Ex Parte Mutrie
Pearlie Mutrie pleaded guilty to unlawful “delivery” of a controlled substance in violation of
Section 13A-12-250 specifically provides:
“In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was on the campus or within a three-mile radius of the campus boundaries of any public or private school, college, university or other educational institution in this state.”
(Emphasis added.) Section 13A-12-270 specifically provides:
“In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was within a three-mile radius of a public housing project owned by a housing authority.”
(Emphasis added.)
As stated above, Mutrie pleaded guilty to unlawful delivery of a controlled substance, in violation of
In construing
“It is well settled that, although there are occasions when a court must correct or ignore obvious inadvertences in order to give a law the effect which was plainly intended by the legislature, the judiciary cannot and should not, in a republican form of government, usurp the legislative function. Hamilton v. Smith, 264 Ala. 199, 86 So.2d 283 (1956). Where, as here, this Court is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained. Shelton v. Wright, 439 So.2d 55 (Ala.1983). Where a statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent of the legislature must be given effect. Dumas Brothers Manufacturing Co. v. Southern Guaranty Ins. Co., 431 So.2d 534 (Ala.1983).”
Ex parte Holladay, 466 So.2d 956, 960 (Ala. 1985) (emphasis added).
“A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
“Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).
”One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing Young‘s Case, 58 Ala. 358 (1877).
“No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.”
Clements v. State, 370 So.2d 723, 725 (Ala. 1979) (emphasis added), overruled on other grounds, Beck v. State, 396 So.2d 645 (Ala. 1980). “Further, it is well established that criminal statutes should not be `extended by construction.’ Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973).” Ex parte Evers, 434 So.2d 813, 817 (Ala.1983).
The Court of Criminal Appeals affirmed the enhancement of Mutrie‘s sentence on the authority of Burks v. State, 611 So.2d 487, 491 (Ala.Cr.App.1992). The Court of Criminal Appeals, in an earlier case, Qualls v. State, 555 So.2d 1158 (Ala.Cr.App.1989), had held that “the legislature, by enacting Alabama‘s `schoolyard statute,’ intended to create an around-the-clock drug-free atmosphere on or near school grounds.... Therefore, we believe that the legislature clearly intended to protect these areas ... from the evils associated with drug activities at all times.” Qualls, 555 So.2d at 1165, quoted in Burks, 611 So.2d at 491. In Burks, the Court of Criminal Appeals, in dicta,2 stated that
Applying the well-established principles of judicial construction of criminal statutes, we hold that the clear and unambiguous language of
In Hill v. State, 348 So.2d 848, 855 (Ala.Cr. App.), cert. denied, 348 So.2d 857 (Ala.1977), the Court of Criminal Appeals held that a defendant cannot be convicted of “selling” marijuana “if his conduct, according to the undisputed evidence, does not afford a reasonable inference that he participated with the seller in making the sale.” The fact that the defendant acted as the buyer‘s agent is not a defense to an indictment under
Therefore, we hold that
REMANDED*.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur.
MADDOX, J., concurs specially.
ALMON, J., concurs in the result.
HOUSTON and STEAGALL, JJ., dissent.
MADDOX, Justice (concurring specially).
