Spooney v. StateSpooney v. State
- Reporters:
- ,
- Before:
- McMillan, Baschab, Wise, Cobb, Shaw (per curiam)
PER CURIAM.
On March 27, 2001, John A. Spooney pleaded guilty to the unlawful distribution of a controlled substance (marijuana) and to the failure to affix tax stamps, violations of
On August 24, 2001, appellate counsel filed a brief and a motion to withdraw in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In his brief, counsel stated that, after a thorough review of the record, he maintained that it would be more appropriate to file a brief in accordance with Anders, rather than to present an appeal without merit. On September 10, 2001, Spooney filed his pro se claims, challenging the sufficiency of the unlawful distribution indictment and the enhancement of his sentence pursuant to
Spooney‘s claim challenging the sufficiency of the unlawful distribution indictment is nonspecific. Moreover, we have reviewed both indictments in this case, and they are sufficient.
As for Spooney‘s argument regarding the enhancement of his sentence, he contends that the State failed to prove by a preponderance of the evidence that the drug sale occurred within three miles of a school. Initially, we point out that the standard of proof on this issue is beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). More importantly, Spooney stipulated that the drug sale occurred within three miles of Dozier Elementary School. (R. 17.) Therefore, his argument is without merit.
We must, however, remand this cause to the trial court for resentencing. At the sentencing hearing, Spooney stipulated to having three prior felony convictions. The trial court then sentenced Spooney to 15 years for the conviction for the unlawful distribution of a controlled
We therefore remand this cause for the trial court to resentence Spooney to a minimum sentence of 20 years’ imprisonment (before any enhancements) on his distribution conviction. The trial court is also to assess the mandatory Drug Demand Reduction Assessment fine pursuant to
REMANDED WITH DIRECTIONS.
McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. COBB and SHAW, JJ., concur in part and dissent in part, with opinions.
COBB, Judge (concurring in part and dissenting in part).
I concur in affirming the appellant‘s conviction; however, I would reverse his sentence and remand the case for resentencing in accordance with Judge Shaw‘s special writing in Poole v. State, 846 So.2d 370, 389 (Ala.Crim.App.2001), with which I concurred as to this issue. As to those points on which I disagree with Judge Shaw, see my special writing in Poole, 846 So.2d at 398.
I believe that these sentence enhancements must be charged in the indictment and proved to the jury beyond a reasonable doubt, and that the failure to charge these sentence enhancements in the indictment is a jurisdictional defect which this Court should notice and remedy on appeal. Therefore, as to the sentencing issue, I dissent.
SHAW, Judge (concurring in part and dissenting in part).
I concur to affirm John A. Spooney‘s conviction for the unlawful distribution of a controlled substance and I concur with the majority opinion that Spooney‘s 15-year base sentence was improper and that this case must be remanded for the trial court to resentence Spooney to a sentence of not less than 20 years’ imprisonment, pursuant to the Habitual Felony Offender Act. However, because neither the enhancement provision of
On Return to Remand
PER CURIAM.
On December 21, 2001, this Court remanded this cause for the trial court to resentence John A. Spooney in accordance with the Habitual Felony Offender Act and to impose certain mandatory fines. We also asked the trial court to clarify the case-action sheet to indicate whether the public-housing enhancement or the school-zone enhancement had been used to enhance Spooney‘s sentence. See
On remand, the trial court imposed the mandatory fines and clarified the case-action sheet, finding that Spooney had distributed a controlled substance within 1.2 miles of an elementary school, rather than a public-housing project. However, the trial court has not attached a copy of the corrected case-action sheet.
More troubling to this Court is the fact that, although the trial court sentenced Spooney to 20 years in prison, the minimum sentence mandated by the Habitual Felony Offender Act for a defendant convicted of a Class B felony, with three prior convictions, see
The circuit court acknowledged that Spooney had distributed a controlled substance within three miles of a public school. Therefore, application of the sentencing enhancement in
We remand this cause a second time in order for the circuit court to enhance Spooney‘s 20-year sentence by 5 additional years, resulting in a total sentence of 25 years in prison. Because the application of this enhancement is mandatory, Spooney‘s presence at the hearing is not required. The circuit court is also directed to provide a corrected case-action sheet reflecting that Spooney‘s sentence enhancement is pursuant to
REMANDED WITH DIRECTIONS.*
McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. COBB and SHAW, JJ., dissent on the basis of improper application of sentence enhancements.