785 So. 2d 394 | Ala. Crim. App. | 2000
Robert L. McCray appeals the circuit court's summary denial of his second Rule 32, Ala.R.Crim.P., petition for post conviction relief, which he styled as a "motion for correction of unauthorized sentence." The petition challenged the sentence imposed as a result of McCray's convictions in April 1992, for second degree kidnapping and second degree assault. McCray was sentenced as a habitual offender to 25 years' imprisonment for the kidnapping conviction and to 10 years' imprisonment for the assault conviction.1 His convictions were affirmed on direct appeal. McCray v. State,
On April 29, 1999, McCray filed his "motion for correction of unauthorized sentence" with the circuit court, arguing that his sentence was illegal because, he said, it had been improperly enhanced, pursuant to the Alabama Habitual Felony Offender Act (the "HFOA"), by a Florida misdemeanor conviction pursuant to a plea of nolo contendere. The circuit court properly considered McCray's motion as a second Rule 32 petition, under Rule 32.4, Ala.R.Crim.P. ("Any other post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under this rule.") In denying relief, the circuit court held:
"This is the second time that the defendant has raised this issue. Defendant previously filed a Petition for Relief From Judgment Or Sentence pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. The court dismissed that petition and an appeal was taken to the Alabama Court of Criminal Appeals. The Court of Criminal Appeals affirmed the trial court's dismissal by a memorandum opinion that was released on April 15, 1994. It is therefore the court's opinion that the issues raised in the instant petition have been previously determined adversely to the defendant and consequently the petition is due to be denied."
(C. 19.) This appeal follows.
In determining the history of this case, we have taken judicial notice of our own records pertaining to both the 1992 conviction and the Rule 32 petition filed in 1993. Hamm v. State,
In his 1993 Rule 32 petition, McCray argued that the enhanced sentence was "arbitrary, capricious, and retaliatory" because it had been enhanced with a Florida misdemeanor offense. The circuit court summarily dismissed that argument, holding that it was precluded from review because it was either addressed on direct appeal, or should have been addressed on direct appeal and was not. Rule 32.2(a)(4) and (5), Ala.R.Crim.P. However, the trial court held an evidentiary hearing on McCray's claim of ineffective assistance of counsel, and allowed McCray to argue the illegality of his sentence at the hearing. The trial court denied McCray's petition for relief, finding no ineffective assistance of McCray's trial counsel. In affirming the trial court's decision, this court addressed the illegality of the sentence in its unpublished memorandum:
"With regard to his claim of ineffective assistance of counsel, the appellant asserts that his sentence was improperly enhanced for habitual felony offender purposes by a prior Florida conviction for obtaining property in return for a worthless check. The appellant claims that the Florida conviction was a misdemeanor.
"Although the amount of the worthless check is not shown, the appellant was sentenced to four years probation, to be served concurrently with another sentence. This indicates that the amount of the check was greater than $150.00, which by statute in Florida constitutes a first-degree felony punishable by up to five years in prison. See Fla. Stat. Annot. §
832.05 (4)(c), §775.082 (3)(d), §775.082 (4)(a)."In Alabama negotiating a worthless instrument is a class A misdemeanor and there is no dollar demarcation for separate degrees of culpability. Ala. Code 1975, §
13A-9-13.1 . However, Alabama does not preclude a prosecution for theft of property when the passer of a worthless check receives property in return. Willis v. State,480 So.2d 56 (Ala.Cr.App. 1985). In Alabama, at the time appellant was indicted (Fall of 1988), convicted for the second time (April 13, 1992), and sentenced for the second time (May 21, 1992), theft of property greater than $100.00 constitutes a felony. See Rule 26.6(b)(3)(iv), A.R.Crim.P."Moreover, it was incumbent upon the appellant at his Rule 32 hearing to prove that his sentence was not authorized by statute. The appellant presented no facts to substantiate this assertion or to support his contention of ineffective assistance of counsel pursuant to Strickland v. Washington,
466 U.S. 668 , 104 s.Ct. 2052,80 L.Ed.2d 674 (1984)."
Now, for the first time before an Alabama court, McCray has appended documents *397
to his Rule 32 petition which, if true, indicate that the Florida worthless-check conviction was the equivalent of a misdemeanor conviction in Alabama. McCray submitted to the circuit court a copy of the Florida indictment, which charged him with obtaining property in exchange for a $100.00 worthless check. A photostatic copy of the check is appended to the indictment. The trial court in 1992 considered this offense to be the equivalent of a felony theft conviction in Alabama. However, in Alabama at the time the appellant was indicted, (fall 1988), convicted for the second time (April 13, 1992), and sentenced for the second time (May 21, 1992), theft of property valued at $100 was a Class A misdemeanor offense. §
On appeal, the State argues that McCray's petition was time-barred under Rule 32.2(c), Ala.R.Crim.P., that it was precluded because it was raised on appeal or a previous collateral proceeding under Rule 32.2(a)(4), and that it was precluded as a successive petition under Rule 32.2(b), Ala.R.Crim.P.
This Court cannot affirm the denial of the petition on the basis that it is procedurally barred. The maximum sentence for a conviction of second-degree kidnapping, a Class B felony, would have been 20 years' imprisonment. Thus, if the trial court incorrectly enhanced McCray's sentence with a misdemeanor conviction, the trial court's sentence of 25 years' imprisonment for the kidnapping offense would be illegal. Although McCray was sentenced eight years ago, an allegedly illegal sentence may be challenged at any time, because if the sentence is illegal, the sentence exceeds the jurisdiction of the trial court and is void.Rogers v. State,
Based on the foregoing, we are remanding this cause to the circuit court for further findings regarding McCray's allegation that his sentence was improperly enhanced under the HFOA by the use of a misdemeanor conviction and, thus, that his sentence was illegal. If the circuit court determines that the sentence was improperly enhanced, the court is authorized to resentence McCray within the parameters of a Class B felony for the kidnapping offense. The return to remand shall contain a transcript of the proceedings and the circuit court should make specific findings of fact as required by Rule 32.9(d), Ala.R.Crim.P. The circuit court shall take all necessary action to *398 ensure that the circuit clerk makes due return to remand at the earliest possible time and no later than 60 days from the date of this opinion.
REMANDED WITH INSTRUCTIONS.*
Long, P.J., and McMillan, Baschab, and Fry, JJ., concur.