I concur in the holding that the enhancement provisions of
In Burks v. State, 611 So.2d 487 (Ala.Cr. App.1992), the Court of Criminal Appeals wrote:
“The appellant next raises several issues concerning the enhancement of his sentence under both
§ 13A-12-250, Code of Alabama 1975 , which imposes a penalty of five years in addition to any [other] penalty for selling a controlled substance within a three-mile radius of a school campus and§ 13A-12-270, Code of Alabama 1975 , which imposes an additional penalty of five years for selling a controlled substance within a three-mile radius of a public housing project. The appellant argues that, because§§ 13A-12-250 and13A-12-270 refer to the `unlawful sale of a controlled substance,’ they do not apply to him because he acted merely as a `procuring agent,’ instead of a seller of a controlled substance. The appellant also argues that§§ 13A-12-250 and13A-12-270 refer only to sales of controlled substances, but not to other kinds of distributions of illegal drugs. We disagree with both contentions.“In Qualls v. State, 555 So.2d 1158 (Ala. Cr.App.1989), this court broadly construed
§ 13A-12-250 to create a drug-free safety zone around schools: `We ... believe that the legislature, by enacting Alabama‘s “schoolyard statute,” intended to create an around-the-clock drug-free atmosphere on or near school grounds.... [W]e believe that the legislature clearly intended to protect these areas, as well as the school grounds, from the evils associated with drug activities at all times.’ 555 So.2d 1158, 1165 [emphasis supplied in Burks]. Whether the appellant is characterized as a `procuring agent’ for or a seller of drugs, his `drug activity’ clearly violates the legislative intent to create a `drug-free atmosphere on or near school grounds.’ Obviously a similar intent with regard to public housing projects motivated the passage of§ 13A-12-270 .“However, even had the legislature intended to exclude `procuring agents’ or other types of drug traffickers from the application of
§§ 13A-12-250 and13A-12-270 , those sections would still apply in this case because the appellant‘s activity with Dean was clearly a sale of a controlled substance. [Emphasis in Burks.] In Qualls [v. State, 555 So.2d 1158 (Ala.Cr. App.1989)], a drug transaction identical in substance to the transaction in this case was ruled a sale. In that case, Claude Cosey, an undercover investigator, was asked by Qualls if he was interested in buying marijuana. Cosey gave Qualls $30 and waited in a Tom Thumb convenience store parking lot. Soon after, Qualls returned with a bag of plant material, which was later determined to be marijuana. Qualls, 555 So.2d at 1159. See also, Smith v. State, 589 So.2d 798 (Ala.Crim.App. 1991).“The appellant in this case solicited the informant, took the marked money, and then returned with the marijuana, exactly as Qualls had done. In Qualls, this court found that the schoolyard statute,
§ 13A-12-250 , was properly applied to Qualls. The fact that the evidence did not show where Qualls went to get the marijuana she delivered to Cosey was not relevant. Likewise, the trial judge in this case correctly rejected the appellant‘s `procuring agent’ defense.”
611 So.2d at 491. This Court denied certiorari review in Burks. In Pettway v. State, 624 So.2d 696 (Ala.Cr.App.1993), the Court of Criminal Appeals reaffirmed its holding in Burks and discussed the interplay between the enhancement statutes and
“The appellant argues that the trial court erred by enhancing his sentence under both
§§ 13A-12-250 and13A-12-270 . However, this argument has previously been decided adversely to the appellant. In Burks v. State, 611 So.2d 487 (Ala.Cr. App.1992), the defendant argued that sentencing him under both§§ 13A-12-250 and13A-12-270 , violated his rights because, he said, he received double penalty for a single criminal act. This court rejected that claim, stating:“`In Hardy v. State, 576 So.2d 685 (Ala. Cr.App.1991), this court stated that, in “reviewing a sentence which is alleged to be impermissibly multiple, a court must `determin[e] what punishments the Legislative Branch has authorized.‘” Quoting Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980). Interpreting
§ 13A-12-250 , the Hardy court stated that the section was clearly intended to operate as a sentencing enhancement provision: `Section 13A-12-250 works in concert with§§ 13A-12-211 and13A-5-6 and effectively imposes only a single punishment for a single offense.’ Hardy v. State, 576 So.2d at 687-88.
“`Both § 13A-12-250 and§ 13A-12-270 begin with the same language: “In addition to any penalties heretofore or hereafter provided by law....” This language evidences a clear legislative intent that persons who sell controlled substances within three miles of a school and a housing project shall have their sentences enhanced under both statutes. See also, Hester v. State, 597 So.2d 1307 (Ala.Crim. App.1992).‘”
It appears to me that the basic holding of the majority opinion may define “sale” more narrowly than that term has been defined in Burks and Pettway. In short, it seems to me that those cases hold that the enhancement provisions of