Scott v. StateScott v. State
Thе appellant, Wilburn Scott, was convicted of selling a controlled substance. He was sentenced to a total of eight years in prison: three years’ imprisonment as a base sentence, which was enhanced by an additional five years’ imprisonment under §
The appellant‘s only contentions on appeal concern his sentence. The appellant initially argues that he should not have been sentencеd by a different judge from the judge who presided over his trial. He also contends that the court should have ordered that his base sentence be served concurrently with the sentences resulting from the enhancement provisions of §
It has come to our attention upon review of the sentence pronouncеd by the court that the appellant‘s sentence did not conform with the law. The trial court оrdered that the enhanced terms be served concurrently. However, that action by the court is contrary to the legislature‘s intent. Section
”In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale оf a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs оf such unlawful sale was on the campus or within a three-mile radius of the campus boundaries оf any public or private school, college, university or other educational institution in this stаte.”
(Emphasis added.)
Section
”In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was within a three-mile radius of a public housing project owned by a housing authority.”
(Emphasis added.)
This court, in Dixon v. State, 572 So.2d 512 (Ala.Cr.App. 1990), has stated the following in regards to the language emphasized above.
“The opening language of §
13A-12-250 [which is identical to the opening language in §13A-12-270 ] uses the words ‘[i]n addition to.’ The word ‘addition’ means the act, prоcess, or instance of adding. Lane v. Holderman, 23 N.J. 304, 129 A.2d 8 (1957). The words ‘addition’ and ‘extension’ and their synonyms ‘increase’ and ‘augmentation’ are used interchangeably. Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65 (1932). ‘Addition’ is ‘the act or process of adding; the joining оr uniting of one thing to another.’ Webster‘s Third New International Dictionary 24 (1976).“This court is of the opinion that, contrary to the appellant‘s contention, the legislature did intend for an extra five years to be ‘added to’ or ‘tacked on’ to the existing sentence. We are especially convinced of this in light of how othеr jurisdictions have treated similar statutes. For example, Congress was so appalled by the evils posed by illegal drug activity conducted near schoolchildren that it created a statute which doubles the original jail sentence of those found guilty of such an offense.”
572 So.2d at 513-14. The lеgislative intent is that the five-year penalties shall not run concurrently with each other or any оther sentence imposed. The enhancement terms provided for by these statutes must be “added to” any other penalty pronounced by the court. Because the appеllant‘s sentence was not in accordance with these statutes, this court has noticed thе defect in sentencing even though no objection was made to the trial court. Ex parte Brannon, 547 So.2d 68 (Ala. 1989). This court hаs in the past remanded cases for new sentencing when, although proof was established that the sale occurred within three miles of a school and within three miles of a housing project, the court had failed to enhance the sentence under the provisions of both §§
Because the appellant was not sentenced according to §§
REMANDED WITH DIRECTIONS.
All the Judges