CR-06-1330 | Ala. Crim. App. | Feb 29, 2008
The appellant, Darrell J. McNeal, appeals from the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his September 2002 conviction for sexual abuse in the first degree, rape in the first degree and his resulting sentence as an habitual felony offender to 20 years' imprisonment. No direct appeal was taken from these convictions.
On March 18, 2003, McNeal filed his first Rule 32 petition, challenging his rape conviction based on newly discovered DNA evidence. After conducting an evidentiary hearing, the circuit court dismissed the rape conviction. On December 7, 2004, McNeal filed his second Rule 32 petition, challenging his sexual-abuse conviction, which was denied by the circuit court. On February 24, 2006, this Court affirmed the circuit court's denial of McNeal's second Rule 32 petition, by unpublished memorandum.McNeal v. State (No. CR-04-1394),
On January 19, 2007, McNeal filed the instant Rule 32 petition, in which he alleged: (1) that the trial court was without jurisdiction to render judgment or to impose his sentence because, he said, his conviction for sexual abuse was obtained in violation of the prohibition against double jeopardy and (2) that his sentence exceeded the maximum authorized by law because, he said, it was illegally enhanced using a North Carolina conviction that would be a misdemeanor in Alabama. On March 15, 2007, the State filed its response and a motion to dismiss McNeal's petition, in which it argued that the petition was both procedurally barred and without merit. On April 4, 2007, the circuit court issued an order denying McNeal's petition. This appeal followed.
On appeal, McNeal reasserts the claims presented in his petition to the circuit court.
McNeal first argues that the trial court was without jurisdiction to render judgment or to impose his sentence because, he says, his conviction for sexual abuse violates the prohibition against double jeopardy. However, the circuit court dismissed McNeal's conviction for rape, leaving him with but a single conviction — for sexual abuse. McNeal v.State (No. CR-04-1394),
McNeal's remaining contention is that his sentence exceeds the maximum authorized by law because, he says, it was illegally enhanced with a prior conviction in North Carolina that would be a misdemeanor in Alabama. This claim raises a jurisdictional issue. See, e.g., Steele v. State,
According to McNeal, his prior conviction in North Carolina used by the State to enhance his sentence was a conviction for taking indecent liberties with a minor, a violation of N.C. Gen. Stat. §
Based on the foregoing, this cause is remanded to the circuit court for a hearing on McNeal's allegation that his sentence exceeds the maximum authorized by law. On remand, the circuit court should explain whether McNeal's North Carolina conviction constituted a felony offense in Alabama. The circuit court should make specific findings of fact as required by Rule 32.9(d), Ala.R.Crim.R. and the return to remand shall contain a transcript of the proceedings. If the circuit court determines that McNeal is entitled to relief, then the court may grant such relief as it deems appropriate.
The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to remand at the earliest possible time and no later than 56 days from the date of this opinion.
REMANDED WITH DIRECTIONS.*
BASCHAB, P.J., and McMILLAN and WELCH, JJ., concur.
SHAW, J., concurs in the result.