Steeley v. State

567 So. 2d 398, 1989 Ala. Crim. App. LEXIS 2495, 1989 WL 163459
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 29, 1989
Docket7 Div. 217
StatusPublished
Cited by2 cases

This text of 567 So. 2d 398 (Steeley 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
Steeley v. State, 567 So. 2d 398, 1989 Ala. Crim. App. LEXIS 2495, 1989 WL 163459 (Ala. Ct. App. 1989).

Opinion

TYSON, Judge.

James W. Steeley, Jr. was cited for speeding, in violation of § 32-5A-171, Code of Alabama 1975, on January 12, 1988. On February 17, 1988, the Calhoun County, Alabama, District Court found this appellant guilty and fined him $62.50. The appellant appealed to the Calhoun County Circuit Court, and, on December 2-, 1988, was given a trial de novo. The petit jury found the appellant “guilty as charged.” The trial judge sentenced the appellant to ten days in the county jail and fined him $100.

The appellant stated that he was a “nonpracticing licensed attorney” (R. 3) and wished to proceed pro se. The trial judge granted the appellant’s request.

The appellant now files this appeal and a companion case (7 Div. 217-A), again proceeding pro se. In each case, the appellant raises four issues in his briefs. The first three issues in both cases are identical. The fourth issue, however, in each case differs.

I

The appellant first contends that the procedures set out in § 32-5A-8, Code of Alabama 1975, denied him due process of law.

The appellant also claims that the trial judge abused his discretion when he sentenced this appellant to a more severe punishment than he received in the district court. Furthermore, the appellant alleges that the trial judge erred by using prior speeding convictions to enhance his sentence.

Since these three issues are so interrelated, we will address them together.

This appellant, in a matter of a week, received two speeding tickets. He paid fines of $62.50 for each ticket to the Calhoun County District Court. He then appealed to the Calhoun County Circuit Court, challenging both tickets.

[400]*400The appellant received the first ticket on January 6, 1988. He was fined by the district court on February 17, 1988. He appealed to the circuit court, and a trial de novo was held on November 29, 1988. (CC # 88-177.) The petit jury returned a verdict of guilty as charged.

The appellant was again ticketed on January 12,1988. He was fined by the district court on February 6, 1988. He appealed to the circuit court, and a trial de novo was held on December 2, 1988. (CC-88-176.) This petit jury, likewise, returned a verdict of guilty as charged.

A sentencing hearing was held on December 29, 1988, on both convictions. A report was provided to the trial court which disclosed this appellant’s prior driving record. He received a speeding ticket in Etowah County, Alabama, in 1986. He received a second speeding ticket in Etowah County on January 12, 1988, the same day as one of the tickets he received in Calhoun County, Alabama. He was convicted on both tickets in the Etowah County Circuit Court.

The trial judge, however, refused to use the two Etowah County convictions as prior offenses, because of problems with timing and remoteness. Instead, the trial judge counted the two convictions in his court as convictions number one and two for purposes of the sentencing statute. Ala.Code § 32-5A-8 (1975).

A

On the first conviction, the trial judge sentenced the appellant to ten days in the county jail, plus costs. On the second conviction, the trial judge sentenced him to ten days in the county jail and fined him $200, plus costs.

The sentencing statute which this appellant now challenges is set out as follows:

“(a) It is a misdemeanor for any person to violate any of the provisions of this chapter or of Title 32, unless such violation is by this chapter or other law of this state declared to be a felony.
“(b) Every person convicted of a misdemeanor for a violation of any of the provisions of this chapter for which another penalty is not provided, shall for a first conviction thereof be punished by a fine of not more than $100.00 or by imprisonment for not more than 10 days; for conviction of a second offense committed within one year after the date of the first offense, such person shall be punished by a fine of not more than $200.00 or by imprisonment for not more than 30 days or by both such fine and imprisonment; for conviction of a third or subsequent offense committed within one year after the date of the first offense, such person shall be punished by a fine of not more than $500.00 or by imprisonment for not more than three months or by both such fine and imprisonment.”

Ala.Code § 32-5A-8 (1975).

Clearly, this statute provides for enhanced punishment if the accused has two or more convictions which occurred within a one-year time span. Since the trial judge considered only the two speeding convictions in Calhoun County, Alabama, which occurred within three days of each other, enhancement of sentencing was proper. Furthermore, our review of the record discloses that this appellant was sentenced within the mandates of the challenged statute.

B

The appellant’s contention that he was not represented by counsel at either conviction is likewise without merit. The record discloses, without question, that this appellant waived the right to counsel and chose to represent himself. Additionally, the colloquy between the trial judge and this appellant before each trial discloses that the appellant claimed to be a “nonpracticing licensed attorney.” The right to counsel may be waived. Smith v. State, 471 So.2d 501, 503 (Ala.Cr.App.1984).

C

The appellant claims further that § 32-5A-8, Code of Alabama 1975, denies an accused due process of law, because it allows a trial judge to sentence the accused [401]*401to a more extreme sentence than he received in the district court. In effect, the appellant argues that he was punished for exercising his statutory and constitutional right to an appeal. See U.S. Const, amend. XIV; North Carolina v. Pearce, 395 U.S. 711, 723-24, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969).

In this vein, the appellant avers that the trial judge in the circuit court acted vindictively by sentencing him to jail time and higher fines than he received in the district court. As a result, the appellant argues that the trial judge abused his discretion.

The United States Supreme Court stated in Pearce, as follows:

“In order to assure the absence of such a motivation [for vindictiveness], we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing hearing.”

Pearce, 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670.

The State responded in its brief that the Pearce analogy was not directly applicable to the situation at hand. Here, as previously stated, the appellant appealed his conviction to the circuit court and received a trial de novo.

The State cites this court to Blackledge v. Perry,

Related

Reese v. City of Dothan
642 So. 2d 511 (Court of Criminal Appeals of Alabama, 1993)
Steeley v. State
567 So. 2d 397 (Court of Criminal Appeals of Alabama, 1989)

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Bluebook (online)
567 So. 2d 398, 1989 Ala. Crim. App. LEXIS 2495, 1989 WL 163459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steeley-v-state-alacrimapp-1989.