Opinion
CR 89-1099.
November 16, 1990. Rehearing Denied February 1, 1991.
Appeal from the Circuit Court, Escambia County, No. CC-89-06, Bradley E. Byrne, J.
Everette A. Price, Jr., Brewton, for appellant.
Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
The appellant was convicted of theft of property in the first degree and was sentenced to life, pursuant to the Habitual Felony Offender Act. Certified copies of three prior felony convictions, arising out of Florida, were admitted against the appellant at the sentencing hearing. Defense counsel did not object and indicated to the court that he had reviewed them. Following this sentencing hearing, the State moved to set aside the sentence and served the appellant with written notice of the prior convictions. The appellant was thereafter resentenced.
On appeal, the appellant argues that the three prior convictions were improperly used against him, because he did not receive proper notice of them before his initial sentencing hearing. The record indicates that, during cross-examination of the appellant at trial, the appellant admitted to having been convicted of two of the three prior offenses which were used for enhancement purposes at trial, as well as another conviction which was not used. Thereafter, following the conviction, the prosecutor moved to postpone sentencing and indicated that the State had notice of a number of prior convictions of the appellant; however, the prosecution stated that it was not satisfied that all of them were properly authenticated and therefore asked for a continuance. The record includes a case action summary which indicates that sentencing was held on November 1, 1989, and that the appellant was sentenced to life imprisonment on the basis of three prior felonies, arising from Florida. On November 2, 1989, the State filed written notice to the appellant of these three same three prior felonies and filed a motion to set aside the sentence and a request for resentencing on the grounds "[t]hat the three sentences offered by the State of Alabama to enhance Defendant's sentence were introduced [the defendant's] without having received notice that the State intended to use said convictions." Thereafter, on November 9, 1989, a second sentencing hearing was held, during which the appellant objected to the use of the three prior convictions on the grounds that he did not receive proper notice prior to the first sentencing hearing. These same three prior convictions were used at the second hearing.
Although the appellant cites Ex parte Williams, 510 So.2d 135 (Ala. 1987), Ex parte Glover, 508 So.2d 218 (Ala. 1987), and Pardue v. State, 571 So.2d 320 (Ala.Cr.App. 1989), reversed on other grounds, 571 So.2d 333 (Ala. 1990), this case is factually distinguishable. In the present case, the resentencing hearing was held pursuant to the State's motion one day following the original sentencing hearing. The trial court ruled the original sentencing hearing to be void, and the appellant received seven days of proper notice prior to the resentencing. Such notice was sufficient. Hinton v. State, 473 So.2d 1125 (Ala. 1985). Thus, any error was corrected at the trial level, prior to the filing of the notice of appeal. Because the first sentencing hearing was held to be void and the proper procedures for sentencing were thereafter fulfilled while the trial court still retained jurisdiction, the original sentencing hearing was moot and a nullity for purposes of appeal. See Ray v. State, 484 So.2d 524, 528 (Ala.Cr.App. 1985). See also Rule 60(b), Alabama Rules of Civil Procedure. Thus, we find no error in the appellant's sentencing.
AFFIRMED.
All Judges concur, except BOWEN, J., who dissents with opinion.
Appellant is entitled to be resentenced without application of the Habitual Felony Offender Act, because he was not notified, prior to his first sentencing, of the prior convictions upon which the State intended to rely.
The State's attempt to remedy the lack of notice by moving the trial court to set aside the first sentence and to resentence appellant in accord with Rule 6(b)(3)(ii), cannot compensate for the failure to properly invoke the Habitual Felony Offender Act the first time. The Act is not self-executing; it "prescribes certain triggering requisites," Ex parte Glover, 508 So.2d at 220, and it is "invoked" by the prosecutor's giving notice.
" Ex parte Williams, 510 So.2d at 136, holds that, in order to sentence a criminal defendant under the Habitual Felony Offender Act, the Act must be invoked prior to the defendant's original sentencing and a sentence may not be subsequently set aside because of a failure to apply the Act." Glover v. State, 508 So.2d at 221 (Ala.Cr.App. 1987) (on return to remand). (Emphasis added.)
In Jackson v. State, 566 So.2d 758 (Ala. 1990), the Alabama Supreme Court reiterated that " Glover and Williams stand for the proposition that the Habitual Felony Offender Act cannot be applied if the defendant was not given proper notice before the first sentencing hearing." (Emphasis added.)
Here the appellant was not given notice before his first sentencing hearing. Therefore, because the Habitual Offender Act was not initially "invoked," Glover and Williams prohibit the State from seeking, at a second sentencing, to proceed under the Act. See also Ex parte Randle, 554 So.2d 1138, 1139 (Ala. 1989) (State may attempt, at second sentencing, to cure deficiency in proof of prior convictions offered at first sentencing only if defendant "was put on notice at the original sentencing hearing that the State intended to offer evidence of his prior felony convictions").
Jackson v. State also makes it clear that appellant may not, on resentencing, be punished as a habitual offender on the basis of any prior convictions other than the three from Florida which the State introduced. " Hinton v. State, 473 So.2d 1125 (Ala. 1985), and Porter v. State, 505 So.2d 1292 (Ala.Cr.App. 1986), both stand for the proposition that the State may use at a second sentencing hearing convictions other than those it used at the first hearing, provided that proper notice had been given both times." Jackson v. State, 566 So.2d at 760 (emphasis in original).