Hawkins v. State

268 So. 2d 492, 49 Ala. App. 26, 1972 Ala. Crim. App. LEXIS 784

• Court: Court of Criminal Appeals of Alabama
• Decided: October 24, 1972
• Docket: 2 Div. 97-99
• Status: Published

Opinions

CATES, Presiding Judge.

This opinion consolidates our views as to the disposition of three appeals from judgments arising from pleas of guilty.

I

No brief strictly within the purview of Supreme Court Rule 9 has been filed on behalf of the appellant, an indigent. Nevertheless, for the purposes of due process the label and format of counsel’s argument are not controlling. Nickols v. Gagnon, 7 Cir., 454 F.2d 467.

The former Court of Appeals (in discussing compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493) held that “assignments of error” (though not required in our criminal appellate practice — Code 1940, T. 15, § 389) would suffice, when appropriately drawn, as briefs for indigent appellants. Williams v. State, 44 Ala.App. 618, 217 So.2d 830.

Assignments of Error have been appended to each of the records filed here.

II

In 2 Div. 97 (Cir.Ct. No. 4055) the charge was for robbery. Code 1940, T. 14, § 415.

It is argued by appellant that since the punishment was set by the judge without the intervention of a jury the assessment was void because § 415, supra, prescribes that the punishment be “at the discretion of the jury.”

In Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858, the former Court of Appeals stated:

“All of these authorities adhere to the rule that the statutory duty of the jury to fix punishment is mandatory and the trial court cannot relieve the jury of this prerogative. * * * ”

However, after the amendment of Code 1940, T. 15, § 277, by Act No. 1061 of September 12, 1969, when a defendant pleads guilty before trial (as Hawkins did in the instance sub judice) the trial court may fix the punishment without the intervention of a jury. This also covers the ascertainment of the degree of the offense as obtains, for example, in our statutory homicide.

In Holcomb v. State, 48 Ala.App. 684, 267 So.2d 476, we held that amended § 277, supra, being later enacted, necessarily modifies pro tanto the statutory interpretation embraced in Jenkins, supra.

III

We have examined the colloquies between the bench and the prisoner before the acceptance of the pleas. These were transcribed by the court reporter, a procedure approved in Walcott v. State, 288 Ala. 546, 263 So.2d 178. An alternate mode is shown with approval in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602, appendix.

The instant three colloquies are identical. They cover:

1. The court’s defining robbery, kidnaping and larceny. However, the latter crime was not expressed in the intricate terms used in Code 1940, T. 14, § 331 as amended. In particular no distinction was drawn between grand and petty larceny, T. 14, § 334. Nor was any mention made of the “joy riding” statute, T. 14, § 339.¹

2. The court then asked if the appellant understood that each of the three offenses called for separate sentences.

3. The court pointed out that the guilty pleas also obviated appellant’s earlier pleas of not guilty by way of insanity-

4. After telling appellant that he was entitled to a trial by jury the court then asked, “Do you wish to waive the right to a trial by jury?” Appellant said, “Yes, sir.”

5. Appellant stated that he understood that the State had the burden to prove him guilty beyond a reasonable doubt.

6. Appellant understood, so he said, that “punishment in these cases could run anywhere from ten years to the death penalty.” ²

7. Appellant told the court that he had discussed “this” with his attorney.

[Then in a colloquy with defense counsel the bench was assured that (a) counsel had advised appellant of “his rights,” (b) counsel, after talking with appellant, thought it was the best thing to do, and (c) counsel understood from “the situation,” appellant’s plea of guilty was voluntary.]

8. Appellant assured the court that his three pleas of guilty were voluntary and of his own desire after discussing the facts involved with his attorney.

The court then proceeded to find and adjudged the appellant guilty separately of each offense.

The sentence for robbery was set at thirty years, those for kidnaping and grand larceny at ten years each. The latter were fixed to concur with the thirty year term.

In the above colloquy we find significant omissions of the Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, mandates as to:

a) The right to a public trial;

b) The verdict of guilty must come from a jury of twelve;

c) The right against self-incrimination ;

d) The right to choose to waive that right and testify in one’s own behalf;

e) The right to confront and cross-examine one’s accusers, i. e., all prosecution witnesses; and

f) The right to subpoena defense witnesses and have compulsory process for their attendance.

We note that Ireland, supra, had seemingly not then been published.

Also, propter aliud examen, we call the trial court’s attention to Code 1940, T. 15, § 287, as to the punishment for robbery and grand larceny which may or may not have occurred here in the same transaction. We also advise asking the defendant as to any inducements, vel non, made to get his plea. See Ireland, supra.

Because of the above pointed out omission to cover the pertinent distinction between grand larceny and petty larceny and for the omissions listed under a) through f) above, the judgments in these three causes are due to be reversed. Therefore, the causes are remanded to the circuit court for further proceedings consistent herewith.³

Reversed and remanded.

HARRIS and DeCARLO, JJ., concur. ALMON, J., concurs in result. TYSON, J., concurs specially with opinion.

1 . We do not mean to say that the court should ask the defendant if he understands the intricacies of lesser or related offenses. We do think that it would he well for the court to ask counsel if he has pointed this out to his client. We do not think a trial judge has any duty under Boykin to explore plea “copping.”

The enquiry under Boykin goes basically to an informed and understanding waiver of the defendant’s right to stand on making the State, from the evidence, convince a jury of twelve unanimously beyond a reasonable doubt that the defendant did that of which the grand jury accused him.

2 . Kidnaping simpliciter carries a range of punishment of “not less than two nor more than ten years.” Code 1940, T. 14, § 6. However, this lapsus linguae was harmless because the thirty year sentence for robbery with which the others ran concurrently does away with any prejudicial injury.

3 . T)ie writer regrets that Alabama, unlike most of the other States, except for Code 19-10, T. 15, § 266, still permits a man to plead guilty and then like a Whirling Dervish tergiversate and take an appeal. With the increasing superintendence of the Federal courts, no miscarriage of justice in this field should be anticipated. Boykin is a Federal creation and should be Federally policed.