Maye v. StateMaye v. State
Appellant, Joseph Samuel Maye, was indicted by the Sumter County grand jury for the offense of burglary in the third degree in violation of §
The evidence, when viewed in a light most favorable to the state, indicates that the appellant burglarized Johnny‘s Food Store in York, Alabama, during the early morning hours of November 28, 1983. He apparently gained entry by throwing a cement block through the glass front door. Taken in the burglary were nickel coin wrappers, a masonic ring, a key to a drink
At approximately 11:00 a.m., the day of the burglary, the York Police Department received a call from Mrs. Linda Stuart, who worked at another convenience store in York. She reported that the appellant had been in the store and had attempted to cash the $10.66 check taken in the robbery. She had refused to cash the check, and the appellant had left on foot. He was apprehended approximately one hour later, one-half to three-quarters of a mile away, walking down the street. Among other items in his possession at the time of arrest were nickel and dime coin wrappers and a bent quarter. The quarter was identified at trial by Johnny Lee Clark as one of the quarters taken from his cash register during the burglary; he could identify it because of certain damage to the quarter which made it unique.
The appellant now appeals, raising the following issues:
I
The appellant first contends that he was penalized with a longer sentence because he refused to plead guilty. Before trial, District Attorney Nathan Watkins advised appellant‘s attorney that if the appellant would plead guilty he would recommend a three-year sentence and thus avoid the application of the Habitual Felony Offender Act. The appellant chose not to plead guilty, was found guilty, and was subsequently sentenced to a fifteen-year sentence under the Habitual Felony Offender Act.
When a district attorney has knowledge of a defendant‘s prior convictions, he has a legal duty as an officer of the court to inform the court so that the court can sentence the defendant under the mandatory sentencing provisions of §
It is also settled law that upon the receipt of such information from the district attorney, the trial court would have to apply the Habitual Felony Offender Act, as its application is mandatory.
Therefore, regardless of any sentencing recommendation of the district attorney, the trial court would be bound to sentence according to §
“In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows:
“On a conviction of a Class C felony, he must be punished for a Class A felony.”
Section
It is not within the province of this court to review sentences which are within the statutorily prescribed limits, as is the sentence in the instant case. Wallace v. State, 408 So.2d 171 (Ala.Cr.App. 1981), cert. denied, Ex parte Wallace, 408 So.2d 173 (Ala. 1982); Brown v. State, 392 So.2d 1248 (Ala.Cr.App.), cert. denied, Ex parte Brown, 392 So.2d 1266 (Ala. 1980).
We therefore find no error in the sentencing of the appellant.
II
The appellant next contends that the Habitual Felony Offender Act, §
The constitutionality of §
Although Solem v. Helm, supra, does not apply in this case, we nevertheless find that the sentencing of appellant under §
Therefore, the judgment of the circuit court is due to be affirmed.
OPINION EXTENDED; AFFIRMED.
All the Judges co