Tatum v. StateTatum v. State
This is an appeal from the summary denial of two
The appellant contends that he was given no notice, prior to the еntry of his guilty pleas, of the State‘s intent to proceed against him as a habitual offender, and that he is therefore entitled to have his sentences vacated and to be resentenced as a first-time offender.
In denying the petitions, the circuit court entered the following order in each case:
“The defendant was arraigned on November 5, 1990, and after the indictment was read to him, the defendant plеad guilty to robbery in the third degree. The defendant was fully advised on the record, transсribed by Court Reporter Diane Duncan, of his legal rights and of the consequences of entering a guilty plea. A written Explanation of Rights and Plea of Guilt Form was submitted to thе Court signed by the defendant and his appointed counsel. This form advised the defendant that he would receive a sentence of from fifteen (15) years to life in prison and a fine of up to $20,000.00 if convicted of a class C felony after prior cоnviction of three or more prior felonies.
“The defendant, in colloquy with the Cоurt, stated that he fully understood his legal rights and was knowingly, thoughtfully and voluntarily entering a guilty plea to the offense of robbery third degree.
“A fully executed ’ “Notice to Court of Agreed Plea Agreement and State‘s Recommendation” ’ form was submitted to the Court аnd therein the defendant admitted on the record that he had previously been convicted of four felonies. In accord with the agreement between the State and the defendant, the Court sentenced the defendant to a term of twenty (20) years in the State penitentiаry. The defendant‘s sentence was concurrent with Calhoun County cases CC-90-1133 and CC-80-606 and Montgomery
County cases CC-83-707 and CC-83-1011. The Court granted defendant 121 days jail credit. “The petitioner-defendant has now filed an in forma pauperis
Rule 32 Petition for Rеlief from Conviction or Sentence. The Court does hereby GRANT petitioner‘s requеst to proceed as an indigent.“Petitioner claims, in essence, that the Court did nоt provide him with prior notice of the State‘s intent to proceed against him as an habitual offender and that the Court must vacate his sentence and sentenсe him as a first time offender. Petitioner relies on language contained in
Rule 6 of the Alabama Rules of Criminal Procedure-Temporary which suggest that the State must give reasonable prior notice of the State‘s intent to proceed against a defendant as an habitual offender and inform the defendant of the prior conviction which the State intends to use.“The Court finds that when a guilty plea is taken by the Court that such prior notice is waived by the defendant. The defеndant herein has voluntarily admitted on the record that he had at least three рrior felonies before the commission of his present offense. The defendаnt was clearly advised of the possible sentence he could receivе and of the actual sentence he would receive under his plea agreement with the State. When a defendant waives his right to trial and confirms on the recоrd his prior felony convictions under a plea agreement with the State, the Court will not compel the State to engage in a useless act. Accordingly, the рetitioner-defendant‘s petition for relief is hereby DENIED.” CR. 17 19 (emphasis added).
The cirсuit court need not require a response from the district attorney before it denies a
We agree with the trial court that the pеtitioner‘s voluntary admission on the record that he had at least three prior fеlonies dispensed with the requirement of notice. See Connolly v. State, 602 So.2d 452, 456 (Ala. 1992) (wherein the court held that “[t]he notice requirement is eliminated when during the trial the defendant admits the previous felony conviction“).
The orders of the circuit court denying the petitions are affirmed.
AFFIRMED.
All Judges concur.