consistent with KRS 640.030(2)."
Ky.Rev.Stat. Ann. §
Additionally, "[n]o youthful offender shall be subject topersistent felony offender sentencing under the provisions of KRS
The State bears the burden of proving, beyond a reasonable doubt, the existence of a viable prior felony conviction for use as enhancement under the HFOA. See Grier v. State,
We note that we do not know and cannot guess whether Craig would have remained under the jurisdiction of the juvenile court if his case had arisen in Alabama, see §§ 12-15-33(a), Ala. Code 1975 (requiring that a defendant be transferred to juvenile court if it is detеrmined that the offense was committed while the defendant was a child), and 12-15-1(3), Ala. Code 1975 (defining a child as an individual under 18), or whether the district attorney would have moved the circuit court to transfer Craig for him to be tried as an adult pursuant to § 12-15-34(a), Ala. Code 1975. Additionally, Kentucky and Alabama have systems for treating juvenile and youthful offenders that are in some ways alike and, in other ways, quite different, as we will discuss below. Thus, an attempt to compare the prior offense of a juvenile defendant in Kentucky with the way that offense and defendant would have or could have been handled in Alabama is virtually impossible.
The relevant inquiry, then, is whether, given the totality of the circumstances, Craig was afforded the protections of a juvenile justice system or whether he was subjectеd to an adult justice system as his case was tried in Kentucky. That is, in order for Craig's prior offenses to constitute felony convictions and, therefore, be available to enhance his sentence in the present case, a court must find that Craig was, on the whole, subjected to an adult justice system, rather than being treated as a juvenile or youthful offender.5
The trial court considered Kentucky law, the indictments against Craig, and his treatment at sentencing to determine that the prior convictions were felony convictions garnered as an adult and, therefore, appropriate for use for enhancement purposes *1262
under the HFOA.6 The trial court relied heavily and almost exclusively on Ky.Rev.Stat. Ann. §
First, although we agree that § 635.020(4) specifically provides that, in a case such as Craig's, the juvenile is to be tried as an adult, rather than as a youthful offender as the statute provides elsewhere, we note that "[a] `youthful offender' is defined as `any person regardless of age, transferred to Circuit Court under the provisions of KRS Chapter 635 or 640 and who is subsequently convicted in Circuit Court.' KRS 600.020(56)." Gourley v. Commonwealth,
Second, Craig's presentence report was prepared by the Justice Cabinet, Department of Juvenile Justice, as is required for youthful offenders prior to sentencing, pursuant to Ky.Rev.Stat. Ann. §
Third, although the sentence imposed in Craig's case did exceed three years, the limit of a sentence received by a youthful offender in Alabama, see §
Fourth, upon sentencing, Craig was ordered delivered to the Corrections Cabinet, Juvenile Division, because he was not yet 18 years old when he was sentenced in 1999, rather than to the custody of the Department of Corrections, as would be an adult offender. See, e.g., C. 110, 121.
Finally, we note that, under Kentucky law, because Craig was classified as a youthful offender and because he was younger than 18 years old when he committed the crimes, his 1999 prior convictions could not have been used to enhance a later sentence.See Ky.Rev.Stat. Ann. §§
Thus, viewing the totality of the circumstances, we conclude that Craig was treаted as a youthful offender in the Kentucky judicial system. Therefore, his convictions there were youthful offender convictions and not appropriate for use under Alabama law for enhancement purposes under the HFOA. Therefore, we hold that the trial court erred in using Craig's 1999 Kentucky convictions to enhance his sentence in the case at hand.
For the reasons stated above, we affirm one first-degree robbery conviction and reverse one first-degree robbery conviction; we remand this cause for the trial court to vacate that reversed conviction. On remand, the circuit court is to resentence Craig pursuant to the holdings in this opinion, that is, without using the 2001 Kentucky trafficking convictions and the 1999 Kentucky robbery convictions to enhance Craig's sentence under the HFOA.
ON REHEARING EX MERO MOTU; OPINION OF MARCH 26, 2004, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.* *1264
McMILLAN, P.J., and SHAW and WISE, JJ., concur. BASCHAB, J., concurs in the result.
"(1) The presentence investigation required by KRS532.050 shall be prepared by the Department of Juvenile Justice or by its designated representative;
"(2) Except as provided in KRS
"(a) Whether the youthful offender shall be placed on probation or conditional discharge;
"(b) Whether the youthful offender shall be returned to thе Department of Juvenile Justice to complete a treatment program, which treatment program shall not exceed a period in excess of six (6) months. At the conclusion of the treatment program or at the expiration of six (6) months, whichever first occurs, the individual shall be returned to the sentencing court for a determination under paragraph (a) or (c) of this subsection; or
"(c) Whether the youthful offender shall be incarcerated in an institution operated by the Department of Corrections. . . ."
Ky.Rev.Stat. Ann. §