Hinkle v. State

229 So. 3d 802
CourtCourt of Criminal Appeals of Alabama
DecidedSeptember 9, 2016
DocketCR-15-0615
StatusPublished

This text of 229 So. 3d 802 (Hinkle 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
Hinkle v. State, 229 So. 3d 802 (Ala. Ct. App. 2016).

Opinion

WELCH,Judge.

The appellant, Tami Lynn Hinkle, was indicted for . 39 counts of theft of property—3.3 counts of theft in the first degree and 6 counts of theft in the second degree, Hinkle pleaded guilty to 17 counts of theft of property in the first degree and to 3 counts of theft of property in the second degree for her theft of over $500,000, from the law firm where she was a secretary. She was sentenced to 10 years’ imprisonment for 11 counts: Counts IV, VI, VIII, X, XII, XVI, XVIII, XXIV, XXVI, XXVIII, and XXX; and to 3 years’ imprisonment for 9 counts: Counts I, XIV, XX, XXII, XXXII, XXXIV, XXXVI, XXXVIII, and XXXIX of the indictment. The circuit court also ordered that all of Hinkle’s sentences be served consecutively and that Hinkle pay $350,000 in restitution.1

Initially, we note that the record does not contain any formal adjudication of guilt on the 20 charges. However, this Court has jurisdiction over Hinkle’s appeal based on the Alabama Supreme Court’s opinion in Ex parte Eason, 929 So.2d 992 (Ala.2005).

Eason contended on appeal that the appellate court did not have jurisdiction over his appeal absent a formal adjudication of guilt. Ex parte Eason addressed the meaning of “adjudication” as follows:

“Although the Alabama Rules of Criminal Procedure'do not undertake to define ‘adjudication,’ we may consider, by analogy, Rule 58(b), Ala. R. Civ. P:, which provides: ‘A judgment or order, or the minute entry thereof, need not be phrased in formal language nor bear particular words of adjudication. The judgement or order, or the minute entry thereof, will be sufficient if it .. .• indicates, an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication.’ (Emphasis supplied.)”

929 So.2d at 995.

The Alabama Supreme Court held that “[t]he trial court’s determination of guilt and the entry of the sentence adequately establishes that the trial court adjudicated Eason guilty and that the conviction and sentence were ripe for appeal.” Ex parte Eason, 929 So.2d 995-96 (emphasis added). The Court further held that, where the record as a whole discloses a determination of guilt and the entry of the sentence, there is an “implicit adjudication” of guilt.

Later, in Ex parte Walker, 152 So.3d 1247, 1252 (Ala.2014), the Alabama Supreme Court called into, question what was meant by the term, “pronouncement of a sentence,” but that Court again stated that, “[wjhen both a determination of guilt and a sentence are evident from the record, a judgment of conviction is set forth, and a defendant’s case is ripe for appeal.” Ex parte Walker, 152 So.3d at 1252. Ex parte Walker did not overrule Ex parte Eason, either explicitly or implicitly.

The Alabama Supreme Court then released Ex parte Kelley, [Ms. 1131451, No[805]*805vember 6, 2015] — So. 3d-(Ala.2015), clarifying what was meant by “entry of sentence.” Kelley was tried by a jury for two counts of capital murder and one count of sexual torture. The jury convicted Kelley of all three counts, and at the sentencing hearing the trial court adjudicated Kelley guilty of both counts of capital murder and sentenced him to, death. The trial court did not state on the record that Kelley was found guilty of ■ sexual torture and did not sentence Kelley on the record for that offense. However, the trial court’s written sentencing order stated that Kelley was being sentenced to life in prison for his sexual-torture conviction.

