Childers v. State

Court of Criminal Appeals of Alabama

Childers v. State

899 So. 2d 1023, 2003 WL 22846405

CourtCourt of Criminal Appeals of Alabama

DecidedDecember 2, 2003

DocketCR-02-1451

StatusPublished

Cited by11 cases

This text of 899 So. 2d 1023 (Childers 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.

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Childers v. State, 899 So. 2d 1023, 2003 WL 22846405 (Ala. Ct. App. 2003).

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The appellant, Jimmy Allen Childers, appeals the Jefferson Circuit Court's denial of his Rule 32, Ala. R.Crim. P., petition, attacking his 1986 conviction for second-degree robbery and his sentence of three years' imprisonment in the state penitentiary.

The record on appeal reveals that Childers was indicted for first-degree robbery, and that pursuant to a plea agreement with the State he pleaded guilty to a reduced charge of second-degree robbery. He did not appeal his conviction. He has now filed a petition seeking postconviction relief.

In his Rule 32 petition, Childers argued that the trial court lacked jurisdiction to accept his guilty plea to a reduced charge of second-degree robbery. He claimed that, under the facts of his case, second-degree robbery was not a lesser offense of first-degree robbery, the charge for which he was indicted. The State moved to dismiss, arguing that the trial court properly accepted Childers's guilty plea because second-degree robbery was a lesser-included offense within the offense of first-degree robbery under the facts of this case. The State further alleged that the petition was procedurally barred by Rules 32.2(a)(3) and (c), Ala. R.Crim. P. The trial court thereafter summarily denied the petition.

The record contains a copy of the transcript of Childers's guilty-plea proceedings. This transcript reveals that during the colloquy, Childers admitted that he committed the robbery with two accomplices. However, Childers's indictment for first-degree robbery does not allege facts indicating that he was aided in this offense by another participant, and the record shows that the indictment was never amended to include the fact that he was aided by other persons in the robbery. Ex parte Cole,842 So.2d 605 (Ala. 2002). Therefore, the circuit court did not have jurisdiction to accept Childers' guilty plea to a charge of second-degree robbery, and its denial of his Rule 32 petition was in error. See Toliver v. State, 881 So.2d 1070 (Ala.Crim.App. 2003).

Based on the foregoing, the judgment of the Jefferson Circuit Court summarily dismissing Childers's Rule 32 petition is reversed, and this matter remanded for that *Page 1025 court to vacate his conviction for second-degree robbery.

REVERSED AND REMANDED.

COBB, BASCHAB, and SHAW, JJ., concur. WISE, J., concurs specially, with opinion.

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The appellant, Jimmy Allen Childers, appeals the Jefferson Circuit Court's denial of his Rule 32, Ala. R.Crim. P., petition, attacking his 1986 conviction for second-degree robbery and his sentence of three years' imprisonment in the state penitentiary.

The record on appeal reveals that Childers was indicted for first-degree robbery, and that pursuant to a plea agreement with the State he pleaded guilty to a reduced charge of second-degree robbery. He did not appeal his conviction. He has now filed a petition seeking postconviction relief.

In his Rule 32 petition, Childers argued that the trial court lacked jurisdiction to accept his guilty plea to a reduced charge of second-degree robbery. He claimed that, under the facts of his case, second-degree robbery was not a lesser offense of first-degree robbery, the charge for which he was indicted. The State moved to dismiss, arguing that the trial court properly accepted Childers's guilty plea because second-degree robbery was a lesser-included offense within the offense of first-degree robbery under the facts of this case. The State further alleged that the petition was procedurally barred by Rules 32.2(a)(3) and (c), Ala. R.Crim. P. The trial court thereafter summarily denied the petition.

The record contains a copy of the transcript of Childers's guilty-plea proceedings. This transcript reveals that during the colloquy, Childers admitted that he committed the robbery with two accomplices. However, Childers's indictment for first-degree robbery does not allege facts indicating that he was aided in this offense by another participant, and the record shows that the indictment was never amended to include the fact that he was aided by other persons in the robbery. Ex parte Cole,842 So.2d 605 (Ala. 2002). Therefore, the circuit court did not have jurisdiction to accept Childers' guilty plea to a charge of second-degree robbery, and its denial of his Rule 32 petition was in error. See Toliver v. State, 881 So.2d 1070 (Ala.Crim.App. 2003).

Based on the foregoing, the judgment of the Jefferson Circuit Court summarily dismissing Childers's Rule 32 petition is reversed, and this matter remanded for that *Page 1025 court to vacate his conviction for second-degree robbery.

REVERSED AND REMANDED.

COBB, BASCHAB, and SHAW, JJ., concur. WISE, J., concurs specially, with opinion.

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