740 So. 2d 475 | Ala. Crim. App. | 1998
The appellant, Richard B. Kaska, appeals from "the sentence of the trial court imposed on remand in resentencing."
The appellant, on original submission, appealed from the trial court's summary dismissal of his Rule 32 petition for *476
postconviction relief. The petition challenged his February 23, 1994, conviction and sentence for receiving stolen property in the second degree. The appellant had pleaded guilty to this offense and had been sentenced as a habitual offender to 15 years' imprisonment, that sentence was suspended and he was placed on probation. He did not file a direct appeal. His Rule 32 petition was filed on August 12, 1996, after his probation was revoked. The trial court summarily dismissed the petition on October 29, 1996, as being barred by the period of limitations. The appellant appealed from the summary dismissal, and on May 23, 1997, this Court reversed the trial court's judgment and remanded this case to the trial court with instructions to hold a new sentencing hearing. See Kaska v. State,
In Kaska v. State,
The "previous case" referred to in the language quoted above from Kaska I was the case underlying this Court's opinion in Kaska II and is the case underlying the Rule 32 petition now before us. In Kaska II, this Court noted that the appellant's petition was filed outside the two-year limitations period of Rule 32 and that, therefore, the only issues reviewable by this Court were challenges to the Court's jurisdiction to render a judgment and to impose sentence, and a claim that newly discovered evidence entitled the appellant to relief.
In examining the appellant's claim in Kaska II that the trial court was without jurisdiction to impose the sentence, this Court noted that trial counsel stipulated that the appellant had three prior felony convictions that could be used to enhance his sentence under the HFOA. The Kaska II Court further stated that because "our memorandum of May 10, 1996, issued in Kaska I, implies that these convictions were not valid for sentence enhancement under the HFOA", the appellant's "petition regarding his 1994 conviction presented an issue, sufficiently supported by facts, which, if true, did prove that he had been *477 improperly sentenced. Rule 32.1(e)(5), Ala.R.Crim.P." 709 So.2d at 502. The Kaska II Court went on to state: "We do not know whether the three prior felony convictions used to enhance Kaska's sentence in the present case cannot be used for enhancement purposes for some substantive reason or whether the State simply failed to submit them in Kaska I. Because we cannot answer this question, it appears that the appellant may have been improperly sentenced." Id. at 502. The case was then remanded with instructions that the trial court grant the appellant a hearing pursuant to Rule 32.9, Ala.R.Crim.P., to address the sentencing issue.
Pursuant to this Court's instruction in Kaska II, the trial court conducted a sentencing hearing. At that hearing, the transcript of the appellant's original sentencing hearing in this case (i.e., the case charging second-degree receiving stolen property) was made a part of the record. The transcript revealed that the appellant stipulated, in the presence of his attorney, that he had three prior felony convictions that could be used for sentence enhancement. Subsequently, on April 8, 1998, the trial court entered an "Amended Order of Sentencing" acknowledging that "through stipulation this Court has actual knowledge of three prior felony convictions, [but] it is disregarding same based on the Appellant [sic] Court's mandate that the State produce evidence of prior felony convictions rather than stipulating to them." The trial court then sentenced the appellant to 10 years' imprisonment.
It is well settled that when an accused admits prior felony convictions, they are deemed proven for purposes of §
The remaining issues raised in the appellant's brief on appeal — that he was not sentenced in compliance with the plea agreement and that the State breached the plea agreement — are precluded from appellate review because they were not presented to the trial court. See Cleveland v. State,
For the reasons stated herein, this cause is remanded with instructions to the trial court to resentence the appellant in accordance with the Alabama Habitual Felony Offender Act. A return to remand shall be filed with this Court within 63 days of the date of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the trial court.
REMANDED WITH INSTRUCTIONS. *478
Long, P.J., and Cobb, Brown, and Baschab, JJ., concur.