Clift v. State

352 So. 2d 836, 1976 Ala. Crim. App. LEXIS 2020

• Court: Court of Criminal Appeals of Alabama
• Decided: November 2, 1976
• Docket: 8 Div. 720
• Status: Published

Opinion

HARRIS, Judge.

Appellant was convicted of robbery and sentenced to ten years in the penitentiary.

Appellant moved the trial court to enter an order that the ten year sentence for robbery be made concurrent with a twenty-five year sentence for murder in the second degree which arose out of the same transaction and occurrence for which he was subsequently convicted of robbery.

The trial court made the following order:

“IN CIRCUIT COURT FOR MADISON COUNTY, ALABAMA

STATE OF ALABAMA,

PLAINTIFF

VERSUS CASE NO. 74-718F

BILLY RAY CLIFT,

DEFENDANT

“The defendant has moved that the Court order that the sentence of ten (10) years imprisonment imposed upon the defendant on June 17, 1975, following his conviction of robbery, be served concurrent with the sentence of twenty-five (25) years imprisonment imposed upon him on April 7, 1975, following his conviction of murder in the second degree in case number 74-720F. Upon consideration of the motion the Court is of the opinion that the motion is due to be, and the same is hereby, denied. Jones v. State, 316 So.2d 713 (1975).

“This 15th day of April. 1976.

fsig-nedl Wm. D. Pap-e_

CIRCUIT JUDGE”

The sole and only issue presented on this appeal is whether the ten year sentence for robbery should be concurrent with the prior sentence of twenty-five years for murder in the second degree. We hold that appellant is entitled to the relief sought. Burress v. State, 56 Ala.App. 414, 321 So.2d 752.

It is, therefore, the order and judgment of this Court that the sentence of ten years imposed upon appellant following his conviction of robbery on June 17, 1975. (Circuit Court Case No. 74-718F), is to run concurrently with the first ten years of the twenty-five year sentence imposed upon appellant following his conviction for murder in the second degree on April 7,1975. (Circuit Court Case No. 74-720F). The murder conviction was not appealed.

Robbery conviction is affirmed but cause remanded for concurrent sentence.

All the Judges concur, except CATES, P. J., not sitting.