Kelley argued to the Alabama Supreme Court that this Court had not had jurisdiction to affirm his sexual-torture conviction. He argued that “no judgment of conviction was entered on the sexual-torture conviction because ... the trial court did' not pronounce a sentence on that conviction.” Ex parte Kelley, — So. 3d at-. The Kelley Court rejected the State’s argument that Ex parte Eason stood for the proposition that the trial court’s failure to pronounce sentence on the sexual-torture conviction was “merely a procedural defect” that did not interfere with the appellate court’s jurisdiction. The Kelley Court stated:

“Ex parte Eason is distinguishable from the present case. In Ex parte Eason, the trial court had sentenced the defendant to five years’ imprisonment following a guilty plea, but it did not formally pronounce the defendant’s guilt or enter a judgment of guilt. 929 So.2d at 992. This Court held that the trial court’s entiy of a sentence ‘adequately established that'the trial court adjudicated [the defendant] guilty and that the conviction and sentence were ripe for appeal.’ 929,So.2d at 996. In so doing, this Court recognized the proposition that ‘a judgment by the [trial] court imposing, sentence in accordance with a guilty verdict or a guilty plea sufficiently implies- the judgment of guilt-and serves as a judgment of conviction that will support an appeal.’ 929 So.2d at 995.
“Thus, in- Ex parte Eason, this Court held that a judgment of conviction is entered when the trial court enters a sentence that is consistent with a determination of guilt, even though that determination of guilt is not explicitly set out in the record. In the présent case, however, the trial court failed to pronounce a sentence on Kelley’s' sexual-torture conviction.”

Ex parte Kelley, — So. 3d at —.

Thus, in Ex parte Kelley, the Alabama Supreme Court made clear that1 imposing a sentence required an oral pronouncement 'and, thus, that a written sentencing order, alone, would not suffice. However, that Court did not overrule its holding in Ex parte Eason allowing an implicit adjudication where the totality of the record discloses the trial court’s determination of guilt and a pronouncement of the sentence. See Ex parte Eason, 929 So.2d at 995-96.

Therefore, as in Ex parte Eason, the record here discloses the trial court’s determination of guilt and a pronouncement of sentence, and this case is ripe for appeal.

I.

Hinkle first argues that the circuit court abused its discretion in sentencing her to a total of 137 years in the state penitentiary when the sentencing guidelines recommend a sentence of between 22 to 69 months for each conviction, In support of this argument, Hinkle asserts that her sentence is much longer than other [806]*806sentences for theft convictions,2 that her sentence prevents her from paying restitution to the victims, and that her sentence is contrary to the stated goals of the sentencing guidelines.

Here, the record shows that in January 2015 the State filed notice of its intent to seek a departure from the sentencing guidelines. In its motion, the State asserted that the departure was warranted because the following aggravating circumstances were present in Hinkle’s case:

“1. The offenses made the basis of this cause, viz; Theft I and Theft II, involved the taking of money of great monetary value, viz; monies aggregating more than $593,000.
“2. Each of the offenses charged in the indictment returned in the above-captioned was committed while [Hinkle] was on supervised probation from a conviction in the Circuit Court of Madison County, Alabama in case number CC 09-4240.
“3. The amount of money [Hinkle] stole in the aforesaid Madison County case together with incidental items of restitution aggregated more than $160,000.
“4.

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Related

Sanders v. State
38 So. 3d 639 (Court of Appeals of Mississippi, 2010)
Holden v. State
820 So. 2d 158 (Court of Criminal Appeals of Alabama, 2001)
Ex Parte Eason
929 So. 2d 992 (Supreme Court of Alabama, 2005)
Ex Parte Parks
923 So. 2d 330 (Supreme Court of Alabama, 2005)
Walker v. State
152 So. 3d 1247 (Supreme Court of Alabama, 2014)
Hyde v. State
185 So. 3d 501 (Court of Criminal Appeals of Alabama, 2015)
Sims v. State
741 So. 2d 1117 (Court of Criminal Appeals of Alabama, 1999)

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Bluebook (online)
229 So. 3d 802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinkle-v-state-alacrimapp-2016.