Brooks v. State

450 So. 2d 467, 1984 Ala. Crim. App. LEXIS 4807
CourtCourt of Criminal Appeals of Alabama
DecidedMarch 20, 1984
Docket1 Div. 628
StatusPublished

This text of 450 So. 2d 467 (Brooks v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brooks v. State, 450 So. 2d 467, 1984 Ala. Crim. App. LEXIS 4807 (Ala. Ct. App. 1984).

Opinion

LEIGH M. CLARK, Retired Circuit Judge.

The trial court adjudged defendant-appellant guilty and sentenced him to imprisonment for twenty years upon acceptance of his plea of guilty to an indictment that charged in pertinent part:

“Michael D. Brooks, ..., in the course of committing a theft of money, ..., the property of B & D Quik Shop, threatened the imminent use of force against the person of Angie Robinson, with the intent to compel acquiescence to the taking of or escaping with the property, while the said Michael D. Brooks was armed with a deadly weapon, to-wit: a pistol, in violation of § 13A-8-41 of the Code of Alabama.”

No question is raised as to the sufficiency of the transcript in showing that the plea of guilty was voluntarily, intelligently and understandingly interposed. The transcript discloses that a comprehensive inquiry was conducted that met all of the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and related cases. The transcript contains the following as a part of the dialogue between the trial judge and defendant:

“Q. [The trial judge] All right. Now, the punishment for a Class A felony is not less than ten years nor more than ninety-nine years or life imprisonment in the penitentiary of the State of Alabama. However, the punishment for a Class A felony in which a firearm or deadly weapon, such as a pistol in this case, is used or attempted to be used in the commission of the offense, the punishment is not less than twenty years.
“So I am at this time informing you that the punishment for this offense of robbery in the first degree as charged in this indictment is not less than twenty years nor more than ninety-nine years or life imprisonment in the penitentiary of the State of Alabama.
“Do you understand what the punishment for the offense of robbery in the first degree is?
[468]*468“A. Yes.”

In the single issue presented by appellant, he does not question the validity of the judgment of conviction. The following constitutes the conclusion of appellant’s brief:

“The appellant contends that Section 13A-5-6(a)(4), Code of Alabama, 1975, is unconstitutional in that it amounts to double jeopardy when applied to a conviction under Section 13A-8-41, Code of Alabama, 1975.
“Based on the foregoing argument, it is respectfully requested that the sentence imposed by the lower court be reversed.”

Alabama Code, § 13A-8-41, defining and proscribing robbery in the first degree, classifies the crime as a Class A felony. § 13A-8-41(c).

The foregoing quotation from the transcript as to the dialogue between the trial judge and the defendant lends strength to appellant’s position that the trial court would not have imposed punishment of imprisonment for twenty years if it had not been obliged to do so by the terms of § 13A-5-6(a)(4), and for that reason distinguishes the case from Norwood v. State, Ala.Cr.App., 424 So.2d 1351 (1982), in which a contention similar to the one now presented by appellant was rejected. The rationale in Norwood was that as the trial court in that case fixed defendant’s punishment within the legislative limits that were unquestionably constitutionally prescribed, it was impossible for the court on appeal to determine that the trial court fixed the punishment applied by reason of its having felt that it was “impelled” to do so by the language of § 13A-5-6(a)(5), which as to the issue raised by appellant is the equivalent of § 13A-5-6(a)(4). As accurately observed in Norwood v. State, at 424 So.2d 1352, subsections (4) and (5) were added in 1981 (Acts 1981, No. 81-840, p. 1505) as an amendment to Code 1975, § 13A-5-6.

Even though we are not fully convinced that the sentence would not have been for as much as twenty years irrespective of the applicable statutory minimum or that defendant did not waive his right to challenge the constitutionality of the 1981 amendment increasing from two years to ten years the minimum punishment, our conclusion as to the issue presented by appellant makes it unnecessary for us to consider such questions.

In support of his only contention for a reversal, appellant relies exclusively upon the cases of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); and Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). We now consider these authorities in their chronological order.

In Blockburger, involving a conviction on three counts of a five-count indictment for violations of provisions of the Harrison Narcotic Act, it is stated:

“The principal contentions here made by petitioner are as follows: (1) that, upon the facts, the two sales charged in the second and third counts as having been made to the same person, constitute a single crime; and (2) that the sale charged in the third count having been made not from the original stamped package, and the same sale charged in the fifth count as having been made not in pursuance of a written .order of the purchaser, constituted but one offense for which only a single penalty may be imposed.” 284 U.S. at 301, 52 S.Ct. at 181, 76 L.Ed. at 308.

The contentions made by petitioners were rejected by the Supreme Court, and the judgments of the trial court were affirmed. Blockburger has spawned a number of other contentions as to double jeopardy, but nothing in Blockburger leads to the conclusion that appellant herein has been made the victim of double jeopardy by double punishment or otherwise.

In North Carolina v. Pearce, supra, the Supreme Court dealt with ramifications of the subject of double jeopardy, as inhibited by the Fifth Amendment in coordination [469]*469with the due process clause of the Fourteenth Amendment, arising in a case of each of two persons who, after a conviction, had been granted a new trial and on the subsequent trial were again convicted and the punishment imposed exceeded the punishment imposed on the first trial. The opinion furnished the solution to five separate and distinct problems presented by the two cases, but there is little, if any, relation between the problems presented in North Carolina v. Pearce and the single issue presented here.

In Simpson v. United States, supra, the Supreme Court considered a federal prosecution against two defendants, growing out of a single transaction, for bank robbery with firearms.

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Related

Blockburger v. United States
284 U.S. 299 (Supreme Court, 1931)
Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
North Carolina v. Pearce
395 U.S. 711 (Supreme Court, 1969)
Simpson v. United States
435 U.S. 6 (Supreme Court, 1978)
Busic v. United States
446 U.S. 398 (Supreme Court, 1980)
Norwood v. State
424 So. 2d 1351 (Court of Criminal Appeals of Alabama, 1982)

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Bluebook (online)
450 So. 2d 467, 1984 Ala. Crim. App. LEXIS 4807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-state-alacrimapp-1984.