Nichols v. State
Nichols v. State
Opinion
Appellant was convicted of the offense of second degree assault and sentenced to 20 years' imprisonment pursuant to the provisions of the Alabama Habitual Felony Offender Act. From said conviction and sentence, this appeal follows. For the reasons outlined below, the judgment and sentence of the trial court are due to be affirmed.
On May 30, 1982, the appellant was driving an automobile which was involved in a collision with another vehicle. Approximately ten months later, the driver of the other vehicle died of injuries which he sustained in the accident. As a result, the appellant was indicted for murder, as well as vehicular homicide. After a trial by jury, a verdict was returned finding the appellant guilty of assault in the second degree. At a separate sentencing hearing, the appellant was sentenced as a habitual offender to 20 years' imprisonment.
On appeal, the appellant raises the following issues: (1) whether proper proof of appellant's prior convictions for purposes of the Alabama Habitual Felony Offender Act was made by the State; (2) whether the appellant was given adequate notice of the State's intent to proceed under the Alabama Habitual Felony Offender Act; and (3) whether the appellant was denied due process of law when the State did not elect the offense for which it would proceed under the indictment.
As a general rule, an objection must be made at the trial court level to preserve for appellate review any issue concerning the validity of prior convictions to be used for sentence enhancement purposes. Campbell v. State,
At the sentencing hearing, it is apparent that the appellant did not question the validity of the prior convictions but merely questioned his status as a youthful offender at the time. Those portions of the record which support this position are as follows:
1. Defense counsel told the trial court that his client's "impression" was that "he was sentenced as a youthful offender in 1976 on these three cases that he was sentenced on that ran concurrently." Counsel then stated: "We have checked the record, and the record indicates otherwise, but that was his impression." Thus, the appellant did not deny the validity of the convictions but merely questioned his status as a youthful offender in connection with these prior convictions.1
2. After discussing (with the appellant) the possibility of a continuance of the sentencing hearing, defense counsel stated: "Neither he nor I see any advantage of asking for a continuance because the record speaks for itself. He misunderstood the way he was sentenced, but the record contrary to what he understood it would still be that way no matter if we get time or don't for sentence." Again, construing this statement as an "objection," it is apparent that the validity of the convictions was not questioned and merely the status at the time was discussed.
3. When asked to respond to the information contained in the presentence report, defense counsel stated that the appellant was "apparently sentenced as an adult, that it was his impression and understanding at the time that he was being sentenced as a youthful offender. Of course, I would like to point out to the court that both he and I have looked at the record on those three cases, and the records of the sentence are contrary to what he understood."
In the alternative, even if the above referenced portions of the transcript rise to the status of an "objection," it is apparent that the appellant did not carry his burden of proof to support the objections.
At the sentencing hearing, a presentence report was admitted into evidence by the State which shows that the appellant began his extensive criminal record in 1974 and has continued it even after the commission of the present offense. For sentence enhancement purposes, three felony convictions, pursuant to guilty pleas entered in 1976, were offered by the State. As these convictions affirmatively show, the appellant waived his right to youthful offender status in connection with these 1976 offenses. As noted previously, however, the sentencing report also indicates that, in 1975, the appellant requested and received treatment as a youthful offender for offenses which he committed in the year 1975. The record also reveals that the appellant was represented by counsel at the time of the 1976 convictions. Although the appellant now asserts that the State did not "affirmatively show" that he was represented by counsel at the time of the prior convictions, this issue cannot be raised for the first time on appeal. *Page 85
Even construing the above-referenced portions of the transcript as "an objection," it is apparent that the ground for an objection was not raised at the trial court level. Thus, the "objection," if any, has been waived, since "specific grounds of an objection to evidence waives all other grounds." (Citation omitted.) Crittenden v. State, supra, Gilbert v.State, supra. This court can consider, on appeal, only those issues which were raised at the trial court level. Brooks v.State,
"Your Honor, I have discussed it with my client, the pros and cons concerning whether or not raising the issue of whether or not he had proper notice prior to sentencing on these previous convictions and neither he nor I see any advantage of asking for a continuance because the record speaks for itself. He misunderstood the way he was sentenced, but the record contrary to what he understood it would still be that way no matter if we get time or don't for sentence." (Emphasis added.)
Since there was no objection to the adequacy of the notice given at the trial court level, there is no error for consideration on appeal. Weaver v. State,
AFFIRMED.
All the Judges concur.
Reference
- Full Case Name
- Jerry Nichols v. State.
- Cited By
- 6 cases
- Status
- Published