Snowden v. State

842 So. 2d 24, 2002 WL 126980

Opinions

On November 6, 1997, pursuant to a negotiated agreement, the appellant, David Steven Snowden, pled guilty to first-degree robbery. Applying the firearm enhancement set forth in § 13A-5-6(a)(4), Ala. Code 1975, the trial court sentenced him to serve a term of twenty years in prison. He filed a notice of appeal, but we dismissed the appeal as untimely filed. See Snowden v. State, (CR-00-2137, July 12, 2001)837 So.2d 899 (Ala.Crim.App. 2001) (table). On August 21, 2001, the appellant filed a Rule 32 petition, challenging his conviction and sentence. After the State responded, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that his sentence exceeds the maximum authorized by law or is otherwise not authorized by law because the trial court allegedly improperly applied the ten-year firearm enhancement set forth in § 13A-5-6(a)(4), Ala. Code 1975, to his base sentence of ten years in prison. Specifically, he contends that, although he represented that he was armed, he did not actually have a firearm at the time of the robbery. He further notes that, during the guilty plea colloquy, the trial court stated:

"[I]f this case involves the use, or threat of use, of a firearm, or deadly weapon, and the plea agreement indicates that it did, the law provides that for the commission of class A felony the term of imprisonment must be not less than twenty years. . . .

"I have been handed a plea agreement whereby you propose to plea guilty to robbery first degree and a recommended sentence of twenty years; which, according to the enhancement, involves the use of, or threat of, use of a firearm."

(R. 11-12.)¹ Finally, he concludes that "[t]he Court improperly imposed the additional ten (10) year sentence based upon the mistaken belief that the firearm enhancement provision of § 13A-5-6(a)(4),Code of Alabama (1975), included the `threat of use of a firearm.'" (Appellant's brief at p. 7.)

The appellant's argument may be meritorious. The firearm enhancement set forth in § 13A-5-6(a)(4), Ala. Code 1975, applies only in those cases "in which a firearm or deadly weapon was used or attempted to beused in the commission of the felony." In this case, based on statements it made during the guilty plea proceedings, it appears that the trial court mistakenly believed that the firearm enhancement could be applied even in cases in which the defendant only represented that he was armed with a firearm. However, such an interpretation is contrary to the plain language of § 13A-5-6(a)(4), Ala. Code 1975. During the Rule 32 proceedings, the State did not specifically refute, and the circuit court did not address, the appellant's contention. Therefore, we remand this case to the circuit court with instructions that that court make specific, written findings of fact as to the appellant's contention. On remand, the circuit court may allow the State to amend its response and may conduct an evidentiary hearing. If the circuit court finds that the appellant's argument is meritorious, it may grant appropriate relief. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include any amended filings by the State; the circuit court's specific, written findings of fact and order, if any; a copy of the plea agreement, if it is available; and a transcript of the evidentiary hearing, if any.

REMANDED WITH INSTRUCTIONS.^*

COBB and SHAW, JJ., concur; WISE, J., dissents, with opinion, which McMILLAN, P.J., joins.

¹ The record before this court does not include a copy of the plea agreement.

^* Note from the reporter of decisions: On March 15, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On April 5, 2002, that court denied rehearing, without opinion. On August 16, 2002, the Supreme Court denied certiorari review, without opinion (1011395).