Johnson v. StateJohnson v. State
Lаrry Johnson was indicted for promoting prison contraband in the first degree, in violation of
On June 27, 1985, Officer John Lee, a guard at Fountain Correctional Facility, was escorting inmates Wilbert Tyrus and Curtis Scarver to their beds in the prison dormitory when Tyrus pulled a knife and attacked Scarver. Scarver ran to the opposite end of the dorm. Lee ordered Tyrus to drop the knife but he refused and chased after Scarver.
At this point, the appellant ran past Lee with a knife. Lee told the appellant to drop the knife but he continued running. The аppellant then confronted Tyrus with the knife. The appellant then dropped the knife after Lee ordered him to do so.
I
Shortly before the trial of the case, the appellant‘s аppointed attorney, B.F. Lovelace, Sr., became ill and could not represent the аppellant at trial. Lovelace‘s son, B.F. Lovelace, Jr., was appointed to reрresent the appellant.
Just prior to the start of the trial, the appellant filed a pro se motion asking for a continuance based on the ground that his attorney was not prepared for trial. Lovelace told the court that he was fully prepared to try the case. He stated that about half of the witnesses had been interviewed and the others were merely cumulаtive. Lovelace told the court that he had talked with the appellant on several оccasions and had talked to an investigator. Further, Lovelace said that he felt the aрpellant wanted to continue the case for various reasons that Lovelace did not believe were meritorious.
The trial judge stated that the case had already been cоntinued twice on the motions of the appellant and he denied this motion for continuancе. The appellant contends this was error.
The granting or denial of a motion for a continuance is within the sound discretion of the trial court. Dawkins v. State, 455 So.2d 220 (Ala.Cr.App. 1984).
In light of the fact that the appellant‘s attorney told the court he was fully prepared to try the case, and the fact that the case had been previously continued twice at the appellant‘s request, it is clear that the trial court did not abuse its discretion in this instance.
II
The appellant contends the State failed to рrove a prima facie case because the State did not prove the appellant owned the knife or that a knife is a deadly weapon which would be useful in an escaрe attempt.
Section
“A person is guilty of promoting prison contraband in the first degree if:
“(1) He intentionally and unlawfully introduces within a detention facility, or provides an inmate with, any deadly weapon, instrument, tool or other thing which may be useful for escape; “(2) Being a person confined in a detention facility, he intentionally and unlawfully makes, obtains or posseses any deadly weapon, instrument, tool or other thing which may be useful for escape.” (Emphasis added.)
The statute does not require the State to prove ownership of the contraband. It only requires that the State prove that he intentionally and unlawfully obtained or possessed contraband. The State certainly proved this elеment.
A knife is a deadly weapon or instrument. See
III
After the verdict was rendered in this case, the State requested a continuance оf the sentence hearing so that the proper certified copies of the apрellant‘s prior convictions could be obtained and a presentence investigation сould be conducted. The trial court granted the continuance and the appellant contends he was denied equal protection by the trial court‘s action.
As was stated earliеr, the decision to grant or deny a continuance is within the sound discretion of the trial court. Dawkins, supra. We find no abuse of its discretion here.
IV
The аppellant asserts that his sentence of fifteen years constitutes cruel and unusual punishment. Thе appellant was sentenced within the range of punishment allowed under the Habitual Felony Offеnder Act. This court has stated that applying the Habitual Felony Offender Act does not constitute сruel and unusual punishment. McLester v. State, 423 So.2d 286 (Ala.Cr.App. 1982); Thompson v. State, 462 So.2d 777 (Ala.Cr.App. 1984).
Furthermore, the appellant received the minimum sentence he could receive under the Habitual Felony Offender Act. Thus, there is no merit to this argument.
For the foregoing reasons, this cause is due to be, and is, hereby, affirmed.
AFFIRMED.
All the Judges concur.